Parker v. Ethosenergy Power Plant Services, LLC, et al.

Filing 49

ORDER signed by Senior Judge William B. Shubb on 10/03/17 GRANTING 30 33 Motions for Summary Judgment. CASE CLOSED (Benson, A.)

Download PDF
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ----oo0oo---- 12 13 PHILLIP PARKER, Plaintiff, 14 15 16 Civ. No. : 16-00238-WBS-AC v. ETHOSENERGY POWER PLANT SERVICES, LLC., et al., 17 MEMORANDUM AND ORDER RE: DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT Defendant. 18 19 20 ----oo0oo---- 21 Plaintiff Phillip Parker brought this action against 22 defendants EthosEnergy Power Plant Services, LLC (“EthosEnergy”); 23 John Wood Group, PLC (“Wood Group”); Dave Blevins1; and Does 1-20 24 (collectively “defendants”) alleging wrongful discharge in 25 violation of public policy and disparate treatment, retaliation, 26 and harassment in violation of California Government Code § 27 28 1 On June 1, 2016, plaintiff stipulated to the dismissal with prejudice of defendant Dave Blevins. (Docket No. 22.) 1 1 12940. 2 EthosEnergy and Wood Group now move for summary judgment pursuant 3 to Federal Rule of Civil Procedure 56. 4 I. (Am. Compl. (Docket No. 13).) In separate motions, Factual and Procedural Background 5 Wood Group is headquartered in Aberden, Scotland. On 6 October 8, 2013, Wood Group entered into an agreement with 7 Siemens AG, a non-party to this lawsuit, to form a joint venture 8 known as Ethos Energy Group, Limited. 9 Pl.’s Resp. to Wood Group’s Req. for Produc. Of Docs., 13.) 10 Ethos Energy Group in turn owns EthosEnergy, which operates 11 Consumnes Power Plant (“CPP”) in Sacramento, California. 12 Compl. ¶ 5.) 13 Power Operations, Inc.,2 to work at CPP as an Operations and 14 maintenance Technician (“OMT”). 15 (Miller Dec. ¶ 2, Ex. A, (Am. In November 2005, plaintiff was hired by Wood Group (Id. ¶ 16.) CPP is certified by California’s Division of 16 Occupational Safety and Health (“Cal-OSHA”) as a Voluntary 17 Protection Program (“VPP”) site. 18 Accordingly, it is the employees on site who identify possible 19 health and safety issues and bring them to light. 20 order to qualify as a VPP site, an employer must monitor its 21 safety measures using a “leading indicator.”3 22 (Docket No. 32-3).) (Am. Compl. ¶ 20(a).) (Id.) In (Blevins’ Dep. 23 In 2004, CPP’s management team implemented 23 24 25 26 27 28 2 Wood Group Power Plant Services, LLC, changed its name to EthosEnery Power Plant Services, LLC in 2014. (Docket No. 352.) 3 A leading indicator is a proactive measure used to track activities aimed at preventing and controlling injury. Leading indicators report what employees are doing on a regular basis to prevent injuries, while “lagging indicators” track safety accidents and statistics. 2 1 behavior-based, peer-to-peer safety observations as CPP’s leading 2 indicator for purposes of Voluntary Protection Program 3 certification. 4 employees observe a co-worker, provide positive re-enforcement on 5 items performed well, and identify opportunities for improvement. 6 (Pl.’s Dep. 47 (Docket No. 32-1).) 7 (Am. Compl. ¶ 22.) During safety observations, Performing safety observations was part of plaintiff’s 8 job description, and employee bonuses were partly dependent on 9 employee compliance with this requirement. (Id. at 50.) 10 Employees were required to complete two peer-to-peer observations 11 each quarter, totaling eight a year, as well as contractor 12 observations. 13 results of the peer-to-peer observations and identify at-risk 14 behavior that needed addressing. 15 employees also conducted daily pre-shift safety meetings, and 16 management provided an anonymous suggestion box where employees 17 could submit safety suggestions which were ten reviewed at safety 18 committee meetings. 19 (Id.) A safety committee met monthly to discuss (Blevins’ Dep. 25.) Plant (Pl.’s Dep. 42.) Safety meetings were mandatory. (EthosEnergy’s Mot. 20 for Summ. J. 11 (Docket No. 30).) 21 and other employees raised potential safety hazards and presented 22 safety options. 23 of time during which employees could voice safety concerns and 24 discuss safety risks identified by the peer-to-peer observations. 25 (Id.) 26 (Pl.’s Dep. 53.) At these meetings, plaintiff Each meeting included a period Beginning October 2013, plaintiff reported directly to 27 Eddie McCormick, the Operations and Maintenance Manager, who 28 reported to Dave Blevins, CPP’s Facility Manager. 3 (Pl.’s Dep. 1 36.) 2 EthosEnergy’s human resources department complaining of Blevins’ 3 behavior and work place harassment. 4 that plaintiff’s “greatest fear is a plant manager [Dave Blevins] 5 that has run a facility without regard to the consequences of 6 planned preventative maintenance.” 7 response to the letter, EthosEnergy sent a representative to CPP 8 to conduct employee interviews regarding Dave Blevins’ conduct 9 toward employees. 10 On August 31st, 2014, plaintiff wrote a letter to (Id. ¶ 28.) The letter stated, in part, (Am. Compl. ¶ 27.) In The investigation lasted one day. (Id.) 11 On March 20, 2015, plaintiff missed his scheduled shift 12 and failed to attend a mandatory safety training. (Miller Decl., 13 Ex. 19.) 14 plaintiff’s manager, prior to the start of his shift to inform 15 McCormick that plaintiff would be unable to attend. 16 Decl. ¶ 1.) 17 action because of this. Plaintiff asserts that his wife called Eddie McCormick, (Mary Parker Plaintiff received a written warning corrective (Blevins’ Dep. 68, Ex. 11.) 18 By June 30, 2015, at which point plaintiff should have 19 completed half of his annual safety observation requirements, he 20 was significantly behind, as were several other employees. 21 (Blevins’ Dep. 79.) 22 not think the peer-to-peer observations were valuable. 23 Dep. 50.) 24 observations and, because of this, lost part of his bonus in 25 2014. 26 observation and one contractor observation. 27 Blevins emailed plaintiff, informing him that should he “choose 28 not to make the effort to meet the expected goals by September Plaintiff concedes he told management he did (Pl’s He had previously refused to complete the required (Id.) By June 2015, plaintiff had only completed one peer 4 (Blevins’ Dep. 79.) 1 30th, disciplinary actions will be implemented.” 2 2, Pl.’s Dep., Ex. 20.) 3 (Miller Decl. ¶ In July 2015, Blevins had another discussion with 4 plaintiff regarding his observation requirements. 5 ¶ 2, Pl.’s Dep., Ex. 21, referencing conversations.) 6 same month, plaintiff was involved in an incident with Pete 7 Alexander, his team lead, in which plaintiff did not comply with 8 instructions regarding an adjustment to the hydrogen regulator.4 9 (Miller Decl. ¶ 2.) 10 (Miller Decl., In that On August 7, 2015, plaintiff failed to attend another 11 mandatory safety training and did not inform his manager that he 12 would be absent prior to the start of his shift. 13 Plaintiff states that he called Blevins during the mandatory 14 training and apologized, stating that a “miscommunication” had 15 caused him to miss the beginning of the training. 16 Ex. 21.) 17 safety observation requirements since the June 30th email 18 correspondence with Blevins. 19 second written warning corrective action and was suspended for a 20 day without pay. 21 (Id.) (Pl.’s Dep., By this date, plaintiff had made no progress toward his (Id.) Plaintiff was issued a (Id.; Miller Decl. ¶ 2.) On August 10th, 2015, plaintiff submitted a work 22 request stating that the filter press spreader did not work and 23 that the pneumatic system was broken. (Am. Compl. ¶ 30.)5 The 24 4 25 26 27 28 Plaintiff states that he complied with the request but made a mistake and increased the hydrogen level too much. (Pl.’s Decl. ¶ 1.) 5 The request read as follows: “filter press spreader for the filter plates does not work. Additionally, the entire pneumatic system is corrupt and solenoids/tubing needs to be 5 1 following day, plaintiff submitted another work request regarding 2 the filter press spreader, stating that it continued to 3 malfunction and remained nonoperational. 4 20, 2015, plaintiff was injured and filed a Safety/Quality 5 Observation Form in which he stated that the filter press 6 spreader closed on his leg, causing injury. 7 further stated that the filter press spreader was a “continuous 8 safety hazard.” 9 Order was issued stating that the filter press spread and 10 (Id.) On August (Id. ¶ 32.) He On that same day, a Maintenance Work pneumatic system did not work. 11 (Id. ¶ 31.) (Id. ¶ 33.) On September 24th, 2015, plaintiff completed a peer-to- 12 peer observation form in which he provided what EthosEnergy 13 considered “unprofessional comments.”6 14 Plaintiff does not dispute submitting this form, but states it 15 was intended to make “light of a situation.” 16 Ex. A, Pl.’s Dep 116-18.) 17 (Miller Decl. ¶ 2.) (Maldonado Decl., On October 9th, 2015, Blevins terminated plaintiff’s 18 employment with EthosEnergy. (Miller Decl. ¶ 2.) On plaintiff’s 19 discharge form, the stated reason for his termination was his 20 failure to perform his job responsibilities. 21 23, discharge form.) 22 discharged. 23 who replaced plaintiff was ten to twelve years younger than (Pl.’s Dep., Ex. Plaintiff was 49 at the time he was (Miller Decl. ¶ 2; Pl.’s Dep. 7.) The individual 24 25 replaced.” 26 Plaintiff’s comments included: “. . . No mere sissy support person is capable of doing such a fine job and Operations has once again taken the [lead] to provide the detailed care and professionalism that makes ‘A’ team what it is... don’t stand in our way.” (Pl.’s Dep., Ex. 22.) 6 27 28 6 (Am Compl. ¶ 30.) 1 plaintiff. 2 (Pl.’s Decl. ¶ 6.) On December 28th, 2015, plaintiff filed a charge with 3 the Department of Fair Employment and Housing, alleging he had 4 been wrongfully terminated and had been harassed and retaliated 5 for his active participation in safety activities. 6 Ex. 24; Miller Decl. ¶ 2.) 7 received a Right to Sue Notice.7 8 9 (Pl.’s Dep., The same day, he requested and (Id.) On December 30th, 2015, plaintiff filed this lawsuit alleging wrongful discharge in violation of public policy and 10 disparate treatment, harassment, and retaliation under the 11 California Fair Employment Housing Act (“FEHA”) (Gov’t Code § 12 12940) based on his age and participation in safety activities. 13 (Am. Compl.) 14 On October 31st, 2016, plaintiff filed a charge of 15 discrimination with the Equal Employment Opportunity Commission 16 (“EEOC”), alleging discrimination based on race, sex, 17 retaliation, and age.8 18 On December 22nd, 2016, the EEOC dismissed the charge and closed 19 the file, noting that “the facts alleged in the charge fail to 20 state a claim under any of the statutes enforced by the EEOC.” 21 (Id.) 22 II. Legal Standard 23 24 (Miller Decl. ¶ 2; Pl’s Dep., Ex. 25.) Summary judgment is proper “if the movant shows that there is no genuine dispute as to any material fact and the 25 26 27 28 7 Plaintiff’s complaint with the Department of Fair Employment and Housing was closed on December 28, 2015, because of the Right to Sue notice. (Docket No. 19-2.) 8 Plaintiff is not pursuing a race or sex claim. 7 1 movant is entitled to judgment as a matter of law.” 2 P. 56(a). 3 of the suit, and a genuine issue is one that could permit a 4 reasonable jury to enter a verdict in the non-moving party’s 5 favor. 6 (1986). 7 undisputed, [the controverted] issues can become questions of law 8 which may be properly decided by summary judgment.” 9 Secret v. A.H. Robins Co., 769 F. 2d 528, 531 (9th Cir. 1985)). Fed. R. Civ. A material fact is one that could affect the outcome Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 “[W]here the palpable facts are substantially Braxton- 10 The party moving for summary judgment bears the initial 11 burden of establishing the absence of a genuine issue of material 12 fact and can satisfy this burden by presenting evidence that 13 negates an essential element of the non-moving party’s case. 14 Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). 15 Alternatively, the movant can demonstrate that the non-moving 16 party cannot provide evidence to support an essential element 17 upon which it will bear the burden of proof at trial. Id. 18 Once the moving party meets non-moving party to its burden, 20 showing that there is a genuine issue [of material fact] for 21 trial.” 22 simply show that there is some metaphysical doubt as to the 23 material facts.” 24 Corp., 25 scintilla of evidence . . . will be insufficient; there must be 26 evidence on which the jury could reasonably find for the [non- 27 moving party].” 475 U.S. specific burden shifts Id. at 324. “designate the 19 28 to the facts The non-moving party must “do more than Matsushita Elec. Indus. Co. v. Zenith Radio 574, 586 (1986). “The mere existence of Anderson, 477 U.S. at 252. In deciding a summary judgment motion, the court must 8 a 1 view the evidence in the light most favorable to the party 2 opposing the motion and draw all justifiable inference in its 3 favor. 4 determinations, the weighing of the evidence, and the drawing of 5 legitimate inferences from the facts are jury functions, not 6 those of a judge . . . ruling on a motion for summary judgment . 7 . .” 8 III. Matsushita, 475 U.S. at 587. “Credibility Anderson, 477 U.S. at 255. EthosEnergy’s Motion for Summary Judgment 9 A. Wrongful Discharge Claim 10 1. 11 Public Policy Plaintiff’s first cause of action alleges that 12 defendants wrongfully fired plaintiff in violation of public 13 policy. 14 this claim, plaintiff must “identify a policy that is fundamental 15 and substantial in that it is tethered to constitutional or 16 statutory law, that inures to the benefit of the public rather 17 than to a personal or proprietary interest of the individual 18 employee, and that is clearly articulated at the time of 19 discharge.” 20 4th 701, 706 (3d Dist. 2004). (Am. Compl.) In order to withstand a legal challenge to Sinatra v. Chico Unified School Dist., 119 Cal. App. 21 Here, plaintiff does not specifically identify the 22 specific public policy or statutory or constitutional law on 23 which he relies. 24 because he participated in an occupational health and safety 25 committee, health and safety meetings, and filed a complaint 26 regarding unsafe equipment. 27 28 9 Instead, he simply alleges he was discharged (Am. Compl. ¶ 42.)9 While plaintiff did not expressly mention a particular public policy in his Complaint, in his Opposition to 9 1 2. 2 For the following reasons, plaintiff is has not made Prima Facie Case 3 out a prima facie showing of retaliatory wrongful discharge. 4 When a plaintiff alleges “wrongful employment termination in 5 violation of public policy, and the defendant seeks summary 6 judgment, California follows the burden shifting analysis of 7 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), to 8 determine whether there are triable issues of fact for resolution 9 by a jury.” Loggins v. Kaiser Permanente Int’l, 151 Cal. App. 10 4th 1102, 1009 (2007). 11 establish a prima facie case by demonstrating that “(1) he or she 12 engaged in a ‘protected activity,’ (2) the employer subjected the 13 employee to an adverse employment action, and (3) a causal link 14 existed between the protected activity and the employer’s 15 action.” 16 Cal.4th 1028, 1042 (2005)). 17 a. 18 In the first stage, plaintiff must (Id. at 1108) (citing Yanowitz v. L'Oreal USA, Inc. 36 Protected Activity Courts generally find claims of wrongful discharge in 19 violation of public policy claims are viable when the employee 20 was terminated for “(1) refusal to violate a statute; (2) 21 22 23 24 25 26 27 28 EthosEnergy’s Motion for summary judgment, he cites to § 6310 of the California Labor Code. Plaintiff argues that while he may not have identified the code section within the Complaint, “it was adequately described.” Plaintiff further argues that if necessary, he should be able to amend his Complaint to more specifically reflect Labor Code § 6310. In Freund v. Nycomed Amersham, 347 F. 3d 752, 758 (9th Cir. 2003), the court explained that § 6310 “embodies a public policy against retaliatory firings, and that violation of § 6310 could serve as the basis for a claim of wrongful termination in violation of public policy.” Accordingly, the court will assume that plaintiff has satisfied the requirement of identifying a fundamental public policy. 10 1 performing a statutory obligation; (3) exercising a statutory 2 constitutional right or privilege; or (4) reporting an alleged 3 violation of a statute of public significance. Pettus v. Cole, 49 4 Cal. App. 4th 402, 454 (1st Dist. 1996). 5 Relying on the third category, plaintiff argues that he 6 was terminated for exercising his statutory right to make 7 complaints regarding employee safety, which is a right granted to 8 him by California Labor Code § 6310. Section 6310 provides that: 9 10 11 12 13 14 15 “[n]o person shall discharge or in any manner discriminate against any employee because the employee has done any of the following: (1) Made any oral or written complaint to the division, other governmental agencies having statutory responsibility for or assisting the division with reference to employee safety or health, his or her employer, or his or her representative.” Not every comment made regarding workplace safety is a 16 “complaint.” 17 not qualify as a complaint. 18 Cal. App. 4th 431 (1998) (disapproved of on other grounds by 19 Colmenares v. Braemar Country Club, Inc., 29 Cal. 4th 1019 20 (2003)) (“voicing of a fear about one’s safety in the workplace 21 does not necessarily constitute a complaint about unsafe working 22 conditions under Labor Code Section 6310.”) 23 Merely expressing concern for workplace safety does Muller v. Auto. Club of So. Cal., 61 In Luchetti v. Hershey Co., 412 Fed. Appx. 978, 979 24 (9th Cir. 2011), the court found that the plaintiff’s 25 communications with his supervisor were not complaints as defined 26 in § 6310 because his discussions regarding safety did not 27 demonstrate opposition to his employer’s safety measures or 28 11 1 allege any illegal activity. 2 was later upheld by the Ninth Circuit, determined that plaintiff 3 was simply “communicating with his supervisors and co-workers 4 about how best to address safety issues. . . a matter that 5 plaintiff admits was within his job duties.” 6 Co., Civ. No. 08-1629 SI, 2009 WL 2912524, at *5 (N.D. Cal. Sept. 7 9, 2009), aff’d 412 F. App’x 978 (9th Cir. 2011). 8 9 The district court, whose decision Luchetti v. Hershey Here, plaintiff participated in a safety committee, attended safety meetings, and filed work orders regarding broken 10 equipment that he viewed as unsafe. 11 Luchetti, plaintiff did not explicitly object to specific safety 12 practices or report any safety violations either internally or to 13 any external agency. 14 safety issues, proposed safety suggestions, and engaged in 15 conversations about safety. 16 (Am. Compl. ¶ 42.) As in Instead, he simply identified potential Moreover, plaintiff’s activities were clearly within 17 his job responsibilities. Attendance was mandatory at all safety 18 meetings, (EthosEnergy’s Mot. for Summ. J. 11 (Docket No. 30), 19 and, as a Voluntary Protection Program certified location, CPP 20 employees were tasked with identifying possible health and safety 21 issues and bringing these potential issues to light. 22 ¶ 20(a).) 23 that are part of an employee’s regular duties cannot be 24 considered protected activities. 25 Civ. No. S-06-0431 WBS KJM, 2007 WL 1775474 (E.D. CA. June 20, 26 2007) (finding that by reporting a chemical spill the employee 27 was merely doing his job, and therefore was not engaging in 28 protected activity). (Am. Compl. Courts, including this court, have held that actions See Lund v. Leprino Foods CO., Therefore, even if plaintiff had complained 12 1 about specific safety practices or violations, his actions still 2 would not be protected because they were consistent with his job 3 responsibilities. 4 plaintiff was not engaging in a protected activity as a matter of 5 law. 6 b. 7 Accordingly, the court concludes that Adverse Employment Action To satisfy the second element of a prima facie case of 8 wrongful termination, plaintiff must demonstrate that defendant 9 subjected him to an adverse employment action. 10 was terminated on October 9, 2015. 11 discharge form.) 12 Here, plaintiff as an adverse employment action. 13 c. 14 (Pl.’s Dep., Ex. 23, It is undisputed that his termination qualifies Causal Link In the final step of establishing a prima facie case of 15 wrongful termination, plaintiff must show that the adverse 16 employment action he was subjected to, in this case termination, 17 occurred because of his participation in a protected activity. 18 Even if plaintiff had satisfied that initial requirement of 19 showing he was engaged in a protected activity, his claim of 20 wrongful termination still fails. 21 discharged, plaintiff admitted that it was merely “a feeling that 22 [he] was being made an example of” because he brought up safety 23 hazards. 24 boisterous about safety concerns, “it can be presumed that he was 25 targeted for making his concerns known to everyone.” 26 to EthosEnergy’s Mot. for Summ. J. 10 (Docket No. 38).) 27 plaintiff provides no evidentiary support for this presumption. 28 (Pl.’s Dep. 147.) When asked why he was Plaintiff argues that because he was (Pl.’s Op. However, Plaintiff argues that the proximity between the date he 13 1 filed work orders and the date in which he was fired creates an 2 inference that his safety complaints were the true reason for his 3 termination. 4 discharged or had filed the safety complaints discussed above, 5 plaintiff was warned that if he did not comply with safety 6 requirements by September 30, 2015, he would face disciplinary 7 action. 8 set prior to plaintiff engaging in any of the allegedly protected 9 activity, thus negating plaintiff’s contention that he was fired 10 However, in June 2015, months before plaintiff was (Miller Decl. ¶ 2, Pl.’s Dep., Ex.20.) This date was for making complaints about safety. 11 Accordingly, because plaintiff has failed to show a 12 causal link between his safety reports and his termination, he is 13 unable to establish a prima facie case of wrongful termination. 14 2. 15 Legitimate, Non-Retaliatory Reason Once the employee has established a prima facie case of 16 wrongful termination, the burden shifts to the employer to 17 articulate a non-retaliatory reason for the adverse employment 18 action. 19 requires only that defendant articulate, rather than prove, a 20 legitimate reason for the termination. 21 Superior Court, 222 Cal. App. 3d 1028, 1039 (2d Dist. 1990). McDonnel Douglas, 411 U.S. 792 at 802. This burden Univ. of S. Cal. V. 22 Here, because plaintiff has been unable to demonstrate 23 the elements necessary to establish a prima facie case, there is 24 no need to continue the burden-shifting analysis. 25 if plaintiff had been able to establish a prima facie case of 26 wrongful termination, defendant has met its burden of providing a 27 legitimate, non-retaliatory, non-discriminatory reason for 28 discharging plaintiff. 14 However, even 1 Defendant contends that plaintiff was discharged 2 because he failed to meet his job requirements and refused to 3 comply with company policy or follow directions. 4 Mot. for Summ. J.) 5 did not attend mandatory safety meetings and failed to comply 6 with safety observation requirements. 7 whether he refused to complete the necessary safety observations, 8 he admitted that he had refused. 9 June 30, 2015, before plaintiff was injured or submitted any of 10 the work orders at issue in this case, he was warned that if he 11 did not “make effort to meet the expected [safety observation] 12 goals by September 30th, disciplinary actions will be 13 implemented.” 14 does not deny that he received this warning, and admits he was 15 issued other warnings regarding his unsatisfactory performance as 16 well. 17 (EthosEnergy Specifically, defendant argues that plaintiff When plaintiff was asked (Pl.’s Dep. 51.) Further, on (Miller Decl. ¶ 2, Pl.’s Dep., Ex.20.) Plaintiff (Pl.’s Dep. 115; Blevins’ Dep., Ex. 19.) These are legitimate reasons to discharge an employee, 18 and as such defendant has clearly offered “reasons for its 19 actions which, if believed by the trier of fact, would support a 20 finding that unlawful discrimination was not the cause of the 21 employment action.” 22 502, 507 (1993). 23 24 3. St. Mary’s Honor Center v. Hicks, 509 U.S. Pretext If, as here, the employer is able to produce evidence 25 of a legitimate reason for the action, under the McDonnell 26 Douglas standard “the presumption of retaliation ‘drops out of 27 the picture’ and the burden shifts back to the employee to 28 provide substantial responsive evidence that the employer’s 15 1 proffered reasons were untrue or pretextual.” 2 App. 4th at 1109 (citations omitted). 3 establish pretext either directly by persuading the court that a 4 discriminatory reason more likely motivated the employer or 5 indirectly by showing that the employer’s proffered explanation 6 is unworthy of credence.” 7 Cal. App. 4th 52, 67 (2000) (citations omitted). 8 seeking to avoid summary judgment cannot simply rest on the prima 9 facie showing, but must adduce substantial additional evidence 10 from which a trier of fact could infer the articulated reasons 11 for the adverse employment action were untrue or pretextual” in 12 order to avoid summary judgment. 13 1112-13. 14 Loggins, 151 Cal. “[T]he plaintiff may Morgan v. Regents of Univ. of Cal., 88 “The employee Loggins, 151 Cal. App. 4th at Here, plaintiff has offered no evidence of pretext. As 15 discussed above, plaintiff does not deny that he received 16 multiple corrective actions prior to his discharge, or that he 17 refused to comply with safety observations. 18 that he should not have received these actions and that the 19 safety observations should not have been required.10 20 those are simply arguments about the merits of his termination, 21 not about whether his termination was based on any discriminatory 22 or retaliatory motive. 23 24 25 26 27 28 10 Rather, he argues However, Nothing about plaintiff’s argument On March 20, 2015, plaintiff received a corrective action for failing to attend a training session and his scheduled shift. He argues that he should not have received this because his wife attempted to contact plaintiff’s boss, Eddie McCormick, to inform him that plaintiff would be unable to attend. On August 7, 2015, plaintiff received another corrective action for missing training. He again argues that he should not have received this, claiming that at the time he was unaware he had a training scheduled. (Pl.’s Opp’n to EthosEnergy’s Mot for Summ. J.) 16 1 suggests that EthosEnergy’s reason for terminating plaintiff was 2 not credible. 3 personnel decisions, which is what plaintiff is asking the court 4 to do in this instance. 5 3d 1045, 1050 (9th Cir. 1995) (explaining that “discrimination 6 laws are not intended as a vehicle for general judicial review of 7 business decisions.”) 8 9 The court will not second guess defendant’s See Sharpe v. Am. Tel. & Tel. CO., 66 F. Plaintiff also contends that he has “a feeling that he was being made an example of” because he brought up safety 10 hazards. 11 no evidence to validate this intuition. 12 plaintiff has not provided evidence suggesting that the reasons 13 articulated by EthosEnergy were in anyway untrue, plaintiff’s 14 claim of wrongful termination fails. 15 16 (Pl.’s Dep. 147.) B. Again, plaintiff is able to provide Accordingly, because Fair Employment and Housing Act Claims Plaintiff alleges that EthosEnergy discriminated 17 against him in violation of the California Fair Employment and 18 Housing Act (“FEHA”) by engaging in (1) disparate treatment in 19 violation of Government Code § 12940(a); (2) retaliation in 20 violation of Government Code § 12940(h); and harassment in 21 violation of Government Code § 12940 et seq. 22 1. Disparate Treatment 23 Plaintiff argues EthosEnergy violated § 12940(a) by 24 discharging him because of his “age and active participation in 25 occupation health and safety committees and/or his active 26 participation in health and safety meetings and/or the complaint 27 he filed with [defendants] with respect to unsafe equipment.” 28 (Am. Compl. ¶ 47.) 17 1 Section 12940(a) only protects against discrimination 2 based on “race, religious creed, color, national origin, 3 ancestry, physical disability, mental disability, medical 4 condition, genetic information, marital status, sex, gender, 5 gender identity, gender expression, age, sexual orientation, or 6 military and veteran status of any person.” 7 12940. 8 safety issues. 9 plaintiff’s participation in safety meetings or making safety 10 Cal. Gov’t Code § Plaintiff does not dispute that FEHA does not apply to Accordingly, any alleged discrimination based on complaints is not covered by FEHA. 11 Plaintiff’s claim of disparate treatment based on age 12 fails as well. 13 above applies to claim of age discrimination as well. 14 Bechtel Nat’l Inc., 24 Cal. 4th 317, 354 (2000). 15 succeed on a claim of age discrimination under FEHA, plaintiff 16 must first establish a prima facie case. 17 Co., 26 F. 3d 885, 889 (9th Cir. 1994). 18 The three-stage burden-shifting test outlined a. Guz v. Accordingly, to Wallis v. J.R. Simplot Prima Facie Case 19 To establish his prima facie case, plaintiff must show 20 “(1) at the time of the adverse action he was forty years of age 21 or older; (2) he was satisfactorily performing his job; (3) an 22 adverse employment action was taken against him; and (4) some 23 other circumstance suggesting a discriminatory motive was 24 present.” 25 Guz, 24 Cal. 4th at 455. Here, plaintiff was forty-nine when he was terminated, 26 thus satisfying the first element of the prima facie case. 27 Plaintiff’s termination is an adverse employment action taken 28 against him, thus satisfying the third element of the test. 18 1 However, the court finds that plaintiff cannot meet the second or 2 fourth elements of his prima facie case. 3 The undisputed facts before the court indicate that 4 plaintiff was not satisfactorily performing his job. 5 received multiple warnings regarding his unsatisfactory 6 performance and had been warned that disciplinary action would 7 occur if he did not modify his performance. 8 Accordingly, plaintiff cannot demonstrate that he was performing 9 competently at the time of his termination. 10 He had (Pl.’s Dep. 115.) Additionally, plaintiff has not identified any evidence 11 suggesting a discriminatory motive. 12 deposition for evidence indicating that his age was a factor in 13 the decision to discharge him, plaintiff responded that he was 14 unable to “quantify it.” 15 argue that he was replaced by a younger employee, without 16 specifically identifying that individual or his/her exact age, 17 but that alone is insufficient to prove age discrimination. 18 Phipps v. Gary Drilling Co., 722 F. Supp. 615, 622 (E.D. Cal. 19 1989). 20 facie case of age discrimination. 21 b. 22 When asked during his (Pl.’s Dep. 148-49.) Plaintiff does See Accordingly, plaintiff is unable to establish a prima Legitimate, Non-Discriminatory Reason Assuming, arguendo, that the court did find plaintiff 23 had established a prima facie case, the burden would shift to 24 defendant to articulate some legitimate, non-discriminatory 25 reason for the employee’s termination. 26 U.S. 792 at 802. 27 plaintiff was fired because he was not adequately performing his 28 job. McDonnell Douglas, 411 As explained above, the defendant states This is a legitimate reason for terminating plaintiff’s 19 1 employment, and as such defendant has met his burden. 2 3 c. Pretext Once defendant articulates a legitimate, non- 4 discriminatory reason, the plaintiff must then “demonstrate that 5 the employer’s alleged reason for the adverse employment decision 6 is a pretext for another motive which is discriminatory.” 7 Here, plaintiff is unable to refute EthosEnergy’s legitimate, 8 non-discriminatory reason for terminating him or establish that 9 it was a pretext for age discrimination. Id. In fact, he admits the 10 conduct for which he was discharged, and simply disagrees with 11 the merits of EthosEnergy’s decision. 12 above, plaintiff has no evidence to suggest his age was a 13 motivating factor for his termination. 14 claim of disparate treatment fails. Additionally, as explained Accordingly, plaintiff’s 15 2. Retaliation 16 Plaintiff also alleges defendant violated FEHA § 17 12940(h) by retaliating against plaintiff for his participation 18 in a number of allegedly protected activities including “(1) 19 participating in [the] occupational health and safety committee 20 and/or (20 plaintiff’s active participation in health and safety 21 meetings and/or (3) filing a complaint with [defendants] with 22 respect to unsafe equipment.” 23 described above, FEHA does not apply to safety-related 24 activities, and thus plaintiff has not identified retaliation 25 based on any protected FEHA category. 26 retaliation claim fails as a matter of law. (Am. Compl. ¶ 50.) However, as Accordingly, plaintiff’s 27 3. Harassment Claim 28 Plaintiff claims he was harassed by defendants based 20 1 upon his age, participation in safety meetings and the safety 2 committee, and a complaint he filed about malfunctioning 3 equipment. 4 because FEHA does not provide protection for participating in 5 safety meetings or for opposing safety practices, plaintiff’s 6 claim of harassment on these grounds fails. 7 (Am. Compl. ¶ 56.) However, as already described, Moreover, to succeed on his age-related harassment 8 claim, plaintiff must demonstrate: (1) that he was subjected to 9 verbal or physical conduct of an age-related nature; (2) that the 10 conduct was unwelcome; and (3) that the conduct was sufficiently 11 severe or pervasive to alter the conditions of his employment and 12 create an abusive work environment. 13 Angeles, 349 F. 3d 634, 642 (9th Cir. 2003), as amended (Jan. 2, 14 2004).11 15 Vasquez v. Cty. of Los Here, there is no evidence that plaintiff was subjected 16 to any conduct of an “age-related” nature. 17 reference to any comments, statements, or slurs that referenced 18 his age, nor does he suggest that his younger co-workers were 19 treated any differently than he was. 20 harassment plaintiff felt he had endured, plaintiff explained 21 that Blevins had been combative and unapproachable. 22 163.) 23 alleged harassment was related to his age, plaintiff testified 24 that Blevins “harassed[ed] those that did not follow his 25 perceptions.” 26 27 28 11 Plaintiff makes no When asked what kind of (Pl.’s Dep When questioned further as to why plaintiff thought the (Pl.’s Dep. 160.) Neither of these statements The Vasquez court applied this standard to a Title VII case, but California courts apply the same standard in FEHA cases. See Lyle v. Warner Bros. Television Prods., 38 Cal. 4th 263, 279 (2006); Reno v. Baird, 18 Cal. 4th 640, 646-47 (1998). 21 1 indicates any sort of age discrimination. 2 directly on the topic, plaintiff was unable to articulate how the 3 purported harassment was in any way related to his age. 4 Accordingly, plaintiff’s claim regarding age harassment fails. 5 IV. Even when questioned John Wood Group PLC’s Motion for Summary Judgment 6 For the reasons discussed above, none of plaintiff’s 7 claims against EthosEnergy survive EthosEnergy’s Motion for 8 summary judgment. 9 the subsidiary company, Wood Group, as the parent company, cannot Accordingly, because there is no liability for 10 be liable. 11 EthosEnergy and Wood Group are separate entities and plaintiff 12 has not identified the requisite evidence to prove otherwise. 13 Moreover, even if EthosEnergy had been found liable, Being a parent company, alone, is insufficient to 14 establish liability upon Wood Group. 15 Marriot Hotels, Inc., 19 Cal. App. 4th 615, 628 (1993), as 16 modified on denial of reh’g (Nov. 5, 1993). 17 corporate entities “have separate existences. . . [and] in 18 particular, there is a strong presumption that a parent company 19 is not the employer of its subsidiary’s employees.” 20 Capital Cities/ABC, Inc., 68 Cal App. 4th 727, 737-38 (3d Dist. 21 1998). 22 demonstrate any of the following: (1) the entities were a single 23 employer under the “integrated enterprise” test; (2) EthosEnergy 24 was an agent of Wood Group; (3) the entities can be considered 25 “joint employers,” or (4) EthosEnergy was Wood Group’s alter ego. 26 See id. 27 28 Pac Landmark Hotel, Ltd. V. It is presumed that Laird v. Plaintiff can overcome this presumption if he can Plaintiff relies upon only the “integrated enterprise” test to argue that his employment was controlled by Wood Group. 22 1 Under this test, to determine whether entities are liable as a 2 single employer or an integrated enterprise, the court analyzes 3 the following factors: (1) interrelation of operations; (2) 4 common management; (3) centralized control of labor relations; 5 and (4) common ownership or financial control. 6 four of these factors are to be considered together, but 7 centralized control of labor, meaning the day-to-day supervision 8 of employees, is often considered the most relevant of the 9 factors. 10 Id. at 737. All Id. at 738. Here, plaintiff has submitted no evidence to suggest 11 that Wood Group exercised any daily control over him. 12 relies upon his offer of employment and initial job description 13 to support his claim that Wood Group exercised day-to-day control 14 over his employment. 15 plaintiff’s employer is the Wood Group Power Operations, Inc. 16 (Docket No. 35.) 17 changed to EthosEnergy, is not the same thing as defendant John 18 Wood Group PLC. 19 separate entities. 20 documents fail to provide any support for plaintiff’s claim that 21 he was employed by Wood Group. 22 Plaintiff Both of these documents state that However, this company, whose name was later Despite the similarities in name, the two are (Docket No. 33, Ex. B ¶¶4, 5.) Thus, these Plaintiff also points to his final performance review, 23 which states that he adhered “to WG standards.” (Maldonado 24 Decl., Ex. A.) 25 defendant Wood Group, and not Wood Group Power Operations, Inc., 26 it is still insufficient to establish that Wood Group maintained 27 control over plaintiff’s daily operations. 28 general policy statements regarding employment matters are not However, even assuming that this “WG” refers to 23 “A parent’s broad 1 enough to satisfy [the control] prong.” 2 at 738. 3 principle with regards to the employment standards implemented by 4 EthosEnergy, this does not prove that Wood Group had control of 5 the day-to-day employment decisions of EthosEnergy. 6 Laird, 68 Cal. App. 4th Thus, even if Wood Group’s policies served as a guiding Additionally, plaintiff fails to provide any evidence 7 indicating that the operations of EthosEnergy and Wood Group were 8 interrelated--that is, that Wood Group “exercised greater control 9 over [EthosEnergy’s] operations than that which a parent 10 corporation would normally exercise over its subsidiary.” 11 In his deposition, plaintiff was unable to answer affirmatively 12 that he had been employed by Wood Group or that anyone from Wood 13 Group had ever directly supervised him. 14 Plaintiff merely proved that Wood Group is a parent company of 15 EthosEnergy, and, without more, he is unable to establish 16 liability upon Wood Group. 17 maintain an action against Wood Group, and the court will grant 18 summary judgment on this basis. 19 Id. (Pl.’s Dep. 41.) Accordingly, plaintiff cannot IT IS THEREFORE ORDERED that defendants’ Motions for summary 20 judgment be, and the same hereby are, GRANTED. 21 Dated: October 3, 2017 22 23 24 25 26 27 28 24

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?