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.)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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PHILLIP PARKER,
Plaintiff,

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Civ. No. : 16-00238-WBS-AC

v.
ETHOSENERGY POWER PLANT
SERVICES, LLC., et al.,

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MEMORANDUM AND ORDER RE:
DEFENDANTS’ MOTIONS FOR SUMMARY
JUDGMENT

Defendant.

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Plaintiff Phillip Parker brought this action against

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defendants EthosEnergy Power Plant Services, LLC (“EthosEnergy”);

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John Wood Group, PLC (“Wood Group”); Dave Blevins1; and Does 1-20

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(collectively “defendants”) alleging wrongful discharge in

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violation of public policy and disparate treatment, retaliation,

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and harassment in violation of California Government Code §

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On June 1, 2016, plaintiff stipulated to the dismissal
with prejudice of defendant Dave Blevins. (Docket No. 22.)
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12940.

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EthosEnergy and Wood Group now move for summary judgment pursuant

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to Federal Rule of Civil Procedure 56.

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I.

(Am. Compl. (Docket No. 13).)

In separate motions,

Factual and Procedural Background

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Wood Group is headquartered in Aberden, Scotland.

On

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October 8, 2013, Wood Group entered into an agreement with

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Siemens AG, a non-party to this lawsuit, to form a joint venture

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known as Ethos Energy Group, Limited.

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Pl.’s Resp. to Wood Group’s Req. for Produc. Of Docs., 13.)

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Ethos Energy Group in turn owns EthosEnergy, which operates

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Consumnes Power Plant (“CPP”) in Sacramento, California.

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Compl. ¶ 5.)

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Power Operations, Inc.,2 to work at CPP as an Operations and

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maintenance Technician (“OMT”).

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(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

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Occupational Safety and Health (“Cal-OSHA”) as a Voluntary

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Protection Program (“VPP”) site.

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Accordingly, it is the employees on site who identify possible

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health and safety issues and bring them to light.

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order to qualify as a VPP site, an employer must monitor its

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safety measures using a “leading indicator.”3

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(Docket No. 32-3).)

(Am. Compl. ¶ 20(a).)

(Id.)

In

(Blevins’ Dep. 23

In 2004, CPP’s management team implemented

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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.
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behavior-based, peer-to-peer safety observations as CPP’s leading

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indicator for purposes of Voluntary Protection Program

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certification.

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employees observe a co-worker, provide positive re-enforcement on

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items performed well, and identify opportunities for improvement.

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(Pl.’s Dep. 47 (Docket No. 32-1).)

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(Am. Compl. ¶ 22.)

During safety observations,

Performing safety observations was part of plaintiff’s

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job description, and employee bonuses were partly dependent on

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employee compliance with this requirement.

(Id. at 50.)

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Employees were required to complete two peer-to-peer observations

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each quarter, totaling eight a year, as well as contractor

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observations.

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results of the peer-to-peer observations and identify at-risk

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behavior that needed addressing.

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employees also conducted daily pre-shift safety meetings, and

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management provided an anonymous suggestion box where employees

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could submit safety suggestions which were ten reviewed at safety

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committee meetings.

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(Id.)

A safety committee met monthly to discuss

(Blevins’ Dep. 25.)

Plant

(Pl.’s Dep. 42.)

Safety meetings were mandatory.

(EthosEnergy’s Mot.

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for Summ. J. 11 (Docket No. 30).)

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and other employees raised potential safety hazards and presented

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safety options.

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of time during which employees could voice safety concerns and

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discuss safety risks identified by the peer-to-peer observations.

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(Id.)

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(Pl.’s Dep. 53.)

At these meetings, plaintiff

Each meeting included a period

Beginning October 2013, plaintiff reported directly to

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Eddie McCormick, the Operations and Maintenance Manager, who

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reported to Dave Blevins, CPP’s Facility Manager.
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(Pl.’s Dep.

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36.)

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EthosEnergy’s human resources department complaining of Blevins’

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behavior and work place harassment.

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that plaintiff’s “greatest fear is a plant manager [Dave Blevins]

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that has run a facility without regard to the consequences of

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planned preventative maintenance.”

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response to the letter, EthosEnergy sent a representative to CPP

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to conduct employee interviews regarding Dave Blevins’ conduct

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toward employees.

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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.)

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On March 20, 2015, plaintiff missed his scheduled shift

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and failed to attend a mandatory safety training.

(Miller Decl.,

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Ex. 19.)

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plaintiff’s manager, prior to the start of his shift to inform

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McCormick that plaintiff would be unable to attend.

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Decl. ¶ 1.)

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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.)

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By June 30, 2015, at which point plaintiff should have

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completed half of his annual safety observation requirements, he

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was significantly behind, as were several other employees.

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(Blevins’ Dep. 79.)

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not think the peer-to-peer observations were valuable.

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Dep. 50.)

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observations and, because of this, lost part of his bonus in

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2014.

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observation and one contractor observation.

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Blevins emailed plaintiff, informing him that should he “choose

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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

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(Blevins’ Dep. 79.)

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30th, disciplinary actions will be implemented.”

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2, Pl.’s Dep., Ex. 20.)

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(Miller Decl. ¶

In July 2015, Blevins had another discussion with

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plaintiff regarding his observation requirements.

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¶ 2, Pl.’s Dep., Ex. 21, referencing conversations.)

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same month, plaintiff was involved in an incident with Pete

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Alexander, his team lead, in which plaintiff did not comply with

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instructions regarding an adjustment to the hydrogen regulator.4

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(Miller Decl. ¶ 2.)

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(Miller Decl.,
In that

On August 7, 2015, plaintiff failed to attend another

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mandatory safety training and did not inform his manager that he

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would be absent prior to the start of his shift.

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Plaintiff states that he called Blevins during the mandatory

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training and apologized, stating that a “miscommunication” had

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caused him to miss the beginning of the training.

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Ex. 21.)

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safety observation requirements since the June 30th email

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correspondence with Blevins.

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second written warning corrective action and was suspended for a

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day without pay.

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(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

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request stating that the filter press spreader did not work and

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that the pneumatic system was broken.

(Am. Compl. ¶ 30.)5

The

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Plaintiff states that he complied with the request but
made a mistake and increased the hydrogen level too much. (Pl.’s
Decl. ¶ 1.)
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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
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following day, plaintiff submitted another work request regarding

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the filter press spreader, stating that it continued to

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malfunction and remained nonoperational.

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20, 2015, plaintiff was injured and filed a Safety/Quality

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Observation Form in which he stated that the filter press

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spreader closed on his leg, causing injury.

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further stated that the filter press spreader was a “continuous

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safety hazard.”

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Order was issued stating that the filter press spread and

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(Id.)

On August

(Id. ¶ 32.)

He

On that same day, a Maintenance Work

pneumatic system did not work.

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(Id. ¶ 31.)

(Id. ¶ 33.)

On September 24th, 2015, plaintiff completed a peer-to-

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peer observation form in which he provided what EthosEnergy

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considered “unprofessional comments.”6

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Plaintiff does not dispute submitting this form, but states it

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was intended to make “light of a situation.”

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Ex. A, Pl.’s Dep 116-18.)

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(Miller Decl. ¶ 2.)

(Maldonado Decl.,

On October 9th, 2015, Blevins terminated plaintiff’s

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employment with EthosEnergy.

(Miller Decl. ¶ 2.)

On plaintiff’s

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discharge form, the stated reason for his termination was his

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failure to perform his job responsibilities.

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23, discharge form.)

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discharged.

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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

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replaced.”

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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.)
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6

(Am Compl. ¶ 30.)

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plaintiff.

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(Pl.’s Decl. ¶ 6.)

On December 28th, 2015, plaintiff filed a charge with

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the Department of Fair Employment and Housing, alleging he had

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been wrongfully terminated and had been harassed and retaliated

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for his active participation in safety activities.

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Ex. 24; Miller Decl. ¶ 2.)

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received a Right to Sue Notice.7

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(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

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disparate treatment, harassment, and retaliation under the

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California Fair Employment Housing Act (“FEHA”) (Gov’t Code §

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12940) based on his age and participation in safety activities.

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(Am. Compl.)

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On October 31st, 2016, plaintiff filed a charge of

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discrimination with the Equal Employment Opportunity Commission

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(“EEOC”), alleging discrimination based on race, sex,

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retaliation, and age.8

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On December 22nd, 2016, the EEOC dismissed the charge and closed

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the file, noting that “the facts alleged in the charge fail to

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state a claim under any of the statutes enforced by the EEOC.”

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(Id.)

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II.

Legal Standard

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(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

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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.)
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Plaintiff is not pursuing a race or sex claim.
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movant is entitled to judgment as a matter of law.”

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P. 56(a).

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of the suit, and a genuine issue is one that could permit a

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reasonable jury to enter a verdict in the non-moving party’s

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favor.

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(1986).

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undisputed, [the controverted] issues can become questions of law

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which may be properly decided by summary judgment.”

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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-

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The party moving for summary judgment bears the initial

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burden of establishing the absence of a genuine issue of material

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fact and can satisfy this burden by presenting evidence that

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negates an essential element of the non-moving party’s case.

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Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

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Alternatively, the movant can demonstrate that the non-moving

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party cannot provide evidence to support an essential element

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upon which it will bear the burden of proof at trial. Id.

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Once
the

moving

party

meets

non-moving

party

to

its

burden,

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showing that there is a genuine issue [of material fact] for

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trial.”

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simply show that there is some metaphysical doubt as to the

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material facts.”

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Corp.,

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scintilla of evidence . . . will be insufficient; there must be

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evidence on which the jury could reasonably find for the [non-

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moving party].”

475

U.S.

specific

burden

shifts

Id. at 324.

“designate

the

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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
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a

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view the evidence in the light most favorable to the party

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opposing the motion and draw all justifiable inference in its

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favor.

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determinations, the weighing of the evidence, and the drawing of

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legitimate inferences from the facts are jury functions, not

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those of a judge . . . ruling on a motion for summary judgment .

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. .”

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III.

Matsushita, 475 U.S. at 587.

“Credibility

Anderson, 477 U.S. at 255.
EthosEnergy’s Motion for Summary Judgment

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A.

Wrongful Discharge Claim

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1.

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Public Policy

Plaintiff’s first cause of action alleges that

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defendants wrongfully fired plaintiff in violation of public

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policy.

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this claim, plaintiff must “identify a policy that is fundamental

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and substantial in that it is tethered to constitutional or

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statutory law, that inures to the benefit of the public rather

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than to a personal or proprietary interest of the individual

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employee, and that is clearly articulated at the time of

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discharge.”

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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.

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Here, plaintiff does not specifically identify the

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specific public policy or statutory or constitutional law on

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which he relies.

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because he participated in an occupational health and safety

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committee, health and safety meetings, and filed a complaint

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regarding unsafe equipment.

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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
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2.

2

For the following reasons, plaintiff is has not made

Prima Facie Case

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out a prima facie showing of retaliatory wrongful discharge.

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When a plaintiff alleges “wrongful employment termination in

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violation of public policy, and the defendant seeks summary

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judgment, California follows the burden shifting analysis of

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McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), to

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determine whether there are triable issues of fact for resolution

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by a jury.”

Loggins v. Kaiser Permanente Int’l, 151 Cal. App.

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4th 1102, 1009 (2007).

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establish a prima facie case by demonstrating that “(1) he or she

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engaged in a ‘protected activity,’ (2) the employer subjected the

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employee to an adverse employment action, and (3) a causal link

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existed between the protected activity and the employer’s

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action.”

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Cal.4th 1028, 1042 (2005)).

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a.

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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

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violation of public policy claims are viable when the employee

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was terminated for “(1) refusal to violate a statute; (2)

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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.
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performing a statutory obligation; (3) exercising a statutory

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constitutional right or privilege; or (4) reporting an alleged

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violation of a statute of public significance. Pettus v. Cole, 49

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Cal. App. 4th 402, 454 (1st Dist. 1996).

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Relying on the third category, plaintiff argues that he

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was terminated for exercising his statutory right to make

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complaints regarding employee safety, which is a right granted to

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him by California Labor Code § 6310.

Section 6310 provides that:

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“[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

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“complaint.”

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not qualify as a complaint.

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Cal. App. 4th 431 (1998) (disapproved of on other grounds by

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Colmenares v. Braemar Country Club, Inc., 29 Cal. 4th 1019

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(2003)) (“voicing of a fear about one’s safety in the workplace

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does not necessarily constitute a complaint about unsafe working

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conditions under Labor Code Section 6310.”)

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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

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(9th Cir. 2011), the court found that the plaintiff’s

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communications with his supervisor were not complaints as defined

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in § 6310 because his discussions regarding safety did not

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demonstrate opposition to his employer’s safety measures or

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allege any illegal activity.

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was later upheld by the Ninth Circuit, determined that plaintiff

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was simply “communicating with his supervisors and co-workers

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about how best to address safety issues. . . a matter that

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plaintiff admits was within his job duties.”

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Co., Civ. No. 08-1629 SI, 2009 WL 2912524, at *5 (N.D. Cal. Sept.

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9, 2009), aff’d 412 F. App’x 978 (9th Cir. 2011).

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The district court, whose decision

Luchetti v. Hershey

Here, plaintiff participated in a safety committee,
attended safety meetings, and filed work orders regarding broken

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equipment that he viewed as unsafe.

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Luchetti, plaintiff did not explicitly object to specific safety

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practices or report any safety violations either internally or to

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any external agency.

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safety issues, proposed safety suggestions, and engaged in

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conversations about safety.

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(Am. Compl. ¶ 42.)

As in

Instead, he simply identified potential

Moreover, plaintiff’s activities were clearly within

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his job responsibilities.

Attendance was mandatory at all safety

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meetings, (EthosEnergy’s Mot. for Summ. J. 11 (Docket No. 30),

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and, as a Voluntary Protection Program certified location, CPP

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employees were tasked with identifying possible health and safety

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issues and bringing these potential issues to light.

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¶ 20(a).)

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that are part of an employee’s regular duties cannot be

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considered protected activities.

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Civ. No. S-06-0431 WBS KJM, 2007 WL 1775474 (E.D. CA. June 20,

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2007) (finding that by reporting a chemical spill the employee

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was merely doing his job, and therefore was not engaging in

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protected activity).

(Am. Compl.

Courts, including this court, have held that actions

See Lund v. Leprino Foods CO.,

Therefore, even if plaintiff had complained
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1

about specific safety practices or violations, his actions still

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would not be protected because they were consistent with his job

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responsibilities.

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plaintiff was not engaging in a protected activity as a matter of

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law.

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b.

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Accordingly, the court concludes that

Adverse Employment Action

To satisfy the second element of a prima facie case of

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wrongful termination, plaintiff must demonstrate that defendant

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subjected him to an adverse employment action.

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was terminated on October 9, 2015.

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discharge form.)

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Here, plaintiff

as an adverse employment action.

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c.

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(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

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wrongful termination, plaintiff must show that the adverse

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employment action he was subjected to, in this case termination,

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occurred because of his participation in a protected activity.

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Even if plaintiff had satisfied that initial requirement of

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showing he was engaged in a protected activity, his claim of

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wrongful termination still fails.

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discharged, plaintiff admitted that it was merely “a feeling that

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[he] was being made an example of” because he brought up safety

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hazards.

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boisterous about safety concerns, “it can be presumed that he was

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targeted for making his concerns known to everyone.”

26

to EthosEnergy’s Mot. for Summ. J. 10 (Docket No. 38).)

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plaintiff provides no evidentiary support for this presumption.

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(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

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unable to establish a prima facie case of wrongful termination.

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2.

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Legitimate, Non-Retaliatory Reason

Once the employee has established a prima facie case of

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wrongful termination, the burden shifts to the employer to

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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

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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.”

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does not deny that he received this warning, and admits he was

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issued other warnings regarding his unsatisfactory performance as

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well.

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(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

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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

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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

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