Edward Robinson v. DataCore Software Corporation

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 EDWARD ROBINSON, Case No. 25-cv-02552-NW

8 Plaintiff, ORDER DENYING MOTION FOR 9 v. SUMMARY JUDGMENT; ORDER DENYING MOTION TO EXCLUDE 10 DATACORE SOFTWARE CORPORATION, Re: ECF Nos. 35, 40 11 Defendant.

12 13 Plaintiff Edward Robinson (“Plaintiff” or “Robinson”) sued Defendant DataCore Software 14 Corporation (“Defendant” or “DataCore”), his former employer, alleging wrongful termination in 15 violation of public policy. Compl., ECF No. 1-1. Defendant answered the complaint. Answer, 16 ECF No. 20. 17 Defendant now moves for summary judgment. Mot. for Summary Judgment, ECF No. 40 18 (“Mot.”). The motion is fully briefed. Opp’n, ECF No. 42; Reply, ECF No. 43. Defendant 19 additionally moves to exclude the opinions of Plaintiff’s expert. ECF No. 35. Having considered 20 parties’ briefing and the relevant legal authority, the Court found these motions suitable for 21 resolution without oral argument and vacated the hearing. Civil Local Rule 7-1(b). The Court 22 DENIES Defendant’s motion for summary judgment and DENIES Defendant’s motion to exclude 23 expert testimony. 24 I. BACKGROUND 25 Robinson was a Senior Director of Business Development with Perifery, a division of 26 DataCore. Robinson worked for Perifery from September 5, 2023, until November 8, 2024, when 27 he resigned. During his employment, Robinson first reported to Perifery’s Chief Operating 1 Robinson explains that his role at Perifery was to “bring to market a commercial version of 2 a computer software open source project, ‘OpenEBS.’” Compl. ¶ 5. DataCore contributed to the 3 OpenEBS software, but it was owned by a division of the Linux Foundation called Cloud Native 4 Computing Foundation (“CNCF”). DataCore planned to create and commercialize a “pro” version 5 of OpenEBS, which it called “OpenEBS PRO.” 6 Soon after Robinson joined Perifery, the OpenEBS project was archived by CNCF, which 7 prevented Robinson from proceeding with the plan to create DataCore’s commercial version of 8 OpenEBS. “Robinson was then given the responsibility to work with CNCF, the OpenEBS 9 project team and DataCore staff to recover the software from archive to ‘sandbox,’ enabling 10 DataCore to resume commercialization.” Id. ¶ 7. 11 As part of the process to resume commercialization, Robinson contends that the Linux 12 Foundation advised DataCore that the OpenEBS PRO name and DataCore’s use of OpenEBS 13 would violate trademark regulations. Robinson does not specify when Linux alerted DataCore of 14 the trademark concerns. Robinson’s then-supervisor, Dey, instructed the team to call the product 15 “Puls8” instead. Robinson “advised Dey [that] clearance was still needed by Linux for the ‘Puls8’ 16 name and a release needed from Linux for other violations of the use of ‘OpenEBS.’” Id. ¶ 7. 17 Robinson alleges that, “[i]n response[,] Dey contended it was ‘OK’ for DataCore to use that name 18 and directed Robinson not to discuss the Puls8 name or obtain a release from Linux.” Id. 19 In October 7, 2024, “Robinson filed a formal complaint with the DataCore Human 20 Resources (“HR”) Department” to document “Dey’s multiple attempts at trademark violations 21 regarding the OpenEBS PRO product, a video of Dey attempting to force staff to violate CNCF 22 governance rules, and emails showing that Dey lied regarding allegedly being excluded from 23 Robinson’s sale call.” Id. ¶ 9. On October 25, 2024, the HR department “rejected Robinson’s 24 complaint about Dey suggesting it was conjured up to hide a ‘performance’ issue.” Id. ¶ 10. The 25 HR department then “discussed a ‘possible exit’ for [Robinson] from DataCore by resigning.” Id. 26 Robinson asserts that when he did not agree to resign initially, Zabrowski and the HR 27 department “fabricated a number of allegations relating to his performance that would be an 1 Id. ¶ 11. Robinson states that he knew “he was being set up for a termination based on false 2 information from his superiors,” so he elected to resign on November 8, 2024. He maintains that 3 his resignation resulted from “aggravated and intolerable conditions and constituted a constructive 4 termination.” Id. ¶ 15. 5 Robinson brings two claims against DataCore: (1) wrongful termination in violation of 6 public policy, and (2) violation of California Labor Code Sections 98.6 and 1102.5 (unlawful 7 retaliatory termination). DataCore moves for summary judgment on both claims, alleging that 8 Robinson has failed to “make a showing sufficient to establish the existence of [] element[s]” of 9 his claims. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). 10 II. LEGAL STANDARD 11 A court shall grant summary judgment “if . . . there is no genuine dispute as to any material 12 fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The burden 13 of establishing the absence of a genuine issue of material fact lies with the moving party, see 14 Celotex Corp., 477 U.S. at 322-23, and the court must view the evidence in the light most 15 favorable to the non-movant. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) 16 (citation omitted). A genuine issue of material fact exists if there is sufficient evidence such that a 17 reasonable jury could return a verdict for the non-moving party. Id. at 248. The Court may not 18 weigh the evidence, assess the credibility of witnesses, or resolve issues of fact. See id. at 249. 19 Summary judgment is appropriate if the nonmoving party “fails to make a showing sufficient to 20 establish the existence of an element essential to that party’s case, and on which that party will 21 bear the burden of proof at trial.” Celotex Corp., 477 U.S. at 322. 22 To defeat summary judgment, once the moving party has met its burden, the non-moving 23 party may not simply rely on the pleadings, but must produce significant probative evidence, by 24 affidavit or as otherwise provided by Federal Rule of Civil Procedure 56, supporting the claim that 25 a genuine issue of material fact exists. TW Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 26 F.2d 626, 630 (9th Cir. 1987). In other words, there must exist more than “a scintilla of evidence” 27 to support the non-moving party’s claims, and conclusory assertions will not suffice. See 1 Similarly, “[w]hen opposing parties tell two different stories, one of which is blatantly 2 contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that 3 version of the facts” when ruling on the motion. Scott v. Harris, 550 U.S. 372, 380 (2007). 4 III. DISCUSSION 5 Robinson cannot succeed on his wrongful termination claim if he is unsuccessful on his 6 statutory claim, which encompasses Sections 1102.5 and 98.6. Featherstone v. S. Cal. 7 Permanente Med. Grp., 10 Cal. App. 5th 1150, 1169-70 (2017). Section 1102.5 “prohibits 8 retaliation for disclosing information about a violation or noncompliance with federal, state, or 9 local statute, rule, or regulation,” and for “refusing to participate in such activity.” St. Myers v. 10 Dignity Health, 44 Cal. App. 5th 301, 314 (2019); Cal. Labor Code §§ 1102.5(b)-(c). A retaliation 11 claim under Section 98.6 has similar requirements to Section 1102.5, and protects against 12 retaliation by prohibiting employers from discharging an employee for filing a bona fide 13 complaint or claim relating to certain rights. St. Myers, 44 Cal. App. 5th at 314, 350. 14 Motions for summary judgment in whistleblower retaliation actions are analyzed under a 15 burden-shifting framework. Cal. Labor Code § 1102.6. First, a plaintiff must “‘demonstrate[] by 16 a preponderance of the evidence’ that the employee’s protected whistleblowing was a 17 ‘contributing factor’ to an adverse employment action.” Lawson v. PPG Architectural Finishes, 18 Inc., 12 Cal. 5th 703, 712 (2022) (citing Cal. Labor Code § 1102.6). Next, “once the employee 19 has made that necessary threshold showing, the employer bears ‘the burden of proof to 20 demonstrate by clear and convincing evidence’ that the alleged adverse employment action would 21 have occurred ‘for legitimate, independent reasons’ even if the employee had not engaged in 22 protected whistleblowing activities.” Id. Importantly, a “plaintiff does not need to show that the 23 employer’s nonretaliatory reason was pretextual”; a plaintiff has met their burden “if it is shown 24 that the employer also had at least one retaliatory reason that was a contributing factor in the 25 action.” Id. at 716. 26 1. Whether Plaintiff has demonstrated that his disclosure was a 27 contributing factor to his adverse employment action. 1 the evidence, that (1) he engaged in a protected activity, (2) his employer subjected him to an 2 adverse employment action, and (3) that his protected activity was a “contributing factor” or 3 causal link between the two. St. Myers, 44 Cal. App. 5th at 314, 352. Disclosure of any 4 information that an “employee has reasonable cause to believe” concerns a violation of a statute, 5 rule or law to “a person with authority over the employee, or to another employee who has 6 authority to investigate, discover, or correct the violation or noncompliance” can constitute 7 protected activity. Cal. Lab. Code § 1102.5. “Although the employee does not need to prove an 8 actual violation of the law, he must be able to point to some legal foundation for his suspicion – 9 some statute, rule or regulation which may have been violated by the conduct he disclosed.” 10 Banerji v. Leggett & Platt, Inc., No. EDCV 15-01653-DTB, 2016 WL 11746407, at *9 (C.D. Cal. 11 Nov. 18, 2016) (internal citations omitted). 12 Here, the Court finds that Robinson has presented the limited amount of proof required at 13 this stage to establish that he engaged in a protected activity, was subjected to adverse 14 employment action, and that his departure from DataCore was causally linked to his disclosure. 15 Lawson, 12 Cal. 5th at 718. For the first element, Robinson presents a triable issue regarding 16 whether he engaged in protected activity, namely disclosing information about suspected 17 trademark violations to the HR Department. Robinson contends that he reasonably believed that 18 Dey’s approval of the Puls8 name infringed on CNCF’s trademark, and that he was raising alarms 19 to his superiors regarding DataCore’s violation of trademark laws. Decl. of Edward Robinson, ¶¶ 20 9-10, 12, Exs. 5, 7-9, ECF No. 42-2. The evidence shows that Robinson raised his concerns with 21 the HR Department. Id. ¶ 15, Ex. 14. DataCore argues that a trademark violation may not have in 22 fact occurred. But that is not the issue. Given the evidence, a jury could conclude that Robinson 23 reasonably believed that he was disclosing a violation of trademark laws when he complained 24 about the Puls8 name to his HR Department. 25 Second, Robinson contends that he has sufficiently shown that he experienced an adverse 26 employment action when he was constructively discharged from DataCore. “Constructive 27 discharge occurs when the employer’s conduct effectively forces an employee to resign. Although 1 the employer’s acts, against the employee’s will.” Turner v. Anheuser-Busch, Inc., 7 Cal. 4th 2 1238, 1244–45 (1994). A plaintiff must show that a reasonable person faced with the adverse 3 working conditions would find them so intolerable, meaning unusually “aggravated” or amount to 4 a “continuous pattern,” that there would be no alternative except quitting. Id. at 1247-48. 5 Robinson has submitted evidence to show: that he was removed from multiple sales opportunities, 6 central to his role; he was instructed not to communicate with team members; his disclosures 7 about the trademark violations were not addressed or investigated by DataCore’s HR Department; 8 and, instead, HR “stated [Robinson] violated the DataCore security policy . . . [but Robinson] 9 never received a copy of that policy.” Decl. of Edward Robinson, ¶¶ 19-21. The Court finds, that 10 at this stage in the proceedings, Robinson has made a sufficient showing that he experienced an 11 adverse employment action when he was constructively discharged from DataCore. 12 Finally, the Court finds that Robinson has met his minimal burden on summary judgment 13 to establish a causal link between his protected action of reporting of trademark concerns, and the 14 adverse employment action of constructive termination that occurred about one month later. 15 Yartzoff v. Thomas, 809 F.2d 1371, 1376 (9th Cir. 1987) (finding that that sufficient evidence of 16 causation existed where adverse employment action occurred less than three months after the 17 protected activity); Morgan v. Regents of Univ. of Cal., 88 Cal. App. 4th 52, 69 (2000) (“The 18 causal link may be established by an inference derived from circumstantial evidence, such as the 19 employer’s knowledge that the [employee] engaged in protected activities and the proximity 20 in time between the protected action and allegedly retaliatory employment decision.” (internal 21 quotations and citations omitted)). 22 The Court finds that Robinson has presented sufficient evidence to establish by a 23 preponderance of the evidence that retaliation for his disclosure of potential trademark violations 24 “was a contributing factor in [his] contested employment action.” Lawson, 12 Cal. 5th at 718. 25 2. Whether Defendant has shown that Plaintiff’s adverse employment 26 action would have occurred for legitimate, independent reasons. 27 Next, the Court turns to whether DataCore has shown by clear and convincing evidence 1 even if the employee had not engaged in protected whistleblowing activities.” Lawson, 12 Cal. 2 5th at 712 (2022). The Court finds that DataCore has not met this burden. DataCore argues that 3 Robinson faced a series of adverse employment consequences, as described above, because 4 “Plaintiff’s issues demonstrate a lack of common sense, and DataCore is not required to tolerate 5 such behavior.” ECF No. 40-1 at 16. For example, DataCore points to the fact that Robinson 6 stored “confidential company data such as a business plan on Google Drive instead of the 7 company’s internal SharePoint.” Id. However, DataCore acknowledges, “Plaintiff should not 8 have violated the policy whether he knew about it or not.” Id. at 17. This is not enough to meet 9 the higher burden of proof. DataCore has not provided documented, repeated concerns of the 10 same issue, HR Department interventions such as a performance plan, nor reference to an 11 egregious single action. Robinson’s failure to properly save documents can be attributed to his 12 lack of knowledge of, or access to, the policy. Although DataCore could have constructively 13 discharged Robinson for independent reasons – and may well prove as much later in the case – at 14 this stage, DataCore did not provide enough evidence that it would have implemented the adverse 15 employment consequences absent Robinson’s disclosure of the trademark concerns. 16 * * * 17 Robinson has shown that there is a genuine issue of material fact regarding his statutory 18 claim. TW Elec. Serv., 809 F.2d at 630. He has raised genuine issues regarding “what illegal 19 conduct he disclosed, whether he had reasonable cause to believe that federal law was being 20 violated, and whether his whistleblowing activity was a contributing factor in his termination of 21 employment.” Killgore v. SpecPro Pro. Servs., LLC, 51 F.4th 973, 991 (9th Cir. 2022). Because 22 Robinson has met his burden on his statutory claims, he has also met his burden on his 23 overlapping wrongful termination claim. Id. (reversing district court’s grant of summary 24 judgment on Section 1102.5 claim and holding that “[b]ecause [plaintiff’s] claim of wrongful 25 termination in violation of public policy is derivative of his retaliation claim, we reverse the grant 26 of summary judgment as to that claim as well.”). 27 Finally, DataCore argues that Robinson does not have any evidence showing that DataCore ] finds that it is appropriate for Robinson’s punitive damages claims to go to the jury. 2 || IV. MOTION TO EXCLUDE 3 DataCore additionally moves to exclude the report and opinions of Robinson’s expert, Neil 4 || J. Beaton, for failure “to produce an expert disclosure and fail[ure] to timely produce Mr. Beatons 5 || purported expert report by the deadline” of January 30, 2026. ECF No. 35 at 1. In response, 6 || Robinson explains that his counsel experienced serious medical issues, including an emergency 7 || surgery, a few days before the expert disclosure deadline. As a result, Robinson’s counsel served 8 || the expert disclose on February 5, 2026, and offered “‘offered to extend the time of the defendant’s 9 || rebuttal report for additional time.” ECF No. 37 at 2. DataCore did not accept the offer to 10 || comparably extend the rebuttal deadline and instead argues that Robinson “failed to show good 11 cause” for the late production. ECF No. 39 at 2. Although Robinson failed to timely notify 12 || DataCore of the various medical issues that contributed to the delay, the Court does not exclude 13 Robinson’s expert for being untimely. 14 The Court ORDERS the parties to meet and confer to agree on a reasonable schedule for 3 15 || DataCore to both retain a rebuttal expert and to allow that expert adequate time to prepare a a 16 || report. The parties shall file a stipulation within one week of this Order outlining the schedule for 2 17 || the anticipated rebuttal expert. Nothing in this Order prevents DataCore from seeking attorney’s Z 18 fees and costs for filing the motion to exclude. 19 || V. CONCLUSION 20 DataCore’s motion for summary judgment is DENIED. DataCore’s motion to exclude is 21 DENIED. 22 IT IS SO ORDERED. 23 Dated: June 25, 2026 24 Mh hd Noél Wise 25 United States District Judge 26 27 28