Thibodeau v. ADT Security Services

Filing 69

ORDER Granting in Part and Denying in Part Defendant's Amended 49 Motion for Summary Judgment. What remains in this case are Plaintiff's First, Fourth, Seventh, and Eighth Causes of Action. Signed by Judge Gonzalo P. Curiel on 1/31/18. (All non-registered users served via U.S. Mail Service)(dlg)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 CLAYTON DEL THIBODEAU, Pro Se, Case No.: 3:16-cv-02680-GPC-AGS Plaintiff, 11 12 v. 13 ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S AMENDED MOTION FOR PARTIAL SUMMARY JUDGMENT ADT SECURITY SERVICES, a/k/a/ ADT HOLDINGS, INC., 14 Defendant. 15 16 17 18 19 20 21 [DKT. NO. 49.] Before the Court is Defendant ADT LLC’s, d/b/a ADT Security Services (“Defendant” or “ADT”)) Amended Motion for Partial Summary Judgment filed on September 21, 2017.1 Dkt. No. 49. On November 30, 2017, Plaintiff Clayton Del Thibodeau, proceeding pro se, filed a Response in Opposition concurrently with the Declaration of Clayton Del Thibodeau, a Separate Statement of Material Facts, and a 22 23 24 25 26 1 Defendant originally filed their Motion on September 1, 2017. Dkt. No. 38. Defendant filed an Amended Motion for Summary Judgment to correct a filing error on September 5, 2017. Dkt. No. 40. On September 20, 2017, Plaintiff filed a Motion to Quash ADT’s Motion. Dkt. No. 47. The Court directed Defendant to either file an opposition brief as to the Motion to Quash or to re-serve Plaintiff pursuant to Magnuson v. VideoYesteryear, 85 F.3d 1424 (9th Cir. 1996) and Federal Rule of Civil Procedure 5(b)(2)(C). Dkt. No. 48. Defendant elected to properly re-serve Plaintiff and did so on September 21, 2017. Dkt. No. 49. 27 28 1 3:16-cv-02680-GPC-AGS 1 Compendium of Evidence. Dkt. No. 62.2 On December 15, 2017, Defendant filed a 2 Reply and Objections to Plaintiff’s Evidence.3 Dkt. No. 63. The Court deems this 3 motion suitable for disposition without oral argument pursuant to Civil Local Rule 4 7.1(d)(1). 5 Having reviewed Defendant’s motion and the applicable law, and for the reasons 6 set forth below, the Court GRANTS IN PART AND DENIES IN PART Defendant’s 7 Motion for Partial Summary Judgment. 8 9 10 11 12 13 I. BACKGROUND Defendant ADT is a corporation that provides residential and business electronic security systems, fire protection, and other related alarm monitoring services. Cole Decl. ¶ 2. Plaintiff worked for Defendant as a Residential High Volume Sales Representative from September 9, 2014 through October 2, 2015. Thibodeau Decl. ¶ 2. Plaintiff was 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 Plaintiff initially filed an opposition on September 18, 2017. Dkt. No. 45. In its reply, Defendant pointed out that Plaintiff had violated the local rules by exceeding page limits and had further failed to include sworn affidavits or declarations necessary to support his opposition to summary judgment. Dkt. No. 56. As a result, pursuant to Federal Rule 56(e)(4), the Court issued an order providing a Rand notice to Plaintiff instructing plaintiff of the requirements to oppose summary judgment, struck from the record the Dkt. No. 45 opposition, and ordered plaintiff to file an amended opposition. Dkt. No. 57. On November 9, 2017, likely before Plaintiff received the Court’s order, Plaintiff filed an Amended Opposition from Plaintiff that largely challenged the assertions made in Defendant’s Reply. As a result, the Court restated the Rand notice and directed Plaintiff to file a further Amended Opposition by December 1, 2017. Dkt. No. 60. Accordingly, the operative filings for this instant motion are Dkt. No. 49 (ADT’s Amended Motion for Partial Summary Judgment) and Dkt. No. 62 (Plaintiff’s Amended Opposition). 3 The Court has considered Defendant’s Objections to Plaintiff’s Evidence in making this ruling. To the extent that any objected-to-evidence is relevant and relied on by the court herein, the court overrules any asserted objections to that evidence. With regard to Defendant’s personal knowledge and authenticity objections, the Court is satisfied that Plaintiff’s exhibits could be submitted in admissible form. See Foreword Magazine, Inc. v. OverDrive, Inc., 2011 5169384, at *1-2 (W.D. Mich. Oct. 31, 2011) (holding that 2010 amendments to Rule 56(e) eliminated unequivocal requirement that documents supporting summary judgment must be authenticated and that the pertinent question is not whether a document “has not” been submitted in admissible form, but whether it “cannot be.”). With regard to Defendant’s hearsay objections, the Court observes that nearly all exhibits presented by Thibodeau likely qualify for the business records exception to hearsay under Federal Rule of Evidence 803(6). 2 3:16-cv-02680-GPC-AGS 1 based out of ADT’s San Diego Office, which had territorial responsibility for both San 2 Diego and Imperial County. Id. ¶¶ 3, 125. High Volume Sales Representatives at ADT 3 are tasked with securing new sales of portfolio package sales and upgrades to new ADT 4 residential customers. Thibodeau Decl. ¶¶ 83, 84, 126, 127. High Volume Sales 5 Representatives are further responsible for tracking the customer’s order to completion, 6 ensuring that installation is in accordance with the customer’s order, and that the 7 customer is 100% satisfied. Cole Decl. ¶ 7; Thibodeau Decl. ¶ 85. Thibodeau’s 8 responsibilities included scheduled appointments with prospective customers, call nights, 9 canvassing in the neighborhood, meetings with residential developers, community 10 promotion events, and travel. Thibodeau Depo. at 44:7-25; 62:19-24. On at least some 11 days, plaintiff spent 100 percent of his day doing sales and solicitation-related activities. 12 Thibodeau Depo. at 181:8-182:3. 13 ADT had a written policy of issuing a sales quota to High Volume Sales 14 Representatives. Cole Decl. ¶ 8; Thibodeau Decl. ¶¶ 86-87. Plaintiff was required to sell 15 192 units a year with the expectation of selling 4 units weekly or 16 units per month, and 16 was expected to perform at 100% of the quota. Cole Decl. ¶¶ 7-8. The quota of 192 17 units was contained within a written Sales Compensation Plan that Plaintiff was provided 18 and signed upon his hiring on September 10, 2014. Cole Del. ¶¶7, 9; Thibodeau Decl. ¶¶ 19 86-87. Plaintiff received a written warning on July 1, 2015 for failing to meet sales goals 20 for the month of June. Cole Decl. ¶ 11, Ex. C. On September 29, 2015, Plaintiff was 21 given a written warning for failure to meet sales goals in August and September of 2015. 22 Id. ¶ 14, Ex. F. Plaintiff resigned from employment with Defendant on October 2, 2016. 23 Thibodeau Depo. 43:4-6; Cole Decl. ¶ 14. 24 Plaintiff’s Amended Complaint alleges nine causes of action: (1) violation of 25 California’s Unfair Competition Law; (2) whistleblower retaliation; (3) violation of 26 Defendant’s fiduciary duty to Plaintiff through the unauthorized distribution of 27 28 3 3:16-cv-02680-GPC-AGS 1 information related to Plaintiff’s customers; (4) failure to adequately reimburse Plaintiff 2 for expenses he incurred while using his personal vehicle for work; (5) failure to pay 3 overtime; (6) failure to provide rest days; (7) failure to provide wage statements; (8) 4 denial of timely access to employee file; and (9) failure to display a list of employees’ 5 rights and responsibilities. Dkt. No. 14. ADT seeks partial summary judgment as to all 6 causes of action, except for the Eighth Cause of Action for denial of timely access to 7 employee file. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 II. LEGAL STANDARD Federal Rule of Civil Procedure 56 empowers the Court to enter summary judgment on factually unsupported claims or defenses, and thereby “secure the just, speedy and inexpensive determination of every action.” Celotex Corp. v. Catrett, 477 U.S. 317, 325, 327 (1986). Summary judgment is appropriate if the “pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). A fact is material when it affects the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The moving party bears the initial burden of demonstrating the absence of any genuine issues of material fact. Celotex, 477 U.S. at 323. The moving party can satisfy this burden by demonstrating that the nonmoving party failed to make a showing sufficient to establish an element of his or her claim on which that party will bear the burden of proof at trial. Id. at 322–23. If the moving party fails to bear the initial burden, summary judgment must be denied and the court need not consider the nonmoving party’s evidence. Adickes v. S.H. Kress & Co., 398 U.S. 144, 159–60 (1970). Once the moving party has satisfied this burden, the nonmoving party cannot rest on the mere allegations or denials of his pleading, but must “go beyond the pleadings and by her own affidavits, or by the ‘depositions, answers to interrogatories, and admissions on 4 3:16-cv-02680-GPC-AGS 1 file’ designate ‘specific facts showing that there is a genuine issue for trial.’” Celotex, 477 2 U.S. at 324. If the non-moving party fails to make a sufficient showing of an element of 3 its case, the moving party is entitled to judgment as a matter of law. Id. at 325. “Where 4 the record taken as a whole could not lead a rational trier of fact to find for the nonmoving 5 party, there is no ‘genuine issue for trial.’” Matsushita Elec. Indus. Co. v. Zenith Radio 6 Corp., 475 U.S. 574, 587 (1986) (quoting First National Bank of Arizona v. Cities Service 7 Co., 391 U.S. 253, 289 (1968)). In making this determination, the court must “view[] the 8 evidence in the light most favorable to the nonmoving party.” Fontana v. Haskin, 262 F.3d 9 871, 876 (9th Cir. 2001). The Court does not engage in credibility determinations, 10 weighing of evidence, or drawing of legitimate inferences from the facts; these functions 11 are for the trier of fact. Anderson, 477 U.S. at 255. 12 In addition, courts “liberally construe[]” documents filed pro se, Erickson v. Pardus, 13 551 U.S. 89, 94 (2007), affording pro se plaintiffs benefit of the doubt. Thompson, 295 14 F.3d at 895; see also Davis v. Silva, 511 F.3d 1005, 1009 n.4 (9th Cir. 2008) (“[T]he Court 15 has held pro se pleadings to a less stringent standard than briefs by counsel and reads pro 16 se pleadings generously, ‘however inartfully pleaded.’”). However, the Ninth Circuit has 17 declined to ensure that district courts advise pro se litigants of rule requirements. See 18 Jacobsen v. Filler, 790 F.2d 1362, 1364-67 (9th Cir. 1986) (“Pro se litigants in the ordinary 19 civil case should not be treated more favorably than parties with attorneys of record . . . it 20 is not for the trial court to inject itself into the adversary process on behalf of one class of 21 litigant”). 22 23 24 25 26 27 28 III. DISCUSSION A. California’s Unfair Competition Law (“UCL”) – First Cause of Action Plaintiff’s first cause of action raises claims under California’s Unfair Competition Law. Amended Compl. at 5. “[T]o state a claim for a violation of the [California UCL], a plaintiff must allege that the defendant committed a business act that is either fraudulent, 5 3:16-cv-02680-GPC-AGS 1 unlawful, or unfair.” Levine v. Blue Shield of Cal., 189 Cal. App. 4th 1117, 1136 (2010). 2 Each adjective captures a “separate and distinct theory of liability.” Rubio v. Capital One 3 Bank, 613 F.3d 1195, 1203 (9th Cir. 2010) (internal marks omitted). Defendant argues that Plaintiff has not yet “established any law, policy, or other 4 5 authority that his unfair business practices claims are based on.” Reply at 5. Pointing to 6 the “unfair” prong of the UCL, Defendant argues that Plaintiff has failed to show a 7 violation “tethered to a legislatively declared policy.” Id. However, Plaintiff’s UCL is 8 not based on the “unfair” prong, but rather on the “unlawful” prong of the UCL. See, 9 e.g., Amended Compl. (“Plaintiff suffered injury by refusing to participate in Defendant’s 10 unlawful schemes”). Violations of the California Labor Code can support UCL claims 11 under the “unlawful” prong. See, e.g., Sullivan v. Oracle Corp., 254 P.3d 237, 247 (Cal. 12 2011) (“Failure to pay legally required overtime compensation falls within the UCL’s 13 definition of an ‘unlawful . . . business act or practice.’”) 14 The Court finds in its analysis below that genuine issues of material fact exist as to 15 Plaintiff’s Labor Code claim regarding vehicle reimbursement. Accordingly, the Court 16 will allow plaintiff’s Section 17200 claim to proceed on this limited basis. 4 See Harris v. 17 Vector Mktg. Corp, 656 F. Supp. 2d 1128, 1147 (N.D. Cal. 2009) (allowing UCL claim to 18 proceed where genuine issues of material fact existed as to employment law claim). 19 However, the Court will not allow a UCL claim based on the failure to receive wage 20 statements to proceed as this claim does not involve economic injury. See Dkt. No. 25 at 21 10-11 (discussing McKenzie v. Federal Express Corp., 765 F. Supp. 2d 1222, 1237 (C.D. 22 Cal. 2011) (right to receive wage statements was an intangible non-economic injury)). 23 24 25 26 27 28 4 Defendants also argue that Plaintiff has failed to allege statutory standing under California Business and Professions Code § 17204. This Court previously found that Plaintiff had adequately pled standing as related to a variety of labor code violations, including out-of-pocket expenses, reimbursement requests, and a failure to compensate Defendant for excess hours worked. Dkt. No. 9. 6 3:16-cv-02680-GPC-AGS Whistleblower Retaliation – Second Cause of Action 1 B. 2 Plaintiff’s second cause of action asserts a claim for whistleblower retaliation. 3 Amended Compl. at 12. California Labor Code Section 1102.5 is a whistleblower statute, 4 the purpose of which is to encourage workplace whistle-blowers to report unlawful facts 5 without fear of retaliation. Soukup v. Law Offices of Herbert Hafif, 39 Cal. 4th 260, 287 6 (2006). The statute reflects a “broad public policy interest in encouraging workplace 7 whistleblowers to report unlawful acts without fearing retaliation.” Green v. Ralee Eng. 8 Co., 19 Cal. 4th 66, 77 (1998). 9 Courts analyzing claims under Section 1102.5 apply the McDonnell-Douglas burden 10 shifting framework. Ferretti v. Pfizer Inc., No. 11-cv-04486, 2013 WL 140088, at *8 (N.D. 11 Cal. Jan. 10, 2013); Canupp v. Children’s Receiving Home of Sacramento, 181 F. Supp. 12 3d 767, 789 (E.D. Cal. Apr. 20, 2016). Under this framework, the plaintiff must first 13 establish a prima facie case, which requires that plaintiff show that “(1) he or she engaged 14 in a protected activity; (2) his employer subjected him to an adverse employment action; 15 and (3) there is a causal link between the two.” Patten v. Grant Joint Union High Sch. 16 Dist., 134 Cal. App. 4th 1378, 1384 (2005). If a plaintiff successfully establishes their 17 prima facie case, the “burden of production, but not persuasion, shifts to the employer to 18 articulate some legitimate, nondiscriminatory reason for the challenged action.” Chuang 19 v. Univ. of Cal. Davis, 225 F.3d 1115, 1123-24 (9th Cir. 2000). 20 1. Protected Activity 21 Plaintiff alleges that he reported ADT wrongdoing to five separate persons above 22 him. On July 22, 2015, Thibodeau sent a letter to Kurt Miller, Regional General Manager 23 of California alerting him to management practices being practiced in San Diego that were 24 “immoral, unethical, and unlawful.” Cole Decl. ¶ 12, Ex. D. Tricia Cole completed a 25 “Conversation Record” where she took notes regarding interviews she conducted with 26 Plaintiff on July 28 and August 12, 2015. Cole Decl. ¶ 13, Ex. E. 27 28 7 3:16-cv-02680-GPC-AGS 1 Thibodeau challenges several allegedly illegal activities such as the (1) sales agent 2 practice of crumpling paper over a telephone mouthpiece when the agent mentioned the 3 name ADT; (2) the use of the “billboard approach” where ADT sales representatives would 4 offer a free security system in exchange for placing an ADT sign in the homeowner’s yards, 5 and omitting any mention of the need to sign up for a two-year monitoring agreement to 6 get the “free” security system; (3) an alleged ADT practice where ADT would provide 7 ADT Dealers with Thibodeau’s “leads.” Thibodeau Decl. ¶¶ 14-17. Mr. Thibodeau 8 complained to Sales Manager Robert Harris about the use of the “billboard approach” and 9 was granted permission to make corrections in his approach to “remove its illegal 10 elements.” Id. ¶ 17. 11 Defendant argues that Thibodeau has not established that he has engaged in a 12 “protected activity” as he has never reported his complaints of illegal activity to any 13 governmental agencies, filed any complaint in court, participated in company or 14 governmental investigations, served as a witness, spoken to the government, or put into 15 writing his complaints. 16 Section 1102.5(b) requires the disclosure of a violation of a state or federal 17 regulation or local, state, or federal rule or regulation, not merely improper conduct. See 18 Patten v. Grant Joint Union High School Dist., 134 Cal. App. 4th 1378, 1384-85 (2005). 19 Beginning in 2014, this disclosure could be made to either a “government or law 20 enforcement agency” or to “a person with authority over the employee” or “to another 21 employee who has authority to investigate, discover, or correct the violation. . .”5 22 Plaintiff must demonstrate a “reasonably based suspicion of illegal activity.” Love v. 23 24 2013 amendments added “internal” disclosure as a category of people to whom the disclosure could be made. Prior to this, the statute only accounted for statements made to government or law enforcement agencies. See Cal. Labor Code § 1102.5; Robles v. Agreserves, Inc., 158 F. Supp. 3d 952, 1008 (E.D. Cal. 2016) (“Under the 2013 version of § 1102.5, only complaints or reports made to a governmental agency are protected; complaints or reports made “internally” to the employer are not protected.”). 5 25 26 27 28 8 3:16-cv-02680-GPC-AGS 1 Motion Indus., Inc., 309 F. Supp. 2d 1128, 1135 (N.D. Cal. 2004) (concluding that 2 plaintiff lacked foundation for the reasonableness of his belief by failing to cite to “any 3 statute, rule, or regulation that may have been violated by the disclosed conduct.”). 4 Plaintiff has not adequately articulated how ADT’s behaviors violated any local, 5 state, or federal statutes. Exhibits D-G attached to the Declaration of Tricia Cole reveal 6 that Plaintiff complained about a series of employment related grievances, but has never 7 alleged any violations of particular local, state, or federal statutes. 8 Specifically, Thibodeau asserts that he complained about an instruction from Paul 9 Singh to crumple paper while leaving a telephone message in order to increase call backs. 10 Thibodeau Decl. ¶ 14; Amended Compl., Ex. 8. However, Plaintiff has failed to identify 11 the superior to whom he complained about Singh’s paper crumpling instruction. 12 Moreover, Thibodeau has wholly failed to identify any federal or state law that was 13 violated by this practice. Accordingly, this alleged complaint cannot be the basis of a 14 protected activity claim. See Thibodeau Decl. ¶ 14. 15 Next, with regard to the use of the “billboard approach,” Thibodeau describes this 16 practice as one he learned at a Dealer Klatch as a way to “get in the door.” Id. ¶ 15. The 17 practice involved telling home owners that ADT would “give them a free security system 18 if they would let us place an ADT sign in their yards, like a mini billboard.” Id. ¶ 16. 19 The salesperson would withhold the fact that the customer was required to sign-up for a 20 two year monitoring agreement in order to get the “free” system. Id. ¶ 17. The two-year 21 requirement was only revealed after the salesperson was already in the home where it was 22 harder for customers to say no. Id. ¶ 17. 23 This unethical means to enter the house—which was reported to his Sales Manager 24 Robert Harris—is one Thibodeau has pointed out as a potentially misleading sales 25 technique, but he has not identified how this sales activity violated consumer protection 26 statutes or other such laws. See id. ¶ 17. The Court observes that this technique, while 27 28 9 3:16-cv-02680-GPC-AGS 1 initially misleading, provides pre-sales disclosures and ample room for consumer choice. 2 Moreover, the statute requires that the plaintiff must have a legal foundation for a 3 reasonable suspicion of illegal activity, not merely a suspicion of “improper conduct.” 4 See Patten, 134 Cal. App. 4th at 1384-85. 5 Finally, with regard to Mr. Singh providing company leads to dealers instead of his 6 sales representatives, plaintiff has not identified how this employment grievance violated 7 any laws. See Thibodeau Decl. ¶¶ 18-32. For example, even if the Court accepted the 8 truth of Plaintiff’s assertions, it is entirely possible that leads were provided to ADT 9 dealers in an entirely legal manner. Because he has failed to provide a legal foundation 10 for his suspicions of illegal activity, Plaintiff has failed to show that he reported a 11 reasonably based suspicion of illegal activity sufficient to constitute a protected activity. 12 See Fitzgerald v. El Dorado Cty., 94 F. Supp. 3d 1155, 1172 (E.D. Cal. 2015) (“To have 13 a reasonably based suspicion of illegal activity, the employee must be able to point to 14 some legal foundation for his suspicion—some statute, rule or regulation which may have 15 been violated by the conduct he disclosed.”). 16 Accordingly, plaintiff has failed to meet his burden to show that he engaged in any 17 protected activity, and thus has failed to establish a prima facie case of whistleblower 18 discrimination. Love v. Motion Industries, Inc., 309 F. Supp. 2d 1128, 1134 (N.D. Cal. 19 2004) (“Plaintiff’s disclosure does not meet the standard for protected activity under 20 Section 1102.5(b), because the disclosed activity does not violate any federal or state 21 statute, rule, or regulation.”); Greer v. Lockheed Martin Corp., 855 F. Supp. 2d 979, 989 22 (N.D. Cal. 2012) (“The protection afforded whistle-blowers under Section 1102.5 is not 23 extended to general complaints made about the work environment.”). 24 25 26 2. Adverse Employment Actions and Causation Had plaintiff shown he engaged in a protected activity, plaintiff would be able to show both adverse employment actions and causation. In Patten v. Grant Joint Union 27 28 10 3:16-cv-02680-GPC-AGS 1 High School Dist., 134 Cal. App. 4th 1378, 1388 (2005), the Court of Appeal held that 2 the definition of “adverse employment action” under FEHA as defined in Yanowitz v. 3 L’Oreal USA, Inc., 36 Cal. 4th 1028 (2005), should also apply in the context of Section 4 1102.5. Under that definition, an action is an “adverse employment action” when it 5 “materially affects the terms and conditions of employment.” This test encompasses not 6 only “ultimate employment decisions,” but also the “entire spectrum of employment 7 actions that are reasonably likely to adversely and materially affect an employee’s job 8 performance or opportunity for advancement in his or her career.” Patten, 134 Cal. App. 9 4th at 1387. However, “[m]inor or relatively trivial adverse actions by employers or 10 fellow employees that, from an objective perspective, are reasonably likely to do no more 11 than anger or upset an employee do not materially affect the terms or conditions of 12 employment.” Id. 13 Plaintiff argues that he was subjected to several forms of adverse employment 14 actions, including that ADT retaliated against Plaintiff by (1) issuing a series of written 15 warnings; (2) denying Plaintiff a promotion;6 (3) denying Plaintiff a transfer;7 (4) 16 overwhelming Plaintiff with non-unit, non-SG, and non-commissionable activities; (5) 17 assigning him low-yield appointments; (6) circumventing his resignation by delaying 18 payment of monies owed and (7) singling Plaintiff out as pre-text for whistleblower 19 retaliation. Opp. at 10-13. Under the Patten test, several of ADT’s activities—such as 20 the issuance of warnings, denial of promotions, denial of transfer, and denial of good 21 22 23 24 25 26 6 In late June 2015, San Diego Residential High Volume Sales Manager Robert Harris left his employment, creating an opening for a management position that Thibodeau applied for. Id. at 104. At his deposition, Plaintiff admitted that the candidate selected for the position, Brian Auerbach, had more sales-related and supervisory experience than he did. Thibodeau Depo. at 258:21-259:23. 7 On or about August 2015, Plaintiff requested a transfer out of the San Diego area. The transfer request was denied on September 15, 2015 because Thibodeau was ineligible for a transfer as he had a written warning in his file and thus was not in good standing. Ex. 11-12. Despite the policy, Peter Beatty granted Thibodeau approval for a transfer, but also informed him that it could take a year or more for a transfer opportunity to arise. Thibodeau Decl. ¶ 103. 27 28 11 3:16-cv-02680-GPC-AGS 1 work—likely constitute “adverse employment actions” because these actions could have 2 “materially affect[ed]” plaintiff’s “job performance or opportunity for advancement” in 3 his career. Patten, 134 Cal. App. 4th at 1387. 4 Assuming arguendo that Plaintiff had established a protected activity, Plaintiff has 5 arguably established a “causal link.” Claims of whistleblower harassment and retaliatory 6 termination may not succeed where a plaintiff “cannot demonstrate the required nexus 7 between his reporting of alleged statutory violations and his allegedly adverse treatment 8 by [the employer].” Turner v. Anheuser–Busch, Inc., 7 Cal. 4th 1238, 1258 (1994). The 9 alleged adverse employment actions took place after Thibodeau revealed the dealer issues 10 to Mr. Harris (June 2015) and after he complained about the Billboard approach (April 11 2015). Thibodeau Decl. ¶ 17; 25. For example, Thibodeau asserted that he received 12 several warnings in July and September of 2015, a relatively short period of time after he 13 would have reported wrongdoing. See Morgan v. Regents of the University of California, 14 88 Cal. App. 4th 52, 69 (2000) (causal link may be established by circumstantial 15 evidence such as proximity in time between protected activity and alleged retaliation). 16 Nonetheless, the Court concludes that Thibodeau cannot show a prima facie case 17 of whistleblower discrimination because he has not articulated facts indicating that he 18 engaged in a protected activity. 19 3. 20 Challenged Action Employer’s Legitimate Nondiscriminatory Reason for the 21 While the Court need not reach the employer’s legitimate nondiscriminatory reason 22 for the challenged action, the Court observes that Defendant has presented adequate, non- 23 pretextual reasons for some of its potential adverse employment actions. For example, 24 Plaintiff was denied a transfer because he was not in good standing due to a written 25 warning, and because he was regularly not meeting his quotas. See, e.g., Thibodeau Depo. 26 at 264:11-25. Further, Plaintiff was denied a promotion because he was not qualified for 27 28 12 3:16-cv-02680-GPC-AGS 1 the position, in comparison to the candidate ultimately hired. See id. at 258:21-259:23. 2 Plaintiff has not adequately demonstrated that these legitimate nondiscriminatory 3 reasons are pretext. See McRae v. Dep’t of Corrections & Rehab., 142 Cal. App. 4th 377, 4 389 (2006) (Plaintiff must demonstrate “specific” and “substantial” evidence of pretext and 5 cannot establish this burden by simply showing that ADT’s actions were “wrong, mistaken, 6 or unwise.”). Mere repetition of the claim that these actions were pretext is not specific 7 and substantial evidence of pretext. See, e.g., Opp. 10-14. Moreover, Plaintiff’s own 8 evidence suggests that other members of ADT’s workforce—including James Brady— 9 were denied transfers because of written warnings, suggesting that ADT’s explanations are 10 not pretext. See Brady Decl. ¶ 8 (“The Custom Home Division Sales Manager said he 11 wanted me on his team. A few days after I applied for the position, I was issued a written 12 warning and told that because of the written warning I could not transfer to the Custom 13 Home Division.”). 14 15 Accordingly, the Court will GRANT summary judgment as to Plaintiff’s Second Cause of Action. Distribution of Customer Information – Third Cause of Action 16 C. 17 Plaintiff’s Third Cause of Action alleges that Defendant ADT distributed and 18 threatened to distribute the personal and private information of its customers and 19 prospective customers to third-party vendors. Amended Compl. at 20. 20 The Court will grant summary judgment because (1) Plaintiff has not demonstrated 21 Article III standing and (2) Plaintiff has not articulated any legal claim supported by 22 evidence. To satisfy the “injury in fact” requirement of standing, plaintiffs must allege an 23 imminent threat of concrete injury, and must distinguish themselves from the public at 24 large by demonstrating that the alleged injury “affect[s] [them] in a personal and individual 25 way.” Defenders of Wildlife v. Lujan, 504 U.S. 555, 560 n.1 (1992); Warth v. Seldin, 422 26 U.S. 490, 498 (1975) (“[T]he threshold question in every federal case ... is whether the 27 28 13 3:16-cv-02680-GPC-AGS 1 plaintiff has alleged such a personal stake in the outcome of the controversy as to warrant 2 his invocation of the federal-court jurisdiction and to justify exercise of the court's remedial 3 powers on his behalf.”). As Thibodeau is not an ADT customer, he lacks standing to bring 4 a claim on behalf of customers and prospective customers because he is not affected by 5 any injury in a “personal and individual way.” See Defenders of Wildlife, 504 U.S. at 560 6 n.1. In his motion for summary judgment, Thibodeau has pivoted from the allegations in 7 the complaint and apparently seeks to also include the “personal information of Plaintiff” 8 in his claim.8 Plaintiff argues—without any basis in law—that he “owned” the information 9 contained in Plaintiff’s customers’ signed contracts, until ADT “accepted” the systems 10 sold. The Court is not persuaded that Thibodeau had any particularized injury from any 11 alleged violation of ADT customers’ privacy. Further, Plaintiff has not articulated a viable 12 legal claim under which this claim may be brought. Plaintiff has cited no statutes or other 13 authority indicating a private right of action—for a non-customer—on this cause of action. 14 Accordingly, the Court will GRANT Summary Judgment as to Plaintiff’s Third Cause of 15 Action. Vehicle Cost Reimbursements – Fourth Cause of Action 16 D. 17 Plaintiff’s fourth cause of action seeks relief for ADT’s alleged failure to properly 18 indemnify him through vehicle cost reimbursements pursuant to California Labor Code 19 section 2802(a). Amended Compl. at 21. Under this section, an employer must indemnify 20 its employees for “all necessary expenditures or losses incurred by the employee in direct 21 consequence of the discharge of his or her duties . . .” Cal. Labor Code § 2802(a). The 22 purpose of the Section is to “prevent employers from passing their operating expenses on 23 to their employees.” Gattuso v. Harte-Hanks Shoppers, Inc., 42 Cal. 4th 554, 562 (2007). 24 25 26 27 28 8 Raising factual allegations for the first time on summary judgment is insufficient to present the claim to the district court. See Navajo Nation v. U.S. Forest Serv., 535 F.3d 1058, 1080 (9th Cir. 2008) (citations omitted); Wasco Prods., Inc. v. Southwall Techs., Inc., 435 F.3d 989, 992 (9th Cir. 2006) (“Simply put, summary judgment is not a procedural second chance to flesh out inadequate pleadings.”). 14 3:16-cv-02680-GPC-AGS 1 The California Supreme Court has held that an employer is obliged by Section 2802 to 2 indemnify its outside sales representatives for automobile expenses actually and 3 necessarily incurred in performing employment-related tasks. Id. at 567. 4 ADT reimburses its California Sales Representatives through the Runzheimer Plan 5 of Vehicle Standard Costs (“Runzheimer”). Perlman Decl. ¶ 2-3. This system includes a 6 “fixed rate” of reimbursement, coupled with a “variable rate” of reimbursement. Perlman 7 Decl. ¶ 4. The fixed rate is based on the costs associated with owning a vehicle such as 8 insurance or license and registration. Id. The Runzheimer system’s variable rate is based 9 on fuel prices, recommended maintenance, and normal tire wear. Id. Employees 10 enrolled in Runzheimer automatically receive the fixed rate monthly allowance but per- 11 mile reimbursement is dependent on an employee logging miles into the system, for 12 which an email reminder would go out if they did not complete this trip information on a 13 timely basis. Id. ¶ 5, 6. Plaintiff stopped submitting reimbursement requests in early 14 2015, but continued to be paid the fixed rate reimbursement despite his failure to 15 complete mileage time entries. Thibodeau Depo. 146:22-147:1-5; 181:8-14; Perlman 16 Decl. ¶ 7, Ex. I. Plaintiff was aware of the Company’s policy of requiring logging 17 mileage to be reimbursed. Thibodeau Depo. 147:25-148-9. 18 ADT asserts that Thibodeau does not have a palpable Section 2802 claim because 19 he was reimbursed for all mileage submitted during his employment, and further still 20 received a fixed mileage reimbursement rate despite his failure to submit reimbursement 21 requests. Defendant asserts that Plaintiff received a reasonable reimbursement rate based 22 on the calculations in the Runzheimer system. MSJ at 28-29. Plaintiff raises a plethora 23 of issues with the Runzheimer system including low reimbursement rates, inaccurate 24 calculations, and the program’s requirement to purchase a new vehicle. 25 26 Defendant primary argument raises what other Courts have deemed the “Exhaustion Defense”—the argument that an employer has no duty to indemnify 27 28 15 3:16-cv-02680-GPC-AGS 1 pursuant to § 2802 until an employee first makes a request for reimbursement with the 2 employer. See Stuart v. Radioshack, 259 F.R.D. 200, 202 (N.D. Cal. Aug. 28, 2009). 3 4 In Stuart v. RadioShack, 641 F. Supp. 2d 901, 904 (N.D. Cal. 2009), the Court held that for purposes of § 2802(a): 5 “before an employer’s duty to reimburse is triggered, it must either know or 6 have reason to know that the employee has incurred an expense. Once the 7 employer has such knowledge, then it has the duty to exercise due diligence 8 and take any and all reasonable steps to ensure that the employee is paid for 9 the expense.” 10 The Court in RadioShack later observed that California law “does not necessarily require 11 reimbursement where there has been no request,” and that “from a practical standpoint, it 12 makes sense that the employee provide some request for and information about 13 reimbursement.” Stuart v. Radioshack, 2009 WL 281941, at *16-17 (N.D. Cal. Feb. 5, 14 2009).9 However, the Court further observed that “if the employer made it futile for the 15 employee to make a claim (e.g., because the employer actively discouraged employees 16 from making reimbursement claims), then the employee would have a § 2802 claim even 17 if he or she had never formally made a claim.” Id. at *17. See also Melgar v. CSk Auto, 18 Inc., 2015 WL 9303977, at *5 (N.D. Cal. 2015) (noting that “the Court rejected 19 Radioshack’s contention that an employer could not be held liable for violating § 2802 20 unless the employee had first made a request for reimbursement”). Here, plaintiff states that the Runzheimer system involved “laborious submission 21 22 requirements.” Opp. at 30. An arduous software system could arguably have made it 23 24 25 26 9 In follow-up rulings, Judge Chen found that RadioShack could not assert a waiver defense to a Section 2802 claim. Stuart v. Radioshack Corp., 259 F.R.D. 200 (N.D. Cal. 2009) (citing Cal. Labor Code § 2804). Similarly, the Court found that laches and estoppel were not applicable defenses to that § 2802 claim. Id. at 201. See also Melgar, 2015 WL 9303977, at *6. 27 28 16 3:16-cv-02680-GPC-AGS 1 “futile” for Plaintiff to have made a reimbursement claim. Further, Plaintiff argues that 2 the Runzheimer program required, as a condition for reimbursement, the purchase of a 3 new vehicle to qualify for reimbursement.10 Moreover, unlike in Radioshack, ADT— 4 based on the nature of Thibodeau’s work and past mileage reimbursement requests—had 5 actual and constructive notice that its High Volume Sales Representatives would 6 regularly require reimbursement for the use of private vehicles in the course of their 7 employment. See Hammitt v. Lumber Liquidators, Inc., 19 F. Supp. 3d 989, 1000-01 8 (S.D. Cal. 2014) (Curiel, J.) (finding that defendant was not liable for failure to reimburse 9 plaintiff because there was no evidence defendant knew or had reason to know that 10 Plaintiff had incurred business-related expenses); Radioshack, 641 F. Supp. 2d at 903 11 (test focuses on whether “an employer either knows or has reason to know that the 12 employee has incurred a reimbursable expense.”). 13 The Court concludes that there is a genuine dispute of material fact whether 14 Plaintiff was adequately reimbursed for his actual expenses under Section 2802 of the 15 California Labor Code. Thibodeau raised significant issues with the ADT reimbursement 16 system including (1) a low per mile rate of reimbursement; (2) inaccurate mileage 17 calculation; (3) insufficient depreciation; (4) the use of a “standard” vehicle rather than 18 the operating costs of plaintiff’s “actual vehicle”; (5) arduous mileage submission 19 processes; (6) the requirement to purchase a new vehicle in order to qualify for 20 reimbursement. Thibodeau Decl. ¶¶ 73-82. He asserts that he spent as much as $20 to 21 $30 per appointment and spent additionally on other vehicle expenses for which he was 22 not properly reimbursed. Thibodeau Decl. ¶ 51. Meanwhile, Defendant has merely 23 presented evidence of the existence of the Runzheimer’s system and included as evidence 24 25 26 27 28 10 ADT submitted the Declaration of Howard Perlman, Vice President of Total Rewards, who described how the Runzheimer program worked, but did not rebut Thibodeau’s issues with the system, including, for example, the requirement to purchase a new vehicle to qualify for reimbursement See Perlman Decl. ¶ 1-7. 17 3:16-cv-02680-GPC-AGS 1 a possibly inaccurate statement of the Runzheimer policy—dated March 6, 2017, long 2 after Thibodeau resigned from ADT—that includes methodologies that may not have 3 been relevant at the time of Thibodeau’s employment. See Ex. H (Runzheimer program 4 description dated March 6, 2017 discussing inter alia that Plaintiff could use Equo app to 5 simplify mileage reporting). Defendants have not shown that the Runzheimer program 6 was a reasonable estimate of Plaintiff’s “necessary expenditures . . . incurred by the 7 employee in direct consequence of the discharge of his or her duties.” See Gattuso, 42 8 Cal. 4th at 570. At a minimum, Plaintiff may be entitled to additional variable expenses 9 for which he did not request reimbursement. 10 Given the statutory preference for reimbursement, a genuine issue of material fact 11 remains as to whether Thibodeau has been adequately reimbursed to the fullest extent 12 allowed under Section 2802. See Melgar, 2015 WL 9303977, at *10 (policy to pay 13 reimbursement “only if the employee first made a request for reimbursement” was a 14 “potentially unlawful policy under the Court’s Stuart analysis.”); Gattuso, 42 Cal. 4th. at 15 569 (“If the employee can show that the reimbursement amount that the employer has 16 paid is less than the actual expenses that the employee has necessarily incurred for work- 17 required automobile use . . . the employer must make up the difference.”); Cal. Labor 18 Code § 2802(a) (“An employer shall indemnify. . .”). Accordingly, the Court will DENY 19 Defendant’s Motion for Summary Judgment on Plaintiff’s Fourth Cause of Action. Overtime and the “Outside Salesperson” Exemption – Fifth Cause of 20 E. 21 Action 22 Plaintiff’s Fifth Cause of Action alleges that ADT caused Thibodeau to work more 23 than 8 hours a day and more than 40 hours a week during the course of his employment. 24 Amended Compl. at 26. Under California law, an employer’s obligation to pay overtime 25 is governed by the California Labor Code and by wage orders promulgated by the Industrial 26 Welfare Commission (“IWC”). The IWC is the “state agency empowered to formulate 27 28 18 3:16-cv-02680-GPC-AGS 1 regulations (known as wage orders) governing minimum wages, maximum hours, and 2 overtime pay in the State of California.” Ramirez v. Yosemite Water Co., 20 Cal. 4th 785, 3 795 (1999). The wage orders remain in effect despite the legislature’s defunding of the 4 IWC in 2004. Murphy v. Kenneth Cole Prods., Inc., 40 Cal. 4th 1094, 1102 n.4 (2007). 5 Wage Order 4-2001 applies to professional, technical, clerical, mechanical, and other 6 similar occupations but has a clear exemption for outside salespersons. Cal. Code Regs. 7 tit. 8, § 11040(1)(C) (“The provisions of this order shall not apply to outside 8 salespersons.”). Part 4, Chapter 1 of the California Labor Code opens by stating that the 9 “provisions of this chapter . . . shall not include any individual employed as an outside 10 salesman.” Cal. Labor Code § 1171. Wage Order 4-2001 defines an outside salesperson 11 as one “who customarily and regularly works more than half the working time away from 12 the employer’s place of business selling tangible or intangible items or obtaining orders or 13 contracts for products, services or use of facilities.” Wage Order No. 4-2001. California 14 takes a “purely quantitative approach” that focuses on whether the employee spends more 15 than half of the workday engaged in sales activities outside the office. Duran v. U.S. Bank 16 Nat. Ass’n, 59 Cal. 4th 1, 26 (2014). The exemption requires scrutiny of both the job 17 description and an employee’s own work habits. Id. The trial court must inquire “first and 18 foremost, how the employee actually spends his or her time.” Id. (emphasis in original). 19 Under California law, exemptions from statutory mandatory overtime provisions are 20 narrowly construed. Nordquist v. McGraw-Hill Broadcasting Co., 32 Cal. App. 4th 555, 21 562 (1995). The assertion of an exemption from the overtime laws is an affirmative defense 22 and the employer bears the burden of proving the employee’s exemption. Nordquist, 32 23 Cal. App. 4th at 562. Determining whether an employee is an exempt outside salesperson 24 is “a mixed question of law and fact.” Ramirez, 20 Cal. 4th at 794. 25 In Duran v. U.S. Bank Nat. Association, 59 Cal. 4th 1, 53 (2014), Justice Liu, 26 concurring in the decision, stated that Ramirez “did not say that the test boils down to 27 28 19 3:16-cv-02680-GPC-AGS 1 whether a particular employee actually spends more than 50 percent of his or her working 2 hours on outside sales.” Rather, he asserted that the test established in Ramirez emphasizes 3 what the “realistic requirements of the job” are. While the primary consideration is “how 4 the employee actually spends his or her time,” Ramirez also states that it would “[not] be 5 wholly satisfactory” to rely solely on the “average actual hours the employee spent on sales 6 activity.” Id. Accordingly, the Court is entitled to rely, in part, on the realistic requirements 7 of the job as articulated by an employer’s realistic expectations. Both the actual hours 8 Thibodeau spent on sales activity and the employer’s expectations support the conclusion 9 that there is no genuine dispute as to any material fact that Thibodeau was properly 10 classified as an “outside salesperson” by ADT. 11 Federal courts in the Ninth Circuit have found it permissible to look to federal law 12 to determine whether an employee was an outside salesperson under California law. This 13 is particularly important because courts have observed that there is a “dearth of California 14 cases addressing what it means to ‘sell.’” Brody v. AstraZeneca Pharm., LP, No. CV06- 15 6862ABCMANX, 2008 WL 6953957, at *5 (C.D. Cal. June 11, 2008).11 The Court in 16 Nielsen v. DeVry, Inc., 302 F. Supp. 2d 747, 756-58 (W.D. Mich. 2003) identified several 17 factors that an array of federal courts had found probative of an employee’s status as an 18 outside salesperson including that: (1) “[T]he job was advertised as a sales position and the 19 employee was recruited based on sales experience and abilities”; (2) “Specialized sales 20 training”; (3) “Compensation based wholly or in significant part on commissions”; (4) 21 “Independently soliciting new business”; (5) “[R]eceiving little or no direct or constant 22 supervision in carrying out daily work tasks.” See also Brody, 2008 WL 6953957 at *6 23 (applying factors to California “outside salesperson” exemption); Barnick v. Wyeth, 522 F. 24 Supp. 2d 1257, 1262 (C.D. Cal. 2007) (same). 25 26 27 28 11 Federal courts have also determined that there is no difference between federal and state law regarding the qualitative issue of what kind of activity constitutes “selling.” Brody, 2008 WL 6953957, at *6. 20 3:16-cv-02680-GPC-AGS 1 The Court concludes that Thibodeau was properly classified as an “outside 2 salesperson” based on: (1) the Federal Nielsen factors; (2) Plaintiff’s actual time spent on 3 the job; and (3) Defendant’s realistic expectations. 4 First, the vast majority of the Nielsen factors suggest that Plaintiff’s role as a “High 5 Volume Sales Representative” was an outside salesperson engaged in sales. Plaintiff 6 participated in specialized sales training. Thibodeau Decl. ¶ 7, 8 (stating that he could not 7 participate in selling ADT systems unless he returned from sales training in Florida). ADT 8 paid Thibodeau commissions on sales. Id. ¶ 62. Plaintiff independently solicited new 9 business. Id. ¶ 88 (claiming he hit self-generated (“SG”) performance numbers three times 10 in January, May, and June of 2015). Further, plaintiff appears to have received little 11 supervision in carrying out daily tasks. Id. ¶ 94 (“ADT did virtually nothing to assist Sales 12 Reps, including me, to meet our sales quotas”). Moreover, Plaintiff’s sales activities appear 13 directed at persuading particular customers to purchase products. See Dailey v. Just Energy 14 Mktg. Corp., 2015 WL 4498430, at *3 (N.D. Cal. July 23, 2015) (An employee is clearly 15 engaged in sales activity and not general promotion of a product if he or she “directs his 16 efforts at persuading a particular customer to purchase a product and is compensated on 17 the basis of his success in doing so.”). 18 Second, Plaintiff’s time records support the conclusion that he spent more than fifty 19 percent of his “actual” time on sales related activities. Defendant objects to Thibodeau’s 20 time calendar on the basis of authentication and because Plaintiff has not indicated that the 21 time entries on the calendar are in any way accurate. Dkt. No. 63-1 at 4. Plaintiff argues— 22 based on the calendar and a summary he prepared of these time records—that 80% of his 23 time was spent in activities unrelated to “selling” and that only 20% of his activities 24 constituted sales-related activities. Opp. at 19. 25 Providing Plaintiff the benefit of the doubt, the Court has reviewed these records and 26 concludes that these records actually provide substantial support for Defendant’s 27 28 21 3:16-cv-02680-GPC-AGS 1 contention that Thibodeau spent the majority of his time engaged in outside sales and sales- 2 related activities. In making this determination, the Court concludes that time spent 3 preparing for sales,12 travel time,13 appointments with customers, time spent canvassing 4 neighborhoods and knocking on doors, meetings with residential developers, time spent 5 dealing with paperwork, and customer installations14 constitute time engaged in the act of 6 "selling.” See Ex. 7. Further, the Court includes in its determination time spent at 7 Plaintiff’s home for sales preparation activities since these activities did not take place at 8 the San Diego office. See, e.g., Ex. 7 (April 28 entry re: “Prep”; May 8 entry re: 9 “prospecting emails”). The Court does not include in its determination, inter alia, time 10 spent generally promoting ADT,15 personal administrative time, and time spent for sales 11 calls/meetings in the San Diego office.16 12 For example, Plaintiff’s time log for May 20, 2015, involved 1.5 hours of Builder 13 Calls, Travel to Temecula, personal administrative issues, and at least 3.5 hours of 14 15 16 17 18 19 20 21 22 23 24 25 26 12 Time spent on sales-related activities has been judicially interpreted to constitute time spent selling for purposes of the outside salesperson exemption. See Pablo v. Servicemaster Glob. Holdings, Inc., No. C 08-03894 SI, 2011 WL 4413897, at *3 n.2 (N.D. Cal. Sept. 22, 2011) (“The test also includes consideration of activities spent incidental to sales—such as preparation, travel time, and paperwork.”); Ramirez, 20 Cal. 4th at 801; Henninghan v. Insphere Insurance Solutions, Inc., 38 F. Supp. 3d 1083, 1106 (N.D. Cal. 2014). 13 Plaintiff disputes that travel time does not constitute time spent selling. This position is mistaken. See Ramirez, 20 Cal. 4th at 802 (“[i]f a salesperson must travel one hour to destination A in order to attempt a sale, then surely the most reasonable interpretation of the wage order is to count the hour of travel time as time spent ’selling.’”). 14 The Court concludes that time spent supporting customer installations in this particular context constitutes time spent “selling” as it is necessarily a part of efforts directed at persuading particular customers to purchase a product and to consummate that specific sale. This is particularly true in light of the fact that the ADT compensation plan does not pay commissions until “the installation is complete.” See Ex. 9; Dailey, 2015 WL 4498430, at *3; Nielsen, 302 F. Supp. 2d. at 759. 15 Time spent generally promoting the ADT brand is not time spent “selling.” See Delgado v. OrthoMcNeil, Inc., 2009 WL 2781525, at *3 (C.D. Cal. Feb. 6, 2009), aff’d, 476 Fed. App’x 133 (9th Cir. 2012) (“For example, a manufacturer’s representative who visits shops to put up displays and posters, rearrange merchandise, or remove spoiled stock is performing promotional work, not sales work.”). 16 See Ramirez, 20 Cal. 4th at 789 (requiring sales activities to take place “outside the workplace”). 27 28 22 3:16-cv-02680-GPC-AGS 1 appointments, and a further travel time of one hour. All told, while Plaintiff claims only 2 three hours of this time is exempt, it is clear that the vast majority of plaintiff’s working 3 day—i.e. more than 50%—consisted of sales-related activities such as calls and travel to 4 the sales calls. See Ex. 7 at 36; Ex. 8 at 43. See also Ex. 7 at 37 (May 30, 2015 where 5 almost all non-personal calendar entries involved installations, travel, or sales 6 appointments).17 Accordingly, the Court concludes—on the basis of these time records–– 7 that Thibodeau spent more than fifty percent of his actual time engaged in sales and sales- 8 related activities and was properly identified by ADT as an exempt “outside salesperson.” 9 Finally, ADT’s “realistic expectations” further support a finding that Thibodeau’s 10 role was that of an outside salesperson. 11 Compensation Plan describes Plaintiff’s role as being “responsible for securing profitable 12 package sales and upgrades to new ADT Residential customers through company provided 13 leads as well as self-generated lead efforts.” Ex. A at ADT000166. Thus, ADT’s realistic 14 expectation for High Volume Sales Representatives was centered on sales. Moreover, 15 another federal court has classified a similar sales position at ADT as an exempt outside 16 salesperson. See Garnett v. ADT LLC, 139 F. Supp. 3d 1121, 1123, 1131 n.2 (E.D. Cal. 17 2015) (finding ADT commission sales representative was likely an “outside salesperson” 18 due to her job responsibilities and frequent travel to residences away from the employer’s 19 place of business). 20 See Duran, 59 Cal. 4th at 53. The ADT Accordingly, there is no genuine dispute of material fact that Plaintiff spent a 21 majority of his time on sales-related activities. 22 “exempt” as an outside salesperson, and is therefore not entitled to overtime payments Plaintiff was properly classified as 23 24 25 26 27 28 To the extent that plaintiff’s time records could be read to support the notion that plaintiff spent less than fifty percent of his time engaged in outside sales, the Court observes that the reliability of these records is somewhat questionable. For example, plaintiff’s purported summary of his time does not always accurately reflect the time entries on the salesforce calendar. Compare Ex. 8 (May 13th entry states that 5:00-9:00 PM was entirely customer care) with Ex. 7 (May 13th entry shows personal administrative time, a “triage” visit, and travel time between 5:00-9:00 PM). 17 23 3:16-cv-02680-GPC-AGS 1 under California law. The Court will GRANT summary judgment on Plaintiff’s Fifth 2 Cause of Action. 3 4 F. Rest Days – Sixth Cause of Action 1. Exhaustion of Administrative Remedies – Labor Code Section 522 5 Plaintiff’s Sixth Cause of Action alleges that Plaintiff worked more than six days in 6 seven in violation of California Labor Code Section 552. Amended Compl. at 29. The 7 Court finds that Plaintiff cannot proceed on this cause of action because he has failed to 8 exhaust administrative remedies under the PAGA. 9 California Labor Code Section 552 states that no employer of labor shall cause his 10 employees to work more than six days in seven. Defendant argues that Thibodeau has 11 failed to exhaust administrative remedies pursuant to Section 2699 of the California Labor 12 Code. Thibodeau responds in his Opposition that his complaint is not filed under the 13 PAGA and that this is not a PAGA case. Opp. at 27. The Court agrees with Defendant’s 14 view and accordingly will grant summary judgment on this basis to Defendant. 15 The proper vehicle for bringing a claim under Section 552 is through the California 16 Private Attorney Generals Act as enacted in Section 2699.3—Requirements for Aggrieved 17 Employee to Commence a Civil Action. This Act “permits a civil action ‘by an aggrieved 18 employee on behalf of himself or herself and other current or former employees' to recover 19 civil penalties for violations of other provisions of the Labor Code.” Amalgamated Transit 20 Union, Local 1756 v. Superior Court, 46 Cal. 4th 993 (2009) (quoting Cal. Lab. Code § 21 2699(a)). Before bringing a civil action for statutory penalties, an employee must comply 22 with Labor Code section 2699.3(a) requiring the employee to give written notice of the 23 alleged Labor Code violation to both the employer and the Labor and Workforce 24 Development Agency, and the notice must describe facts and theories supporting the 25 violation. If the agency notifies the employee and the employer that it does not intend to 26 investigate . . . or if the agency fails to respond within 33 days, the employee may then 27 28 24 3:16-cv-02680-GPC-AGS 1 bring a civil action against the employer. Cal Labor Code § 2699.3(a)(2)(A). Section 2 2699.5 enumerates the sections of the Labor Code that are subject to an administrative 3 exhaustion requirement. See Cal. Labor Code § 2699.5. Section 552 is included in this 4 list. See id. 5 Here, Plaintiff has not presented evidence showing that he provided written notice 6 to the Labor and Workforce Development Agency. Naouchi Decl. ¶ 4 (“At no time has 7 Plaintiff served my office or ADT with a copy of a complaint or correspondence filed with 8 the California Labor Workforce Development Agency, related to his employment with 9 ADT.”). As a result, he has failed to exhaust his administrative remedies and cannot bring 10 his claim under Section 552. See Caliber Bodyworks, Inc. v. Superior Court, 134 Cal. App. 11 4th 365, 383 (2005) (“Under the plain language of the Act, plaintiffs cannot pursue civil 12 penalties for those violations without complying with the pre-filing notice and exhaustion 13 requirements of section 2699.3, subdivision (a).”); Mendoza v. Nordstrom, Inc., 865 F.3d 14 1261 (9th Cir. 2017) (aggrieved employees seeking remedies under Section 551 and 552 15 must “exhaust claims administratively before bringing a PAGA action of their own.”). 16 Accordingly, the Court GRANTS Summary Judgment to Defendant on Plaintiff’s Sixth 17 Cause of Action. 18 G. 19 Plaintiff’s Seventh Cause of Action alleges a failure to provide Plaintiff with wage 20 statements as required by California law. Amended Compl. at 30. California Labor Code 21 § 226(a) requires employers to provide accurate itemized wage statements to employees 22 that provide nine pieces of information. A claim for damages requires proof of: (1) a 23 violation of § 226(a); (2) that is “knowing and intentional”; and (3) a resulting injury. See 24 Derum v. Saks & Co., 95 F. Supp. 3d 1221, 1225 (S.D. Cal. 2015). Wage Statements – Seventh Cause of Action 25 An electronic wage statement can satisfy an employer’s obligations under § 226(a) 26 under certain circumstances. Derum v. Saks & Co., 95 F. Supp. 3d 1221, 1226 (S.D. Cal. 27 28 25 3:16-cv-02680-GPC-AGS 1 2015). In 2006, the California Department of Labor Standards Enforcement (“DLSE”) 2 issued an opinion letter approving a plan to implement an electronic wage-statement 3 system, subject to certain conditions. The letter, which is non-binding but nevertheless 4 persuasive,18 allows electronic wage statements so long as employees retain the ability to 5 easily access the information and convert the electronic statements into hard copies at no 6 expense to the employee. In Apodaca v. Costco Wholesale Corp., 2012 WL 12336225, at 7 *2 (C.D. Cal. 2012), the Court relied on the DLSE interpretation to find that a genuine 8 factual dispute existed as to whether an employee could easily access the wage statements 9 and easily convert the statements into hard copies.19 10 Defendant ADT initially provided wage statements in paper form, then in January 11 2015 began providing provided the wage statements on an electronic basis. Cole Decl. ¶ 12 6. Plaintiff argues that ADT “deliberately and maliciously failed to provide Plaintiff with 13 wage statements.” Opp. at 23. It is true that Plaintiff was aware that electronic paystubs 14 were available on the ADT electronic system and made only a single attempt to access his 15 electronic paystub. See Thibodeau Depo. at 267:1-15 (“I only tried once.”). However, he 16 subsequently replied to ADT’s email describing his problem with electronic access and 17 made a request to receive printed wage statements. Thibodeau Decl. ¶¶ 35-37; Ex. 13. A 18 few days later, Thibodeau states that his sales manager Robert Harris “pressured” plaintiff 19 to “sign a document reversing [his] request to receive printed wage statements.” Id. ¶ 38. 20 ADT subsequently never informed Thibodeau of any progress regarding his inability to 21 access wage statements electronically. Id. ¶ 40. 22 These facts are supported by the Declaration of Robert Harris, a fellow high volume 23 24 DLSE interpretations of California statutes are “entitled to [the court’s] consideration and respect.” Murphy v. Kenneth Cole Prods., Inc., 40 Cal. 4th 1094, 1105 n.7 (2007). 19 In a subsequent bench trial, the Court eventually found that the employee, Apodaca, could easily access her wage statements and consequently the provision of electronic wage statements did not violate Section 226(a). Apodaca v. Costco Wholesale Corp., 2014 WL 2533427 (C.D. Cal. June 5, 2014). 18 25 26 27 28 26 3:16-cv-02680-GPC-AGS 1 sales representative and later Sales Manager for ADT who recalled “Mr. Thibodeau 2 report[ing] difficulties accessing his statements on-line and I recall that he requested by 3 email that he receive printed wage statements. Additionally, I recall receiving instruction 4 by email from an ADT Department I cannot recall, to have Mr. Thibodeau sign a document 5 releasing ADT from having to provide him with Printed wage statements. I have no 6 knowledge regarding where Mr. Thibodeau’s email request or the signed release may have 7 ended up.” Harris Decl. ¶ 5.20 8 Given the apparent difficulties Mr. Thibodeau faced in requesting and receiving a 9 printed wage statement and the fact that Defendant has not rebutted these facts, a genuine 10 issue of material fact exists as to whether Defendant knowingly and intentionally denied 11 Plaintiff’s right to “easily access the wage statements and easily convert the statements into 12 hard copies.” See Apodaca, 2012 WL 12336225, at *2.21 Accordingly, the Court will DENY Plaintiff’s Motion for Summary Judgment as to 13 14 Plaintiff’s Seventh Cause of Action. Employee Rights Postings – Ninth Cause of Action 15 H. 16 Plaintiff’s Ninth Cause of Action alleges that Defendant ADT failed to prominently 17 display a list of employees’ rights and responsibilities under whistleblower laws pursuant 18 to Labor Code Section 1102.8. Amended Compl. at 33. Defendant asserts that ADT 19 ensured that all required postings were posted in a conspicuous and accessible area in the 20 San Diego office. Plaintiff agreed that the posters were initially placed in a conspicuous 21 hallway. Thibodeau Depo. at 121:1-17. During a renovation period, the posters were 22 moved elsewhere. Id. at 121:11-21; Smith Decl. ¶ 3. The Court need not resolve whether 23 24 20 25 26 27 28 These statements suggest a genuine dispute of material fact as to whether Costco knowingly and intentionally violated Section 552. See Apodaca, 2012 WL 12336225, at *3 (citing penalty provisions under Cal. Labor Code Section 226(e)). 21 The failure to obtain a hard copy of wage statements from a payroll clerk constitutes a sufficient injury. See Apodaca, 2012 WL 12336225, at *3. 27 3:16-cv-02680-GPC-AGS 1 a genuine dispute of material fact exists as Plaintiff’s claim fails as a matter of law because 2 there is no private cause of action under Labor Code Section 1102.8. 3 California Labor Code Section 1102.8 requires that employers prominently display 4 in lettering larger than 14 point font a list of employees’ rights and responsibilities under 5 California’s whistleblower laws, including a whistleblower hotline telephone number. Cal. 6 Labor Code § 1102.8. 7 The Court concludes that no private cause of action under Labor Code Section 8 1102.8 exists. “If the Legislature intends to create a private cause of action, we generally 9 assume it will do so ‘directly[,] . . . in clear, understandable, unmistakable terms . . . .” Vikco 10 Ins. Services, Inc. v. Ohio Indemnity Co., 70 Cal. App. 4th 55, 62-63 (1999) (citing Moradi- 11 Shalal v. Fireman's Fund Ins. Cos., 46 Cal. 3d 287, 294-95 (1988)). No case cited in either 12 WestlawNext or LexisAdvance appears to have ever successfully brought or analyzed a 13 private claim under 1102.8. In addition, the PAGA specifically states that “no action shall 14 be brought under this part for any violation of a posting, notice, agency reporting, or filing 15 requirement of this code,” strongly suggesting that no private right of action exists as to 16 this claim. Cal. Labor Code § 2699(2). 22 17 Finally, nothing in the legislative history of Section 1102.8 indicates that the 18 legislature intended to create a private right of action. In the Legislative Counsel’s Digest 19 for the 2003 Bill SB 777, discussion regarding Section 1102.8 is clearly separated from the 20 provisions involving Section 1102.5 which does include a private right of action. See 2003 21 Cal. Legis. Serv. Ch. 484 (S.B. 777) (legislative history regarding Section 1102.8 limited 22 to an isolated paragraph stating that “[t]his bill would also require an employer to display, 23 as specified, a list of an employee's rights under whistleblower laws, including the 24 telephone number of the hotline created by the bill.”). 25 26 27 28 22 Further evidence that section 1102.8 does not include a private right of action is found in the fact that it is not included in section 2699.5, the section which sets out the requirements for aggrieved employees to commence a PAGA civil action under the labor code law. 28 3:16-cv-02680-GPC-AGS 1 Accordingly, because there is “no clear, understandable, and unmistakable” 2 indication that the legislature intended to create a private right of action, the Court will find 3 that no private right lies with Section 1102.8. See Ruiz v. Paladin Grp., Inc., No. CV 03- 4 6018-GHK(RZX), 2003 WL 22992077, at *2 (C.D. Cal. Sept. 29, 2003) (finding no private 5 right of action arises under Cal. Labor Code § 558); Vikco, 70 Cal. App. 4th at 62 (1999) 6 (“[A] private right of action exists only if the language of the statute or its legislative history 7 clearly indicates the Legislature intended to create such a right to sue for damages”). The 8 Court will GRANT Defendant’s Motion for Summary Judgment as to Plaintiff’s Ninth 9 Cause of Action. 10 11 CONCLUSION For the foregoing reasons, the Court will:  GRANT Defendant’s Motion for Partial Summary Judgment as to: 12 13 o Plaintiff’s Second Cause of Action re: Whistleblower Retaliation 14 o Plaintiff’s Third Cause of Action re: Distribution of Customer Information 15 o Plaintiff’s Fifth Cause of Action re: Overtime Pay 16 o Plaintiff’s Sixth Cause of Action re: Rest Days 17 o Plaintiff’s Ninth Cause of Action re: Failure to Post Whistleblower Laws  DENY Defendant’s Motion for Partial Summary Judgment as to 18 19 o Plaintiff’s First Cause of Action re: the Unfair Competition Law 20 o Plaintiff’s Fourth Cause of Action re: Vehicle Cost Reimbursements 21 o Plaintiff’s Seventh Cause of Action re: Wage Statements 22 23 Accordingly, what remains in this case are Plaintiff’s First, Fourth, Seventh, and Eighth23 24 Causes of Action. 25 26 27 28 Defendant’s Motion for Partial Summary Judgment did not seek summary judgment as to Plaintiff’s Eighth Cause of Action involving Timely Access to Thibodeau’s Employee File. 23 29 3:16-cv-02680-GPC-AGS 1 IT IS SO ORDERED. 2 Dated: January 31, 2018 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 30 3:16-cv-02680-GPC-AGS

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