Su v. Siemens Industry, Inc.

Filing 96

ORDER ADVISING PARTIES OF COURT'S TENTATIVE ORDER re 85 First MOTION for Partial Summary Judgment filed by Julie Su; 83 MOTION for Summary Judgment OR IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT filed by Siemens Industry, Inc. Signed by Judge Jon S. Tigar on April 7, 2014. (Attachments: # 1 Exhibit A, # 2 Certificate/Proof of Service)(wsn, COURT STAFF) (Filed on 4/7/2014)

The following is a tentative order, which has been issued solely to prepare counsel for

1
2

oral argument. The tentative order does not constitute an opinion of the Court and should not

3

be published or cited for any purpose.

4
5

I.

INTRODUCTION
In this employer retaliation action arising under Section 6310 of the California Labor

6
7

Code,1 Plaintiff and California State Labor Commissioner Julie Su (―Plaintiff‖) and Defendant

8

Siemens Industry, Inc. (―Defendant‖) have each filed motions for summary judgment. The matter

9

came on for hearing April 9, 2014.

10

II.

BACKGROUND

United States District Court
Northern District of California

11

A.

The Parties and Claims

12

Plaintiff Julie Su, the California State Labor Commissioner, brings this action on behalf of

13

Charles Anderson and Charles Pitschner (―Complainants‖) against Defendant Siemens Industry,

14

Inc. (―Defendant‖). Anderson and Pitschner were employed by Defendant as part of the crew

15

installing a baggage conveyor system at San Francisco International Airport (―SFO‖). Their

16

employment was subsequently terminated after they made job-related safety complaints. Plaintiff

17

now brings this claim under Section 6310 of the California Labor Code (―Section 6310‖) for

18

retaliatory termination.

19

B.

Undisputed Facts

20

Defendant is a subcontractor of general contractor Turner Construction, Inc., which was

21

responsible for renovating Terminal 2 at SFO. Declaration of Jim Smith (―J. Smith Decl.‖) ¶ 6,

22

ECF No. 85-21. Defendant employed millwrights from Carpenters‘ Union Local 102 to install

23

baggage conveyors in terminal 2 from about mid-2009 until at April 15, 2011. Id.
Defendant hired Complainant Anderson as a foreman in July 2009. Ex. A, Deposition of

24
25

Charles R. Anderson (―Anderson Dep.‖) 49-50, ECF No. 84-1. In September 2009, Defendant

26

hired Complainant Pitschner, Anderson‘s son, as a journeyman. Deposition of Charles Richard

27
28

1

All statutory citations hereinafter refer to the Labor Code except where otherwise stated.

1

Pitschner II (Pitschner Dep.), 27, 58, ECF No. 84-2. Anderson‘s duties included managing

2

workers, coordinating with other contractors, buying tools and safety equipment, inspecting

3

equipment, and at times overseeing the entire project. Anderson Dep. 71; Second Declaration of

4

Charles R. Anderson (―Anderson 2nd Decl.‖) ¶ 15, ECF No. 87-9. Pitschner‘s job duties included

5

installing the conveyor as well as filling out daily forklift inspection sheets. Pitschner Dep. 58,

6

257. Both Anderson and Pitschner believed that they, like all employees on the job site, also had a

7

duty to raise safety concerns. Anderson Dep. 131, 231; Pitschner Dep. 214.

8
9

David Slotta served as Siemens‘ superintendent on the project. Deposition of David Slotta
(―Slotta Dep.‖) 15, ECF No. 84-2. His duties included overseeing the job, scheduling, handling
logistics, and ordering supplies. Id. Kelly Scott, Mr. Slotta‘s superior and an employee of

11
United States District Court
Northern District of California

10

Siemens, was responsible for managing the project. Id. at 29-30, 35. For the most part, Mr. Scott

12

was not on site at the project. Id. at 109-110.

13
14
15
16

Turner, the general contractor, employed its own personnel on site including site
Superintendent Don Peterson and Safety Manager Joel Kellogg. Id. at 17-18.
1.

The Safety Complaints to Siemens

Throughout their employment with Siemens, Complainants reported numerous safety

17

concerns to Slotta. Anderson Dep. 216-219; Pitschner Dep. 266, 271-272. Anderson testified that

18

the great majority of the complaints he made to Slotta were met with approval, and that raising

19

safety concerns was part of Anderson‘s job. Anderson Dep. 218-219, 231. However, Anderson

20

asserts that when he objected to Slotta‘s practice of giving his crew licenses to operate forklifts

21

without providing the requisite training, Slotta disregarded his concerns, at one point telling him to

22

―shut up about it.‖ Anderson Dep. 152-153, 160. Pitschner likewise objected to this practice.

23

Pitschner Dep. 171-172, 256, 266.

24
25

2.

The “Near Misses” and Complaints to Turner

In early February, Anderson was informed of two ―near misses‖ on the job site ‒ incidents

26

in which individuals were put at risk, but not actually injured. Anderson Dep. 190, 271. On

27

February 10, two days after the near misses, Anderson was issued a written warning for conduct

28

unrelated to the safety incidents. Anderson Dep. 271; Carney Decl. Ex. G.
2

The next day, on February 11, Anderson approached Turner‘s safety manager, Joe

1
2

Kellogg, told him that Siemens had issued forklift licenses to its workers without giving them

3

training, and asked whether Slotta had told him about the near misses. Slotta Dep. 58; Anderson

4

Dep. 159, 161-162. In response, Kellogg ―blew up‖ saying that he was ―tired of all the bullshit‖

5

and planned on putting ―an end to the drama.‖ Anderson Dep. 162. Kellogg, in turn, told Slotta

6

what Anderson had reported to him. Su Opp. at 2; Slotta Dep. at 58.2
On February 16, Slotta called a meeting of all of the millwrights. Slotta Dep. 126. At that

7

meeting Slotta informed all of the millwrights that he was removing all discipline that they had

9

previously received, and that they were starting over with a clean slate. Slotta Dep. 93-94. During

10

the same meeting Slotta announced that Paul Batsel would be responsible for all paperwork, a task

11
United States District Court
Northern District of California

8

previously assigned to Anderson. Anderson Decl. ¶ 5. Slotta also prohibited anyone from

12

entering either Siemen or Turner‘s trailer. Id. ¶ 6. Prior to this meeting, Anderson had regularly

13

entered the trailer as part of his duties as a senior foreman. Id. At the close of the meeting, Slotta

14

told Anderson that he would no longer be attending foremen‘s meetings. Id. ¶ 7.
On March 12, 2010, less than a month after the meeting, Siemens laid off four workers,

15
16

including Anderson and Pitschner. Anderson Decl. ¶ 7.

17

C.

Procedural History

18

Following their discharge, the Union filed grievances on behalf of Complainants seeking

19

reinstatement. Anderson Decl., Ex. A, B. This ultimately led to an arbitration between the Union

20

and Defendant. J. Smith Decl. ¶ 7-8.
After two days of proceedings, the arbitrator, Gerald McKay, rendered a decision. Id.

21

22

¶ 8-9. The decision awarded Complainants one hundred hours of wages and fringe benefits.

23

Decision and Award of the Arbitrator at 4. The decision also stated that ―the decision to lay Mr.

24

Anderson and his son off were done specifically by Mr. Slotta in retaliation for Mr. Anderson‘s

25
26
27
28

2

Plaintiff also cites to page 57 of Slotta‘s declaration, but has not provided the Court with that
page. Although the point does not appear to be in dispute, and is strongly suggested on page 58 of
Slotta‘s Deposition, the Court does not locate any first hand source directly stating that Kellogg
told Slotta about Anderson‘s complaint.
3

1
2

actions taken against him.‖ Id.
On June 12, 2012, Plaintiff, California Labor Commissioner Julie Su, brought this action in

3

San Francisco Superior Court on behalf of Pitschner and Anderson under California Labor Code

4

Section 6310 seeking back wages and injunctive relief. Su Complaint, ECF No. 1. Defendant

5

then removed the case to this Court pursuant to 28 U.S.C. § 1332. Notice of Removal, ECF No. 1.

6

Anderson filed a petition to intervene, and the Court granted that petition. Order Granting Motion

7

to Intervene, ECF No. 57.

8
9

Both parties have moved for summary judgment, which motions are now before the Court.
Defendant‘s Motion for Summary Judgment or in the Alternative Partial Summary Judgment
(―Def. MSJ‖), ECF No. 83; Plaintiff‘s Motion for Partial Summary Judgment or in the Alternative

11
United States District Court
Northern District of California

10

for an Order Treating Specified Facts as Established (―Su MSJ‖), ECF No. 85.

12

D.

Legal Standard

13

Summary judgment is proper when a ―movant shows that there is no genuine dispute as to

14

any material fact and the movant is entitled to judgment as a matter of law.‖ Fed. R. Civ. P. 56(a).

15

―A party asserting that a fact cannot be or is genuinely disputed must support the assertion by‖

16

citing to depositions, documents, affidavits, or other materials. Fed. R. Civ. P. 56(c)(1)(A). A

17

party also may show that such materials ―do not establish the absence or presence of a genuine

18

dispute, or that an adverse party cannot produce admissible evidence to support the fact.‖ Fed. R.

19

Civ. P. 56(c)(1)(B). An issue is ―genuine‖ only if there is sufficient evidence for a reasonable

20

fact-finder to find for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248–

21

49 (1986). A fact is ―material‖ if the fact may affect the outcome of the case. Id. at 248. ―In

22

considering a motion for summary judgment, the court may not weigh the evidence or make

23

credibility determinations, and is required to draw all inferences in a light most favorable to the

24

non-moving party.‖ Freeman v. Arpaio, 125 F.3d 732, 735 (9th Cir. 1997).

25

Where the party moving for summary judgment would bear the burden of proof at trial,

26

that party bears the initial burden of producing evidence that would entitle it to a directed verdict if

27

uncontroverted at trial. See C.A.R. Transp. Brokerage Co. v. Darden Rests., Inc., 213 F.3d 474,

28

480 (9th Cir. 2000). Where the party moving for summary judgment would not bear the burden of
4

proof at trial, that party bears the initial burden of either producing evidence that negates an

2

essential element of the non-moving party's claim, or showing that the non-moving party does not

3

have enough evidence of an essential element to carry its ultimate burden of persuasion at trial. If

4

the moving party satisfies its initial burden of production, then the non-moving party must produce

5

admissible evidence to show that a genuine issue of material fact exists. See Nissan Fire & Marine

6

Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102–03 (9th Cir. 2000). The non-moving party must

7

―identify with reasonable particularity the evidence that precludes summary judgment.‖ Keenan v.

8

Allan, 91 F.3d 1275, 1279 (9th Cir. 1996). Indeed, it is not the duty of the district court to ―to

9

scour the record in search of a genuine issue of triable fact.‖ Id. ―A mere scintilla of evidence

10

will not be sufficient to defeat a properly supported motion for summary judgment; rather, the

11
United States District Court
Northern District of California

1

nonmoving party must introduce some significant probative evidence tending to support the

12

complaint.‖ Summers v. Teichert & Son, Inc., 127 F.3d 1150, 1152 (9th Cir. 1997) (citation and

13

internal quotation marks omitted). If the non-moving party fails to make this showing, the moving

14

party is entitled to summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

15

E.

16

The Court has jurisdiction over this action pursuant to 28 U.S.C. 1332.

17

III.

Jurisdiction

DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

18

Defendant moves for summary judgment on the grounds that Plaintiff cannot show that

19

Complainants engaged in protected activity that resulted in their termination, and therefore she

20

cannot carry her burden of establishing a prima facie case of a Section 6310 violation.

21

Defendant‘s Motion for Summary Judgment, ECF No. 83 at 13; see Yankowitz, 36 Cal. 4th at

22

1042. Moreover, Defendant contends that Plaintiff‘s damages are limited as a matter of law

23

because (1) Plaintiff cannot recover health and welfare benefits, and (2) Plaintiff cannot recover

24

damages beyond the date of completion of the SFO project. Id. at 18, 19, 22.

25

Plaintiff opposes Defendant‘s motion, contending that Anderson and Pitschner‘s safety

26

complaints qualify as protected activity under Section 6310. ECF No. 87. Plaintiff further

27

contends that employer contributions toward health and welfare benefits are properly included in a

28

damage award, and that recovery beyond the project completion date is proper because Siemens‘
5

1
2

contract also included post-construction operation and maintenance work. Id. at 19, 23.
The Court first addresses Defendant‘s argument that Plaintiff cannot show that

3

Complainants were terminated for protected activity, and second addresses Defendant‘s argument

4

that the Court should limit Plaintiff‘s potential damages.

5

A.

Protected Activity under Section 6310

6

Section 6310 prohibits an employer from terminating or otherwise discriminating against

7

an employee because the employee has made ―any oral or written complaint to . . . his or her

8

employer‖ about unsafe working conditions or unsafe work practices. Cal. Lab.Code § 6310(a).

9

Courts considering 6310 claims have applied the three-part burden-shifting framework set
forth by the Supreme Court in McDonnel Douglas Corp. v. Green, 411 U.S. 792 (1973). See

11
United States District Court
Northern District of California

10

Yankowitz v. L‘Oreal USA, Inc., 36 Cal. 4th 1028, 1042 (2005). Under that test, an employee

12

must first establish a prima facie case for retaliation. Yankowitz, 36 Cal. 4th at 1042. Once the

13

employee has established a prima facie case, the employer must offer a legitimate, non-retaliatory

14

reason for the adverse employment action to rebut the employee‘s claim. Id. If the employer does

15

so, the burden shifts back to the employee to prove retaliatory motive. Id.

16

To establish a prima facie employment retaliation case the Plaintiff must show that: (1) the

17

employee engaged in a ―protected activity‖; (2) the employer subjected the employee to adverse

18

employment action; and (3) a causal link existed between the protected activity and the adverse

19

action. Yankowitz, 36 Cal. 4th at 1042.

20

Plaintiff raises two categories of safety complaints, which she contends resulted in

21

Complainants‘ termination. Su MSJ at 2. The first category are complaints made directly to

22

Defendant Siemens, and the second category are complaints made to Turner, the general

23

contractor. Id. The Court will address these allegations in reverse order.

24
25

1.

Complaints to Turner

In order to state a claim under Section 6310, a Plaintiff must first show that he engaged in

26

a protected activity. See Id. Specifically, a plaintiff must show that he was discharged or

27

discriminated against because he ―[m]ade any oral or written complaint to . . . his or her

28

employer.‖ Cal. Labor Code § 6310(a)(1).
6

1

Defendant sets forth three reasons why Anderson‘s complaint to Turner was not a

2

protected activity, and therefore does not establish a prima facie case. First, Defendant contends

3

that Anderson‘s discussion with Turner was not a ―complaint,‖ as that word has been construed by

4

courts interpreting Section 6310. Def. MSJ at 14. Second, Defendant argues that Anderson‘s

5

complaints were made in the course of his employment, and for that reason were not a protected

6

activity under Section 6310. Def. MSJ at 13-14. Finally, Defendant contends that the

7

Complainants did not make their Complaints to their employer, as required to state a claim under

8

Section 6310. Def. MSJ at 15.

9

Plaintiff argues that (1) Anderson‘s complaint was protected regardless of the language he
used to make the complaint; (2) under California law safety complaints made in the scope of

11
United States District Court
Northern District of California

10

employment are protected, and, 3) Turner is a ―controlling employer‖ and is therefore an employer

12

for the purpose of Section 6310, and further, because Anderson‘s complaint was conveyed to

13

Siemens, ―[i]t can thus be said that Anderson made the complaints to Defendant, though

14

indirectly.‖

15
16

a.

Wording of the Complaint

Defendant notes that when Anderson was asked in deposition about his safety complaint to

17

Turner, he insisted that he had not complained to Turner, but merely asked whether they knew

18

about the safety issues. See Anderson dep. 157 (―Q. …[Y]ou testified that you went and reported

19

these near misses; correct? A. I didn‘t report; I asked a question‖); id. at 160 (―Q. . . . [T]he

20

impetus to reporting them was these two near misses; correct? . . . A. . . . I didn‘t report them; I

21

went and asked a question . . . of whether or not Dave Slotta had reported them.‖). Defendant

22

argues that no relief can be granted to Complainants because Anderson‘s comments to Turner

23

were posed as questions, which do not qualify as complaints.

24

In support of its position, Defendant cites Oyarzo v. Toulumne Fire Dist., 955 F. Supp. 2d

25

1038, 1099 (E.D. Cal. 2013). Def. MSJ 15. There, the court held that although the employee

26

―reported the safety violation . . . he never made a ‗complaint‘ . . . about those violations‖ because

27

it was his ―responsibility to monitor and address such safety violations . . . and keep [his

28

employer] informed‖ of them. Id. Accordingly, the court found that his reports did not amount to
7

1
2

a protected activity. Id.
The Oyarzo court‘s reasoning does not support the proposition for which Defendant uses it

3

‒ i.e., that complaints must take a particular form to fall within the purview of Section 6310.

4

Instead, Oyarzo stands for the proposition that when an employee‘s job is to monitor, address and

5

report safety violations, he cannot predicate his Section 6310 claim on the fulfillment of those

6

duties. Id. Defendant offers no further support for its position that a safety complaint must take a

7

particular form to be covered by Section 6310, and the Court finds none.

8
9

b.

Course of Employment

Defendant next argues that because Anderson was acting within the scope of his job duties
when he made safety complaints, his complaints cannot form the basis of a Section 6310 claim.

11
United States District Court
Northern District of California

10

Def. MSJ at 13-14. Defendant cites Lukov v. Schindler Elevator Corp., No. 5:11-cv-00201-EJD,

12

2012 WL 5464622 at *5 (N.D. Cal. Nov. 8, 2012) for this proposition.

13

Lukov‘s reasoning is inapposite. In Lukov, the plaintiff‘s job entailed servicing elevators

14

at different stores in San Jose ―taking trouble calls, performing repairs, communicating with

15

customers, ordering parts, conducting tests and examinations of the equipment, identifying

16

potential safety issues, and certifying that certain standards [we]re met.‖ Id. at 1. ―Part of

17

Plaintiff's job responsibilities included informing [the California Division of Occupational Safety

18

and Health] of his client's compliance with the DOSH preliminary order requirements.‖ Id. at 4.

19

The controversy at the center of the case arose when the plaintiff was ―called upon to observe and

20

certify the annual fire safety testing of the Nordstrom elevator.‖ Id. Upon finding the Nordstrom

21

system was unsafe, the plaintiff refused to certify the elevator and reported the problem to the

22

California Division of Occupational Safety and Health. Id.

23

In Lukove, the court held that the plaintiff did not engage in protected activity where he

24

failed to ―allege safety issues concerning his own workplace or working conditions.‖ Id. at 5. The

25

court further observed that ―an employee whose job entails assessing compliance with statutes and

26

regulations or reporting to government agencies only engages in protected activity if he or she

27

steps outside of his or her role representing the company by initiating an action or asserting

28

protected rights against his or her employer.‖ Id. at 5 (italics in original).
8

Here, unlike Lukov, it is undisputed that the complaints in question were made against

1
2

Siemens. Moreover, those complaints undeniably concerned Complainants‘ workplace. Finally,

3

unlike Lukov and other cases following its reasoning, Complainants here were not hired

4

specifically to ―assess compliance with statutes and regulations.‖ See id. While Complainants

5

assert that they believed they had a duty to report safety issues on the worksite, this does not

6

qualify them for the narrow exception carved out in Lukov. Practically all workers have at least

7

some duty to report workplace safety issues they observe on the job. But that does not make all

8

workers ineligible to bring a Section 6310 claim. If the exception covered any employee who

9

believed that he was required to report safety hazards on his jobsite, the exception would swallow

10

the rule.
c.

United States District Court
Northern District of California

11

“His or Her Employer”

12

Defendant next observes that the complaint for which Anderson contends he was

13

terminated was made to Turner Construction, and that Turner, the general contractor, ―was not

14

Anderson‘s employer.‖ Def. MSJ at 15.3 Accordingly, Defendant argues that Plaintiff‘s claim

15

fails as a matter of law because Anderson‘s complaint was not a protected activity under Section

16

6310. To address this argument, the Court must determine the meaning of the phrase ―his or her

17

employer,‖ as it is used in Section 6310.4

18

The possessive ―his or her employer‖ indicates that Section 6310 is concerned with the

19

employer/employee relationship, and it is in this context that the Court determines whether the

20

general contractor was Complainants’ employer. However, as a starting point, the Court looks to

21

the definitions contained within the pertinent statutory code.
Section 6310 is within Chapter 1 of Part 1 of Division 5 of the California Labor Code,

22
23

which deals with occupational safety and health. In Section 6304 of this Chapter, the Legislature

24
3

25
26
27
28

Plaintiff does not claim to have made a complaint to ―the division,other governmental agencies‖
or ―his or her representative,‖ which are the other avenues through which protected safety
complaints can be made. See Cal. Labor Code § 6310.
4
The Court has consulted the Legislative Counsel‘s notes on the passage of Section 6310 and
subsequent amendments, and finds no definition of ―his or her employer.‖ Stats. 1973, c. 993, p.
1930, § 59, eff. Oct. 1, 1973; Amended by Stats. 1974, c. 1284 p. 2782, § 9; Stats. 1977, c. 460, p.
1515, § 1; Stats. 1989, c. 1369, § 3, eff. Oct. 2, 1989.
9

1

has adopted the definition of ―employer‖ contained in Chapter 2 of Part 1 of Division 4, which

2

deals with workers‘ compensation and insurance. The Division 4 definition reads, in pertinent

3

part: ―‗employer‘ means…[e]very person…which has any natural person in service.‖ Cal. Lab.

4

Code § 3300. Standing alone, this sheds little light on the employer/employee relationship

5

required to state a claim under § 6310.
The parties cite no cases deciding whether a general contractor can be considered a

6
7

particular complainant‘s ―employer‖ under Section 6310. However, the Court has located two

8

cases discussing a similar provision, which applies the definition of employer set out in Section

9

6304 and regulates conduct ―between an employee and his or her own employer‖ Cal. Lab. Code
§ 6304.5. In both cases, the courts interpreted the phrase ―his or her own employer‖ to pertain

11
United States District Court
Northern District of California

10

only to direct employers, and to specifically exclude general contractors. See Spencer v. G.A.

12

MacDonald Constr. Co., 63 Cal App. 3d 836, 860-861 (1976) (holding that a general contractor

13

does not qualify as a plaintiff‘s employer where the plaintiff is directly employed by a

14

subcontractor) (superseded on other grounds); accord Elsner v. Uveges, 130 Cal. Rptr. 2d 483,

15

492-493 (2003) (superseded on other grounds). In each case, the employee of a subcontractor

16

brought an action against the general contractor. Spencer, 63 Cal. App. 3d at 836; Elsner, 130 Cal.

17

Rptr. 2d at 483. Both courts held that after Section 6304‘s amendment in 1971, the statute was

18

unequivocal that for the purpose of a suit brought by a subcontractor‘s employee ―a general

19

contractor is no longer an employer within Section 6304.‖5 Spencer, 63 Cal. App. 3d at 861;

20

Elsner, 130 Cal. Rptr. at 492-493.
The Labor Code‘s definition of employee provides additional guidance. Section 6304.1

21

22

defines employee as ―every person who is required or directed by any employer to engage in any

23

employment or to go to work or be at any time in any place of employment.‖ Cal. Labor Code

24

Section 6304.1(a). This strongly suggests that an ―employee‖ is defined by his employer‘s direct

25

control over his activities.

26
27
28

5

Prior to the 1971 amendment, Section 3604 read ―‗[e]mployer‘ shall have the same meaning as
in Section 3300 and shall also include every person having direction, management, control, or
custody of any employment, place of employment, or any employee.‖
10

This definition also accords with accepted principles of agency and employment law. In

1
2

Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 323 (1992), the Supreme Court held that

3

absent a specific statutory definition, courts should ―incorporate traditional agency law principles‖

4

unless doing so ―would thwart the congressional design or lead to absurd results.‖ Looking to the

5

Second Restatement of Agency, the Supreme Court identified several indicia of

6

employer/employee relationship pertinent to the instant case, including ―the hiring party‘s right to

7

control the manner and means‖ of work, ―whether the hiring party has the right to assign

8

additional projects to the hired party,‖ and ―the extent of the hired party‘s discretion over when

9

and how long to work.‖ Id. at 323-324. Significantly, the Supreme Court refers throughout to ―the
hiring party,‖ supporting the conclusion that the hiring entity, and not a contractor at one remove

11
United States District Court
Northern District of California

10

from the hiring process, fits the definition of employer. This further corroborates Section 6310‘s

12

presumptive application only to the direct employers of the complaining employee.
i.

13

Controlling Employer

Without explaining why the Court should deviate from the statutory definition provided in

14
15

Section 6304, or distinguishing the authority cited supra, Plaintiff argues that the workplace safety

16

regulations at 8 Cal. Code Reg. § 336.10(c) indicate that Turner falls within the scope of Section

17

6310. Su Opp. to Def. MSJ at 10.6 8 C.C.R. § 336.10 lists four categories of employers who may

18

be cited for ocupational safety and health violations. One of these categories is the ―controlling

19

employer‖: ―[t]he employer who was responsible, by contract or through actual practice, for safety

20

and health conditions on the worksite; i.e., the employer who had the authority for ensuring that

21

the hazardous condition is corrected.‖ Id. Plaintiff argues that Turner fits within this category,

22

and notes that under this provision, ―[t]he employers listed . . . may be cited regardless of whether

23

their own employees were exposed to the hazard.‖ Id.
This regulation (and the statutory provision that later adopted its language) deal with

24
25

government-imposed citations for occupational safety and health violations, not the retaliation

26
27
28

6

It is not clear to the Court why Plaintiff cites the regulatory language at 8 Cal. Code Reg. §
336.10 rather than the statutory language at Cal. Lab. Code § 6400(b), since they have precisely
the same text. The Court refers to the provision as ―Section 336.10/6400(b)‖ hereinafter.
11

1

prohibition at issue in this case. For purposes of making companies citeable for safety violations,

2

it addresses the degree of control the entity exercises over the conditions of a worksite. See 8 Cal.

3

Code Reg. § 336.10(c).

4

Unlike the provisions of Section 6400(b), Section 6310 applies a more limited scope of the

5

term ―employer.‖ Section 6310 does not apply to any employer, it protects only complaints made

6

to ―his or her [i.e., the complainants‘] employer.‖ In determining who qualifies as a particular

7

worker‘s ―employer‖ under Section 6310, Section 336.10/6400(b)‘s general definition of an

8

―employer‖ who can be cited for safety violations is of no assistance. The fact that the

9

government can cite a company for endangering the safety of its subcontractor‘s employees does
not mean that that employer must be considered those employees‘ employer for purposes of

11
United States District Court
Northern District of California

10

Section 6310.
ii.

12
13

Indirect Complaints

Plaintiff further contends that summary judgment should be denied because Anderson‘s

14

complaint to Turner was later conveyed to Siemens, and ―thus…Anderson made the complaints to

15

Defendant, though indirectly.‖ Su Opp. MSJ at 11. Plaintiff cites no legal authority for her

16

―indirect complaint‖ theory.

17

Indeed, applying an indirect complaint theory of liability to Section 6310 would undermine

18

its requirement that an employee make an ―oral or written complaint to . . . his or her employer.‖

19

Cal. Labor Code § 6310 (italics added). Under Plaintiff‘s reasoning, an employer could be held

20

liable based on a complaint made to a non-employer, who later relayed the complaint to an

21

employer. This undermines the unambiguous language of the statute. As the statute is written, an

22

―indirect‖ complaint cannot establish liability under Section 6310.
d.

23
24
25
26
27
28

Conclusion

For the foregoing reasons, Defendant is entitled to judgment in its favor as a matter of law
as to all claims in this action relating to complaints made to Turner Construction.
However, the inquiry does not end here. The Court now considers complaints made
directly to Siemens through project manager David Slotta.
2.

Complaints to Siemens
12

1

a.

Causation

2

To establish a prima facie employment retaliation case the Plaintiff must show that a

3

causal link existed between the protected activity and the adverse action. Yankowitz, 36 Cal. 4th at

4

1042. The causation element of a plaintiff‘s prima facie case requires the employer‘s ―retaliatory

5

animus [to be] a but-for cause of the employer‘s adverse action.‖ Reeves v. Safeway Stores, Inc.,

6

121 Cal. App. 4th 95, 108 (citations omitted).

7

It is undisputed that Anderson and Pitschner made safety complaints to Siemens‘

8

superintendent Dave Slotta. Anderson Dep. 216-219; Pitschner Dep. 266, 271-272. Defendant

9

also does not dispute that such complaints constitute protected activity under Section 6310.
However, Defendant contends that Complainants have not shown, and cannot show, that their

11
United States District Court
Northern District of California

10

complaints to Siemens resulted in an adverse employment action. Def. MSJ 13, 16; see

12

Yankowitz, 36 Cal. 4th at 1042.

13

In support of its position, Defendant points to Anderson and Pitschner‘s deposition

14

testimony, noting that each Complainant testified that his layoff was solely attributable to the

15

complaint made to Turner. Def. MSJ at 10. The relevant testimony is reproduced below:

16
17

Q: . . . The retaliation that you believe was caused to you by
Siemens Industry was . . . because you investigated and went
to Turner about the near misses?

18
A: [by Anderson] Correct.
19
20
21

22
23
24

Q: And any other reason?
A: No other reason I can see.
Anderson Dep. 232-233.
A: [Pitschner] . . . I go home to deal with my license plate
issues, and when I come back, I‘m laid off, and I believe it‘s
all in retaliation for my father‘s actions.

25

Pitschner Dep. 151. Plaintiff disputes Defendant‘s assertion that Anderson‘s safety complaint to

26

Turner was the only cause of retaliation. Su Opp. MSJ at 11. Plaintiff observes that ―Anderson

27

complained to Slotta several times over the course of months‖ and that the Turner complaint ―was

28

the last in a series‖ of complaints. Id. Additionally, Plaintiff points to several safety complaints
13

1

made by Pitschner to Slotta, which elicited rebukes from Slotta. Su MSJ at 4; Pitschner Dep. 280-

2

281, 304-305.
The question is whether a reasonable jury could find that, but for the direct complaints to

3
4

Siemens, Anderson and Pitschner would not have been laid off. See Reeves, 121 Cal. App. 4th at

5

108; Anderson, 477 U.S. at 248-249. The Court addresses this issue as to each Complainant

6

individually.
i.

7

Anderson’s Complaints to Slotta
(a)

8

Prima Facie Case

Anderson‘s deposition testimony reveals numerous complaints that he made directly to

9

Siemens‘s superintendent, Slotta. Anderson Dep. 216-219, 152-153. However, when asked

11
United States District Court
Northern District of California

10

whether he believed he was terminated for any of these complaints, Anderson asserted that he was

12

not, and that making these complaints was part of his job. Id. at 218-219, 231. Anderson testified

13

that ―Dave [Slotta] approved of every one of those [complaints].‖ Id. at 219. When pressed on this

14

point, Anderson maintained that only the ―near misses and the circumstances surrounding them‖

15

played a role in his termination. Id. He then clarified that this included his ―investigation‖ of

16

what caused the collision, and his ―talking to the union‖ and ―Turner‖ about it. Id.7
Aside from this exchange, Plaintiff cites only one other complaint that Anderson made to

17
18

Slotta: his objection to Slotta‘s failure to train workers regarding safe forklift operations. Id. at

19

152-153, 160. Anderson testified that he made this same complaint ―month after month‖ to no

20

avail. Id. at 160. However, he also testified that, despite these complaints, his relationship with

21

Slotta remained good until he reported the near misses to Turner. Id. at 153.
As Defendant observes, none of Anderson‘s safety complaints to Siemens were closely

22
23

followed by adverse employment action. Def. MSJ 13. Rather, his layoff (the only adverse action

24

he claims to have suffered) followed shortly after his complaint to Turner. Moreover, Anderson

25
26
27
28

7

Following this testimony, Anderson said ―that‘s the primary reason I was on the layoff.‖
Anderson Dep. 219. The examiner then asked him, ―is there a secondary reason?‖ Id. The answer
to that question was not provided to the Court. Page 220 of Anderson‘s deposition was not
included in the record by either party.
14

1

himself testified that it was the Turner complaint alone that resulted in his layoff. Anderson Dep.

2

232-233.
However, this is not enough to show that there is ―no genuine dispute as to any material

3
4

fact.‖ Fed R. Civ. P. 56(a). Plaintiff notes that the Turner complaint ―was the last in a series‖ and

5

that Anderson had ―complained to Slotta several times over the course of months about the need

6

for forklift training. Su Opp. at 11; Anderson Dep. 160.

7

As Defendant points out, Anderson has made potentially damaging concessions in

8

deposition: that he does not believe he was terminated for any reason except for the complaints he

9

made to Turner. Anderson Dep 232-233. However, there is no indication that Anderson has
sufficient personal knowledge of the decision-making process to make his opinion anything more

11
United States District Court
Northern District of California

10

than conjecture. Regardless of Anderson‘s expression of belief at deposition, Plaintiff is not

12

precluded from showing that the other complaints preceding the Turner complaint were, standing

13

alone, a but-for cause of Anderson‘s termination.8
In a retaliation case, ―[t]he causal link may be established by an inference derived from

14
15

circumstantial evidence.‖ Jordan v. Clark, 847 F. 2d 1368, 1376 (9th Cir. 1988). ―Evidence of an

16

employer‘s knowledge of the employee‘s protected activity, where the adverse employment action

17

follows soon after, can be sufficient to support an inference of causation.‖ Cuevas v. Sky West

18

Airlines, 12-05916 CRB, 2014 WL 595938 at *6 (N.D. Cal. Feb. 14, 2014). Here, the employees‘

19

direct supervisor, Slotta, was clearly aware of the protected activity, and was in fact the conduit

20

through which the protected activity was performed.
Drawing all inferences in the light most favorable to Anderson, Plaintiff has presented a

21

22

genuine issue upon which a reasonable fact finder could conclude that but for his repeated

23
24
25
26
27
28

8

In his Declaration, Anderson indicates that Slotta made several threats to fire him prior to the
―near misses.‖ Anderson Decl. ¶ 3-5. However, this assertion directly contradicts his deposition
testimony that his job had never been threatened before the prior miss incident. See Anderson Dep. 29
(―Q: Did Dave Slotta threaten to fire you at any point in time . . . prior to the near misses incident? A:
No.‖) Anderson‘s later Declaration does not in any way explain this inconsistency. A party cannot
―create a triable issue of fact, and thus survive summary judgment, merely by contradicting his or her
own sworn deposition testimony with a later declaration.‖ Disc Golf Ass‘n, Inc. v. Champion Discs,
Inc., 158 F. 3d 1002, 1008 (9th Cir. 1998). Accordingly, the Court does not consider this portion of
Anderson‘s Declaration.
15

1

complaints to Slotta in the months leading up to the Turner complaint, Anderson would not have

2

been terminated.
(b)

3

Legitimate Non-Retaliatory Reason

Given that Anderson has made out a prima facie case, the burden shifts to Defendant to

4
5

show that there was a legitimate, non-retaliatory reason for Anderson‘s layoff. See Yankowitz, 36

6

Cal. 4th at 1042. Defendant contends that in March, 2010, the SFO project ―had progressed to the

7

point that Siemens no longer needed four of the millwrights.‖ Def. MSJ at 8. In determining who

8

should be laid off, Defendant asserts that Slotta‘s supervisor considered production reports

9

provided by Slotta. Id.
Defendant asserts that Anderson was the least productive foreman on the site. Def. MSJ at

10

United States District Court
Northern District of California

11

8; Carney Decl. Ex. K. Further, Defendant attaches exhibit H, Slotta‘s notes about Anderson,

12

which enumerate a series of complaints having to do with Anderson not being in his work area,

13

directing other crews, and starting rumors. Def. MSJ 8; Carney Decl. Ex. H. Defendant has

14

offered sufficient evidence of a legitimate motive for terminating Anderson to shift the burden

15

back to Plaintiff to demonstrate pretext.9

16

(c)

Pretext

―If the employer produces a legitimate reason for the adverse employment action, the

17
18

presumption of retaliation drops out of the picture and the burden shifts back to the employee.‖

19

Yankowitz, 36 Cal. 4th at 1042 (citations and internal quotation marks omitted). At the summary

20

judgment stage, an employee meets this burden if he shows that the employer‘s justification for

21

the adverse action is ―untrue or pretextual,‖ or if he produces ―evidence that the employer acted

22

[in retaliation], or a combination of the two.‖ Horn v. Cushman & Wakefield Western, Inc., 72

23

Cal. App. 4th 798, 806 (1999).10 ―Circumstantial evidence of pretext must be specific and

24
25
26
27
28

9

Defendant also asserts that production reports prepared by another on-site manager, Patrick
Grattan, indicate that Slotta was producing ―only half as many conveyors as the other foreman on
the job,‖ but no such reports are attached to the record.
10
The Horn court notes that there is some disagreement about what an employee must do to avoid
summary judgment in the face of a legitimate reason given by his employer, but that its approach
represents the ―predominant view.‖ Horn, 72 Cal. App. 4th at 806.
16

1

substantial in order to survive summary judgment.‖ Brown v. City of Tucson, 336 F. 38 1181,

2

1188 (9th Cir. 2003).

3

Plaintiff‘s showing ‒ that Anderson made several complaints in the months leading up to

4

his layoff ‒ is sufficient to create a triable issue of fact regarding pretext, notwithstanding the

5

legitimate reason for termination given by Defendant. See Id.

6

ii.

7
8
9

Pitschner’s Complaints to Slotta
(a)

Prima Facie Case

Pitschner testified that he also complained to Slotta about worksite safety. Pitschner Dep.
256, 266, 280, 304-305. Pitschner further testified that Slotta rebuked him for making these
complaints on three separate occasions. See id. On the first occasion, Pitschner complained about

11
United States District Court
Northern District of California

10

a coworker‘s unsafe forklift driving, to which Slotta responded, ―[y]ou don‘t tell me how to run

12

my crew.‖ Id. at 280. On the second occasion, Pitschner complained that a worker had left a load

13

on his forklift with the forks in the raised position. Id. at 304-305. This time, Slotta responded,

14

―[y]ou know, all this bullshit and the drama you guys are going through . . . [t]his shit needs to

15

stop.‖ Id. In the final encounter mentioned by Plaintiff, Pitschner complained to Slotta that he was

16

given a license to operate the forklift, but not any training. Id. at 272. Pitschner expressed concern

17

that if there was an accident someone might find out he had not been trained. Id. Slotta responded,

18

―[i]f it comes out, it‘s because you opened your mouth, and if you open your mouth, I‘ll get both

19

you and [Anderson] your checks.‖ Id.

20

In its Motion, Defendant again points the Court to several passages in which Pitschner

21

testified that Siemens took no adverse action against him for the complaints he raised. Id at 151,

22

319-321. In both of these statements, Pitschner indicated that he believes he was laid off because

23

of his father‘s complaint to Turner. Id.

24

However, unlike Anderson, Pitschner contends that his complaints to Siemens were

25

repeatedly met with hostility, and that he was even threatened by Slotta that if he let anyone know

26

he had not been given proper forklift training, Slotta would fire him. Pitschner Dep. at 272. A

27

reasonable jury could infer that these complaints were the cause of Pitschner‘s termination. Thus,

28

the Defendant has not ―negated an essential element‖ of Plaintiff‘s prima facie case. See Nissan
17

1

Fire & Marine Ins. Co., 210 F. 3d at 1102.
(b)

2

Legitimate Non-Retaliatory Reason

Accordingly, the burden remains with Defendant to show that there was a legitimate, non-

3
4

retaliatory reason for Pitschner‘s layoff. See Yankowitz, 36 Cal. 4th at 1042. To that end,

5

Defendant contends that in March, 2010, the SFO project ―had progressed to the point that

6

Siemens no longer needed four of the millwrights.‖ Def. MSJ at 8. In determining who should be

7

laid off, Defendant asserts that Slotta‘s supervisor considered production reports provided by

8

Slotta. Id.
Defendant contends that Pitschner was a slow worker, and was laid off because he was

9

among the four least productive workers on the site. Slotta Dep. 114. In support of this rationale,

11
United States District Court
Northern District of California

10

Defendant attaches exhibit H, apparently Slotta‘s notes about Pitschner and Anderson. Def. MSJ

12

8-9; Carney Decl. Ex. H.11 That exhibit contains one note indicating a slow work pace, two

13

indicating that Pitschner was away from his work area, and three indicating that Pitschner was

14

―starting rumors‖ or ―running rumors.‖ Id. Additionally, Defendant attaches exhibit K, which

15

shows worker‘s production levels in March, 2010. Def. MSJ 8; Carney Decl. Ex. K. This exhibit

16

compares the number of tasks that each worker completed, and indicates that Pitschner completed

17

far fewer than others. See Carney Decl. Ex. K. Defendant has offered sufficient evidence of a

18

legitimate motive for terminating Pitschner to shift the burden back to Plaintiff to demonstrate

19

pretext.
(c)

20

Pretext

―If the employer produces a legitimate reason for the adverse employment action, the

21

22
23
24
25
26
27
28

11

The precise value of these notes is unclear. They are not authenticated, at least in the underlined
portion of Slotta‘s deposition that Defendant submitted. Assuming they are in fact Slotta‘s notes,
however, they appear to be irrelevant. Slotta disclaims any role in deciding to terminate Anderson
or Pitschner; he said that Kelly Scott made that decision. Slotta Depo. 113:6-11. Slotta testified
that prior to deciding whom to terminate, Scott evaluated, or at least received, Slotta‘s weekly
production reports regarding Slotta‘s crew members. Slotta Depo. 110:7-17. But the production
reports are Exhibit K, not Exhibit H. Thus, if Slotta‘s testimony is to be believed, Exhibit H had
nothing to do with Anderson or Pitschner‘s termination. Nonetheless, assuming that Scott
reviewed Exhibit K before making the decision to terminate, Defendant has still met its burden of
showing a legitimate, non-retaliatory reason.
18

1

presumption of retaliation drops out of the picture and the burden shifts back to the employee.‖

2

Yankowitz, 36 Cal. 4th at 1042 (citations and internal quotation marks omitted). At the summary

3

judgment stage, an employee meets this burden if he shows that the employer‘s justification for

4

the adverse action is ―untrue or pretextual,‖ or if he produces ―evidence that the employer acted

5

[in retaliation], or a combination of the two.‖ Horn v. Cushman & Wakefield Western, Inc., 72

6

Cal. App. 4th 798, 806 (1999).12 ―Circumstantial evidence of pretext must be specific and

7

substantial in order to survive summary judgment.‖ Brown v. City of Tucson, 336 F. 38 1181,

8

1188 (9th Cir. 2003).
Plaintiff‘s showing – that Pitschner made several complaints in the months leading up to

9

his layoff that were severely rebuked by Slotta – is sufficient to create a triable issue of fact

11
United States District Court
Northern District of California

10

regarding pretext, notwithstanding the legitimate reason for termination given by Defendant. See

12

Id. Plaintiff also points to the testimony of George Davis, Pitschner‘s foreman in the month

13

leading up to his termination, that Pitschner was a ―good worker.‖ Davis Dep. 31. This too

14

corroborates Plaintiff‘s position that his termination was retaliatory, and supports the Court‘s

15

conclusion that a genuine dispute of fact remains.

16

B.

Damages

17

Under Section 6310, an employee ―shall be entitled to reinstatement and reimbursement

18

for lost wages and work benefits caused by the acts of the employer.‖ Cal. Labor Code § 6310(b).

19

Defendant argues that Complainants‘ damages are limited as a matter of law in two

20

respects. Def. MSJ at 20, 22. First, Defendant contends that Complainants cannot recover

21

damages beyond the date that the SFO project ended. Id. at 22. Second, Defendant contends that

22

Complainants cannot recover contributions made to the union benefit trust fund because

23

Complainants never received payment of these benefits, and therefore could not have ―lost‖ them.

24

Id. at 20.

25

1.

Project End Date

26
27
28

12

There is some disagreement about what an employee must do to avoid summary judgment in the
face of a legitimate reason given by his employer, but that the Horn court‘s approach represents
the ―predominant view.‖ Horn, 72 Cal. App. 4th at 806.
19

There is no dispute that the construction project at SFO ended on or around April 15, 2011.

1
2

Def. MSJ at 22; Anderson Dep. 84-85. However, Plaintiff contends that Siemens secured a

3

contract for maintenance and operation of the system extending two years beyond the completion

4

of construction, and that Slotta had discussed with Complainants the possibility that they would be

5

retained to perform maintenance work, and later specifically offered them the job. Su Opp. to

6

MSJ at 23; Anderson Dep. 260.
Along with its Motion, Defendant submitted the Declaration of Lee Katchen, which

7
8

Siemens claims is the employee actually ―responsible for hiring individuals for the operation and

9

maintenance of the baggage handling system.‖ Katchen Decl. ¶ 2. Katchen declared that the
operation and maintenance job ―is a non-union position‖ and he ―did not interview or hire any

11
United States District Court
Northern District of California

10

individuals from the union hiring hall.‖ Id. ¶ 3. He further stated that he ―reviewed the

12

qualifications and work history‖ of Complainants ―and can affirmatively state that even if either

13

had applied for the O&M position or been recommended by David Slotta . . . I would not have

14

hired these individuals . . . as they did not have the necessary qualifications.‖13, 14 Id. ¶ 4.

15

Moreover, Defendant argues, and Katchen‘s Declaration appears to corroborate, that even

16

had Siemens decided to hire Complainants for the maintenance and operation, they would have to

17

have applied for that position because it was separate from the SFO construction job. Def. MSJ at

18
13

19
20
21

22
23
24
25
26
27
28

Even if admitted for their truth, these statements do not establish that there is no triable issue as
to whether Complainants would have been hired for the maintenance job. However, Plaintiff does
object to Katchen‘s assertion that he reviewed the ―qualifications and work history of Charles
Anderson and Charles Pitschner‖ and on that basis determined they were unqualified for the
maintenance position. Plaintiff‘s Objections to Evidence Submitted in Support of Defendant‘s
Motion for Summary Judgment, ECF No. 88 at 2. Plaintiff objects that Katchen offers ―no
foundation for or description of any ‗qualifications‘ or ‗work history‘‖ of Complainants. Id. The
objection is sustained because there is no showing of how Katchen came to know of
Complainants‘ qualifications or work history. Katchen has not indicated the source of his
information about Complainants‘ work history. Accordingly, the Court cannot say that the
assertion that Complainants are unqualified is ―rationally based on the witness‘s perception.‖ Fed.
R. Evid. 701(a). Presumably he consulted some document to reach his conclusion, but there is no
showing of authentication. Fed. R. Evid. 901. Accordingly, this statement may not be used as
evidence insofar as it pertains to Complainants qualifications.
14

Unless otherwise indicated, the Court did not consider evidence that was objected to in reaching
its determination, and for that reason does not respond to those objections.
20

1

22 n. 15. In other words, even if Siemens selected Complainants for the maintenance job, they

2

would have first been laid off from the construction job and then rehired. Id.
Plaintiff disputes Katchen‘s characterization of Complainants as unqualified, noting their

3
4

previous experience in similar positions.15 Su Opp. to MSJ at 24. Ultimately, there are material

5

facts in dispute—first, whether Complainants were qualified for the position, second, whether

6

Slotta ever had the authority to offer them the job. Though Katchen‘s declaration is persuasive,

7

the Court must draw all inferences in the light most favorable to the non-moving party. Freeman,

8

125 F. 3d at 735. Resolution of this issue requires a weighing of the evidence, and is therefore

9

appropriate for the jury.
Defendant further moves on the ground that Plaintiff is precluded from recovering

10

United States District Court
Northern District of California

11

damages beyond April 15, 2011 by judicial estoppel. Def. MSJ at 23. In the Complaint in this

12

action, Plaintiff states that ―the findings of the Director [of Industrial Relations] were adopted by

13

the State Labor Commisioner in Decisions issued March 29, 2012.‖ ¶ 15. Among those findings

14

was the conclusion that there could be no award of backpay beyond April 2011. Defendant argues

15

Plaintiff should be estopped from aruging to the contrary in this action.
Judicial estoppel ―precludes a party from gaining an advantage by taking one position and

16
17

then seeking a second advantage by taking an incompatible position.‖ Risetto v. Plumbers and

18

Steamfitters Local 343, 94 F. 3d 597, 600-601 (finding judicial estoppel where plaintiff claimed

19

she was unable to perform her job in order to obtain workers‘ compensation, and later tried to

20

claim that she had performed her job adequately in order to win damages in a wrongful discharge

21

suit). That is simply not what happened here. Plaintiff gained no advantage in taking the first

22

position; she merely asserted what she then believed to be the end date for damages. Plaintiff has

23
15

24
25
26
27
28

Defendant objects to Anderson‘s reference to his son‘s qualifications for the maintenance job on
the grounds that he lacks foundation and is not competent to testify to the matter under Rule 701,
Opinion Testimony by Lay Witnesses. The objection is overruled. Anderson‘s declaration
indicates what past jobs Pitschner has held, and that he believes the jobs are similar enough to
qualify Pitschner for maintenance work on the SFO project. This is Anderson‘s opinion, and is
―rationally based‖ on his perception of what the work entails. Fed. R. Evid. 701(a). That he does
not know the exact criteria of this particular job does not prevent him from offering evidence of
his son‘s past positions and his opinion that they qualify him for such work. However, even if this
particular declaration were inadmissible, there is sufficient admissible evidence to create a triable
issue.
21

1

now explained why she believes that date was incorrect, and damages may be appropriate beyond

2

April 15. This is an issue for the jury to decide.

3

2.

4

Defendant next contends that Claimants are not entitled to recover fringe benefits as a

5

Fringe Benefits

matter of law. Def. MSJ at 20.
In Galindo v. Stoody Co., 793 F. 2d 1502, 1517-18 (9th Cir. 1986), the Ninth Circuit

6
7

addressed the issue of whether an employee could be awarded a sum for lost health and medical

8

coverage following a wrongful discharge. The court held that she could not. Id. It reasoned that

9

unless an employee purchases substitute benefits or pays out of pocket medical expenses, she has

10

suffered no measurable loss. Id.
Plaintiff argues that Galindo is inapposite because there the court was interpreting federal

United States District Court
Northern District of California

11
12

law, and not California law. It then cites several California cases predating Galindo, which

13

allowed an award for lost medical benefits without any showing of out of pocket expense to the

14

plaintiff. Su Opp. at 17-18. However, in EEOC v. Farmer Bros. Co., 31 F. 3d 891, 902 (9th Cir.

15

1994), the Ninth Circuit, interpreting California law, again affirmed the principle established in

16

Galindo, holding that ―lost insurance coverage, unless replaced or unless actual expenses are

17

incurred, is simply not a monetary benefit owing to the plaintiff."
This Court is bound by the Ninth Circuit‘s ruling. Accordingly, it grants Defendant‘s

18
19

motion to preclude from any award fringe benefits that Defendant would not have actually

20

received, and did not replace or otherwise pay out of pocket.

21

IV.

22

PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT
Plaintiff moves for partial summary judgment on three grounds. Su MSJ, ECF No. 85 at

23

10. First, Plaintiff contends that the arbitrator made a factual finding that Complainants were

24

terminated as retaliation for safety complaints made to Turner, and that Defendant should be

25

collaterally estopped from asserting otherwise. Id. Alternatively, Plaintiff argues that the facts in

26

evidence establish a prima facie retaliation case, and that Defendant is unable to rebut this charge

27

because he cannot produce any first-hand evidence of a legitimate reason for termination without

28

proferring a sham declaration. Id. at 10-11. Finally, in the event Plaintiff‘s claims succeed,
22

1

Plaintiff seeks a finding that Complainants would have been employed until at least November 24,

2

2010 because that was the next time any subsequent lay-offs occurred. Id. at 11.
Defendants contend that 1) it is improper to give preclusive effect to only a portion of the

3
4

arbitrator‘s findings, and when viewed as a whole those findings do not establish that

5

Complainants were laid off for having made safety complaints; 2) the Court cannot apply

6

collateral estoppel to the arbitrator‘s findings because those findings did not consider the statute at

7

hand in the present litigation; 3) Defendant can establish a legitimate reason for Complainants‘

8

termination, and is not estopped from presenting evidence contrary to what was presented in the

9

arbitration proceeding; and 4) there is no legal or logical support for the proposition that

10

Defendants would not have been laid off until November 24, 2010 absent their safety complaints.

United States District Court
Northern District of California

11

A. Collateral Estoppel

12

A prior determination will be given collateral estoppel effect where 1) this issue presented

13

is identical to that decided in the former proceeding; 2) the issue was actually litigated and 3)

14

necessarily decided as a part of that litigation; 4) the doctrine is asserted against a party to the

15

former action, or a party in privity; and 5) the former decision is final and was made on the merits.

16

Kelly v. Vons Companies, Inc., 67 Cal.App.4th 1329, 1339 (1998). Courts have applied collateral

17

estoppel to the fact finding of arbitration proceedings, where those facts satisfied all of the

18

elements of collateral estoppel. See e.g. Conner v. Dart Transportation Service, 65 Cal. App. 3d

19

320, 323 (where a fact found in a prior proceeding ―negates the existence of a triable issue of fact‖

20

in a later proceeding, that fact will be given preclusive effect).
Plaintiff first argues that collateral estoppel should apply to the arbitrator‘s factual findings

21

22

because those findings are identical to the findings that will be necessary to determine the present

23

issue, and therefore meet the ‗identical issue‘ requirement of collateral estoppel. ECF No. 85 at

24

12-13.

25
26
27
28

The portion of the arbitrator‘s decision upon which Plaintiff relies reads, in pertinent part:
Mr. Anderson and Mr. Pitschner were laid off in retaliation for
conduct which Mr. Slotta found to be offensive. The evidence
establishes that Mr. Anderson received a written warning from Mr.
Slotta. In retaliation for receiving the written warning, Mr. Anderson
23

reported a number of safety violations committed by Mr. Slotta,
including issuing forklift certificates without the requisite training.
While Mr. Anderson was aware of these alleged violations for
months prior to reporting them, he waited and reported them as a
means of retaliation against Mr. Slotta. Mr. Slotta, in turn, retaliated
against Mr. Anderson by selecting him and his son for layoff when
the opportunity for layoff occurred.

1
2
3
4
5
6
7
8
9
10

United States District Court
Northern District of California

11
12
13
14
15
16
17
18
19
20
21

22
23
24
25
26
27
28

J. Smith Decl., Ex. A, Decision and Award of the Arbitrator at 4. Plaintiff contends that this
passage establishes that the arbitrator found Complainants were laid off due to Mr. Anderson‘s
reporting safety violations. Su MSJ 13.
But Plaintiff seeks to use estoppel here to establish that ―complainants were terminated by
Defendant in retaliation for Anderson‘s safety complaints to general contractor Turner
Construction.‖ Su MSJ at 10. As discussed above, this is not a legal ground for relief under
Section 6310, and accordingly, even if the Court treated the fact as established it is immaterial to
this proceeding. See supra
B.

Inconsistent Testimony

Plaintiff further contends that Defendant cannot rebut Plainiff‘s prima facie case because it
―cannot meet its burden of providing a legitimate, non-discriminatory‖ justification ―for the
terminations‖ of Anderson and Pitschner. Su MSJ at 22-23. Plaintiff reasons that Defendant is
precluded from offering a non-discriminatory reason for its action because Slotta, Complainant‘s
direct supervisor, ―denied having anything to do with the terminations‖ in his deposition, but the
arbitrator earlier found that Slotta made the decision to terminate Complainants. Id. at 23; see
Decision and Award of Arbitrator at 4.
Accordingly, Plaintiff contends that Slotta‘s deposition statements preclude Defendant
from now asserting that Slotta made a non-retaliatory decision to terminate Complainants. Id. at
24. At the same time, Plaintiff asserts that Defendant ―would be judicially estopped from
presenting evidence that someone other than Slotta decided to terminate complainants,‖ because
statements made by Slotta‘s attorney at the June 8, 2010 grievance proceedings acknowledged that
Slotta was the ultimate decision maker. Id. 23-24; see M. Smith Decl., Ex. D, Carpenters
Grievance Proceedings. Ultimately, Plaintiff contends that this leaves Defendant unable to
24

1

produce any ―first hand evidence with regard to the reason for the . . . terminations‖. Su MSJ at

2

24.
In response, Defendant first contends that Slotta‘s attorney‘s earlier statement does not

3
4

preclude Defendant from offering a rebuttal because ―a mere offer of proof does not constitute a

5

judicial admission, and this is certainly true where…the statement was made in a prior

6

proceeding.‖ Def. Opp. at 10 n. 10.
Defendant is correct. In BNSF Ry. Co. v. O'Dea, 572 F.3d 785, 793 n.4 (9th Cir. 2009),

7
8

the Ninth Circuit observed that statements made in prior proceedings are not binding judicial

9

admissions. In other words, Defendant is not precluded from now taking a different position than
it took at the administrative hearing. Moreover, as Defendant observes, Slotta did not testify at

11
United States District Court
Northern District of California

10

that hearing; rather, his attorney gave an offer of proof16. He is not now bound by Siemens‘

12

counsel‘s offer of proof at the labor arbitration.
Defendant further contends that Slotta‘s testimony that he did not ―ma[k]e the decision‖ to

13
14

lay off Anderson and Pitschner is not preclusive of, nor necessarily contradictory to, a showing

15

that there were legitimate reasons for their termination. Contrary to Plaintiff‘s assertion that Slotta

16

―denied having anything to do with the terminations,‖ Defendant notes that Slotta testified that he

17

provided production reports to the decision maker, and that those reports showed Anderson and

18

Pitschner were among the least productive employees on the job. Def. Opp at 10 n.11.

19

Finally, Defendant contends that even if Slotta‘s position in his deposition is inconsistent

20

with the testimony of defense witnesses at trial, this does not preclude Defendant from showing it

21

made its decision for legitimate business reasons; rather, ―it means the jury would have to decide

22

whether Slotta, or other defense witnesses, are credible.‖

23
24
25
26
27
28

16

In additionr, Defendant lodges a hearsay objection to Plaintiff‘s ―seeking to admit an offer of proof
made at arbitration by Defendant‘s former attorney as evidence.‖ Defendant‘s Objections to Evidence
Submitted in Support of Plaintiff‘s Motion for Partial Summary Judgment, ECF No. 89-3 at 2. The
offer of proof was the out-of-court statement of a third party about what Slotta would say. There is no
assertion that it was part of sworn testimony or subject to cross examination. To the extent that
Plaintiff attempts to use these statements for the truth of the matter asserted, they violate the hearsay
rule and are inadmissible. Fed. R. Evid. 802.
25

Defendant‘s reasoning is sound. If Slotta now testifies that he was not involved in the

1
2

decision and Defendant puts on evidence that he was, this merely presents a credibility issue for

3

the jury.

4

C.

Remedy

5

Finally, Plaintiff contends that the there is no genuine dispute that Complainants would

6

have been laid off no earlier than November 24, 2010 had they not been laid off in March of 2010.

7

ECF No. 85 at 24. In support of her claim, Plaintiff notes that no other layoffs occurred before that

8

date, though other workers quit or retired between the March and November layoffs. Id. To that

9

end, Plaintiff asks the Court, for the purpose of establishing damages, set November 24, 2010 as a

10

date before which the Complainants could not have been laid off. Id.
Defendant argues that Plaintiff‘s version of events suffers from a critical logical error. ECF

United States District Court
Northern District of California

11
12

No. 89 at 12. Defendant reasons that,

13

[h]ad Pitschner and Anderson not been laid off when they were, two
other employees would have been laid off at that time . . . Thus, the
individuals who did remain on the job instead of Anderson and
Pitschner (and later quit or got injured), would not have remained on
the job in the first place (to quit or get injured). Therefore, if
Anderson and Pitschner were on the job instead of those two other
employees, they could . . . have been laid off.

14
15
16
17
18

Def. Opp. to Su MSJ at 12. Defendant‘s point is well taken. Plaintiff has the burden of showing

19

that no set of facts can be proven which would allow a reasonable jury to find that termination

20

before November 24, 2010 was possible. The Court cannot conclude that Plaintiff has established,

21

22

as a matter of law, that November 24, 2010 represents the earliest possible date Complainants
could have been laid off had they not been laid off in March.

23
24
25

IV.

CONCLUSION
Defendants‘ Motion is GRANTED IN PART and DENIED IN PART. Defendant is

26

entitled to judgment in its favor insofar as Plaintiff argues that the Complainants were fired for

27

making safety complaints to personnel of Turner Construction. The motion is denied insofar as it

28

applies to safety complaints Complainants made to Simens personnel.
26

1

Plaintiff‘s Motion is DENIED.

2
3
4
5
6
7
8
9
10

United States District Court
Northern District of California

11
12
13
14
15
16
17
18
19
20
21

22
23
24
25
26
27
28
27