Vargas v. BP America Inc. et al

Filing 30

ORDER signed by Judge Lawrence K. Karlton on 9/20/2011 DENYING in its entirety 22 Motion to Dismiss. (Michel, G)

1
2
3
4
5
6
7
UNITED STATES DISTRICT COURT
8
FOR THE EASTERN DISTRICT OF CALIFORNIA
9
10 ANDREW VARGAS,
NO. CIV. S-10-3130 LKK/GGH
11
Plaintiff,
12
v.
13

O R D E R

BP AMERICA, INC., JEFF
14 FERIS, JILL GEORGIKAS,
STEVE HONIG, TOM HORN,
15 DEB PORTELLO, WAYNE MALIK,
and DOES 1 through 50,
16 inclusive,
17

Defendants.

18
19

/
Plaintiff, a former gasoline truck driver for BP America,1

20 brings a claim of termination in violation of public policy and
21
22
23
24
25
26

1

By stipulation of the parties, the individual defendants in
this case were dismissed without prejudice on March 4, 2011. The
Second Amended Complaint, filed in May, continues to name the
individual defendants, and to refer to them as defendants. During
oral argument on September 12, 2011, plaintiff represented to the
court that he does not intend to reassert claims against the
individual defendants. Accordingly, any references to the
individual defendants as defendants are stricken from the Second
Amended Complaint.
1

1 breach of his employment contract. Pending before the court is a
2 motion to dismiss the Second Amended Complaint (“SAC”). For the
3 reasons stated below, the motion is DENIED in its entirety.
I. Background

4
5 A. Factual Background2
6

Plaintiff Andrew Vargas was hired as a gasoline tank truck

7 driver for Atlantic Richfield Co. on or about 1988. SAC 3:14-16.
8 Atlantic Richfield was acquired by British Petroleum America (“BP”)
9 in 2000. SAC 3: 17-18. Plaintiff’s work was based at a distribution
10 center from which gasoline and petroleum products were distributed
11 to gas stations throughout the Sacramento area.
12

As a petroleum product supplier, BP was subject to laws and

13 regulations including the Federal Motor Carrier Act, the California
14 Vehicle Code, the California Labor Code, and Cal OSHA. These and
15 other laws and regulations to which BP was subject were intended to
16 protect the general public, users of public roads and highways,
17 gasoline customers, and drivers and employees from safety hazards
18 associated

with

the

storage,

transportation,

and

delivery

of

19 petroleum products. The laws and regulations were also intended to
20 protect the environment from these hazards.

During

the

time

21 Plaintiff worked for BP, he received a handbook, letters, and
22 emails from BP relating to safety regulations and procedures. SAC
23
24
25
26

2

The factual assertions in this section are based on the
allegations in Plaintiff’s Second Amended Complaint unless
otherwise specified. For the purposes of this pleading only,
Plaintiff’s facts as asserted will be taken as true. Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555 (2007).
2

1 5: 20-27.
2

At

various

times

during

employment,3

his

Plaintiff

was

3 instructed to ignore or violate the safety practices established in
4 the

handbook,

letters,

or

emails.

Specifically,

on

numerous

5 occasions Plaintiff was instructed to conceal the fact that a
6 gasoline spill in excess of five gallons had occurred and to engage
7 in the practice of dumping gasoline.4 Defendant frequently coerced
8 and

pressured

Plaintiff

to

operate

improperly-balanced

tanker

9 trucks.5 Defendant coerced and pressured Plaintiff to deliver loads
10 of gasoline to gas stations where the storage tanks were not in
11 appropriate condition to store additional gasoline. Plaintiff was
12 disciplined

for

declining

to

deliver

gasoline

under

such

13 conditions, even though the stated policy of the company was to not
14 deliver gasoline to storage tanks that were not in appropriate
15 condition. Plaintiff was frequently criticized by his employer for
16 refusing to transport “split loads,” even though the official
17 company

policy

was

that

drivers

such

as

plaintiff

had

the

18 discretion to not deliver a split load when conditions made it a
19 hazard to do so.6 Plaintiff was compelled by his employer to
20 override the “skully” device, a safety device intended to prevent
21
3

22
23

The SAC does not provide dates for each of these alleged
incidents.
4

What dumping is, and whether it is prohibited by law or
regulation, is not addressed in the complaint.

24
5

25
26

Once again, what an improperly balanced tanker truck is and
whether it is prohibited, is not addressed in the complaint.
6

Again, the complaint does not address what a split load is.
3

1 over-filling of gasoline. Plaintiff was required to take breaks and
2 eat lunch while waiting for his truck to load or unload. Eating
3 near the loading rack is prohibited by Cal OSHA due to risk of
4 exposure to toxic fumes. Plaintiff was instructed to paint over
5 cracked frame rails to conceal the cracks after he reported the
6 cracks during pre-trip inspections of trucks he was driving.
7 Plaintiff was deprived of fifteen-minute rest breaks, creating a
8 higher

danger

to

other

drivers

on

the

roads.

Plaintiff

was

9 threatened with loss of work hours for complaining about a safety
10 hazard caused by a crack in the weld of the rear bulkhead of the
11 truck he was scheduled to drive.
12

On

repeated

occasions,

Plaintiff

complained

to

Atlantic

13 Richfield and to BP about these hazardous conditions, and about
14 being instructed to violate the company’s policies. In addition, in
15 2000, Plaintiff testified about BP’s unfair labor practices before
16 the National Labor Relations Board. SAC 10. On several occasions,
17 Plaintiff

anonymously

complained

about

the

safety

procedure

18 violations via “Open Talk,” a website established by BP to report
19 various safety violations. SAC 11:23-27.
20

On February 5, 2007, Plaintiff received a letter from BP

21 president and chairman Robert A. Malone in response to Plaintiff’s
22 anonymous7 posting on Open Talk. SAC Ex. 1. The letter refers to
23 comments Plaintiff made at some point before October 9, 2006, and
24
7

25
26

It is not clear how Malone delivered the letter to
Plaintiff, given the anonymous nature of the Plaintiff’s web
postings. It is also not clear how Malone knew Plaintiff had made
the series of anonymous postings.
4

1 requests

Plaintiff’s

assistance

in

investigating

dangerous

2 practices at BP. The letter states, “I can guarantee you that you
3 will not be retaliated against for raising safety concerns. It is
4 against our policy, against my personal principles, and against the
5 law.”

Plaintiff

disclosed

his

identity

to

Mr.

Malone

and

6 participated in the investigation. Plaintiff met with a BP attorney
7 to discuss safety violations, as well as Plaintiff’s allegations of
8 retaliation. The attorney and Mr. Malone made representations to
9 plaintiff that the retaliation would cease and that the safety
10 violations would be investigated and corrected.
11

In response to Plaintiff’s internal and external complaints,

12 defendant retaliated against plaintiff by requiring him to perform
13 hard labor even though defendants had knowledge that Plaintiff was
14 on light duty status due to a back injury that occurred in 2006.
15 For

example,

Plaintiff

was

required

to

pick

up

debris,

move

16 equipment weighing 60 to 80 pounds, pull weeds, scrape pigeon
17 excrement off of concrete, and to clean the uncooled warehouse when
18 temperatures were more than 100 degrees, all of which aggravated
19 Plaintiff’s

back

injury

and

interfered

with

the

efficacy

of

20 Plaintiff’s medication. Additionally, Plaintiff was instructed not
21 to talk to other employees. The complaint does not allege specific
22 dates for these incidents other than that they occurred after
23 plaintiff injured his back in 2006.
24

On

November

10,

2006,

Plaintiff

was

informed

by

human

25 resources manager Jill Georgikas that he was being put “out on
26 disability.” Plaintiff alleges that starting on November 10, 2006,
5

1 Defendant engaged in a course of conduct intended to retaliate
2 against Plaintiff and to cause him to quit his job. This course of
3 conduct

included

4 regarding

contradictory

Plaintiff’s

employment

and

ambiguous

status

and

communications
accommodations;

5 withholding Plaintiff’s mail and memos; and withholding plaintiff’s
6 medical benefits, short and long term disability payments, and
7 workers’ compensation benefits between October or November, 2006
8 until June 8, 2009 when Plaintiff was terminated.8
9

Relying on Mr. Malone’s promise to protect plaintiff from

10 retaliation, Plaintiff complained to BP that he was not receiving
11 responses to his requests for medical benefits. Plaintiff was “cut
12 off” from worker’s compensation benefits in March, 2007, and from
13 his medical and dental benefits in May, 2007. Thereafter, plaintiff
14 contacted BP manager Wayne Malik, Jill Georgikas, Dan Place and
15 other BP employees for assistance securing long-term disability
16 medical benefits. Plaintiff received no response. Plaintiff was
17 ultimately denied long-term disability medical benefits on January
18 24, 2008.9
19

Other allegedly retaliatory conduct by Defendant includes

20 withholding of vacation pay; an order for Plaintiff to stay off BP
21 property;

characterizing

Plaintiff’s

employment

status

as

22
23
24

8

While the court is obliged to give every reasonable
inference to the non-moving party, since workers' compensation is
not controlled by the defendant, the court cannot give this
assertion of retaliation any credence.

25
9

26

Again, this conduct appears to be controlled by the Workers'
Compensation agency and attribution to it seems implausible.
6

1 “suspended without pay,” causing Plaintiff to be ineligible to take
2 out an emergency loan from his pension; and failing to provide
3 reasonable accommodations for his back injury, such as retraining
4 for other positions.10
5

On

March

19,

2009,

BP

informed

Plaintiff

that

the

6 investigation into Plaintiff’s Open Talk safety complaints would be
7 closed.

On

approximately

the

same

date,

BP

communicated

to

8 plaintiff that it was prepared to offer plaintiff less than $30,000
9 to “close out” Plaintiff’s employment.
10

On June 8, 2009, Plaintiff received a notice of termination of

11 his employment.
12 B. Procedural Background
13

Plaintiff originally filed this case in state court, and the

14 case was removed to this court on November 19, 2010. On March 4,
15 2011, this court issued an order dismissing the individual named
16 defendants, leaving only BP as defendant.
17

On March 25, 2011, Defendants filed a motion for judgment on

18 the pleadings. On April 27, 2011, the motion was granted, and
19 Plaintiff was granted leave to amend the complaint. Specifically,
20 the court concluded that Plaintiff had provided sufficient notice
21 to defendant as to the public policy basis for his wrongful
22 termination claim, but that Plaintiff had failed to plead facts
23 allowing the court to infer a nexus between plaintiff’s complaints
24 about safety violations and Plaintiff’s termination. “At a minimum,
25
10

26

Relative to this claim, plaintiff appears not to be making
a claim under the Disability Act.
7

1 in order to adequately plead this [retaliation] theory, plaintiff
2 must at least indicate that the retaliatory conduct began after the
3 alleged protected activity. Without approximate dates attached to
4 the alleged retaliatory incidents, the court is not able to draw an
5 inference

that

the

termination

is

linked

to

his

protected

6 activity.” Plaintiff was granted leave to amend his complaint
7 accordingly. April 27, 2011 Order (“April Order”) at 9, ECF No. 20.
8

With respect to plaintiff’s breach of contract claim, the

9 court

concluded

“plaintiff’s

bare

assertion

that

an

implied

10 agreement [to modify the at-will employment presumption] existed is
11 conclusory and insufficient. . . Basic facts such as the names or
12 titles of relevant parties and the type of statements or conduct
13 which is alleged to give rise to the mutual agreement should be set
14 forth in order to give the defendant fair notice of the grounds of
15 the

claim,

and

to

make

the

existence

of

a

mutual

agreement

16 plausible.” April 27 Order at 10-11.
17

Plaintiff filed a second amended complaint on May 17, 2011.

18 Defendant’s motion to dismiss the complaint is now before the
19 court.
II. Standard for a Motion to Dismiss

20
21

A Fed. R. Civ. P. 12(b)(6) motion challenges a complaint’s

22 compliance with the pleading requirements provided by the Federal
23 Rules.

Under Federal Rule of Civil Procedure 8(a)(2), a pleading

24 must contain a “short and plain statement of the claim showing that
25 the pleader is entitled to relief.”

The complaint must give

26 defendant “fair notice of what the claim is and the grounds upon
8

1 which it rests.”

Bell Atlantic v. Twombly, 550 U.S. 544, 555

2 (2007) (internal quotation and modification omitted).
3

To meet this requirement, the complaint must be supported by

4 factual allegations.

Ashcroft v. Iqbal, ___ U.S. ___, ___, 129 S.

5 Ct. 1937, 1950 (2009).

“While legal conclusions can provide the

6 framework of a complaint,” neither legal conclusions nor conclusory
7 statements are themselves sufficient, and such statements are not
8 entitled to a presumption of truth.

Id. at 1949-50.

Iqbal and

9 Twombly therefore prescribe a two step process for evaluation of
10 motions to dismiss.

The court first identifies the non-conclusory

11 factual allegations, and the court then determines whether these
12 allegations,

taken

as

true

and

construed

in

the

light

most

13 favorable to the plaintiff, “plausibly give rise to an entitlement
14 to relief.”
15

Id.; Erickson v. Pardus, 551 U.S. 89 (2007).

“Plausibility,” as it is used in Twombly and Iqbal, does not

16 refer to the likelihood that a pleader will succeed in proving the
17 allegations.

Instead, it refers to whether the non-conclusory

18 factual allegations, when assumed to be true, “allow[] the court to
19 draw the reasonable inference that the defendant is liable for the
20 misconduct alleged.”

Iqbal, 129 S.Ct. at 1949. “The plausibility

21 standard is not akin to a ‘probability requirement,’ but it asks
22 for more than a sheer possibility that a defendant has acted
23 unlawfully.”

Id. (quoting Twombly, 550 U.S. at 557).

A complaint

24 may fail to show a right to relief either by lacking a cognizable
25 legal

theory

or

by

lacking

sufficient

facts

alleged

under

a

26 cognizable legal theory. Balistreri v. Pacifica Police Dep’t, 901
9

1 F.2d 696, 699 (9th Cir. 1990).

Finally, of course, the complaint

2 must be comprehensible.
III. Analysis

3

4 A. First Cause of Action: Termination in Violation of Public Policy
5

Plaintiff alleges that his refusal to participate in, and

6 complaints and reports of illegal and unsafe conduct by BP was a
7 motivating factor for retaliatory conduct by BP, including his
8 termination on June 8, 2009. SAC 24. Defendant argues that the
9 complaint fails to allege a causal connection between any public
10 policy violation and Plaintiff’s termination because he fails to
11 allege a specific violation of public policy, and because of the
12 long

amount

of

time

that

passed

between

Plaintiff’s

alleged

13 complaints and his subsequent termination.
14

In

California,

a

claim

of

wrongful

termination

in

15 contravention of public policy requires some basis in policy that
16 is delineated in a constitutional or statutory provision. Gantt v.
17 Sentry Ins., 824 P.2d 680, 684 (Cal. 1992). The public policy may
18 also be enunciated in an administrative regulation. Green v. Ralee
19 Eng’g Co., 960 P.2d 1046, 1051 (Cal. 1998). The policy violated
20 must be fundamental and affect a public interest rather than only
21 personal or proprietary interests. Id.; Gantt, 824 P.2d at 684. The
22 language of the law or constitutional provision need not prohibit
23 the exact conduct alleged, but must express a “clearly mandated
24 public policy” that is contravened by the alleged conduct. Id. at
25 1061. “[T]he policy must be public in that it affects society at
26 large rather than the individual, must have been articulated at the
10

1 time of discharge, and must be fundamental and substantial.” Id. at
2 1051 (internal quotations omitted); See also Carter v. Escondido
3 Union High School District, 56 Cal. Rptr. 3d 262, 266 (Cal. Ct.
4 App. 2007). Mere violation of an employer’s own policies, is not
5 protected by the public policy doctrine. “The tort of wrongful
6 discharge

is

not

a

vehicle

for

enforcement

of

an

employer's

7 internal policies or the provisions of its agreements with others.”
8 Turner v. Anheuser-Busch, Inc., 876 P.2d 1022, 1033 (Cal. 1994).11
9 i. The Public Policy
10

With respect to defendant’s first argument–-that Plaintiff

11 fails to allege a specific violation of public policy--this court
12 already held in this case that Plaintiff need not plead the
13 specific

statute

or

regulation

that

was

thwarted

by

his

14 termination. “By alleging that defendant ‘was subject to numerous
15 and various laws . . . intended to protect the general public from
16 safety

hazards

inherent

in

the

storage,

transport,

delivery,

17 pumping, disposal, and other handling of large quantities of highly
18 toxic, flammable and volatile gasoline fumes,’ and ‘were intended
19 to protect the environment from damage,’ and ‘were promulgated
20 and/or enforced by various governmental agencies including but not
21 limited to the United States Congress, Environmental Protection
22 Agency, [and] the State of California . . .’ plaintiff has provided
23 sufficient notice to defendant as to the public policy basis for
24
25
26

11

Of course if the employer’s policy reflects a public policy
as defined above, the employer’s policy may be relevant to
demonstrate intentional conduct for purposes of measuring damages.
11

1 his wrongful termination claim.” April Order 7:14-24. Nonetheless,
2 Defendant argues that Plaintiff fails to state a claim because he
3 “does not allege any specific article or section of any statute to
4 support his claim.” Def.’s Mot. 8.
5

Defendant’s continued reference to Turner v. Anheuser-Busch,

6 Inc., 7 Cal. 4th 1238 (Cal. 1994) is inapposite. There, the
7 California Supreme Court held that the Plaintiff could not survive
8 summary judgment because he did not state the specific statutory
9 provisions delineating a public policy. Plaintiff’s “vague charge
10 of ‘Alcohol, Tobacco, and Firearms laws’ violations,” the Court
11 held, was “plainly insufficient to create an issue of material fact
12 justifying a trial.” Id. at 1257. The Court’s holding on this
13 substantive point of law does not alter the federal pleading
14 requirements, which apply in this case. See, e.g. Tribble v.
15 Raytheon

Co.,

2011

U.S.

App.

Lexis

2895

(9th

Cir.

2011).

16 Accordingly, the court concludes once again that notice pleading
17 does not require Plaintiff to state in his complaint the statutory
18 or regulatory basis of the claimed violation of public policy in
19 order to survive a 12(b)(6) motion to dismiss.12
20 ii. Nexus
21

In order to state a claim for termination in violation of

22 public policy, Plaintiff must assert facts allowing the court to
23 plausibly infer that there was a nexus between the public policy
24 and the termination. In the April Order, this court held that
25
12

26

Of course, in response to discovery, plaintiff will have to
spell out the statutes and regulations he relies on.
12

1 plaintiff, by failing to “allege the approximate dates for any of
2 the incidents alleged to constitute a [retaliatory] course of
3 conduct,” had not adequately demonstrated that a retaliation theory
4 was plausible. April Order 9. “At a minimum, in order to adequately
5 plead this theory, plaintiff must indicate that the retaliatory
6 conduct

began

after

the

alleged

protected

activity.

Without

7 approximate dates attached to the alleged retaliatory incidents,
8 the court is not able to draw an inference that the termination is
9 linked

to

[plaintiff’s]

protected

activity.”

Id.

The

court

10 dismissed the first cause of action on that basis, and granted
11 Plaintiff leave to amend the complaint accordingly.
12

In his SAC, Plaintiff alleges that he made complaints about

13 various health and safety violations “from time to time,” and “at
14 one point.” For example, the SAC states that “on one occasion . .
15 . [plaintiff] stated [to his supervisor] that peening the crack [in
16 a weld on the tanker truck] would not solve the safety hazard.” The
17 supervisor then “threatened him with the loss of work hours if he
18 did not do as he was told.” SAC 9.13 The court cannot infer anything
19 about the date of this occurrence, other than that it occurred some
20 time between 1998, when Plaintiff began his employment with BP’s
21 predecessor, and approximately November 10, 2006, when Plaintiff
22 went out on disability. SAC 13.
23
24
25
26

13

Even if plaintiff does
incidents he alleges, he must be
prior to the retaliation or that
initiation of retaliation, but
intensify retaliation.
13

not recall the dates of the
able to say that they occurred
they occurred subsequent to the
were a cause to continue or

1

However, the court can infer that Plaintiff was subjected to

2 a

retaliatory

course

of

conduct

following

disclosure

of

his

3 identity to BP CEO Robert Malone, culminating in termination. At
4 some point shortly before October 9, 2006, Plaintiff anonymously
5 submitted some concerns to Open Talk. BP CEO and president Robert
6 Malone responded via Open Talk on October 9, 2006. Mr. Malone sent
7 a letter to Plaintiff on February 7, 2007. Ex. 1 to SAC.14 At some
8 point thereafter, Plaintiff disclosed his identity to Mr. Malone.
9 Plaintiff then began meeting with BP’s attorney in a series of
10 briefing meetings throughout 2007, after agreeing to be identified
11 with his anonymous safety complaints and cooperating with an
12 investigation. SAC 12: 9-13. Plaintiff had a final briefing meeting
13 with BP in March 2009, three months before Plaintiff was terminated
14 in June 2009. SAC 20: 1-15.
15

One month after Plaintiff received the letter from PB’s

16 president and agreed to come forward with his safety concerns, BP
17 notified him that his worker’s comp benefits had been “cut off.”
18 SAC 15: 11-22. Prior to this notification in March 2007, Plaintiff
19
20
21
22
23
24
25
26

14

It is unclear to the court how this letter got to plaintiff
before plaintiff revealed his identity to Mr. Malone. The SAC
states that the letter was “sent” to him, but plaintiff only
alleges that he revealed his identity after receiving the letter.
Based on the allegations in the complaint, the court can only infer
that plaintiff’s identity became known to Malone at some point
after February, 2009. Similarly, because plaintiff has not attached
dates to any of his prior safety complaints made directly to
supervisors, the court cannot infer any retaliatory conduct based
on those complaints. Therefore, the court only addresses alleged
retaliatory conduct that occurred after February 2009.
14

1 was not able to get a response about the status of those benefits.15
2

Three months after Plaintiff received the letter from BP’s

3 president, BP informed Plaintiff in May 2007 that his medical and
4 dental benefits had been discontinued. SAC 15: 11-22.
5

For several months after plaintiff received a letter from BP’s

6 president, Plaintiff stopped getting any company mail which would
7 have notified him of his long-term disability benefits status. Five
8 months after receiving the BP president’s letter and agreeing to
9 come forward, Plaintiff physically visited his mailbox at the
10 Sacramento Terminal in July 2007 and was told to leave because a
11 guard had called the police.
12

During the eight month period after Plaintiff received the

13 letter from BP’s president, he was not able to get information he
14 needed about his long-term disability benefits. This changed when
15 Plaintiff met with BP’s attorney Joan Fife and BP’s Human Resources
16 employee Stacey Turner in October 2007. In this meeting, Turner
17 told Plaintiff he had one week to file for the benefits or he would
18 be time-barred from applying. SAC 16: 11-48. Those benefits were
19 denied eleven months after Plaintiff received the letter from BP’s
20 president and agreed to come forward with his safety complaints.
21 The reason BP’s provider denied Plaintiff his long-term disability
22 benefits was because BP’s provider could not establish his identity
23 and “why he was taken out of work” on Nov. 13, 2006. SAC 16: 18-28.
24
25
26

15

Repeating, it is not clear to the court how conduct by an
independent governmental agency can be construed as employer
retaliation.
15

1

Plaintiff appealed this denial and tried to get the status of

2 his employment by calling Jill Georgikas, Dan Place and other BP
3 employees. Id. He was not successful in getting the information,
4 and was again denied benefits by BP’s provider this time, due to
5 lack of medical documentation. SAC 17: 1-13.16
6

Thirteen

months

after

receiving

the

letter

from

BP’s

7 president, Plaintiff applied for an emergency loan from his BP
8 pension in order to prevent his home from going into foreclosure in
9 March 2008. SAC 18: 12-16. However, he was told by his pension fund
10 manager at Fidelity that he could not receive a loan because his
11 employment status was “suspended without pay.” SAC 17:1-13.
12

The court notes that these incidents are relevant only as

13 evidence

of

defendant's

retaliatory

motive

for

terminating

14 plaintiff. The claim for which plaintiff seeks to recover is
15 wrongful termination, not wrongful denial of any benefits or
16 withholding of information. Plaintiff neither seeks nor pleads
17 facts adequate to support recovery for any allegedly retaliatory
18 conduct other than his termination.
19

From these allegations, the court can plausibly infer that BP

20 engaged in a retaliatory course of conduct against Plaintiff,
21 culminating in termination of plaintiff in June 2009. It may be
22 that some of the incidents that plaintiff is asserting after he
23 came forward with his identity upon receiving Mr. Malone’s letter
24 in February 2007, show that BP retaliated against Plaintiff by in
25
16

26

Again, it is not clear how the result is attributable to
defendant.
16

1 some

way

interfering

with

Plaintiff’s

workers’

compensation

2 benefits, medical and dental benefits, and long-term disability
3 benefits
4

Defendant asserts that the 31-month gap between November 10,

5 2006, when Plaintiff went out on disability, and June 8, 2009, when
6 Plaintiff was terminated from his employment, renders any inference
7 of nexus implausible. Defendant describes two alternative theories
8 involving a 28-month, and 23-month gap respectively. Defendant
9 argues that these theories do not plausibly give rise to an
10 inference of nexus between any protected activity by Plaintiff and
11 Plaintiff’s

termination.

However,

during

what

the

defendant

12 describes as a “gap” in time between Plaintiff’s safety complaints
13 and his ultimate termination, Defendant was allegedly engaged in a
14 series of escalating tactics intended to make Plaintiff voluntarily
15 quit

his

job,

such

as

withholding

information

necessary

for

16 plaintiff to get disability benefits. Plaintiff’s theory apparently
17 is that when he did not quit, he was terminated. By attaching dates
18 to his health and safety complaints via Open Talk and to Mr.
19 Malone,

as

well

as

the

dates

of

"retaliatory"

conduct

that

20 followed, Plaintiff has adequately pled a nexus between his alleged
21 protected activity and the asserted retaliatory termination.
22 iii. Preemption
23

Defendant argues that Plaintiff’s claims, insofar as they are

24 premised on denial of workers’ compensation, medical, and dental
25 benefits are preempted by ERISA and by the California Workers’
26 Compensation Act. Plaintiff’s wrongful termination claim, however,
17

1 is not premised on the denial of those benefits. Allegations about
2 interference with those benefits serve to explain the lag in time
3 between Plaintiff’s health and safety complaints and his ultimate
4 termination, and to demonstrate a pattern of retaliatory conduct.
5 Plaintiff does not seek remedies intended to compensate him for the
6 loss of those benefits.
7

Accordingly, defendant's motion to dismiss the first cause of

8 action is DENIED.
9 B. Second Cause of Action: Breach of Employment Contract
10

As his second cause of action, Plaintiff alleges that he was

11 employed

pursuant

to

an

“oral

and/or

implied

agreement

that

12 Defendants [sic] would continue Plaintiff’s employment for an
13 indefinite period of time into the future so long as Plaintiff
14 fulfilled

his

duties

and

obligations

under

the

employment

15 agreement, and that Plaintiff’s employment would not be terminated,
16 except for good cause.” SAC 26: 10-16. Plaintiff alleges that he
17 was terminated without cause on June 8, 2009, in violation of this
18 employment contract. Defendant argues that even if there as a for19 cause

employment

contract,

plaintiff’s

termination

does

not

20 constitute a breach of contract since, according to defendants,
21 plaintiff’s “100% permanent disability” constitutes good cause for
22 termination. Def.’s Mot. to Dismiss 23, ECF No. 22-1.
23 i. “Good cause” employment contract
24

In

California,

employment

is

presumed

to

be

at-will.

25 California Labor Code § 2922. The presumption of at-will contract
26 may be overcome by express contract, or where the parties’ conduct
18

1 demonstrates an implied promise not to terminate without good
2 cause. Guz v. Bechtel National, 9 P.3d 1089, 1100 (Cal. 2000).
3 Courts look to the totality of the circumstances to determine if an
4 employment agreement exists, including the “personnel policies or
5 practices of the employer, the employee’s longevity of service,
6 actions or communications by the employer reflecting assurances of
7 continued employment, and the practices of the industry in which
8 the employee is engaged. Foley v. Interactive Data Corp., 765 P.2d
9 373, 387 (Cal. 1988) (quoting Pugh v. See’s Candies, 116 Cal.
10 App.3d 311, 327 (1981). “Whether the employee has shown that the
11 totality of the circumstances establish an implied employment
12 contract

sufficient

to

overcome

the

presumption

of

at-will

13 employment generally is a question of fact to be determined by a
14 jury.”

3

Witkin

Summary

of

California

Law

§

233

(10th

ed.

15 2005)(citing Foley, 765 P.2d 381).
16

Further, at-will provisions in personnel handbooks or manuals

17 do not necessarily overcome other evidence of the employer’s
18 contrary

intent,

“particularly

where

other

provisions

in

the

19 employer’s personnel documents themselves suggest limits on the
20 employer’s termination rights.” Guz, 9 P.3d 1089, 1103 (Cal. 2000).
21

In this case, Plaintiff alleges that sections of the BP Code

22 of Conduct Policy Manual, the BP Business Policies Manual, BP’s
23 Workplace Performance Development Program, and observations of his
24 supervisors

engaging

in

progressive

discipline

with

coworkers

25 constitute an implied contract not to terminate Plaintiff without
26 cause.
19

1

Plaintiff alleges that BP Group Chief Executive John Browne

2 stated that the BP Code of Conduct “sets out standards for each
3 individual. Failure to observe the code is a cause for disciplinary
4 action which could involve dismissal. All employees must follow
5 this code. Failure to do so is taken very seriously and may result
6 in disciplinary action up to and including dismissal.” SAC 26-27.
7 According to Plaintiff, the Business Policies Manual explains,
8 among

other

things,

“Our

policy

expectations

with

regard

to

9 individuals is that we will act fairly and justly.” SAC 27. The
10 Workplace Performance Development Program states:
11
12
13
14
15
16

when people do their jobs well, they’ve earned the
right to be recognized for their work. When they don’t,
they deserve the right to be told about it and given
the chance to correct the problem. . . BP believes that
most of the time, when problems arise, they can be
solved simply by bringing the situation to the
individual[’s] attention, discussing the issues and
seeing
an
agreement
to
change
and
improve
performance...There are three formal levels in the
Workplace Performance Development Program: 1. Verbal
reminder. 2. Written warning. 3. Decision-making leave.

17 SAC 28.
18

These manuals were given to Plaintiff during his employment,

19 and he “was told that they represented the company’s and its
20 management’s promises to him.” SAC 28-29. Plaintiff also states
21 that he saw managers Jill Georgikas and Jeff Ferris use this
22 progressive discipline approach with other employees. SAC 29: 3-8.
23

Defendant counters that the policies and code of conduct

24 “expressly reserves [to BP] the option to summarily terminate its
25 employees or engage in progressive discipline.” Def.’s Mot. 21.
26 Defendant quotes from the same Workplace Performance Development
20

1 Plan that “[d]ecisions are handled on a case-by-case basis.” Def.’s
2 Mot.

22.

Additionally,

the

plan

states

that

the

progressive

3 disciplinary steps can be bypassed. Id. Defendant argues that BP
4 did not restrict its right to terminate employees without notice
5 and without cause.
6

Defendant argues that plaintiff selectively cited sections of

7 the employment manuals, see, e.g., Mot. 22.

But that is of no

8 import at this stage. Defendant alleges that the manuals also
9 provide that “disciplinary or termination decisions are handled on
10 a case-by-case basis,” and that the progressive discipline steps
11 “may

be

bypassed.”

Id.

Defendant’s

allegations

are,

however,

12 unavailing. “When ruling on a motion to dismiss, we may generally
13 consider only allegations contained in the pleadings, exhibits
14 attached to the complaint, and matters properly subject to judicial
15 notice.” Colony Cove Properties, LLC v. City Of Carson, 640 F.3d
16 948, 955 (9th Cir. 2011). It is true, as defendant asserts, that
17 the court “need not accept as true conclusory allegations that are
18 contradicted by documents referred to in the complaint,” id., but
19 the policy manuals quoted in Plaintiff’s complaint are not before
20 the

court

and

the

allegations

in

Defendant’s

motion

are

not

21 entitled to any presumption of truth.
22

By alleging that policy manuals distributed by Defendant

23 established a progressive discipline system, promised “fair and
24 just” treatment, and promised employees an opportunity to improve
25 performance before termination, Plaintiff has alleged sufficient
26 facts from which a jury might infer an agreement not to terminate
21

1 without good cause.

Of course, on a motion for summary judgment,

2 the defendant can tender the manual.

17

3 ii. Whether plaintiff’s termination was for good cause
4

Defendant argues that even if it had an obligation to only

5 terminate plaintiff for cause, plaintiff’s complaint fails to state
6 a claim because the complaint concedes that plaintiff was unable to
7 perform his job due to a disability, constituting good cause for
8 the termination. See Def.’s Mot. to Dismiss 23, ECF No. 22. The
9 paragraph of the complaint cited by defendant doesn’t exactly make
10 such

a

concession.

11 “frustrated

by

The

British

paragraph
Petroleum’s

states

that

continuing

plaintiff
refusal

was

and/or

12 inability to confirm Plaintiff’s true employment status. . .
13 regarding (1) the date Plaintiff was medically determined by a
14 qualified medical doctor to be 100% permanently disabled form
15 working. . . as a truck driver.” SAC ¶ 51. The court can reasonably
16 infer that plaintiff, rather than admitting that he was permanently
17 disabled, was describing his process of seeking information from
18
19
20
21
22
23
24
25
26

17

The court notes that Plaintiff has also adequately pled an
express written agreement that defendant would not retaliate
against plaintiff for his health and safety complaints, separate
from any agreement that may provide for termination only with
cause. In the February 5, 2007 letter, Mr. Malone stated “I can
guarantee you that you will not be retaliated against for raising
safety concerns. It is against our policy, against my personal
principles, and against the law. I will offer you these assurances
with no strings attached.” Ex. A to SAC. Regardless of whether or
not defendant agreed not to terminate Plaintiff without good cause,
it appears that defendant agreed not to terminate plaintiff in
retaliation for his complaints. In other words, even if defendant
preserved the right to fire Plaintiff for some arbitrary reason,
defendant may have promised not to fire plaintiff for a retaliatory
reason.
22

1 defendant

about

defendant’s

determination

that

plaintiff

was

2 permanently disabled. This reading is consistent with plaintiff’s
3 asserted theory that he was terminated in retaliation for his
4 health and safety complaints, but that defendant engaged in a
5 course of conduct to “terminate plaintiff in a way that would
6 appear to be consistent with the law and their personnel policies.
7 . . to prevent him from any legal recourse.” SAC ¶ 52.
8

Defendant’s motion to dismiss the claim for breach of contract

9 is DENIED.
10 C. Third Cause of Action: Breach of Implied Covenant of Good Faith
11 and Fair Dealing
12

Plaintiff’s

third

cause

of

action

is

for

breach

of

the

13 covenant of good faith and fair dealing. SAC 30. Plaintiff alleges
14 he was terminated for pretextual reasons after he testified for the
15 Labor Board, complained of BP’s health and safety hazards, and
16 refused to ratify BP’s regulatory violations. SAC 30: 25-28, 31: 117 5. Plaintiff argues that BP was required to perform the terms and
18 conditions of the employment agreement fairly and in good faith,
19 and refrain from doing any act that would impede Plaintiff from
20 performing

on

the

conditions

of

the

contract.

SAC

30:

7-15.

21 Defendant counters there was no underlying employment agreement
22 that prevented BP from terminating plaintiff without cause. Def.’s
23 Mot. 24: 7-28.
24

Every contract imposes a duty of good faith and fair dealing

25 on its parties, but a claim for breach of the implied covenants is
26 distinguishable from a breach of contract claim in that the implied
23

1 covenants provide a “safety valve to which judge may turn to fill
2 gaps and qualify or limit rights and duties otherwise arising under
3 rules of law and specific contract language.” Foley, 765 P.2d at
4 389 (internal quotations omitted). The implied covenants prevent a
5 party from acting in bad faith to frustrate the purpose of the
6 mutual agreement. Guz 8 P.3d at 1112 n. 18. A breach of the implied
7 covenants may not, however, enforce obligations beyond the terms of
8 the agreement. Id. at 1112.
9

Here plaintiff has pled a claim for breach of contract, and

10 therefore may make out a claim for violation of the implied
11 covenants on the facts alleged. Plaintiff alleges that he relied on
12 company policies aiming “for a radical new openness” where workers
13 “have open and constructive conversations about the[ir] performance
14 and to be fairly treated.” SAC 27: 9-13. Plaintiff also alleges
15 that

he

relied

upon

the

individualized

promises

made

by

BP

16 President Robert Malone in his February 2007 letter requesting
17 Plaintiff’s help. SAC 12: 24-28, 13: 3-17, Ex. 1.
18

Plaintiff

alleges

he

relied

on

representations

made

in

19 employment manuals and by Mr. Malone that he would not be punished
20 for communicating openly about health and safety concerns, but that
21 he was terminated for doing just that. Such conduct by Defendant,
22 according to Plaintiff, constitutes bad faith. The determination of
23 whether the employer engaged in bad faith is a question of fact. 3
24 Witkin Summary of California Law § 239 (10th ed. 2005).
25

On similar allegations, California courts have found a triable

26 issue as to whether there was a breach of the implied covenant. For
24

1 example,

in

Kelecheva

v.

Multivision

Cable

T.V.

Corp.,

18

2 Cal.App.4th 521 (1993), the court found that allegations that an
3 employer failed to follow its own personnel policies relating to
4 safety and progressive discipline provide a basis for a claim of
5 breach of the implied covenant of good faith and fair dealing.
6

Accordingly, Defendant’s motion to dismiss the third cause of

7 action is DENIED.
IV. Conclusion

8
9

For all the above reasons, defendant's motion to dismiss, ECF

10 No. 22 is DENIED in its entirety.
11

IT IS SO ORDERED.

12

DATED:

September 20, 2011.

13
14
15
16
17
18
19
20
21
22
23
24
25
26
25