Nystul vs. Airborne Systems North America of CA, Inc.

Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A “party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact. . . .” (Ibid.) “A prima facie showing is one that is sufficient to support the position of the party in question.” (Id. at p. 851.) “A court identifies the issues framed by the pleadings, determines whether the moving party’s showing has established facts which negate the opponent’s claim and justify a judgment in the moving party’s favor, and if the summary judgment motion is meritorious on its face, the court will look to whether the opposition demonstrates there are triable, material factual issues.” (Clark v.

Baxter Healthcare Corp. (2000) 83 Cal.App.4th 1048, 1054.) The opposing party must show by reference to specific facts the existence of a triable issue as to that cause of action. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 850.)

“A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Code Civ. Proc., § 437c, subd. (f)(1).)

A cause of action cannot be established if the undisputed facts presented by the defendant prove the contrary of the plaintiff’s allegations as a matter of law. (Brantley v. Pisaro (1996) 42 Cal.App.4th 1591, 1597.) Alternatively, a moving defendant can show that a cause of action cannot be established by submitting evidence, such as discovery admissions and responses, that plaintiff does not have and cannot reasonably obtain evidence to establish an essential element of his cause of action. (Aguilar v.

Atlantic Richfield Co., supra, 25 Cal.4th at pp. 854-855; Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 590 [finding moving defendant may show plaintiff’s lack of evidence by factually devoid discovery responses after plaintiff has had adequate opportunity for discovery]; see Sheiding v. Dinwiddie Constr. Co. (1999) 69 Cal.App.4th 64, 80-81 [finding Union Bank rule only applies where discovery requests are broad enough to elicit all such information].)

Once a defendant meets its prima facie showing, the burden shifts to the plaintiff to show by reference to specific facts the existence of a triable issue as to that affirmative defense or cause of action. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 850.) To meet this burden, the plaintiff must present substantial and admissible evidence creating a triable issue. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 163.) Theoretical, imaginative, or speculative submissions are insufficient to stave off summary judgment. (Doe v. Salesian Society (2008) 159 Cal.App.4th 474, 481; Bushling v. Fremont Med. Center (2004) 117 Cal.App.4th 493, 510.)

Merits The Court notes although Defendants contend TransDigm is not Plaintiff’s employer, Defendants did not request the Court determine this issue in the notice of motion or separate statement. Accordingly, the Court declines to address Defendants’ contention in this motion.

Issue 1: Plaintiff’s First Cause of Action for alleged Retaliation in Violation of California’s Fair Employment and Housing Act (“FEHA”) fails as a matter of law because Plaintiff cannot establish a prima facie case for retaliation because there is no causal link between Plaintiff’s alleged protected activity of making complaints about Kip Freeman and her refusal to reclassify employees, and any of Defendants’ alleged adverse employment actions towards her that allegedly occurred well after Freeman’s cessation of employment.

The elements of a cause of action for retaliation are: (1) the employee engaged in protected activity, (2) the employee was subjected to an adverse employment action, and (3) a causal link exists between the protected activity and the adverse employment action. (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.)

“[R]etaliatory intent is an element of a FEHA retaliation claim” (Joaquin v. City of Los Angeles (2012) 202 Cal.App.4th 1207, 1221.)

“[T]the proper standard for defining an adverse employment action is the ‘materiality’ test, a standard that requires an employer’s adverse action to materially affect the terms and conditions of employment...in determining whether an employee has been subjected to treatment that materially affects the terms and conditions of employment, it is appropriate to consider the totality of the circumstances and to apply the ‘continuing violation’ doctrine.” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1036.) “The FEHA standard for ‘adverse action’ is the same for both discrimination and retaliation claims: ‘(A)lthough an adverse employment action must materially affect the terms, conditions, or privileges of employment ..., whether a particular action or course of conduct rises to the level of actionable conduct should take into account the unique circumstances of the affected employee as well as the workplace context of the claim.’ [Yanowitz v.

L’Oreal USA, Inc. (2005) 36 C4th 1028, 1052, 32 CR3d 436, 453 (emphasis added)].” (Chin, et al., Cal. Prac. Guide Employment Litigation (The Rutter Group 2017) ¶ 7:393.21.)

In the context of an employer’s motion for summary judgment, the McDonnell Douglas three-stage burden shifting test for a retaliation claim is treated the same as a discrimination claim. (Batarse v. Service Employees Internat. Union, Local 1000 (2012) 209 Cal.App.4th 820, 831; see Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.) Therefore, an employer pursuing summary judgment may attempt to show the employee is unable to establish a prima facie case of discrimination or, alternatively, may skip to the second stage and demonstrate the employer had a legitimate business reason, unrelated to discrimination, for taking the adverse employment action. (Batarse, 209 Cal.App.4th at 832.)

For trial purposes, “the McDonnell Douglas test places on the plaintiff the initial burden to establish a prima facie case of discrimination...Generally, the plaintiff must provide evidence that (1) he was a member of a protected class, (2) he was qualified for the position he sought or was performing competently in the position he held, (3) he suffered an adverse employment action, such as termination, demotion, or denial of an available job, and (4) some other circumstance suggests discriminatory motive...If, at trial, the plaintiff establishes a prima facie case, a presumption of discrimination arises...the burden shifts to the employer to rebut the presumption by producing admissible evidence, sufficient to ‘raise [] a genuine issue of fact’ and to ‘justify a judgment for the [employer],’ that its action was taken for a legitimate, nondiscriminatory reason... If the employer sustains this burden, the presumption of discrimination disappears...The plaintiff must then have the opportunity to attack the employer’s proffered reasons as pretexts for discrimination, or to offer any other evidence of discriminatory motive.” (Guz, 24 Cal.4th at 354-356.)

For summary judgment proceedings, if an “employer presents admissible evidence either that one or more of plaintiff’s prima facie elements is lacking, or that the adverse employment action was based on legitimate, nondiscriminatory factors, the employer will be entitled to summary judgment unless the plaintiff produces admissible evidence which raises a triable issue of fact material to the defendant’s showing.” (Sandell v. Taylor-Listug, Inc. (2010) 188 Cal.App.4th 297, 309; see King v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 432-434 [The employer bears the “initial burden of demonstrating that at least one of the elements of plaintiff’s employment discrimination claim is without merit.

Once an employer satisfies its initial burden of proving the legitimacy of its reason for termination, the discharged employee seeking to avert summary judgment must present specific and substantial responsive evidence that the employer’s evidence was in fact insufficient or that there is a triable issue of fact material to the employer’s motive...In other words, plaintiff must produce substantial responsive evidence to show that [employer’s] ostensible motive was pretextual; that is, ‘that a discriminatory reason more likely motivated the employer or that the employer’s explanation is unworthy of credence’”].)

An employee plaintiff’s “prima facie burden is light; the evidence necessary to sustain the burden is minimal...generally an employee need only offer sufficient circumstantial evidence to give rise to a reasonable inference of discrimination.” (Sandell v. Taylor-Listug, Inc., 188 Cal.App.4th at 310.)

When the employer has produced substantial evidence of a legitimate, nondiscriminatory or nonretaliatory reason for the adverse employment action, the plaintiff’s opposition to the motion must make a showing of intentional discrimination. (Batarse v. Service Employees Internat. Union, Local 1000 (2012) 209 Cal.App.4th 820, 834.) The employee must offer evidence that (1) the employer’s stated reason for the adverse employment action was untrue or pretextual, (2) the employer acted with a discriminatory animus, or (3) a combination of the two. (Ibid.)

The employee’s evidence cannot simply show the employer’s decision was wrong, mistaken, or unwise. Rather, the employee must demonstrate such weaknesses, implausible inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence, and thus infer that the employer did not act for the asserted nonretaliatory reasons. (Ibid.)

Defendants did not meet their initial burden to show there is no causal link between Plaintiff’s alleged protected activity of making complaints about Kip Freeman and her refusal to reclassify employees. (Code Civ. Proc., § 437c, subd. (f)(1) [“A motion for summary adjudication shall be granted only if it completely disposes of a cause of action.”]; see, Hedayati v. Interinsurance Exchange of the Automobile Club (2021) 67 Cal.App.5th 833, 846 [“If the defendant does not address an issue in a motion for summary judgment that has been raised in the plaintiff’s complaint, it fails to meet its initial burden to show the plaintiff's action has no merit.].)

Plaintiff’s complaint does not allege her wrongful termination is the only adverse employment action or the only act of retaliation. (Complaint, ¶¶ 19, 20, 26, 29, 32, 34, 35, 41, 43, 46, and 48.) Although Defendants attempt to show they met their initial burden regarding other retaliatory acts, Defendants did not do so. By way of example, Defendants contend Plaintiff failed to provide any facts to support her allegation that Antanaitis failed to answer or return her calls, citing to Plaintiff’s deposition transcript. (DMF No. 33.)

However, the evidence Defendants cite do not support this contention. (DMF No. 33; Defendants’ Compendium of Evidence, ROA No. 112, Askanas Decl., Exhibit B, 291:12-292:18.) Defendants also did not show Plaintiff cannot reasonably obtain evidence to support her contentions of retaliatory conduct. In addition, Plaintiff did not allege the only protected activity she engaged in was reporting Freeman’s allegedly improper request to reclassify employees. (Complaint, ¶¶ 13-18, 22, 24, 27, and 41.)

Defendants did not show there is no causal link between Plaintiff’s protected activity, which included more than just reporting Freeman, to the alleged retaliatory conduct, which included more than wrongful termination.

Even if Defendants met their initial burden, Plaintiff raised a triable issue of material fact as to whether Butrica or Antanaitis played any role in Blackburn’s decision to eliminate Plaintiff’s position. (Defendants’ Material Fact [“DMF”] No. 46; Plaintiff’s Compendium of Exhibits, Part 2 of 5, ROA No. 149, Exhibit O, 187:10-23 and 189:25- 191:18.)

Accordingly, the motion for summary adjudication is denied.

Issue 2: Plaintiff’s First Cause of Action for alleged Retaliation in Violation of the FEHA fails as a matter of law because Defendants’ actions were taken for legitimate, non-retaliatory reasons and Plaintiff cannot show that those reasons were pretextual.

Defendants met their initial burden to show Defendants terminated Plaintiff for legitimate, non-retaliatory reasons. (DMF No. 42, 44, 47, and 48.)

Plaintiff met her shifted burden to show Defendants’ motive was pretextual. Defendants’ explanation was contradicted by Defendants’ employees. Plaintiff raised a triable issue as to whether Butrica and Antanaitis played any role in Blackburn’s decision to eliminate Plaintiff’s position. (DMF No. 46 and 49; Plaintiff’s Compendium of Exhibits, Part 2 of 5, Exhibit O, 187:10-23 and 189:25-191:18; Plaintiff’s Compendium of Evidence, Part 4 of 5, Exhibit R, 265:20-266:23.) Accordingly, the motion for summary adjudication is denied.

Issue 3: Plaintiff’s derivative Second Cause of Action for alleged Failure to Prevent Retaliation in Violation of the FEHA fails as a matter of law because Plaintiff’s underlying FEHA Retaliation, Whistleblower Retaliation under California Labor Code section 1102.5, and Retaliation under California Labor Code section 232.5 claims all fail as a matter of law.

Plaintiff’s second cause of action alleges Defendants failed to prevent retaliation in violation of FEHA. (Complaint, ¶ 52.)

“When a plaintiff seeks to recover damages based on a claim of failure to prevent discrimination or harassment she must show three essential elements: (1) plaintiff was subjected to discrimination, harassment or retaliation; (2) defendant failed to take all reasonable steps to prevent discrimination, harassment or retaliation, and (3) this failure caused plaintiff to suffer injury, damage, loss or harm. (Citation omitted.)” (Lelaind v. City and County of San Francisco (2008) 576 F.Supp.2d 1079, 1103.) There is no claim for failure to prevent harassment or discrimination when there is no liability for harassment or discrimination. (Trujillo v. North Co. Transit Dist. (1998) 63 Cal.App.4th 280, 289.)

Defendants met their initial burden to show Defendants terminated Plaintiff for legitimate, non-retaliatory reasons. (DMF No. 42, 44, 47, 48, and 50.) However, Plaintiff met her shifted burden to show Defendants’ motive was pretextual and also raised a triable issue of material fact as to whether Butrica and Antanaitis played any role in Blackburn’s decision to eliminate Plaintiff’s position. (DMF No. 46 and 50; Plaintiff’s Compendium of Exhibits, Part 2 of 5, Exhibit O, 187:10-23 and 189:25-191:18; Plaintiff’s Compendium of Evidence, Part 4 of 5, Exhibit R, 265:20-266:23.) Because Defendants did not prevail on showing they are entitled to summary adjudication on Plaintiff’s first cause of action retaliation under FEHA, Defendants’ motion for summary adjudication on this issue is denied.

Issue 4: Plaintiff’s Third Cause of Action for alleged Whistleblower Retaliation in violation of California Labor Code section 1102.5 fails as a matter of law because Plaintiff cannot establish, by a preponderance of the evidence, that her making complaints about Kip Freeman’s conduct and her refusal to reclassify employees, was a contributing factor in Airborne Systems’ decision to eliminate her position that occurred well after Freeman’s cessation of employment.

Labor Code section 1102.5, subdivision (b) is California’s general whistleblower statute. (McVeigh v. Recology San Francisco (2013) 213 Cal.App.4th 443, 468.) It provides:

An employer may not retaliate against an employee for disclosing information, or because the employer believes that the employee disclosed or may disclose information, to a government or law enforcement agency, to a person with authority over the employee or another employee who has the authority to investigate, discover, or correct the violation or noncompliance, or for providing information to, or testifying before, any public body conducting an investigation, hearing, or inquiry, if the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation, regardless of whether disclosing the information is part of the employee’s job duties. (Lab. Code, § 1102.5, subd. (b).)

Labor Code section 1102.5, subdivision (c) provides, “An employer, or any person acting on behalf of the employer, shall not retaliate against an employee for refusing to participate in an activity that would result in a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation.” (Lab. Code, § 1102.5, subd. (c).)

In 2003, the Legislature amended the Labor Code’s whistleblower protections, adding a procedural provision, section 1102.6. (Lawson v. PPG Architectural Finishes, Inc. (2022) 12 Cal.5th 703, 710-711.) Labor Code section 1102.6 states: “In a civil action or administrative proceeding brought pursuant to Section 1102.5, once it has been demonstrated by a preponderance of the evidence that an activity proscribed by Section 1102.5 was a contributing factor in the alleged prohibited action against the employee, the employer shall have the burden of proof to demonstrate by clear and convincing evidence that the alleged action would have occurred for legitimate, independent reasons even if the employee had not engaged in activities protected by Section 1102.5.” (Lab. Code, § 1102.6.)

In Lawson v. PPG Architectural Finishes, Inc., the California Supreme Court clarified that “Section 1102.6 provides the governing framework for the presentation and evaluation of whistleblower retaliation claims brought under section 1102.5. First, it places the burden on the plaintiff to establish, by a preponderance of the evidence, that retaliation for an employee’s protected activities was a contributing factor in a contested employment action . . . . Once the plaintiff has made the required showing, the burden shifts to the employer to demonstrate, by clear and convincing evidence, that it would have taken the action in question for legitimate, independent reasons even had the plaintiff not engaged in protected activity.” (Lawson v.

PPG Architectural Finishes, Inc., supra, 12 Cal.5th at p. 718.) This standard governs Labor Code section 1102.5 claims on summary judgment. (Id. at pp. 717-718.)

The California Supreme Court held that an employee with a Labor Code section 1102.5 claim need not satisfy the three-part burdenshifting framework set forth in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 (McDonnell Douglas). (Lawson v. PPG Architectural Finishes, Inc., supra, 12 Cal.5th at p. 707.)

Defendants met their initial burden to show Plaintiff cannot show her making complaints about Freeman’s conduct and her refusal to classify employees was a contributing factor in Defendants’ decision to eliminate her position. (DMF No. 13, 16, 18, 21-24, 31, 41, 46, and 51.)

However, Plaintiff’s complaint does not allege her wrongful termination is the only adverse employment action or the only act of retaliation. (Complaint, ¶¶ 19, 20, 26, 29, 32, 34, 35, 41, 43, 46, and 48.) Plaintiff did not allege the only protected activity she engaged in was reporting Freeman’s allegedly improper request to reclassify employees. (Complaint, ¶¶ 13-18, 22, 24, 27, and 41.)

In addition, Plaintiff raised a triable issue of material fact as to whether Butrica or Antanaitis played any role in Blackburn’s decision to eliminate Plaintiff’s position. (DMF No. 46; Plaintiff’s Compendium of Exhibits, Part 2 of 5, Exhibit O, 187:10-23 and 189:25- 191:18.) Accordingly, the motion for summary adjudication is denied.

Issue 5: Plaintiff’s Third Cause of Action for alleged Whistleblower Retaliation in Violation of California Labor Code section 1102.5 fails as a matter of law because Defendants can establish, by clear and convincing evidence, that Defendants eliminated Plaintiff’s position for legitimate, non-retaliatory, and non-pretextual reasons.

Defendants met their initial burden to show Defendants terminated Plaintiff for legitimate, non-retaliatory reasons. (DMF No. 42, 44, 47, 48, and 52.) Plaintiff met her shifted burden to show Defendants’ motive was pretextual and also raised a triable issue of material fact as to whether Butrica and Antanaitis played any role in Blackburn’s decision to eliminate Plaintiff’s position. (DMF No. 46 and 52; Plaintiff’s Compendium of Exhibits, Part 2 of 5, Exhibit O, 187:10-23 and 189:25-191:18; Plaintiff’s Compendium of Evidence, Part 4 of 5, Exhibit R, 265:20-266:23.) Accordingly, the motion for summary adjudication is denied.

Issue 6: Plaintiff’s Fourth Cause of Action for Violation of California Labor Code section 232.5 fails as a matter of law because Plaintiff cannot establish that her alleged disclosure of her working conditions was a substantial motivating reason for Defendants’ decision to eliminate her position.

Labor Code section 232.5 provides as follows:

No employer may do any of the following: (a) Require, as a condition of employment, that an employee refrain from disclosing information about the employer’s working conditions.

(b) Require an employee to sign a waiver or other document that purports to deny the employee the right to disclose information about the employer’s working conditions. (c) Discharge, formally discipline, or otherwise discriminate against an employee who discloses information about the employer’s working conditions. (d) This section is not intended to permit an employee to disclose proprietary information, trade secret information, or information that is otherwise subject to a legal privilege without the consent of his or her employer. (Lab. Code, § 232.5.)

To prevail on this cause of action, Plaintiff would have to show “the disclosure of [her] working conditions was a ‘substantial motivating reason’ for terminating [her] employment.” (Zirpel v. Alki David Productions, Inc. (2023) 93 Cal.App.5th 563, 578.)

Plaintiff’s complaint alleges a violation of subdivision (c). (Complaint, ¶ 72.) Plaintiff alleges she “repeatedly complained about certain working conditions and/or practices relating to the company’s ongoing attempts to unlawfully reclassify certain positions within the company by changing the job descriptions of those positions, the retaliatory practices that occurred after Ms. Antanaitis’ promotion to HR Director towards Plaintiff and others on the HR team in California and the internal failure to address Mr. Freeman’s unlawful conduct at work that created a hostile work environment. Plaintiff therefore contends that the retaliatory campaign against her that culminated in the termination of her employment.” (Id., ¶ 73.)

Defendants met their initial burden to show that Plaintiff’s complaints about Freeman’s unlawful conduct was not a substantial motivating reason for terminating her employment. (DMF No. 13, 16, 18, 21-24, 31, 41, 46, and 53.)

However, Plaintiff’s complaint does not allege her wrongful termination is the only adverse employment action or the only act of retaliation, although she does allege the retaliatory campaign culminated her termination. (Complaint, ¶¶ 19, 20, 26, 29, 32, 34, 35, 41, 43, 46, 48, 71, and 73.) Plaintiff did not allege the only protected activity she engaged in was reporting Freeman’s allegedly improper request to reclassify employees. (Complaint, ¶¶ 13-18, 22, 24, 27, and 41.)

Plaintiff raised a triable issue of material fact as to whether Butrica or Antanaitis played any role in Blackburn’s decision to eliminate Plaintiff’s position. (DMF No. 46 and 53; Plaintiff’s Compendium of Exhibits, Part 2 of 5, Exhibit O, 187:10-23 and 189:25-191:18.) Accordingly, the motion for summary adjudication is denied.

Issue 7: Plaintiff’s Fourth Cause of Action for Violation of California Labor Code section 232.5 fails as a matter of law because Defendants can establish that they eliminated Plaintiff’s position for legitimate, non-retaliatory, and non-pretextual reasons.

Defendants met their initial burden to show Defendants terminated Plaintiff for legitimate, non-retaliatory reasons. (DMF No. 42, 44, 47, 48, and 54.) Plaintiff met her shifted burden to show Defendants’ motive was pretextual and also raised a triable issue of material fact as to whether Butrica and Antanaitis played any role in Blackburn’s decision to eliminate Plaintiff’s position. (DMF No. 46 and 54; Plaintiff’s Compendium of Exhibits, Part 2 of 5, Exhibit O, 187:10-23 and 189:25-191:18; Plaintiff’s Compendium of Evidence, Part 4 of 5, Exhibit R, 265:20-266:23.) Accordingly, the motion for summary adjudication is denied.

Issue 8: Plaintiff’s derivative Fifth Cause of Action for Wrongful Termination in Violation of Public Policy fails as a matter of law because Plaintiff’s underlying claims under the FEHA and California Labor Code claims (Plaintiff’s First, Third, and Fourth Causes of Action) fail as a matter of law.

For the reasons set forth above, Defendants did not show Plaintiff’s underlying claims under FEHA and the Labor Code fail as a matter of law. Accordingly, the motion for summary adjudication on this issue is denied.

Summary judgment For the reasons set forth below, Defendants’ motion for summary judgment is denied.

Plaintiff shall give notice.

11 Popal vs. Sajjadian

2024-01384261 1. Motion for Reconsideration 2. Motion to Vacate

Withdrawn