Brandy Brewer v. Leprino Foods Company

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 11, 2020
• Docket: 19-16007
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 11 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

BRANDY BREWER, No. 19-16007

Plaintiff-Appellant, D.C. No. 1:16-cv-01091-SMM-EPG v.

LEPRINO FOODS COMPANY, MEMORANDUM*

Defendant-Appellee.

Appeal from the United States District Court for the Eastern District of California Stephen M. McNamee, District Judge, Presiding

Argued and Submitted July 17, 2020 San Francisco, California

Before: TASHIMA and HURWITZ, Circuit Judges, and MARSHALL,** District Judge.

After the district court granted partial summary judgment in favor of

Appellee Leprino Foods Company, Inc. (“Leprino”) on Appellant Brandy Brewer’s

(“Brewer”) claim for retaliation under California Labor Code § 1102.5(b)

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Consuelo B. Marshall, United States District Judge for the Central District of California, sitting by designation. (“Section 1102.5”), a jury found in Leprino’s favor on Brewer’s remaining claims.

On appeal, Brewer challenges only the partial grant of summary judgment. We

have jurisdiction under 28 U.S.C. § 1291 and review a summary judgment de novo.

See Flores v. City of San Gabriel, 824 F.3d 890, 897 (9th Cir. 2016). We affirm.

1. Section 1102.5 is “California’s general whistle-blower statute.”

Carter v. Escondido Union High Sch. Dist., 148 Cal. App. 4th 922, 933 (2007).

“To establish a prima facie case of retaliation [under Section 1102.5], a plaintiff

must show she engaged in protected activity, that she was thereafter subjected to

adverse employment action by her employer, and there was a causal link between

the two.” Soukup v. Law Offices of Herbert Hafif, 39 Cal. 4th 260, 287-88 (2006)

(quoting Morgan v. Regents of Univ. of Cal., 88 Cal. App. 4th 52, 69 (2000)). “An

employee engages in activity protected by [Section 1102.5] when the employee

discloses reasonably based suspicions of illegal activity.” Ross v. County of

Riverside, 36 Cal. App. 5th 580, 592 (2019) (internal quotation marks and citation

omitted). Section 1102.5 does not “exalt … exclusively internal personnel

disclosures with whistleblower status,” Patten v. Grant Joint Union High Sch.

Dist., 134 Cal. App. 4th 1378, 1385 (2005), nor does it protect disclosures that do

not implicate a violation of the law, see Carter, 148 Cal. App. 4th at 933-34.

Brewer identified three disclosures she made to Leprino officials concerning

another supervisor as activity she claimed was protected by Section 1102.5: (1) the

2 supervisor stated she was tracking Brewer’s use of leave under the Family and

Medical Leave Act for abuse; (2) the supervisor stated she preferred to work with

men over women; and (3) allegations concerning the supervisor’s romantic

relationship with another employee. None of these disclosures implicates a

violation of the law, and Brewer presented no evidence that she was motivated to

disclose her complaints to her supervisors at Leprino due to a belief that a law had

been violated. See, e.g., Harris v. City of Santa Monica, 56 Cal. 4th 203, 231

(2013) (holding Fair Employment and Housing Act “does not purport to outlaw

discriminatory thoughts, beliefs, or stray remarks that are unconnected to

employment decisionmaking.”); Patten, 134 Cal. App. 4th at 1382-85 (disclosure

of coworker’s “off-color remark” was a personnel matter not protected by Section

1102.5). To the extent Brewer identifies on appeal other disclosures she believes

constitute protected activity, such as her remarks that the supervisor favored male

employees with respect to scheduling and shift assignments, we decline to consider

those arguments because they were not raised at the motion for summary

judgment. See Moreno Roofing Co., Inc. v. Nagle, 99 F.3d 340, 343 (9th Cir.

1996) (“We are not required to consider an argument that was not properly

presented to the district court or otherwise preserved for review.”); Lippi v. City

Bank, 955 F.2d 599, 604 (9th Cir. 1992) (holding the appellate court’s “review is

limited to the record presented to the district court at the time of summary

3 judgment”). Thus, Brewer’s disclosures do not constitute activity protected by

Section 1102.5.

2. Because Brewer is not entitled to compensatory damages on her

Section 1102.5 claim, her claim for punitive damages is moot. See Cal. Civ. Code

§ 3294(a) (stating plaintiff may recover punitive damages “in addition to the actual

damages”); see also Fassberg Constr. Co. v. Housing Auth. of City of L.A., 152

Cal. App. 4th 720, 758 (2007) (“[P]unitive damages cannot be awarded without

actual damages.”).

AFFIRMED.