1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 STEVEN BAIRD, Case No.: 22cv0060-LL-BGS
12 Plaintiff, ORDER GRANTING MOTION FOR 13 v. SUMMARY JUDGMENT
14 LEIDOS, INC., [ECF No. 46] 15 Defendant. 16 17 Before the Court is Defendant Leidos, Inc.’s (“Defendant” or “Leidos”) Motion for 18 Summary Judgment. ECF No. 46. Defendant’s Motion for Summary Judgment has been 19 fully briefed, and the Court deems it suitable for submission without oral argument. For 20 the reasons stated below, the Court GRANTS Defendant’s Motion for Summary Judgment 21 in its entirety. 22 I. BACKGROUND 23 A. Factual Disputes 24 The Court has taken the relevant facts from the parties’ declarations, exhibits, and 25 from each of the parties’ respective Rule 56.1 statements of facts. ECF No. 46-2, 26 Defendant’s Separate Statement of Undisputed Material Facts (“DSSUF”); ECF No. 47-2, 27 Plaintiff’s Separate Statement of Disputed and Additional Material Facts (“PSSUF”). 28 Based on the parties’ statements of facts, the Court references Plaintiff Steven Baird’s 1 (“Plaintiff” or “Baird”) version of the facts when noting a genuine factual dispute. See 2 Tolan v. Cotton, 572 U.S. 650, 657 (2014) (where genuine disputes exist, the courts “view 3 the evidence in the light most favorable to the opposing party.”). The Court also notes 4 where facts are disputed by the non-moving party. 5 B. Factual Background1 6 1. Plaintiff’s Employment with Leidos 7 On November 26, 2018, Plaintiff began working for Leidos in Vista, California as a 8 machinist/mechanical technician. DSSUF ¶ 1. Leidos builds prototypes for its government 9 customers, and Plaintiff would machine prototype parts based on directions he received 10 from Leidos’ engineering department. Id. ¶ 2. Plaintiff was qualified and authorized to use 11 the machines in the Leidos Machine Shop and understood the contents of the Leidos Safety 12 Manual. Id. ¶¶ 7–12. 13 During Plaintiff’s employment with Leidos, Plaintiff submitted three complaints to 14 Leidos. Id. ¶ 5. The first complaint involved Leidos’ mill machines. Id. The Leidos Safety 15 Manual required all running machines to be attended. Id. ¶¶ 8–12. However, on or around 16 September 3, 2020, Plaintiff’s supervisor, John Sim (“Sim”), noticed that Plaintiff left a 17 mill machine running while unattended. Id. ¶¶ 3, 14. Sim waited at the mill machine until 18 Plaintiff returned and counseled Plaintiff on Leidos’ policy to never leave a running 19 machine unattended. Id. ¶ 15. Plaintiff stated that he should be allowed to walk away from 20 a running machine and not be forced to stay by it. Id. ¶ 5. 21 Sometime around 2020, Plaintiff submitted a complaint to Sim that Leidos was 22 purchasing pieces of metal that were too big and heavy, which required the metal pieces to 23 be cut to size. Id. ¶ 5; ECF No. 46, Ex. 1, Deposition of Steven Baird Volume I (“Baird 24 Depo. Vol. I”) 121:4-124:5. Additionally, sometime on or around June 2020, Plaintiff 25
26 27 1 As an initial note, only the facts relevant to the analysis of this Motion are discussed. The DSSUF and PSSUF greatly detail the events of the incident, but many of the facts are not 28 1 submitted another complaint to Sim that there was a rat infestation in a Leidos company 2 vehicle. DSSUF ¶ 5; ECF No. 46, Ex. 2, Deposition of Steven Baird Volume II (“Baird 3 Depo. Vol. II”) 137:14-144:23. 4 2. Plaintiff’s Medical Leave and Accommodations 5 On or around January 18, 2021, Plaintiff injured his arm in a motorcycle accident. 6 DSSUF ¶ 22. Plaintiff requested and was approved for all medical leave from January 19, 7 2021 through February 22, 2021. Id. ¶¶ 23, 25. Plaintiff also underwent heart surgery 8 during his medical leave. Id. ¶ 23; PSSUF ¶ 72. 9 On February 22, 2021, Plaintiff returned to work a day early from his requested 10 medical leave. DSSUF ¶ 24. Plaintiff states that he returned to work with his right arm in 11 a sling. PSSUF ¶ 72. Upon returning to work, Plaintiff submitted and was approved for 12 work restrictions. DSSUF ¶ 26. Plaintiff’s work restrictions limited him from lifting 13 anything above his right shoulder and “lifting/carrying/pushing/pulling more than 0 14 pounds.” Id. ¶ 27; PSSUF ¶ 73; ECF No. 46, Ex. 20. Plaintiff testified that Leidos never 15 denied any of his requested accommodations and that if he was unable to perform a 16 movement required by his job duties, he would ask someone in the warehouse for 17 assistance and wait until assistance was provided. DSSUF ¶¶ 28–31. 18 3. Defendant’s Version of the Events on March 10, 2021 19 The parties disagree about what happened on or around March 10, 2021. According 20 to Defendant, Plaintiff left his work area and entered the work areas of his co-workers, Ian 21 Arroyoavila (“Arroyoavila”) and Cooper Garner (“Garner”), to obtain materials. Id. ¶ 32. 22 Plaintiff first got into a verbal dispute with Arroyoavila and approximately 10 minutes 23 later, Plaintiff confronted Garner. Id. ¶ 34; ECF No. 46-5, Declaration of Robert Athing in 24 Support of Motion for Summary Judgment (“Athing Decl.”) ¶ 5; ECF No. 46, Ex. 25 at 12, 25 16. Plaintiff is several inches taller and approximately 100 pounds heavier than Garner. 26 DSSUF ¶ 37. Plaintiff approached Garner, inches away from Garner’s face, and the two 27 began “chest bumping.” Id. ¶ 35. Next, Garner states that Plaintiff cornered Garner, forcing 28 Garner’s back against shelving, and stated, “Don’t be a f***ing pussy, like Ian 1 [Arroyoavila] is,” and “We can fight if you want to.” Id.; ECF No. 46, Ex. 26. Garner stated 2 he felt threatened and intimidated, and he pushed Plaintiff away to create some distance. 3 DSSUF ¶ 36. Garner’s supervisor, James Wilson (“Wilson”), separated Plaintiff and 4 Garner. Id. ¶ 38. Plaintiff and Garner were permitted to work the rest of the day, but 5 Plaintiff was placed on administrative leave pending an investigation. Id. ¶ 39; ECF No. 6 46, Ex. 24. 7 4. Plaintiff’s Version of the Events on March 10, 2021 8 Plaintiff recites a different version of the events that occurred on or around March 9 10, 2021. See PSSUF. First, Plaintiff states that there were no heated disputes and 10 Arroyoavila was never present during the incident. Id. ¶¶ 32, 34. Next, Plaintiff states that 11 when he walked through Garner’s workstation, Garner was the one who got face to face 12 with Plaintiff and attacked Plaintiff without provocation. Id. ¶¶ 79–81. According to 13 Plaintiff, Garner could be hot-tempered, and Garner was the one who threated and engaged 14 Plaintiff. Id. ¶¶ 35–36, 80. Plaintiff states that Garner shoved Plaintiff with his two hands, 15 and Plaintiff stumbled backwards into shelving. Id. ¶ 82. Garner then started screaming at 16 Plaintiff and Plaintiff shouted back, “You just assaulted me, you’re going to get fired.” Id. 17 Additionally, Plaintiff notes that his right arm was in a sling at the time of the incident and 18 denies ever chest bumping or laying a hand on Garner. Id. ¶¶ 35–36, 82. Wilson testified 19 that he saw Plaintiff being pushed before he separated Plaintiff and Garner. Id. ¶¶ 83–84; 20 ECF No. 47-1 at 42–63, Deposition of James Wilson ("Wilson Depo.") 20:5-22:3. 21 5. Investigation by Leidos 22 An investigation was conducted by Robert Athing, an “Investigator – Corporate 23 Security,” who investigated the altercation between Plaintiff and Garner for workplace 24 violence, and by Katie Reis, Leidos’ Senior Workplace Relations Manager, who 25 investigated the workplace relations between Plaintiff and other Leidos employees. 26 DSSUF ¶ 41. Multiple interviews were conducted from March 15, 2021 to March 16, 2021, 27 which supported Leidos’ finding that Plaintiff instigated the physical altercation. Id. ¶ 42; 28 ECF No. 46, Exs. 25, 26, 30; ECF No. 46, Ex. 6, Deposition of Aaron Valera ("Valera 1 Depo.") 46:4-47:18. Plaintiff states that Defendant’s investigation did not substantiate that 2 Plaintiff instigated the altercation. PSSUF ¶ 42. 3 In addition, during Leidos’ investigation, several individuals stated that Plaintiff 4 routinely bullied and antagonized co-workers, made racist and inflammatory statements to 5 employees, and generally made other co-workers uncomfortable. DSSUF ¶¶ 43, 44–47; 6 Athing Decl. ¶ 6; ECF No. 46-7, Declaration of John Sim in Support of Motion for 7 Summary Judgment (“Sim Decl.”) ¶ 15; ECF No. 46-9, Declaration of Katie Reis in 8 Support of Motion for Summary Judgment (“Reis Decl.”) ¶¶ 5, 9; ECF No. 46, Ex. 4, 9 Deposition of John Sim (“Sim Depo.”) 21:16-24:9, 32:5-33:1, 41:2-21; ECF No. 46, Exs. 10 26, 27, 28, 29, 30, 31. Plaintiff states that these statements were unsubstantiated, and he 11 never made these racist and inflammatory statements. PSSUF ¶¶ 43, 44, 46, 47, 93; ECF 12 No. 47-1 at 95–123, Deposition of Athing (“Athing Depo.”) 86:3-9, 88:8-89:7. 13 After Leidos’ investigation was completed, Athing sent a report to the Corrective 14 Action Review Committee (“Committee”). PSSUF ¶ 100. The Committee, which consisted 15 of Sim, legal, workplace relations, human resources, and a regional director, collectively 16 decided to terminate Plaintiff for “Misconduct: Workplace Violence.” Id. ¶¶ 100–02; 17 DSSUF ¶ 49. According to Leidos, Plaintiff’s comments and actions were in violation of 18 the Leidos Policy LPHR-6: Workplace Environment and Leidos Policy LP-LG-1: 19 Standards of Business Ethics and Conduct. DSSUF ¶ 49. Leidos’ Code of Conduct defines 20 “workplace violence” as “assault, battery, violent acts or threats, including verbal or written 21 threats and/or utterances (e.g., email), which occur in or are related to the workplace which 22 may involve a risk of physical or emotional harm to individuals, or damage to company, 23 contractor, or customer resources or capabilities, etc.” Id. ¶ 50. 24 On March 26, 2021, Leidos terminated Plaintiff’s employment. Id. ¶ 49. Plaintiff 25 states that he was wrongfully terminated in retaliation for taking medical leave and 26 requesting accommodations. PSSUF ¶ 49. In addition, Leidos removed Garner from 27 performing on Leidos’ contracts. DSSUF ¶ 40. 28 / / / 1 C. Procedural Background 2 On December 1, 2021, Plaintiff filed a First Amended Complaint (“FAC”) in the 3 San Diego County Superior Court against Defendant. ECF No. 1-2, Ex. A at 12–33, First 4 Amended Complaint (“FAC”).2 In the FAC, Plaintiff alleges seven separate causes of 5 action against Defendant for: (1) retaliation in violation of California Labor Code § 6310; 6 (2) failure to provide reasonable accommodation in violation of the Fair Employment & 7 Housing Act (FEHA); (3) failure to engage in an interactive process in violation of the 8 FEHA; (4) retaliation in violation of the FEHA; (5) failure to prevent discrimination or 9 retaliation; (6) violation of the California Family Rights Act (CFRA); and (7) wrongful 10 discharge in violation of public policy. Id. ¶¶ 25–83. On January 14, 2022, Defendant 11 removed the action to federal court pursuant to 28 U.S.C. §§ 1332, 1441, and 1446. ECF 12 No. 1 at 2. 13 On March 23, 2023, Defendant filed a Motion for Summary Judgment. ECF No. 46. 14 On April 13, 2023, Plaintiff filed his Opposition (“Opposition” or “Oppo.”) to Defendant’s 15 Motion for Summary Judgment. ECF No. 47. On April 20, 2023, Defendant filed its Reply 16 (“Reply”) in support of its Motion for Summary Judgment. ECF No. 49. 17 II. LEGAL STANDARD 18 Summary judgment is appropriate if, viewing the evidence and drawing all 19 reasonable inferences in the light most favorable to the nonmoving party, “there is no 20 genuine dispute as to any material fact and the movant is entitled to judgment as a matter 21 of law.” Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 321 (1986). At the 22 summary judgment stage, the court “does not assess credibility or weigh the evidence, but 23 simply determines whether there is a genuine factual issue for trial.” House v. Bell, 547 24 U.S. 518, 559–60 (2006). A fact is “material” if it “might affect the outcome of the suit 25
26 27 2 Plaintiff filed a discrimination complaint with the California Department of Fair Employment and Housing (DFEH) with an immediate right to sue notice. ECF No. 1-2 at 28 1 under the governing law,” and a dispute as to a material fact is “genuine” if there is 2 sufficient evidence for a reasonable trier of fact to decide in favor of the nonmoving party. 3 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Cline v. Indus. Maint. Eng’g & 4 Contracting Co., 200 F.3d 1223, 1229 (9th Cir. 2000). “If the evidence is merely colorable, 5 or is not significantly probative, summary judgment may be granted.” Anderson, 477 U.S. 6 at 248 (citations omitted). 7 The moving party bears the initial burden of identifying the portions of the pleadings 8 and record that it believes demonstrate the absence of an issue of material fact. See Celotex, 9 477 U.S. at 323. The burden then shifts to the non-movant to show “there is a genuine issue 10 of material fact.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585 11 (1986). The non-movant must “go beyond the pleadings and by her own affidavits, or by 12 the depositions, answers to interrogatories, and admissions on file, [and] designate specific 13 facts showing that there is a genuine issue for trial.” Celotex, 477 U.S. at 324 (internal 14 quotation marks omitted). In carrying their burdens, the parties can either cite to evidence 15 supporting their own position or show the other side's position is either unsupportable or 16 devoid of any genuine dispute. Fed. R. Civ. P. 56(c)(1). 17 “A motion for summary judgment may not be defeated, however, by evidence that 18 is ‘merely colorable’ or ‘is not significantly probative.’” Anderson, 477 U.S. at 249–50. 19 Additionally, “[o]nly disputes over facts that might affect the outcome of the suit under the 20 governing law will properly preclude the entry of summary judgment.” Id. at 247–48; see 21 also T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 22 1987) (“Disputes over irrelevant or unnecessary facts will not preclude a grant of summary 23 judgment.”)). 24 III. DISCUSSION 25 Defendant moves for summary judgment as to all causes of action in Plaintiff’s FAC. 26 See ECF No. 46-1, Motion for Summary Judgment (“Motion” or “Mot.”). As a threshold 27 matter, several portions of Plaintiff’s FAC can be dismissed because Plaintiff does not 28 oppose Defendant’s Motion as to the first, second, third, and fifth causes of action. See 1 Oppo. at 16. Accordingly, summary judgment is granted with respect to the first, second, 2 third, and fifth causes of action. 3 As to the remaining causes of action, Defendant contends that Plaintiff’s fourth, 4 sixth, and seventh causes of action for retaliation and wrongful discharge fail because the 5 undisputed material facts show that Plaintiff cannot establish a prima facie case, and 6 Defendant had a legitimate, non-retaliatory reason for terminating Plaintiff. See Mot. at 9. 7 Defendant asserts that Plaintiff’s sixth cause of action for violation of the CFRA also fails 8 because Plaintiff testified that he received all the accommodations and medical leave he 9 requested. See id. Lastly, Defendant seeks summary judgment on Plaintiff’s request for 10 punitive damages because Plaintiff cannot show by clear and convincing evidence that 11 Defendant acted with oppression, fraud, or malice toward him and that any individual actor 12 was shown to be an officer, director, or managing agent of Leidos. See id. at 29–31. The 13 Court analyzes each of the challenges to Plaintiff’s claims in turn before addressing 14 punitive damages. 15 A. FEHA Retaliation Claim 16 FEHA prohibits discrimination or retaliation based on “race, religious creed, color, 17 national origin, ancestry, physical disability, mental disability, reproductive health 18 decisionmaking, medical condition, genetic information, marital status, sex, gender, gender 19 identity, gender expression, age, sexual orientation, or veteran or military status of any 20 person.” Cal. Gov't Code § 12940(a). It is unlawful for an employer “to discharge, expel, 21 or otherwise discriminate against any person because the person has opposed any practices 22 forbidden under [FEHA] or because the person has filed a complaint, testified, or assisted 23 in any proceeding under [FEHA].” Cal. Gov’t Code § 12940(h). 24 In analyzing retaliation claims under FEHA, courts apply the burden-shifting 25 scheme set forth in McDonnell Douglas Corp. v. Green. See McDonnell Douglas Corp. v. 26 Green, 411 U.S. 792 (1973); Martinez v. Costco Wholesale Corp., 481 F. Supp. 3d 1076, 27 1096 (S.D. Cal. 2020) (applying the McDonnell Douglas burden-shifting analysis to a 28 FEHA retaliation claim). First, the plaintiff has the “initial burden of establishing a prima 1 facie case of discrimination [or retaliation].” Dep't of Fair Emp. & Hous. v. Lucent Techs., 2 Inc., 642 F.3d 728, 745 (9th Cir. 2011) (quoting Godwin v. Hunt Wesson, Inc., 150 F.3d 3 1217, 1220 (9th Cir. 1998)); Morgan v. Regents of Univ. of Cal., 105 Cal. Rptr. 2d 652, 4 665 (Ct. App. 2000). Second, the burden shifts to the defendant to show there was a 5 “legitimate, nondiscriminatory [or nonretaliatory] reason for the adverse employment 6 action.” Morgan, 105 Cal. Rptr. 2d at 665. Third, if the defendant produces a legitimate 7 reason for the adverse employment action, the presumption of retaliation “drops out of the 8 picture,” and the burden shifts back to the plaintiff to prove intentional retaliation. Id. The 9 plaintiff can satisfy its burden by “producing substantial responsive evidence that the 10 employer's showing was untrue or pretextual.” Lucent Techs., 642 F.3d at 746 (quoting 11 Hanson v. Lucky Stores, Inc., 87 Cal. Rptr. 2d 487, 493 (Ct. App. 1999)). 12 To establish a prima facie case of FEHA retaliation, a plaintiff must show: (1) he 13 engaged in a protected activity; (2) he suffered an adverse employment decision; and (3) a 14 causal link existed between the protected activity and the adverse employment decision. 15 See Yanowitz v. L'Oreal USA, Inc., 116 P.3d 1123, 1130 (Cal. 2005). 16 1. Prima Face Case of Retaliation 17 a. Protected Activity 18 “[P]rotected conduct can take many forms.” Id. Specifically, Section 12940(h) 19 makes it an unlawful employment practice “[f]or any employer . . . to discharge, expel, or 20 otherwise discriminate against any person because the person has opposed any practices 21 forbidden under [FEHA] or because the person has filed a complaint, testified, or assisted 22 in any proceeding under [FEHA].” Cal. Gov’t Code § 12940(h); see also Van Osten v. 23 Home Depot, U.S.A., Inc., 2021 WL 3913483, at *8 (S.D. Cal. Aug. 27, 2021) (“In other 24 words, for the activity to be protected, the employee's complaint must relate to an 25 employment practice that FEHA prohibits.”). 26 Plaintiff alleges that taking medical leave under the CFRA and his requests for 27 accommodations were protected activities. See Oppo. at 17; FAC ¶ 54. Although the CFRA 28 is a part of FEHA, taking medical leave under the CFRA is not a protected activity under 1 FEHA. See Faust v. California Portland Cement Co., 58 Cal. Rptr. 3d 729, 736 (Ct. App. 2 2007) (“requesting a medical leave of absence . . . is not protected under § 12940” for a 3 FEHA retaliation claim). “Presumably, this is because a plaintiff who alleges that he or she 4 suffered retaliation as a result of taking CFRA leave can assert a retaliation claim under 5 the CFRA.” Kadiyan v. Medtronic, 2011 WL 13142145, at *17 (C.D. Cal. Apr. 8, 2011). 6 In addition, “a mere request—or even repeated requests—for an accommodation, without 7 more, does not constitute a protected activity sufficient to support a claim for retaliation in 8 violation of FEHA.” Ruiz v. RSCR California, Inc., --- F. Supp. 3d ----, 2023 WL 5088972, 9 at *13 (C.D. Cal. July 24, 2023) (quoting Quesada v. Albertson’s LLC, 2022 WL 2176512, 10 at *14 (C.D. Cal. Feb. 1, 2022)); see also Castorela v. James R. Glidewell, Dental 11 Ceramics, Inc., 2016 WL 11760590, at *8 (C.D. Cal. Jan. 25, 2016) (collecting cases 12 concluding that “a plaintiff who is denied CFRA/FMLA leave or analogous 13 accommodations—even if that denial leads to the employee's termination—has not 14 engaged in ‘protected activity’ under the meaning of § 12940(h)”). Given multiple courts’ 15 interpretation of Section 12940(h), and the fact that Plaintiff has asserted a separate CFRA 16 claim, Plaintiff cannot allege he engaged in protected activity merely by taking medical 17 leave under the CFRA or requesting accommodations. 18 Defendant argues that Plaintiff’s FEHA retaliation claim also fails because 19 Plaintiff’s complaints are not qualifying protected activities. See Mot. at 21–22. Plaintiff 20 testified that he submitted three complaints to Sim about Leidos that: (1) Plaintiff should 21 be able to leave a milling machine unattended; (2) Leidos was purchasing pieces of metal 22 that were too big and heavy; and (3) there was a rat infestation in a Leidos company vehicle. 23 See DSSUF ¶ 5. Yet, Plaintiff’s complaints are not protected activities under FEHA. See 24 Day v. Sears Holdings Corp., 930 F. Supp. 2d 1146, 1177 (C.D. Cal. 2013) (finding that a 25 plaintiff’s complaints to her supervisors regarding unprofessional treatment were not 26 protected activities under FEHA because the complaints were not related to unlawful 27 employment practices or discriminatory treatment); Kumar v. Alameda Cty. Med. Ctr., 28 2011 WL 13244636, at *13 (N.D. Cal. Mar. 25, 2011) (finding that the plaintiff's 1 complaints about “unsafe or unsanitary working conditions” do not constitute protected 2 activity under FEHA). Moreover, apart from the specific categories enumerated by the 3 statute, “FEHA does not cover other types of retaliation claims.” Bolt v. Unum Grp., 2010 4 WL 11602054, at *3 (C.D. Cal. Oct. 7, 2010); Cal. Gov’t Code §§ 12940(a), (h). Plaintiff 5 fails to show that he engaged in a protected activity and therefore, Plaintiff cannot establish 6 the first element of his FEHA retaliation claim. 7 b. Adverse Employment Action and Causal Connection 8 Next, the parties do not dispute the second element that Plaintiff suffered an adverse 9 employment action. As to the third element, Plaintiff alleges that Defendant unlawfully 10 terminated him because he requested medical leave and accommodations. See FAC ¶ 55. 11 Plaintiff argues there is temporal proximity between his termination and his requests 12 for medical leave and accommodations. See Oppo. at 18–19. “[I]n some cases, causation 13 can be inferred from timing alone where an adverse employment action follows on the 14 heels of protected activity.” Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1065 (9th 15 Cir. 2002) (citing Passantino v. Johnson & Johnson Consumer Prods., Inc., 212 F.3d 493, 16 507 (9th Cir. 2000)). Nevertheless, temporal proximity may be undermined or negated if 17 there are intervening events that gave rise to an adverse employment action. See Fazeli v. 18 Bank of America, NA, 525 Fed. App'x 570, 571 (9th Cir. 2013) (“While the time between 19 [plaintiff’s] protected act and his termination was less than three months, the surrounding 20 circumstances do not suggest a causal link between [plaintiff’s]” filing of a complaint and 21 his termination); Zsenyuk v. City of Carson, 99 Fed. App'x 794, 797 (9th Cir. 2004) 22 (holding that intervening incidents that occurred just before a plaintiff’s termination 23 undermine plaintiff’s temporal proximity argument); Lee v. Eden Med. Ctr., 690 F. Supp. 24 2d 1011, 1026 (N.D. Cal. 2010) (“This intervening event negates any inference that 25 Plaintiff's complaint caused the subsequent adverse action.”). 26 Here, Plaintiff’s termination occurred about one month after had he returned to work 27 from medical leave and requested work accommodations. Plaintiff went on medical leave 28 from January 19, 2021 to February 21, 2021. DSSUF ¶ 23–24. Upon returning to work, 1 Plaintiff submitted and was approved for work restrictions. Id. ¶ 26. The physical 2 altercation with Plaintiff and Garner occurred on March 10, 2021, and shortly thereafter, 3 Plaintiff was placed on administrative leave. Id. ¶¶ 32, 39. Subsequently, Leidos conducted 4 a full investigation and the incident and obtained evidence from multiple interviews and 5 statements that Plaintiff had violated Leidos’ policies. Id. ¶¶ 41–50. Due to the findings 6 from the investigation, Plaintiff was terminated on March 26, 2021. Id. ¶ 49. 7 Despite the fact that Plaintiff was terminated only about a month after he took leave 8 and requested accommodations, the surrounding circumstances undermine Plaintiff’s 9 temporal proximity argument. See Fazeli, 525 Fed. App'x at 571; Zsenyuk, 99 Fed. App'x 10 at 797. Plaintiff cannot establish a causal connection between his termination and his 11 requests for leave and work accommodations because of the supervening fact of the March 12 10, 2021 incident with Garner and Leidos’ subsequent investigation. Accordingly, Plaintiff 13 has not established a prima facie case of FEHA retaliation. 14 2. Legitimate, Non-Discriminatory Reason 15 Additionally, and alternatively, even if Plaintiff could establish a prima facie case of 16 FEHA retaliation, Defendant has provided a legitimate and non-discriminatory reason for 17 Plaintiff’s termination. 18 To satisfy its burden on this issue, “[t]he employer need only articulate, not prove a 19 legitimate, non-discriminatory reason for deciding to terminate the plaintiff.” Holtzclaw v. 20 Certainteed Corp., 795 F. Supp. 2d 996, 1011 (E.D. Cal. 2011); Univ. of S. California v. 21 Superior Court, 272 Cal. Rptr. 264, 268 (Ct. App. 1990) (“The responsibility of the 22 defendant is to ‘clearly set forth, through the introduction of admissible evidence, the 23 reason for the plaintiff's rejection.’”). Moreover, “[i]n judging whether [an employer’s] 24 proffered justifications were ‘false,’ it is not important whether they were objectively 25 false.” Villiarimo, 281 F.3d at 1062 (emphasis removed) “Rather, courts only require that 26 an employer honestly believed its reason for its actions, even if its reason is foolish or 27 trivial or even baseless.” Id. (internal quotation marks omitted); see also Joaquin v. City of 28 Los Angeles, 136 Cal. Rptr. 3d 472, 484 (Ct. App. 2012) (“If the employer takes an adverse 1 action based on a good faith belief that an employee engaged in misconduct, then the 2 employer has acted because of perceived misconduct, not because of protected status or 3 activity,” and “the relevant inquiry is whether the employer believed the employee was 4 guilty of the conduct justifying discharge.”) (emphasis and internal quotation marks 5 omitted). 6 Here, Defendant decided to terminate Plaintiff because Plaintiff’s actions and 7 statements violated Leidos’ workplace policies and standards. See DSSUF ¶ 49. Courts 8 have held that violating workplace policies and standards is a legitimate non-discriminatory 9 reason for termination. See Day, 930 F. Supp. 2d at 1170 (collecting cases in which several 10 courts held that a violation of company policies is a legitimate, non-discriminatory reason 11 for termination). Plaintiff’s reliance upon the fact that he had satisfactory performance 12 evaluations prior to the incident is irrelevant. See Oppo. at 19. In analyzing whether an 13 employer has met its burden of articulating a legitimate, non-discriminatory reason for 14 terminating an employee, “[i]t is immaterial that at some point in the past Plaintiff was 15 satisfactorily performing his job duties.” See Holtzclaw, 795 F. Supp. 2d at 1013. 16 Plaintiff denies making outrageous and inflammatory comments and contends that 17 his declaration “provide[s] substantial evidence of [the] falsity of [Defendant’s] 18 nondiscriminatory reason.” Oppo. at 19. Generally, non-moving parties may not rely on 19 self-serving and uncorroborated declarations, but declarations may be sufficient to 20 establish genuine disputes of material fact when they are based on personal knowledge, 21 legally relevant, and internally consistent. See Nigro v. Sears, Roebuck and Co., 784 F.3d 22 495, 497–98 (9th Cir. 2015). Here, Plaintiff’s declaration is based on his personal 23 knowledge. ECF No. 47-1 at 4–9, Declaration of Steven Baird in Support of Opposition to 24 Motion for Summary Judgment (“Baird Decl.”) ¶ 1. However, many parts of Plaintiff’s 25 testimony and depositions are contradicted by the record. Specifically, it is undisputed that 26 Leidos terminated Plaintiff for his reported actions and comments towards his co-workers, 27 including Garner. See DSSUF ¶¶ 45, 49; PSSUF ¶¶ 45, 49. Defendant has provided 28 substantial evidence that Leidos was made aware of Plaintiff’s actions and comments 1 during its investigation and interviews with other Leidos employees. See DSSUF ¶¶ 41– 2 49; ECF No. 46, Exs. 25–31 (statements and comments made by Plaintiff that were 3 collected during Leidos’ investigation). Defendant also offers evidence that Plaintiff had 4 received verbal and written warnings during his employment for “inappropriate and 5 unprofessional outbursts in the office place” and that Plaintiff left the mill machine 6 unattended, in direct violation of Leidos’ policies. DSSUF ¶¶ 3, 14–15; Sim Depo. 32:12- 7 35:12. As such, Plaintiff’s self-serving and uncorroborated declaration is not sufficient to 8 establish a genuine dispute of material fact. 9 Further, although Plaintiff contends that Wilson, Sim, and Valera all testified that 10 they did not hear racist and bullying comments from Plaintiff, the relevant inquiry here is 11 whether Defendant believed that Plaintiff was guilty of the conduct justifying his 12 termination. See Joaquin, 136 Cal. Rptr. 3d at 484. According to Defendant, Leidos 13 honestly believed its reason for terminating Plaintiff because the investigation found that 14 Plaintiff “was a bully and the aggressor in the interaction he had with Cooper Garner” and 15 that Plaintiff “made numerous threatening and inflammatory comments to his co-workers.” 16 Athing. Decl. ¶¶ 5, 6; see also Sim Decl. ¶ 15 (“Through the investigation it became clear 17 that Plaintiff had a pattern of making other employees uncomfortable.”); Reis Decl. ¶ 9 18 (“After I completed my investigation I determined that Baird was a bully and engaged in 19 numerous instances of inappropriate behavior.”). 20 Accordingly, even assuming arguendo that Plaintiff had established a prima facie 21 case of FEHA retaliation, Defendant has met its burden of production of articulating a 22 legitimate, non-discriminatory reason for Plaintiff’s termination. 23 3. Evidence of Pretext 24 Further, Plaintiff offers no evidence to prove that Defendant’s explanation was 25 untrue or merely pretext. A plaintiff may demonstrate pretext in two ways: “(1) indirectly, 26 by showing that the employer's proffered explanation is “unworthy of credence” because 27 it is internally inconsistent or otherwise not believable, or (2) directly, by showing that 28 unlawful discrimination more likely motivated the employer.” Chuang v. University of 1 California Davis, Bd. of Trustees, 225 F.3d 1115, 1127 (9th Cir. 2000) (quoting Godwin v. 2 Hunt Wesson, Inc., 150 F.3d 1217, 1220–22 (9th Cir. 1998)). When evidence of pretext is 3 circumstantial, the plaintiff must produce specific and substantial facts to create a triable 4 issue of pretext. Godwin, 150 F.3d at 1222. “An employee in this situation can not simply 5 show the employer's decision was wrong, mistaken, or unwise.” Lucent Techns., 642 F.3d 6 at 746 (quoting Morgan, 105 Cal. Rptr. 2d at 670). “Rather, the employee must demonstrate 7 such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the 8 employer's proffered legitimate reasons for its action that a reasonable factfinder could 9 rationally find them unworthy of credence . . . and hence infer that the employer did not 10 act for the . . . non-discriminatory reasons.” Id. (quoting Morgan, 105 Cal. Rptr. 2d at 670). 11 Plaintiff contends that Defendant’s stated non-discriminatory reason for the adverse 12 action was pretextual because Leidos’ investigation into the incident was “questionable 13 and shoddy.” See Oppo. at 21. Even if Plaintiff could poke holes in the witness statements 14 and evidence upon which Defendant relied in reaching its decision to terminate Plaintiff, 15 Defendant has offered evidence that Leidos’ investigation uncovered statements in which 16 Defendant could reasonably believe that Plaintiff’s conduct was unlawful, inappropriate, 17 and in contravention of Leidos’ policies. Again, whether Plaintiff did in fact violate 18 company policy is irrelevant, so long as Defendant reasonably believed he did. See 19 Joaquin, 136 Cal. Rptr. 3d at 484. Moreover, Plaintiff has failed to demonstrate any 20 “weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions” in 21 Defendant’s proffered reason for terminating Plaintiff such that that a reasonable factfinder 22 could rationally find it unworthy of credence. See Lucent Techns., 642 F.3d at 746. 23 Plaintiff also suggests that Defendant’s proffered reason for Plaintiff’s termination 24 was pretextual because other Ledios employees, such as Garner and Arroyoavila, were not 25 subject to adverse employment actions after engaging in similar conduct. See Oppo. at 22. 26 “A plaintiff may raise a triable issue of pretext through comparative evidence that the 27 employer treated . . . similarly situated employees more favorably than the plaintiff.” Earl 28 v. Nielsen Media Research, Inc., 658 F.3d 1108, 1113 (9th Cir. 2011). Here, Plaintiff 1 provides no comparative evidence of similarly situated individuals who were treated more 2 favorably than Plaintiff. In fact, after Leidos conducted its investigation, Defendant 3 removed Garner from performing on Leidos’ contracts. See DSSUF ¶ 40. With respect to 4 Arroyoavila, Arroyoavila is not a similarly situated employee as Arroyoavila’s comments 5 and statements were unrelated to the March 10, 2021 incident. Plaintiff even repeatedly 6 states that Arroyoavila was not present during the March 10, 2021 incident. See PSSUF ¶¶ 7 32, 34. 8 In a further attempt to establish pretext, Plaintiff argues that the temporal proximity 9 between his termination and his requests for leave and accommodations is indicative of 10 pretext. See Oppo. at 22. However, temporal proximity cannot by itself establish pretext. 11 Franco v. Pier 1 Imps., Inc., 372 F. App'x 803, 804 (9th Cir. 2010) (“temporal proximity 12 alone is not sufficient to raise a triable issue as to pretext once the employer has offered 13 evidence of a legitimate nondiscriminatory reason for the termination.”). In addition, as 14 previously mentioned, the temporal proximity of Plaintiff’s termination and requests for 15 leave and accommodations is insufficient to establish a causal connection. 16 Ultimately, Plaintiff cannot establish a prima facie case of FEHA retaliation and 17 Defendants have proffered sufficient evidence to demonstrate a legitimate, non- 18 discriminatory reason for terminating Plaintiff. Further, Plaintiff has not met his burden of 19 demonstrating pretext. Accordingly, the Court grants Defendant’s Motion for Summary 20 Judgment as to Plaintiff's fourth cause of action for FEHA retaliation. 21 B. CFRA Retaliation Claim 22 The California Family Rights Act (“CFRA”) is contained within FEHA and allows 23 for eligible employees to take up to twelve weeks of unpaid leave in a twelve-month period 24 to care for dependents or to recover from a serious health condition. Cal. Gov’t Code § 25 12945.2(a); Rogers v. Cty. of Los Angeles, 130 Cal. Rptr. 3d 350, 355 (Ct. App. 2011). A 26 “serious health condition” is “an illness, injury, impairment, or physical or mental 27 condition that involves either of the following:” (1) “[i]npatient care in a hospital, hospice, 28 or residential health care facility,” or “(2) “[c]ontinuing treatment or continuing 1 supervision by a health care provider.” Cal. Gov’t Code § 12945.2(b)(13). It is unlawful 2 for an employer to “discharge, fine, suspend, expel, or discriminate against, any individual 3 because of . . . [a]n individual's exercise of the right to family care and medical leave 4 provided by” the CFRA. Cal. Gov't Code § 12945.2(k). 5 To establish a prime facie case of CFRA retaliation, a plaintiff must show that: “(1) 6 the defendant was an employer covered by CFRA; (2) the plaintiff was an employee 7 eligible to take CFRA leave; (3) the plaintiff exercised her right to take leave for a 8 qualifying CFRA purpose; and (4) the plaintiff suffered an adverse employment action, 9 such as termination, fine, or suspension, because of her exercise of her right to CFRA 10 leave.” Faust, 58 Cal. Rptr. 3d at 744 (quoting Dudley v. Dep't of Transp., 108 Cal. Rptr. 11 2d 739, 744 (Ct. App. 2001)). Similar to the FEHA cause of action, the McDonnell Douglas 12 burden shifting analysis applies to retaliation claims under the CFRA. Chavez v. JPMorgan 13 Chase & Co., 731 F. App'x 592, 595 (9th Cir. 2018) (“[Plaintiff’s] CFRA retaliation claim 14 is subject to the same burden-shifting framework as her FEHA discrimination claims”); 15 Moore v. Regents of Univ. of California, 206 Cal. Rptr. 3d 841, 867–68 (Ct. App. 2016) 16 (“Similar to causes of action under FEHA, the McDonnell Douglas burden shifting analysis 17 applies to retaliation claims under CFRA.”). 18 Here, Plaintiff brings a cause of action for CFRA retaliation, arguing that his 19 termination was in retaliation for taking protected medical leave. See FAC ¶¶ 68–77. The 20 parties do not dispute the first two elements that Defendant was an employer covered by 21 CFRA and that Plaintiff was an employee eligible to take CFRA leave. As to the third 22 element, Defendant states that Plaintiff failed to identify a CFRA protected activity. See 23 Mot. at 29. However, there is undisputed evidence that Plaintiff informed Defendant that 24 Plaintiff would have to take medical leave for his injured arm and for his heart surgery. See 25 DSSUF ¶¶ 22–23. Defendant has presented no evidence to dispute that Plaintiff’s reason 26 for taking time off was for a qualifying CFRA purpose. See Cal. Gov’t Code § 27 12945.2(b)(13). Thus, contrary to Defendant’s position, the evidence establishes that 28 Plaintiff exercised his right to take leave for a CFRA-qualifying purpose. 1 Next, Defendant contends that Plaintiff is unable to “show any nexus between any 2 alleged protected activity and his termination.” Mot. at 29. As mentioned in the discussion 3 above of Plaintiff’s FEHA retaliation claim, Plaintiff has not shown that there is a casual 4 connection between Plaintiff’s medical leave and his termination. As such, even drawing 5 all reasonable inferences in Plaintiff’s favor, Plaintiff has not established a prima facie case 6 of CFRA retaliation. Further, even if Plaintiff had established a prima facie case of 7 retaliation and the burden were to shift to Defendant under the McDonnell Douglas 8 analysis, as explained above, Defendant has offered a legitimate, nondiscriminatory reason 9 for Plaintiff’s termination and Plaintiff has not demonstrated pretext. Accordingly, the 10 Court grants Defendant’s Motion for Summary Judgment as to Plaintiff's sixth cause of 11 action for CFRA retaliation. 12 C. Wrongful Discharge of Violation of Public Policy Claim 13 Plaintiff’s seventh cause of action is for wrongful discharge in violation of public 14 policy. “Discharge in violation of the CFRA has been held, as a matter of law, to constitute 15 wrongful discharge in violation of public policy.” Xin Liu v. Amway Corp., 347 F.3d 1125, 16 1137–38 (9th Cir. 2003) (citing Nelson v. United Techs., 88 Cal. Rptr. 2d 239, 248 (Ct. 17 App. 1999)). Thus, “[i]n California, a violation of the CFRA may form the basis of a 18 common law wrongful discharge claim.” Ruiz, 2023 WL 5088972, at *14. 19 Here, Plaintiff’s CFRA and FEHA claims form the basis of his wrongful discharge 20 claim. See FAC ¶ 81. Having awarded summary judgment in Defendant’s favor as to 21 Plaintiff’s CFRA and FEHA claims, Plaintiff therefore cannot state a wrongful discharge 22 claim. Accordingly, the Court grants Defendant’s Motion for Summary Judgment as to 23 Plaintiff's seventh cause of action for wrongful discharge of violation of public policy. 24 D. Punitive Damages 25 To obtain punitive damages, a plaintiff must show “by clear and convincing 26 evidence that the defendant has been guilty of oppression, fraud, or malice.” Cal. Civ. Code 27 § 3294(a). “The clear and convincing standard requires a finding of high probability . . . so 28 clear as to leave no substantial doubt; sufficiently strong to command the unhesitating 1 assent of every reasonable mind.” Scott v. Phoenix Schools, Inc., 96 Cal. Rptr. 3d 159, 170 2 (Ct. App. 2009) (internal quotation marks omitted). A corporate entity cannot be liable for 3 punitive damages resulting from its employees’ acts unless an officer, director or managing 4 agent of the corporation: (1) had advance knowledge of the unfitness of the employee and 5 employed him or her with a conscious disregard of the rights or safety of others; (2) 6 authorized or ratified the conduct giving rise to punitive damages; or (3) was personally 7 guilty of such conduct. See Cal. Civ. Code § 3294(b). “Managing agents” are “those 8 employees who exercise substantial independent authority and judgment over decisions 9 that ultimately determine corporate policy.” White v. Ultramar, Inc., 981 P.2d 944, 951 10 (Cal. 1999). 11 Here, Plaintiff’s punitive damages claim does not survive summary judgment for 12 three reasons. First, because the Court has granted summary judgment as to all of Plaintiff's 13 remaining claims, Plaintiff's claim for punitive damages shall likewise be dismissed. See 14 Sako v. Wells Fargo Bank, N.A., 2015 WL 5022307, at *21 (S.D. Cal. Aug. 21, 2015) 15 (granting summary judgment on request for punitive damages because court granted 16 summary judgment on underlying related causes of action). 17 Second, even if Plaintiff’s retaliation and wrongful discharge claims had survived 18 summary judgment, Plaintiff does not point to any evidence of “oppression, fraud, or 19 malice” by Defendant. According to Plaintiff, “Leidos painted Baird as an aggressor 20 without basis to have him fired. Oppo. at 23. However, “an employee [that] was fired in 21 violation of public policy does not itself justify sending a punitive-damages demand to a 22 jury.” Larkin v. Home Depot, Inc., 2015 WL 1049716, at *3 (N.D. Cal. Mar. 9, 2015) 23 (internal quotation marks and citations omitted). 24 Lastly, Plaintiff contends that the Committee that made the decision to terminate 25 him, including a regional director, legal, human resources, and Baird’s manager, are 26 managing agents. See Oppo. at 23. However, regular employees are not officers, directors, 27 or managing agents of the corporations, even if they have the authority to hire and fire 28 employees. See White, 981 P.2d at 954. Rather, Plaintiff must show that the employees in 1 |}question have “substantial discretionary authority over significant aspects of a 2 corporation's business.” Jd. Here, although Plaintiff claims that Leidos retaliated against 3 || him, Plaintiff has not submitted evidence that any of the employees in the Committee that 4 ||made the decision to terminate Plaintiff were officers, directors or managing agents of 5 || Leidos that had the authority to influence Leidos’ corporate policy. Accordingly, the Court 6 || GRANTS Defendant’s Motion for Summary Judgment as to Plaintiff’s request for punitive 7 || damages. 8 CONCLUSION 9 For the reasons set forth above, Defendant’s Motion for Summary Judgment is 10 || GRANTED in its entirety. 11 ||Dated: February 13, 2024 NO 12 DE 13 Honorable Linda Lopez 14 United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28