Saba v. UNISYS Corporation

Filing 137

ORDER GRANTING 76 UNISYS'S MOTION FOR SUMMARY JUDGMENT AND DENYING 75 SABA'S MOTION FOR PARTIAL SUMMARY JUDGMENT. Unisys's motion for summary judgment is GRANTED. Saba's motion for partial summary judgment is DENIED.Two we eks after the motions for summary judgment were submitted at oral argument, Saba filed a substitution of counsel form and requested a temporary stay. In light of this Order, Saba's request for a temporary stay is DENIED as moot. Signed by Judge William H. Orrick on 07/17/2015. (jmdS, COURT STAFF) (Filed on 7/17/2015)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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FADI SABA,

Case No. 14-cv-01310-WHO
Plaintiff,

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v.
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UNISYS CORPORATION,
Defendant.

United States District Court
Northern District of California

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ORDER GRANTING UNISYS’S
MOTION FOR SUMMARY JUDGMENT
AND DENYING SABA’S MOTION FOR
PARTIAL SUMMARY JUDGMENT
Re: Dkt. Nos. 75, 76

Plaintiff Fadi Saba filed suit against Unisys Corporation (“Unisys”), his former employer,

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after he was terminated in 2013. He brings two causes of action for wrongful termination in

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violation of a fundamental public policy, arguing that Unisys terminated him (i) in retaliation for a

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prior lawsuit that he brought against Unisys for California Labor Code violations and (ii) for

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reporting Unisys’s concealment of its failure to back up files for one of its clients, a government

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contractor that was subject to a hold order from the U.S. Department of Justice. He also states a

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cause of action for wrongful termination in violation of the California Family Rights Act

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(“CFRA”), arguing that Unisys terminated him in retaliation for taking family leave on several

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occasions, and a claim under California law for intentional infliction of emotional distress

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(“IIED”) based upon Unisys’s conduct in terminating him.

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Unisys gives three reasons for terminating Saba: he was unable to work for one of two

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main customers of the group within Unisys to which he was assigned; the group’s other main

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customer reduced its contractual requirements from Unisys so that approximately 2 rather than 5

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full-time employees were needed to service it; and Unisys itself suffered a financial reversal and

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terminated 54 employees, including Saba, in a reduction in force. Saba offers no evidence to

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dispute those reasons, and his evidence of pretext is weak to non-existent. Accordingly, I GRANT

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Unisys’s motion for summary judgment. Although Saba established a prima facie case for his

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causes of action based upon retaliation for various protected behavior, Unisys met its burden of

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showing that it had a legitimate reason for terminating him. Construing the facts in the light most

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favorable to Saba, there is no evidence from which a jury could infer that Unisys’s termination of

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Saba was a pretext for retaliating against him in violation of the law. In addition, Saba’s IIED

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claim is barred by the exclusive remedy provisions of California workers’ compensation law.

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Because I GRANT Unisys’s motion for summary judgment, I DENY as moot Saba’s motion for

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partial summary judgment on two of Unisys’s affirmative defenses based upon “after-acquired

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evidence” and “unclean hands.”
BACKGROUND1

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I. SABA’S WORK AT UNISYS AND FIRST FOUR REQUESTS FOR FAMILY
MEDICAL LEAVE

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Northern District of California

Saba began working for Unisys in 2003. Saba Decl. ¶ 4 (Dkt. No. 96). At that time, he
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lived and worked in Pennsylvania. Id. ¶¶ 2-4. Since he began work, Saba has always worked in
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positions relating to data services and retention. Id. ¶ 4. In 2007, Saba moved from Pennsylvania
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to California, continuing to work remotely for Unisys. Id. ¶ 6.
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Between 2007 and 2009, Saba’s supervisor was Robert Claycomb. Id. ¶ 6. Around July of
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2009, Rachael Hartzler replaced Claycomb as Saba’s interim supervisor. Id. Hartlzer reported to
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John Buckner, the Manager of the Global Windows group. Id.
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In 2009, Saba asserts that he attempted to obtain family medical leave for the birth of his
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third child, who was born on October 29, 2009. Id. ¶ 7. Saba “prepared the required
documentation to obtain family medical leave” and forwarded it to Hartzler for approval. Id. ¶ 7.

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According to Saba, this request was ignored, and Human Resources later claimed that it had no
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copy of his leave request. Id. He did not take the leave.
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In May of 2010, Donald Capbell replaced Hartzler as Saba’s supervisor. Id. ¶ 8. Capbell
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also reported to Buckner. Id. Saba attempted to take leave in April of 2011, after his child was
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injured in an accident. Id. ¶ 10. Buckner instructed Saba not to take family medical leave, but
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For the purposes of Unisys’s motion for summary judgment, I consider all disputed issues of
material fact in the light most favorable to Saba.
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instead to take vacation time. Id. Again, Saba ultimately did not take any leave. Id.

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Hartzler became Saba’s supervisor for the second time in 2011, and he was assigned to her

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group between May and September of that year. Id. ¶ 11. Buckner told Saba that the transfer was

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due to his superior skills in with automation, primarily scripting. Id. Buckner also testified that he

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moved Saba to a group where he was needed. Buckner Depo. 32:20-33:7 (Dkt. No. 100). Around

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this time, Saba told his supervisors that he planned to take family medical leave in February of

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2012 for the birth of another child. Saba Decl. ¶ 11; Saba Ex. 7.2
In February of 2012, Saba submitted the application for family medical leave. Saba Decl.

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¶ 14. He initially requested partial leave of two hours per day for one month. Id.; Saba Ex. 11.

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Hartzler did not want Saba to take partial leave, and instead instructed him to take full days off.

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United States District Court
Northern District of California

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Saba Decl. ¶ 15; Saba Ex. 12. In an email to Saba, she stated that “[w]orking a couple hours per

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day won’t allow you the full separation from work responsibilities that Family Medical Leave

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should provide, and it’s not necessary given the coverage already in place.” Saba Ex. 12. Saba

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responded to Hartzler’s email, stating that “while I appreciate your offer that I consider full days

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off . . . I feel more comfortable with my request as I have submitted it.” Saba Ex. 13. In an email

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to a supervisor, Hartzler asked whether “it’s within my rights as [Saba’s] manager to deny partial

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and only allow full family leave.” Saba Ex. 15. Ultimately, Saba adjusted his request to four

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hours off per day, and his request was approved by Human Resources. Saba Decl. ¶ 15; Saba Exs.

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14, 16.

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In July of 2012, Saba told Hartzler that he planned to take the remainder of his family

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medical leave in January of 2013. Saba Decl. ¶ 17; Saba Ex. 19. After submitting a formal leave

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request, Saba’s request was granted in late 2012. Saba Exs. 20, 21. According to Saba, Hartzler

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told him that taking the leave “would probably make it hard for you to get involved” in future

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work. Saba Decl. ¶ 17. Saba took his approved family medical leave in January of 2013. Id. ¶ 19.

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According to Hartzler’s deposition, Hartzler never took family medical leave while working at

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Unisys and no one other than Saba had taken formally approved family medical leave. Hartzler

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Saba’s exhibits 1-39 are in ECF Dkt. No. 99; exhibits 40-48 are in Dkt. No. 100.
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Depo. 52:17-19, 53:20-25 (Dkt. No. 100).
II. SABA’S WORK WITH THE CITY OF MINNEAPOLIS AND TASC
Hartzler’s group (“Core Team 3”), to which Saba was assigned, worked primarily with two
clients. Hartzler Decl. ¶ 7 (Dkt. No. 82). The parties do not dispute that one client, the City of

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Minneapolis (the “City”), required employees to pass a background check before they could work

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with it. See id. ¶ 10. Saba asserts that he completed a questionnaire for the City in 2011, but that

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the City misplaced it and required him to submit a second questionnaire in January 2012. Saba

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Decl. ¶¶ 13.1-13.2. The City then claimed the second questionnaire was incomplete, and sent

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Saba an encrypted email that allegedly contained personal, confidential information. Id. ¶ 13.2.

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Saba was particularly upset by this because he had been a victim of identity theft in the past. Id.

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United States District Court
Northern District of California

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¶¶ 13.3-13.4. Without a completed questionnaire, the City refused to process Saba’s clearance

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further, see Saba Decl. ¶ 13.6, and Saba did not receive the clearance, rendering him unable to

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work with the City.

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Saba sent several emails to Hartzler and Unisys’s Human Resources department, discussing

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his difficulties in obtaining security clearance for the City and his displeasure at the City’s

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treatment of his confidential information. Id. ¶ 13.6; Saba Ex. 9, 10. Given the disclosure of his

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private information, Saba requested that Unisys change his name on its records. Saba Ex. 10.

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Hartzler denied that request. Saba Decl. ¶ 16. Saba ignored her denial and changed his name in

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Unisys’s records anyway. Id.

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Core Team 3’s other client, with whom Saba primarily worked, was “TASC.” TASC is a

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government contractor that provides services to a number of government agencies, including the

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Department of Defense. Hull Depo. 35:3-14 (Dkt. No. 100). Between September of 2012 and his

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termination, Saba’s job duties included weekly “incident calls” with TASC. Saba Depo. at 332:4-

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25 (Dkt. No. 87-1). An “incident” was a technical issue that Unisys employees were assigned to

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resolve. Id. at 324:4-6.

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Saba noticed in August of 2012 that TASC data was not being backed up as it was supposed

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to. Saba Decl. ¶ 22. He was told by Brian Socolofsky and Ezra Gray, who were part of Unisys’s

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backup team, to tell TASC that the backup team was “working on it,” although Saba believed that
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they were not doing anything. Saba Depo. 242:18-243:19. He sent an email to several people,

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including Hartzler, stating that the files “simply do not have restore revisions for the needed

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dates.” Saba Ex. 28. He repeated this opinion in an email sent in January of 2013. Saba Ex. 29.

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Although Saba was assigned to discuss technical issues with TASC, he claims that he was

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instructed not to disclose the extent of the problem. Saba Decl. ¶ 24. Instead, the Unisys backup

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team told Saba to inform TASC that Unisys was “working on it.” Id. In February of 2013, Saba

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sent an email that discussed the backup failure to a group of recipients, including Hartzler and the

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backup team. See Saba Ex. 31 (“we won[’]t be able to restore any files from the T:\drive and due

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to the limitations of DPM, this is no surprise and was essentially predicted. That’s an ugly

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truth.”).
TASC received a legal hold order from the DOJ in the spring of 2013. Hull Depo. 53:5-

United States District Court
Northern District of California

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55:10. TASC informed Unisys of the hold on March 20 (Saba testified that he was not aware of

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whether TASC was asked to produce documents in response to the legal hold). Saba Depo. 254:2-

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5; Hull Depo. 2 at 91:9-93:18 (Dkt. No. 87-3). Saba testified that he did not know whether anyone

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from Unisys told anyone at TASC that data had been lost. Saba Depo. at 263:16-25. However, he

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stated that other colleagues had raised concerns to Hartzler, including Socolofsky. Id. at 387:18-

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388:3.

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Saba also expressed his concerns to Hartzler, who first told him to tell TASC that they

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were working on the problem, and then told him to tell TASC that there was no problem going

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forward and that they were fixing a prior one. Saba Depo. 399:11-400:25. Saba said to Hartzler

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that he believed he was required to report the backup failure to TASC because of the DOJ hold.

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Saba Decl. ¶ 25. He stated that Unisys’s actions were “if not illegal, ‘at least shady.’” Id. In his

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deposition, Saba clarified that in his view, the unethical action was the act of “[t]aking money

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from a customer for months and not providing it the service, knowing of a DOJ hold and failing to

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put the customer in compliance with that hold.” Saba Depo. 413:15-18. He said that he thought

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that he contacted Unisys’s ethics office regarding the issue, but did not call the ethics help line or

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official email. Id. at 416:15-417:25.

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In an IM conversation with several employees on April 30, 2013, Helen Baker, who was
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the highest level Unisys employee working directly with TASC on Core Team 3, instructed

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several Unisys employees, including Saba, that “[t]here is a legal issue at hand and our general

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counsel has directed that we cease all written communication with TASC related to storage issues

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and data backups & recoveries.” Saba Ex. 32; Hartzler Decl. ¶¶ 33-36. She continued, “Please do

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not engage in discussions with TASC related to what restores are available/not available.” Saba

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Ex. 32.

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In late 2012 to early 2013, TASC modified its contract with Unisys. See Dkt. No. 79-3,
Ex. 7. Because of budget cuts, TASC “needed to dramatically reduce the cost it was paying

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Unisys for services.” Levenson Decl. ¶ 8 (Dkt. No. 79). This in turn reduced the service that

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Unisys needed to provide it. Id. (“The ultimate conclusion was, Unisys needed a lot less labor

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Northern District of California

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(i.e., personnel) to perform TASC work going forward because of the contract changes.”).

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Hartzler and Jeff Levenson, who also worked with TASC, calculated that the changed contract

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would reduce the need for “full-time equivalent” personnel from 4.82 to 1.89. Id. at 11.

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III. SABA’S PERFORMANCE REVIEWS
Saba’s 2009 review, written by Claycomb, described him as “fully effective,” and stated

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that “Fadi has made some exceptional contributions to our organization . . . Fadi is always willing

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to put in the time necessary to perform the tasks that need to be done, and does so without

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complaint.” Saba Ex. 4. In Saba’s 2010 performance review, Capbell described Saba’s

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performance as “fully effective,” and rated him as “advanced” or “proficient” in all categories.

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Saba Decl. ¶ 9; Saba Ex. 5.

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Saba’s 2011 performance review was prepared by Hartzler and did not rate Saba due to his

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limited time working in Hartzler’s group, though it cited to a mid-2011 interim review that rated

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Saba as “achieving.” Saba Decl. ¶ 12; Saba Ex. 8. It also stated that “[u]nfortunately Fadi has not

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completed the background check required in order for him to support his team’s other primary

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customer, City of Minneapolis. This is a critical part of his role and has affected the team’s

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workload balance.” Saba Ex. 8. The review added that Saba “failed to submit the paperwork

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required for completion of the [City] background check.” Id. It also noted Saba’s “immense

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difficulty following administrative procedures and taking direction from managers and corporate
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administrators.” Id. Finally, the review stated that Saba “struggled with letting go of the tasks

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from his previous job despite regular meetings, coaching and finally direct orders from John

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Buckner.” Id. Hartzler expressed her concern about Saba’s failure to complete the City’s

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background check to Bucker in a January, 2012 email, stating that “I don’t want him on my team

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after hearing about the games he’s been playing for the past six months.” Hartzler Decl. Ex. 30.

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In an instant message conversation in November of 2012, Saba complained to Buckner that

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he did not like working with Hartzler. Saba Ex. 22. Saba stated that “it really feels like [Hartzler]

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has a personal issue with me or just doesn’t like me for some reason.” Id. In response to Saba’s

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request to work under a different manager, Buckner stated, “I do have some reqs open and we
have a second shift Incident team position to fill[.] I don’t know if you’re willing to work second

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Northern District of California

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shift or not[.]” Id. Saba asked Buckner to send him the information, which Buckner promptly did.

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Id. When Saba asked if there were other positions open Buckner stated, “[Y]es you should be able

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to search on all open reqs.” Id. Saba claims that “[a] few months later, I saw official

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announcements of new hires were placed in two [] open positions that Mr. Buckner had not made

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available to me.” Saba Decl. ¶ 18; Saba Exs. 23, 24.

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Saba’s 2012 performance review, prepared by Hartzler, rated him as “not achieving.” Saba

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Ex. 26. It stated that Saba “missed important organization and procedural announcements” and

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did not “follow[] through on his assigned work, [came] to meetings unprepared, and [did] not

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provid[e] thorough and timely updates for the cases he was working.” Id. It also said, “It appears

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the majority of the work he handled he performed effectively and accurately, but due to the

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number of escalations and complaints I received, I don’t consider [the “customer service”]

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objective to be met.” Although the report cited an interim review that rated Saba as “achieving”

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and described Saba’s “ability to take on more complex work tasks,” the report also discussed

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Saba’s failure to attend meetings and lack of preparedness. Id.

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IV. SABA’S MAY 9, 2013 EMAIL AND TERMINATION
In late 2012, Saba learned that his wife, Parvaneh Alquero, had been diagnosed with

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cancer. Saba Depo. 305:11-306:25. Saba claims that Alquero is his wife under Pennsylvania

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common law: the two married in 2002, “solemnized” their marriage in Mexico, owned property
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together, and held one another out to be man and wife. Saba Depo. 76:5-25; Saba Decl. ¶ 2.

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Alquero was always enrolled as Saba’s wife in his employee benefits plan. Saba Decl. ¶ 3; Saba

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Ex. 2. At the same time, Saba admitted during his deposition that he was also married to Chih Lin

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in California. Saba Depo. 77:1-18. Saba claims that he married Lin in 2010. Id. at 79:13-17.

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Although Saba’s marriage to Alquero was a common law marriage, for which he had no license,

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Saba has a marriage license for his marriage to Lin. Id. at 94:20-95:11. Saba asserts that he has

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not ever obtained a divorce from Alquero and maintains that he was married to Alquero and Lin at

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the same time. Id. at 76:19-25, 79:18-20.
On May 9, 2013, Saba sent an email to Gary Greene, who worked for Unisys’s Human

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Resources department, and Christopher Rusek, who Saba believed to be Unisys’s in-house

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Northern District of California

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counsel. See Saba Decl. ¶¶ 26-27; Greene Decl. ¶ 3 (Dkt. No. 86); Saba Ex. 33. He said that he

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expected to take further family medical leave to assist his wife, Alquero, stating in part, “Due to

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wife sickness, I would like to be with her for medical treatment in two weeks (starting May 21 or

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22).” Saba Decl. ¶ 26; Saba Ex. 33. He did not email Hartzler, his direct supervisor, due to his

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prior conversations and hostile relationship with her. Saba Decl. ¶ 26.
The email also explained Saba’s concerns about the TASC back-up problem. Saba Ex. 33.

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Saba wrote, “I do not want to be unethical in my responses to the customer and though backups

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are the responsibility of another team, I am having to report weekly on outstanding issues

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(including backups). I am concerned about the DOJ hold and I do not want to be covering up

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failures to meet legal requirements . . . I also feel it puts me in a possible legal predicament.” Id.
Saba later explained that this “legal predicament” was related to a prior settlement with

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Unisys which prevented him from saying anything negative about the company. Saba Depo.

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412:9-23. Saba’s email also expressed his belief that due to this prior lawsuit, he was being

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retaliated against and “singled out.”3 Saba Ex. 33. Saba’s email concluded that “[i]f these items

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In April of 2012, Saba filed a class action lawsuit against Unisys that alleged, among other
causes of action, failure to reimburse for business-related expenses, failure to pay waiting time
penalties, and inaccurate wage statements. Saba Ex. 25; Saba Depo. 172:1-10. The parties
entered into a settlement agreement, which Unisys signed in January 2013 while Saba was taking
family leave. Saba Decl. ¶ 20; Saba Ex. 41.
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can’t be discussed and resolved so that we can have a healthy relationship for the next ten years, I

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ask for arbitration as per our agreement signed in January.” Id.
There is some doubt whether anyone at Unisys received this email. For his part, Saba

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states that the email did not “bounce back” to him. Saba Decl. ¶ 27. In his deposition, he stated

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that he received a response from Rusek that Rusek was no longer with the company and that

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inquiries should be directed to Joe Teklits. Saba Depo. 268:13-17. Saba did not speak to Teklits

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until after his termination. Id. at 268:22-269:10. After receiving no response to the email, Saba

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testified that he did not recall whether he provided any other documents to request time to care for

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Alquero. Id. at 323:7-16.
Unisys asserts that Greene, the other person to whom Saba says he sent the email, never

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Northern District of California

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received it. Greene Decl. ¶ 14. Unisys provided evidence that the email was never sent from

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Saba’s email account or received by Greene’s. Ellis Decl. ¶ 5 (Dkt. No. 120).
Saba contends that after he returned to work in early 2013, he was assigned lower level

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work and was ignored by Hartzler when he requested information. Saba Decl. ¶ 21. On May 15,

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2013, Unisys HR Directors and Associate General Counsel sent an internal memo which provided

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that due to a decline in overall revenue of 13 percent, Unisys would make reductions in its

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workforce. Dkt. No. 86-6. Unisys selected 54 employees for layoff. Wang Decl. ¶ 15 (Dkt. No.

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80).

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Saba was selected to be laid off in 2013, effective June 6. Hartzler Decl. ¶ 42; Saba Exs.

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36, 39. A memo prepared by Hartzler that detailed Unisys’s reasons for terminating Saba stated

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that “[d]ue to Fadi’s restriction in supporting [the City], his ability to contribute toward the team’s

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workload is significantly hampered.” Saba Ex. 34; Hartzler Depo. 243:9-17. In addition, it noted

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that Saba was the “junior of the two Core Team 3 employees who primarily support TASC, Helen

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Baker being the other, with less expertise than Helen in Active Directory, VMware, and Print

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Server management.” Saba Ex. 34. It also cited the recent contractual change with TASC that

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caused a reduction in work for the team and made Saba less needed. Id. The memo concluded:

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“In conjunction with the recent contractual change with TASC, and in line with company cost

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savings measures, Fadi has been selected for layoff as his reduction will have the least impact on
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the team’s ability to deliver client support.” Id.
Saba filed the complaint in the present action on March 21, 2014. After the parties filed
cross motions for summary judgment, I heard argument on June 24, 2015.
LEGAL STANDARD

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A court will grant a motion for summary judgment where the pleadings, discovery and
affidavits show that there is “no genuine dispute as to any material fact and the movant is entitled

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to judgment as a matter of law.” FED. R. CIV. P. 56(a). A dispute as to a material fact is genuine if

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there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. See

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Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “Where the moving party will have

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the burden of proof on an issue at trial, it must affirmatively demonstrate that no reasonable trier

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Northern District of California

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of fact could find other than for the moving party.” Noriga v. Ahmed, No. CV 12-0889 WHO

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(PR), 2013 WL 3461931, at *1 (N.D. Cal. July 9, 2013). Where the nonmoving party will have

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the burden of proof at trial, the moving party must demonstrate only “that there is an absence of

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evidence to support the nonmoving party’s case.” Id. (internal quotations omitted).

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If the moving party meets its initial burden, the nonmoving party must then go beyond the

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pleadings and “set forth specific facts showing that there is a genuine issue for trial.” Id.; FED. R.

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CIV. P. 56(a). The court will consider only material facts and not “factual disputes that are

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irrelevant or unnecessary.” Anderson, 477 U.S. at 248. In order to prevail, the nonmoving party

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must demonstrate with reasonable particularity that the evidence precludes summary judgment.

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Noriga, 2013 WL 3461931, at *1. Absent such a showing “the moving party is entitled to

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judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (internal

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citations and quotations omitted).

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DISCUSSION

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The heart of this ruling is that Saba fails to raise a triable issue of fact that he was

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terminated in retaliation for various protected acts. I discuss my reasoning in Section C, below.

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Before I get there, however, I address why his intentional infliction of emotional distress claim is

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barred, regardless of the merits of the other causes of action, and why he exhausted administrative

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remedies under California Government Code section 12962. After concluding my analysis of
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Unisys’s motion, in Section II I briefly discuss Saba’s motion for partial summary judgment,

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which is now moot because I am granting Unisys’s motion.

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I. UNISYS’S MOTION FOR SUMMARY JUDGMENT

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A. Saba’s IIED Claim is Barred by Workers’ Compensation Exclusivity Provisions
Saba’s fourth cause of action pleads intentional infliction of emotional distress arising

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from his termination and the other allegedly malicious acts by the defendants. See Compl. ¶¶ 49-

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53. Unisys argues that this claim fails because (i) a termination decision cannot support a claim

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for IIED “even if improper motivation is alleged,” (ii) Saba did not present any evidence of

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medical treatment for his emotional suffering; and (iii) workers’ compensation exclusivity
provisions preempt his claim. Unisys Mot. 23-24 (Dkt. No. 76). Saba responds by asserting that

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Northern District of California

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triable issues of emotional distress exist because his claim depends upon violations of express

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statutes or fundamental public policies and workers’ compensation exclusivity does not apply.

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Saba Oppo. 24 (Dkt. No. 95).

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Under California law, an employer must pay workers’ compensation “without regard to

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negligence . . . for any injury sustained by his or her employees arising out of and in the course of

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the employment.” CAL. LAB. CODE § 3600(a). When an employee is covered by workers’

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compensation, “the right to recover compensation is, except as specifically provided in this section

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and sections 3706 and 4558, the sole and exclusive remedy of the employee or his or her

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dependents against the employer.” CAL. LAB. CODE § 3602(a). The parties do not dispute that

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Saba was covered by workers’ compensation and thus potentially covered by the exclusivity

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provision.

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The relevant question is whether the workers’ compensation provision covers Saba’s

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claims for IIED. Under one of the primary cases establishing such liability, the California

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Supreme Court has stated:

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We have concluded that, when the misconduct attributed to the
employer is actions which are a normal part of the employment
relationship, such as demotions, promotions, criticism of work
practices, and frictions in negotiations as to grievances, an employee
suffering emotional distress causing disability may not avoid the
exclusive remedy provisions of the Labor Code by characterizing
the employer’s decisions as manifestly unfair, outrageous,
11

1

harassment, or intended to cause emotional disturbance resulting in
disability.

2

Cole v. Fair Oaks Fire Prot. Dist., 43 Cal. 3d 148, 160 (1987). It concluded that where “[t]he

3

basis of compensation and the exclusive remedy provisions is an injury sustained and arising out

4

of the course of employment . . . and [] the essence of the wrong is personal physical injury or

5

death, the action is barred by the exclusiveness clause no matter what its name or technical form if

6

the usual conditions of coverage are satisfied.” Id.

7

The cases on which Saba relies provide little support for his argument. He cites to
Livitsanos v. Superior Court to argue that where an employer’s conduct violates public policy,

9

workers’ compensation exclusivity does not bar a claim for IIED. Saba Oppo. 24. In Livitsanos,

10

the court concluded that an IIED claim alleging purely emotional injury fell within the workers’

11
United States District Court
Northern District of California

8

compensation exclusivity provision. 2 Cal. 4th 744, 754 (1992). Saba points to the court’s

12

passing remark that exclusivity may not apply where “the employer’s conduct [] contravenes

13

fundamental public policy.” Id. at 754-55.

14

In support of this “public policy” exception to workers’ compensation exclusivity, the

15

Livitsanos court cited Tameny v. Atl. Richfield Co., a case that acknowledged the “propriety of a

16

tort remedy when an employer’s discharge of an employee contravenes the dictates of public

17

policy.” Id.; Tameny, 27 Cal. 3d 167, 177 (1980). Tameny discussed neither workers’

18

compensation exclusivity provisions nor claims for IIED, but retaliation in violation of public

19

policy. Tameny, 27 Cal. 3d 167.

20

The California Supreme Court resolved the question at issue here in Miklosy v. Regents of

21

Univ. of California, 44 Cal. 4th 876 (2008). There, the plaintiff brought claims for wrongful

22

termination in violation of public policy and whistleblowing retaliation, as well as for IIED based

23

upon the same conduct. Id. at 884. The court rejected an argument similar to Saba’s and

24

distinguished the cases that he cited – Shoemaker v. Myers and Livitsanos. It stated that “[t]he

25

exception for conduct that ‘contravenes fundamental public policy’ is aimed at permitting a

26

Tameny action [for wrongful termination in violation of public policy] to proceed despite the

27

workers’ compensation exclusive remedy rule.” Id. at 902-03. It found that the IIED claim was

28

barred by workers’ compensation exclusive remedy provisions. Id. at 903; see also Yau v. Santa
12

1

Margarita Ford, Inc., 229 Cal. App. 4th 144, 162 (2014).
The same reasoning applies here. Saba’s claims are identical to those in Miklosy. The

2
3

cases he cites prevent his first two causes of action, which are Tameny claims, from being barred

4

by workers’ compensation. A public policy exception does not prevent his IIED claim from being

5

barred by workers’ compensation exclusivity. Accordingly, Unisys’s motion for summary

6

judgment on Saba’s fourth cause of action is GRANTED.

7

B. Saba is not Barred from Bringing the CFRA Claim Under California Government
Code Section 12962

8

The parties dispute whether Saba failed to properly exhaust his administrative remedies
9
under California Government Code section 12962, which would bar his third cause of action.
10
Unisys argues that Saba did not timely serve his right to sue letter and DFEH complaint within the

United States District Court
Northern District of California

11
12
13

60-day period set forth in section 12962(b)-(c). Unisys Mot. 13. Saba counters that “[s]ervice of a
noninvestigatory DFEH complaint and right to sue letter is not jurisdictional” and that because his
complaint was not “investigatory” he did not need to comply with the 60-day limitation. Saba

14
Oppo. 16.
15
Saba relies upon Wasti v. Superior Court, which discussed the administrative requirements
16

of section 12962 at issue here.4 In Wasti, an unrepresented plaintiff filed an administrative

17
complaint seeking a right-to-sue letter with the DFEH, which the DFEH issued two days later.
18
140 Cal. App. 4th 667, 670 (2006). Although the plaintiff timely filed her civil case within the
19
one-year statute of limitations, she did not serve the defendant with the administrative complaint
20

that she filed with the DFEH. Id. at 670-71. The court concluded that “Government Code section

21
12962 only imposes a service requirement upon FEHA claims that are submitted to the
22
23

Department for ‘investigation.’” Id. at 670. It found that the statute was “intended to eliminate
the service requirement where an employee opts to seek a right-to-sue letter” and found that the

24
25
26
27
28

4

This states: “The department shall cause any verified complaint filed for investigation under the
provisions of this part to be served . . . .
(c) Service shall be made at the time of initial contact with the person, employer, labor
organization, or employment agency or the agents thereof, or within 60 days, whichever first
occurs. At the discretion of the director, the complaint may not contain the name of the
complaining party unless the complaint is filed by the director or his or her authorized
representative.” CAL. GOV’T CODE § 12962.
13

1

only jurisdictional service requirement in such “non-investigatory” circumstances was the one-

2

year requirement set forth in section 12962(b). Id. at 673.
Other courts have adopted the reasoning of Wasti and found that failure to comply with the

3
4

requirements of section 12962 does not bar a civil claim when a plaintiff elects to obtain a right-

5

to-sue letter, and not an investigatory complaint, from the DFEH. See Greenwald v. Bohemian

6

Club, Inc., No. C07-05261 WHA, 2008 WL 2331947, at *4 (N.D. Cal. June 4, 2008) (“Because

7

plaintiff did not submit her claim for investigation and immediately sought a right-to-sue letter,

8

her failure to timely serve defendants notice did not operate as a jurisdictional bar”); Monaghan v.

9

El Dorado Cnty. Water Agency, No. 2:10-CV-00434-MCE, 2012 WL 397769, at *6 (E.D. Cal.

10

Feb. 7, 2012).5

United States District Court
Northern District of California

11

Unisys relies on Greenly v. Sara Lee Corp. to argue that a plaintiff must serve an

12

administrative complaint on a defendant within the 60 day period in section 12962, regardless of

13

whether he seeks investigation or a right-to-sue. Unisys Reply 2 (Dkt. No. 119). In Greenly, the

14

court did not consider the plaintiffs’ FEHA claim because the plaintiffs failed to properly file any

15

verified complaint with the DFEH prior to bringing the lawsuit. Greenly, 2008 WL 1925230, at

16

*13. Greenly indicates that an employee must file some kind of administrative complaint with the

17

DFEH, whether a request for investigation or for a right to sue letter, “in order to be entitled to file

18

a civil action in court.” Id. It does not address Wasti or provide support to contravene the other

19

cases to have discussed this question.
I find that Saba’s failure to serve Unisys with his non-investigatory administrative

20
21

complaint does not bar him from bringing his CFRA claim based on section 12962.

22

C. Saba Failed to Raise a Triable Issue of Fact in his First Three Causes of Action that
he was Terminated Unlawfully in Retaliation

23

1. Saba Demonstrated a Prima Facie Case for his First Three Causes of Action

24

In order to defeat Unisys’s motion for summary judgment, Saba must first make out a
25
26
27
28

5

Unisys’s argument that Wasti is distinguishable because the plaintiff in Wasti was unrepresented
is not persuasive. See Unisys Mot. 13; Unisys Reply 2 (Dkt. No. 119). Wasti did not make its
determination based upon the fact that the plaintiff was unrepresented, and courts since Wasti have
rejected arguments that its reasoning applies only to unrepresented plaintiffs. See Greenwald,
2008 WL 2331947, at *4.
14

1

prima facie case for each cause of action. Faust v. California Portland Cement Co., 150 Cal. App.

2

4th 864, 885 (2007). Once he does so, the burden shifts to Unisys to show that there was “a

3

legitimate, nonretaliatory reason for the adverse employment action.” Id. (internal citations

4

omitted). If Unisys satisfies this requirement the burden shifts back to Saba to prove that this

5

reason is merely a pretext. Winarto v. Toshiba Am. Electronics Components, Inc., 274 F.3d 1276,

6

1284 (9th Cir. 2001). Some courts refer to this burden shifting as the “McDonnell Douglas”

7

analysis. Xin Liu v. Amway Corp., 347 F.3d 1125, 1143 (9th Cir. 2003). Saba’s first three causes

8

of action follow this basic framework.

9

a. CFRA claim
To establish his third claim for retaliation in violation of the CFRA, California

11
United States District Court
Northern District of California

10

Government Code section 12945.2, Saba must show that “(1) the defendant was an employer

12

covered by CFRA; (2) the plaintiff was an employee eligible to take CFRA leave; (3) the plaintiff

13

exercised her right to take leave for a qualifying CFRA purpose; and (4) the plaintiff suffered an

14

adverse employment action, such as termination, fine, or suspension, because of her exercise of

15

her right to CFRA leave.” Faust, 150 Cal. App. 4th at 885; see also Rogers v. Cnty. of Los

16

Angeles, 198 Cal. App. 4th 480, 491 (2011).
Neither party disputes that Unisys is an employer covered by the CFRA. In addition, Saba

17
18

exercised his right to take leave at least twice, in 2012 and in January 2013, and submitted the

19

formal requests as evidence.6 See Saba Exs. 11, 14, 20. Construing the evidence in the light most

20

favorable to Saba, a jury could conclude that Unisys terminated Saba in retaliation for the

21

exercises of his right to take family medical leave. I make this determination this in light of (i)

22

Hartzler’s statement that taking leave would make it difficult for Saba to be involved at work, (ii)

23

Hartzler’s attempts to force Saba to take full-time leave instead of part-time leave; and (iii) the

24

temporal proximity between Saba’s exercise of his right to take leave in late 2012 and 2013, his

25

poor evaluation in late 2012, and his termination in 2013. Taken together, these establish a prima

26
27
28

6

The parties dispute whether Saba’s other requests for leave qualify under the CFRA. See Unisys
Mot. 14. I need not address each purported request for leave separately because Saba
undisputedly requested and received leave twice.
15

1

facie case of wrongful termination. See Loggins v. Kaiser Permanente Int’l, 151 Cal. App. 4th

2

1102, 1110 (2007) (plaintiff’s “averment raises a factual issue of whether she engaged in protected

3

conduct that was temporally close to and preceding the adverse employment action, which

4

sufficed to shift the burden to” defendant).

5

b. Retaliation in violation of public policy
To establish a prima facie case for retaliatory employment termination in violation of

6

public policy, known also as a Tameny claim, courts apply an inquiry similar to that governing

8

CFRA claims. Loggins, 151 Cal. App. 4th at 1108-09. The plaintiff must first establish that (i) he

9

engaged in a protected activity; (ii) the employer subjected him to an adverse employment action;

10

and (iii) there is a causal link between the protected activity and the adverse employment action.

11
United States District Court
Northern District of California

7

Id. “To bring a Tameny claim, a plaintiff must tether the public policy allegedly violated to some

12

statutory or constitutional provision.” Threadgill v. Mclane/Suneast, Inc., No. EDCV 14-2269

13

JGB SPX, 2015 WL 114203, at *5 (C.D. Cal. Jan. 8, 2015).
Saba’s first and second causes of action both assert Tameny claims for retaliation on two

14
15

bases: Saba’s prior lawsuit, and Saba’s “whistleblowing” about the TASC backup failures.7 Saba

16

bears the burden of identifying the specific statute or regulation upon which his claims are based.

17

Day v. Sears Holdings Corp., 930 F. Supp. 2d 1146, 1189 (C.D. Cal. 2013). Courts in California

18

have determined that “public policy cases fall into one of four categories: the employee (1)

19

refused to violate a statute; (2) performed a statutory obligation; (3) exercised a constitutional or

20

statutory right or privilege; or (4) reported a statutory violation for the public’s benefit.” Green v.

21

Ralee Eng’g Co., 19 Cal. 4th 66, 76 (1998). “[T]o be actionable, the discharge must violate a

22

policy that is (1) delineated in either constitutional or statutory provisions; (2) ‘public’ in the sense

23

that it ‘inures to the benefit of the public’ rather than serving merely the interests of the individual;

24

(3) well established at the time of the discharge; and (4) ‘substantial’ and ‘fundamental.’” Diego

25

v. Pilgrim United Church of Christ, 231 Cal. App. 4th 913, 921 (2014) (internal citations omitted).

26
27
28

7

Although Saba frames his first cause of action as a whistleblowing claim, the allegations
illustrate that Saba actually brings a cause of action for retaliation in violation of public policy,
with the public policy relating to Saba’s “whistleblowing” conduct. Compl. ¶¶ 26-35.
16

1

Saba asserts that his exercise of statutory rights under California labor laws by filing a

2

lawsuit implicate a fundamental public policy. Saba Oppo. 21. Unisys does not argue that the

3

previous lawsuit does not implicate a public policy, and I conclude that this requirement is

4

satisfied for Saba’s second cause of action. See Guidry v. Marine Engineers’ Beneficial Ass’n,

5

No. C 05-03960 CRB, 2007 WL 707511, at *8 (N.D. Cal. Mar. 6, 2007) (public policy implicated

6

by “filing a lawsuit to challenge racial discrimination”).
For Saba’s first cause of action related to whistleblowing, the parties do not agree on

7
8

whether Saba engaged in conduct protected by public policy. Although Saba points to several

9

policies that Unisys allegedly violated, I find most persuasive his argument that Unisys’s
concealment of the data backup failures constituted fraud in violation of California Civil Code

11
United States District Court
Northern District of California

10

sections 1572, 1709, and 1710. Saba Oppo. 20. Saba presented evidence that Unisys both knew

12

of a potentially serious backup failure relating to TASC’s files, see Hartzler Depo. 226:10-227:22,

13

and deliberately attempted to conceal this from TASC. See Trumpler Depo. 149:7-150:6 (Dkt.

14

No. 100). In fact, Buckner admitted that neither he nor anyone he knew of at Unisys informed

15

TASC of the failing backups. Buckner Depo. 102:13-25.8
Unisys argues that the private relationship between it and TASC cannot implicate public

16
17

policy. Unisys Mot. 19. It cites Hunter v. Up-Right, Inc. to argue that although “fraud and deceit

18

are defined by statute (see Civ. Code, §§ 1572, 1573, 1709, 1710, 3294), and while fraudulent

19

conduct is generally condemned by society, we cannot agree that the prohibitions embodied in the

20

statutes concern society.” 6 Cal. 4th 1174, 1186 (1993).

21

This argument is unpersuasive. In Hunter, the alleged fraud was committed on the

22

employee and was related to his termination. The court did not discuss fraud committed on others.

23

See id. at 1185 (“a misrepresentation not aimed at effecting termination of employment, but

24

instead designed to induce the employee to alter detrimentally his or her position in some other

25
26
27
28

8

Unisys asserts that because it did not have a contract with the government, it was not subject to
the legal hold. Unisys Mot. 19. This argument misses the mark. Saba does not claim that Unisys
was legally obligated to comply with the hold itself; he argues that Unisys’s actions of concealing
a serious backup issue, which could have legal consequences for its client, violated several public
policies, including the law prohibiting fraud.
17

1

respect, might form a basis for a valid fraud claim even in the context of a wrongful termination”);

2

Lazar v. Superior Court, 12 Cal. 4th 631, 639 (1996) (distinguishing Hunter).
Other courts have recognized that reporting harm to a private third party’s interests

4

implicates public policy for the purposes of a Tameny claim. The court in Yau v. Santa Margarita

5

Ford, Inc. reasoned that reporting such conduct served “the public interest in deterring crime and

6

. . . the interests of innocent persons who stood to suffer specific harm from the suspected illegal

7

conduct.” 229 Cal. App. 4th 144, 157 (2014). In addition, the court in Diego v. Pilgrim United

8

Church of Christ concluded that public policy is implicated where “a terminated employee [] was

9

merely perceived by the employer to be a whistleblower.” 231 Cal. App. 4th at 923. The court

10

rejected the contention that no public policy was violated because there was no actual violation:

11
United States District Court
Northern District of California

3

“[O]ne should not assume that the employer’s precise act . . . must be specifically prohibited for

12

the public policy exception to apply. All that is required is that the statutory provision sufficiently

13

describe the type of prohibited conduct to enable an employer to know the fundamental public

14

policies that are expressed in that law.” Id. at 925 (internal citations and quotations omitted).
Here, not only did Unisys allegedly commit fraud and breach of contract, but it also

15
16

purportedly prevented its client from complying with a legal hold. See Saba Ex. 31 (discussing

17

knowledge of backup problems). Construing the facts in the light most favorable to Saba, the

18

conduct described in the first cause of action implicates a public policy.9
Regarding both the first and second causes of action, Saba also established that he was

19
20

subject to an adverse employment action. He was laid off. Finally, as with the CFRA claim, the

21

temporal proximity between Saba’s actions and his termination help establish causation for the

22

purposes of making a prima facie case. Saba’s lawsuit with Unisys settled four months before his

23
24
25
26
27
28

9

I note, however, that this is a close question. While the facts would permit a reasonable juror to
conclude that Unisys withheld information from TASC, and that Saba believed this concealment
violated the law and violated a legal hold order from the DOJ, I am less certain that there are
triable issues of fact as to the other elements of fraud. Unisys provided undisputed evidence that
by the time it received notice of the legal hold order, the backup problem was resolved. Trumpler
Decl. ¶¶ 11-13 (Dkt. No. 84). In addition, no backup data was ever requested pursuant to this hold
order, and the data affected by the hold was apparently provided in full. Id. ¶ 15. For the
purposes of this summary judgment motion, however, I assume that Saba has established a prima
facie case.
18

1

termination, and his complaints about TASC occurred within months of his termination.

2

Therefore, Saba met the initial burden of showing a prima facie case for his Tameny claims. See

3

Loggins, 151 Cal. App. 4th at 1112 (“a plaintiff can satisfy the initial burden under the McDonnell

4

Douglas framework by producing evidence of nothing more than . . . the proximity in time

5

between the protected action and the allegedly retaliatory employment decision) (internal

6

quotations omitted).

7

2. Unisys Established a Legitimate Reason for Terminating Saba

8

Because Saba satisfied his initial burden with respect to his first three causes of action,

9
10

Unisys must demonstrate a legitimate reason for its employment decision. Unisys’s reasons for
terminating Saba apply equally to the first three causes of action.
Unisys provided several reasons to justify Saba’s termination. The primary ones are that:

United States District Court
Northern District of California

11
12

(i) Saba was not able to work for the City, one of the two main customers of Core Team 3,

13

because he did not complete the background check; (ii) the recent contractual change with TASC,

14

the other main customer, substantially reduced the workforce Unisys needed to fulfill the

15

requirements of the contract; and (iii) Unisys implemented a reduction in force including Saba

16

after its corporate earnings fell. See Saba Ex. 34.
Saba does not argue that the reasons above are false. It is undisputed that he was not able

17
18

to serve one of the two main clients of Core Team 3,10 the client he could work for reduced its

19

work with Unisys, and Unisys laid off 54 employees as part of a scale-down effort. These reasons

20

present a valid and reasonable basis for termination. Therefore, Unisys has satisfied its burden of

21

demonstrating a legitimate reason for terminating Saba. See Wallis v. J.R. Simplot Co., 26 F.3d

22

885, 892 (9th Cir. 1994), as amended on denial of reh’g (July 14, 1994) (legitimate reason where

23

there was a “decision to decentralize the human resources function, and as a result of this

24

decentralization, [plaintiff’s] supervisory duties were assumed by others”); Martinez v. Puerto

25

Rico Fed. Affairs Admin., 813 F. Supp. 2d 84, 99 (D.D.C. 2011) (budgetary concerns sufficient to

26
10

27
28

Although the parties argue at length as to whether Saba was at fault or justified in not obtaining
background clearance from the City, the dispute is largely immaterial. The pertinent facts are
undisputed: Saba did not obtain clearance, Unisys did not prevent Saba from obtaining the
clearance, and Saba consequently was unable to work for the City.
19

1

show legitimate reason for termination).

2

3.

3

Saba has not Met his Burden that Unisys’s Justification for Terminating him was
a Pretext

Because Unisys established legitimate reasons for terminating Saba, the burden shifts back
4
to Saba to show that these justifications were a pretext for unlawful termination in retaliation for
5
his exercise of his right to take family medical leave, for his prior lawsuit, or for complaining
6

about the TASC backup issues. See Wallis, 26 F.3d at 892 (“The presumptions having dropped

7
out of the picture, we are left with the ultimate question of whether [plaintiff] has offered evidence
8

sufficient to permit a rational trier of fact to find that [defendant] acted wrongfully”).

9
Saba claims that Unisys’s reasons for laying him off were pretextual. First, he attacks
10

Baker’s qualifications, who he concedes was the only other viable member of the team working

11
United States District Court
Northern District of California

for TASC who could have been selected for layoff. See Saba Oppo. 13-14; Hartzler Decl. ¶¶ 3312

34; Wang Decl. ¶ 20. He asserts that he was not “junior” to Baker, as Hartzler stated. Saba Oppo.

13
13-14. However, while Saba worked for Unisys longer than Baker, he held a lower level job than
14
Baker and had worked with TASC (remotely) for less time than Baker. Saba Depo. at 364:2415
365:3.
16
Saba also asserts that Baker did not have more expertise than him in the primary software
17

used in conjunction with the client’s work, VMware, Active Directory, and Print Server. Saba

18
Oppo. 13-14. However, Saba does not provide any evidence of Baker’s qualifications. The fact
19
that Baker testified to using VMware only two or three times per year does not mean that she did
20
not have experience in the program. See Baker Depo. 28:1-3 (Dkt. No. 100). Neither of these
21
statements by Unisys about Baker was demonstrably false.
22
23

Moreover, Unisys contends that it kept Baker “because of her strong knowledge of
TASC’s operating environment and personnel, as well as her expertise in the key technical areas.”

24
Saba Ex. 34. Construing the facts in the light most favorable to Saba, the evidence does not show
25
that Baker was clearly a less valuable employee. She held a higher position at Unisys than Saba,
26
had worked with TASC longer, and was able to work for both Core Team 3 clients. Wang Decl. ¶
27

20. There is no evidence that she did not perform her job duties capably. See id. (“Ms. Baker had

28
20

1

a higher role code (Saba was a Level 1 and Baker was a Level 2) and provided more complex

2

support than Saba; in addition, she also performed work for the City of Minneapolis”); Hartzler

3

Decl. ¶ 36 (“unlike Mr. Saba, Ms. Baker had always received high performance marks and praise

4

for her work and technical skills from co-workers and customers.”); Cilia Decl. ¶ 9 (Dkt. No. 77)

5

(“Baker was a valuable asset to the Windows Engineering team, in particular with regard to the

6

TASC account”); Levenson Decl. ¶ 12. In sum, that Unisys chose to retain Baker does not

7

demonstrate that Unisys’s termination decision was false or pretextual.11 See Jackson v. Kaplan

8

Higher Educ., LLC, No. 1:14-CV-00073-AWI, 2015 WL 2095206, at *12 (E.D. Cal. May 5, 2015)

9

(“There is a big difference between providing hard evidence that the reason given by the employer
was factually false and merely speculating that a jury armed only with the fact that the employee

11
United States District Court
Northern District of California

10

had complained . . . could find that the reason given by the employer was pretextual.”).
Second, Saba contended at the hearing that Unisys presented “shifting explanations” for

12
13

his termination, citing to Payne v. Norwest Corp., 113 F.3d 1079, 1080 (9th Cir. 1997). But there

14

is no evidence to support this assertion. The facts show that in her performance evaluations and

15

emails to Saba, Hartzler continuously expressed concern that Saba was unable to work for the

16

City, a key reason for his eventual termination. Therefore, Saba’s reliance on Payne is misplaced.

17

Saba also attacked Hartzler’s truthfulness by pointing to her inconsistencies in whether she

18

took family medical leave. Tr. 10:6-21 (Dkt. No. 130). This testimony does not undermine

19

Hartzler’s overall credibility, nor does it bear on any material issues in the case. Further, it is

20

unclear whether Hartzler made a mistake at all in this testimony. Compare Hartzler Decl. ¶ 43 (“I

21

have taken leave from Unisys” to care for children), with Hartzler Depo. 52:17-19 (never taken

22

“family medical leave” while working for Unisys) (emphasis added).
Third, Saba argues that proof of pretext for unlawful retaliation is found in the May 9,

23
24

2013 email that he sent to Greene. When construing all of the facts in the light most favorable to

25

Saba, it is doubtful that a reasonable jury would conclude that Greene even received the email.

26
11

27
28

Although Saba argues that his job duties got worse after he exercised his right to take family
medical leave, he admitted in his deposition that between January 27, 2012 and his termination his
salary was not reduced, his title was not changed, he remained on the same team, and his benefits
were not reduced. Saba Depo. 375:21-376:21.
21

1

Saba’s proof to the contrary is that he sent the email and that he did not receive a bounce-back

2

email. However, he does not explicitly contend that any Unisys employee actually received the

3

email and ignored it. Saba’s deposition testimony contradicts his declaration: while Saba says he

4

did not receive any bounce-back or response, he testified during his deposition that he received an

5

automatic response from Rusek that Rusek had left Unisys. Saba Depo. 268:7-21. Moreover,

6

Unisys has presented substantial evidence that the May 9, 2013 email was never received and did

7

not play any role in Saba’s termination decision. See Greene Decl. ¶ 14 (stating that he has no

8

record of Saba’s email, never received it, and did not read it until this litigation); Ellis Decl. ¶ 5

9

(stating that there is no record of the May 9 email in the “audit mailbox” kept by Unisys in Saba’s

10

account or Greene’s account); Hartzler Decl. ¶ 38.
But assuming that Greene received this email, Saba does not present any other facts or

United States District Court
Northern District of California

11
12

evidence that would support a finding that Unisys terminated Saba because of this email, instead

13

of the other valid reasons that Unisys presented. Hartzler testified that she knew of Saba’s lawsuit

14

against Unisys “sometime in the second half of 2012,” but that she did not know the specifics of it.

15

Hartzler Depo. 193:24-194:21.12 While Saba claims that Hartzler knew of all of the information in

16

the email, he has not provided any evidence that it was the reason for his termination and that the

17

other reasons were a pretext.
Finally, Saba makes several arguments to the effect that he was performing his job well

18
19

and did not need to be terminated. However, Unisys has presented undisputed evidence that it was

20

forced to lay off employees due to declining revenues. As reflected in plaintiff’s counsel’s

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argument at the hearing, Saba’s evidence demonstrates, at best, that Unisys could have terminated

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someone else or that they could have retained Saba to do a different job. This argument ignores

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the fact that in making such reductions in force, companies are often faced with difficult choices

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that are not actionable. It does not demonstrate that Unisys’s reasons for terminating Saba were

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false or pretextual.

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Although Saba points to this time frame in arguing that Hartzler changed her performance
review based on this knowledge, many of Hartzler’s concerns in Saba’s 2012 performance review
were also expressed in her 2011 performance review and in prior communications. See, e.g., Dkt.
No. 82-1; see also Hartzler Decl. Ex 30.
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Saba largely relies on the strength of his prima facie case to argue pretext, but a prima facie

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case alone cannot demonstrate that a legitimate reason for termination was pretextual. See, e.g.,

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Heath v. Ohio Tpk. Comm’n, 85 F. App’x 494, 498 (6th Cir. 2004) (“If the prima facie case alone

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allowed a jury to infer pretext, then “[n]o case could ever be culled out after the prima facie

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stage.”); Jackson, 2015 WL 2095206, at *12 (“Plaintiff must make “an affirmative showing of any

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evidence to show that Defendant’s reason for her termination was pretextual”); Loggins, 151 Cal.

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App. 4th at 1113 (“an employee seeking to avoid summary judgment cannot simply rest on the

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prima facie showing, but must adduce substantial additional evidence from which a trier of fact

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could infer the articulated reasons for the adverse employment action were untrue or pretextual.”);

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Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 319 (4th Cir. 2005).

United States District Court
Northern District of California

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Here, Unisys’s reasons for termination are strong and unrebutted: Saba was unable to

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work for the City, there was change in the amount of work needed for TASC, he occupied the

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lower level position on the team working with TASC, and Unisys implemented widespread

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reductions in force as a result of financial reversals. See Davis v. City of Seattle, 343 F. App’x

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230, 233 (9th Cir. 2009) (“Even if [plaintiff] had established a weak issue of fact as to pretext,

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summary judgment was proper because she presented no more than [t]he mere existence of a

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scintilla of evidence, and [defendant] presented a strong reason to justify its actions, and no

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rational trier of fact could conclude [defendant’s actions were discriminatory or retaliatory.”).

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There is no basis in the evidence to conclude that Unisys’s reasons were pretextual.

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Accordingly, I GRANT Unisys’s motion for summary judgment on the first three causes of

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action.13

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In finding a lack of pretext, I need not rely upon the evidence presented by Unisys in support of
its motion for summary judgment, which indicates that Saba had been placed on the layoff list and
subsequently removed twice prior to his termination, in early 2011 and then in November 2012.
Thiel Decl. ¶¶ 7-9 (Dkt. No. 78). Although Saba does not contest this fact, which seriously
undermines his argument for a temporal nexus between his protected acts and his termination,
even without such evidence Unisys has established a legitimate reason for termination and Saba
has failed to demonstrate that this reason was pretextual. See Benz v. Clorox Co., No. 13-CV01361-WHO, 2014 WL 1366299, at *8 (N.D. Cal. Apr. 7, 2014) (“The supposed evidence of
pretext does not address the unrebutted deficiencies identified in [plaintiff’s] performance and is
not sufficient to survive summary judgment.”).
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II.

SABA’S MOTION FOR PARTIAL SUMMARY JUDGMENT
Because I grant Unisys’s motion for summary judgment on all counts, Saba’s motion for

partial summary judgment is DENIED as moot, as is Unisys’s request for judicial notice filed in
connection with its opposition to this motion. See Dkt. No. 106. However, I note that Saba’s

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motion would certainly fail on the merits. Saba moves for summary judgment on two of Unisys’s
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affirmative defenses: the “after-acquired evidence” defense, and the “unclean hands” defense.

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Saba Mot. at 4-5 (Dkt. No. 75). It acknowledges that Unisys made the same eight factual
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assertions for both defenses. Id. at 6. There are clearly triable issues of fact as to assertions (3),
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(4), and (7).14

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First, a triable issue of fact exists that Alquero was Saba’s wife at the time he worked for
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Unisys. Saba potentially committed the crimes of fraud and/or bigamy, which in turn would
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United States District Court
Northern District of California

create a triable issue of fact to support Unisys’s affirmative defenses. See Palmquist v. Shinseki,
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729 F. Supp. 2d 425, 430 (D. Me. 2010) (“benefits fraud” presents triable issue of fact to be

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resolved by a jury). If proven, a rational trier of fact could conclude that Saba would be
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terminated if Unisys had known of hid fraudulent requests for benefits for a person who was not
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his spouse.
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Similarly, a triable issue of fact exists that (i) Saba operated a personal business while he
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was employed by Unisys and (ii) that Unisys would have terminated Saba if it had known of this
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other business. In arguing that Saba never operated or participated in running any business while
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working at Unisys, Saba relies on facts that are disputed. Unisys submitted evidence of substantial
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earnings that Saba received from sources other than Unisys during the time that Saba worked
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there. Unisys Oppo. 9 (Dkt. No. 102). One source was Quest Software, arguably a competitor of
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Unisys. Id. Given these facts alone, there is a triable issue of fact as to whether Unisys would
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have fired Saba for a violation of its internal policies that counsel employees to avoid conflicts of
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Unisys’s third assertion in support of its defenses is that “Saba failed to provide Unisys with
accurate and up-to-date information regarding his spouse(s)/marriage(s) in violation of Unisys’
policy.” Saba Mot. at 6. Its fourth is that “Saba may have sought and/or obtained benefits from
Unisys for or related to a purported spouse who was not in fact a legal spouse,” and its seventh is
that Saba operated a “personal business” while he was employed by Unisys in violation of
corporate policy. Id.
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interest, obtain prior approval for all outside employment, and prohibit working to the detriment of

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tasks at Unisys. See id. at 11.
CONCLUSION

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For the above reasons, Unisys’s motion for summary judgment is GRANTED. Saba’s
motion for partial summary judgment is DENIED.
Two weeks after the motions for summary judgment were submitted at oral argument,

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Saba filed a substitution of counsel form and requested a temporary stay. In light of this Order,

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Saba’s request for a temporary stay is DENIED as moot. Dkt. No. 134.

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Judgment shall be entered in accordance with this Order.

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United States District Court
Northern District of California

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IT IS SO ORDERED.
Dated: July 17, 2015
______________________________________
WILLIAM H. ORRICK
United States District Judge

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