1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION 7 AARON KILLGORE, 8 Case No. 5:18-cv-03413-EJD Plaintiff, 9 ORDER GRANTING DEFENDANT’S v. MOTION FOR PARTIAL SUMMARY 10 JUDGMENT SPECPRO PROFESSIONAL SERVICES, 11 LLC, Re: Dkt. No. 33 12 Defendant.
13 This case arises from the employment relationship between Plaintiff Aaron Killgore 14 (employee) and Defendant Specpro Professional Services (“SPS”) (employer). Defendant moves 15 for summary judgment as to the first and forth causes of action within Plaintiff’s complaint: (1) 16 wrongful termination in violation of California’s whistleblower protections and (4) wrongful 17 termination in violation of public policies. Having considered the Parties’ briefs and having had 18 the benefit of oral argument on December 19, 2019, the Court GRANTS Defendant’s motion. 19 I. BACKGROUND 20 A. Factual Background 21 1. Conroe Environmental Assessment 22 Plaintiff is an environmental compliance professional who worked for Defendant from 23 June 2015 until June 22, 2017 (the date of his termination) as a program manager. Declaration of 24 Geoffrey C. Lyon (“Lyon Decl.”), Ex. A (“Killgore Depo.”) at 68, Dkt. 37; Id., Ex. B (“Emerson 25 Depo.”) at 17, 70. He was subsequently promoted to senior program manager. Reply Declaration 26 of Denise Tran-Nguyen (“Reply Tran-Nguyen Decl.”), Ex. D (“Emerson Depo.”) at 18. 27 Whenever the federal government proposes to use land in the United States, it must 1 comply with a host of federal environmental statutes and regulations. Defendant, an 2 environmental and facilities services firm, entered into a renewable, one-year contract with the 3 United States Army Reserve (“USARC”) to provide various environmental and training support 4 services for the 63rd Regional Support Command. Declaration of Will Emerson (“Emerson 5 Decl.”) ¶ 4, Dkt. 33. One of the projects under contract involved preparing a final Record of 6 Environmental Consideration (“REC”) for a proposed action by the 1-158th Assault Helicopter 7 Battalion (“AHB”). Id. ¶ 5. The 1-158th AHB is an Army Reserve Unit that operates out of the 8 Conroe Army Reserve Center, located within the Conroe-North Houston Regions Airport in 9 Conroe, Texas. Id., Ex. A at 22. The 1-158th AHB planned to modify 12 landing sites located on 10 Texas Department of Criminal Justice (“TDCJ”) land. Id. ¶ 5. In connection with the REC 11 required for the change to the landing sites, Defendant and the 63rd Command evaluated potential 12 effects on air quality, storm water, noise, natural resources, cultural resources, and the 13 Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) 14 compliance at the Conroe, Texas Location. Declaration of Laura Caballero (“Caballero Decl.”), 15 Ex. A at 5–6, Dkt. 33. The REC was finalized in early March 2017. Id. at 8. 16 Around April 2017, after the REC was completed, the 63rd Command asked Defendant to 17 prepare an Environmental Assessment (“EA”) for a time-sensitive helicopter training for the 1- 18 158th AHB in Conroe, Texas (the “Conroe EA”). Emerson Decl. ¶ 7. This project planned to 19 designate 8 landing zones as Army Reserve local training areas, which triggered the need to 20 prepare the “Conroe EA.” Id., Ex. A at 22. An initial step in preparing the Conroe EA involved 21 writing the Description of Proposed Alternatives (“DOPAA”), which is a “subset of an EA” and 22 “the first two chapters of the environmental assessment.” Summary Judgment Declaration of 23 Denise Tran-Nguyen (“SJ Tran-Nguyen Decl.”), Ex. E (“Russ Depo.”) at 19, 31. Defendant 24 subcontracted with AGEISS, Inc. (“AGEISS”), an environmental services firm that specializes in 25 assisting federal agencies. Emerson Decl. ¶ 7. Melissa Russ, an employee of AGEISS, testified 26 that AGEISS managed and prepared most of the Conroe EA, except for the biology and cultural 27 sections. Ex. E, Russ Depo. at 34–36. 1 The Conroe EA was finalized and completed five months later, in September 2017. 2 Emerson Decl. ¶ 9. As part of the EA drafting process, Defendant and AGEISS contacted federal, 3 state, and local agencies located in the counties surrounding Conroe. Id., Ex. A at 98. The 4 surrounding agencies were informed of the change in land use at Conroe. Id., Ex. A at 121 (“Up 5 to this point, no landing was required due to the mission training sets. Now; however, additional 6 land is needed to perform mission tasks that require landing.”). No public concerns were voiced 7 despite the “very extended public outreach.” Ex. E, Russ Depo. at 64. 8 2. Plaintiff’s Termination 9 Plaintiff oversaw the team of SPS employees and subcontractors (including Ms. Russ of 10 AEGISS and Mr. Oskar Burger) working on the Conroe EA. Ex. B, Emerson Depo at 23–24. 11 Plaintiff claims he raised concerns about the Conroe EA’s legality. Complaint for Damages 12 (“Compl.”) ¶ 19, Dkt. 1. Plaintiff alleges that a properly completed EA typically requires 12–18 13 months. Compl. ¶ 18; Ex. A, Killgore Depo. at 107; see also Lyon Decl., Ex. F at 84 (“Russ 14 Depo.”) (“So including the DOPAA, six months would be considered pretty darn aggressive, 15 expedited. A year would be considered kind of standard, including the DOPAA.”). The USARC 16 set a deadline of only three months to complete the Conroe EA. Lyon Decl., Ex. D (“Caballero 17 Decl.”) at 116; Ex. A, Killgore Depo. at 138. 18 Plaintiff argues this timeline was insufficient given the complexities associated with the 19 Conroe site.1 Ex. A, Killgore Depo. at 107. He felt that the three-month timeframe violated 20 federal environmental laws and regulations, specifically the National Environmental Policy Act’s 21 (“NEPA”) procedural requirements. He allegedly expressed this to his supervisors (Chief 22 Caballero and Mr. Will Emerson). Ex. A, Killgore Depo. at 179–80. Plaintiff contends that he 23 also told Chief Caballero that omission of the prior land use, i.e., the helicopter hovering, violated 24 NEPA. Id. at 201–02. The timeline, he argues, prevented him (and his team) from understanding 25
26 1 The Army had not previously leased the property in Conroe. The leasing or consideration of 27 leasing/acquiring property triggers the need to prepare an environmental report. Ex. F, Russ Depo. at 129. 1 the impact of the prior land use and undertaking the rigorous review process needed for a 2 compliant EA, thereby violating NEPA’s “hard look” requirement. Likewise, the failure to 3 include a discussion or description of the prior land use violated both NEPA’s hard look 4 requirement and its “intent” and “spirit” of full disclosure. 5 According to Plaintiff, USARC refused to allow an extended EA timeline and actively 6 instructed all personnel working on the EA to ignore and refrain from mentioning the prior 7 helicopter use in any part of the EA, including in the DOPAA. Id. at 120–22 (“[T]his issue had to 8 do with the transfer of the helicopter battalion from attack to assault. And . . . [Caballero] had 9 directed [Plaintiff’s] staff to remove all reference to the fact that this helicopter battalion had been 10 operating on these parcels that we were to analyze . . . .”); Ex. F, Russ Depo. at 55–57, 61–62 11 (stating that Caballero instructed her to remove or refrain from referencing the past operations on 12 the Conroe parcel); Lyon Decl., Ex. E (“Burger Depo.”) at 48, 64, 66, 192–93, 195 (“And then we 13 were told to remove that language completely . . . .”); Ex. D, Caballero Depo. at 62–63, 138 14 (stating she instructed Plaintiff and his team to remove references to the prior helicopter training 15 from the Conroe EA). Chief Caballero also instructed Plaintiff to tell his team not to send emails 16 or keep a written record of the prior use issues surrounding the Conroe EA. Ex. E, Burger Depo. 17 at 80, 98; Ex. A, Killgore Depo. at 121–25. Any early drafts referring to the prior helicopter 18 operations were edited to remove such references. Ex. D, Caballero Decl. at 63–64 (“I contacted 19 them immediately and let them know that we were striking [helicopter references] from the 20 DOPAA.”). Even vague allusions to prior helicopter operations were forbidden and removed. Ex. 21 E, Burger Depo. at 84, 102–03. 22 Plaintiff alleges that he repeatedly expressed his objections to Chief Caballero. Ex. D, 23 Caballero Depo. at 73–76, 136–37; Ex. A, Killgore Depo. at 125–28, 258–59. He also reported 24 the alleged NEPA noncompliance to his supervisor, Mr. Emerson, an SPS employee, on multiple 25 occasions but was told to “do what the client asks.” Ex. A, Killgore Depo. at 156–57; Ex. B, 26 Emerson Depo. at 35–36 (“In the DOPAA [Plaintiff said] he thought that the previous helicopter 27 training should be addressed.”). Plaintiff thus argues that his objections were ignored. Ex. D, 1 Caballero Depo. at 81, 135–37 (stating that when USARC decided about a project, the 63rd had to 2 follow that decision, despite Plaintiff’s protesting). 3 Despite being instructed to omit references of prior helicopter use, Mr. Burger, under 4 Plaintiff’s direction, submitted a draft of the DOPAA portion of the Conroe EA to the 63rd and the 5 USARC that vaguely referenced the prior helicopter operations, which was a “serious breach of 6 trust.” Ex. D, Caballero Depo. at 77. Chief Caballero insisted the language be removed and 7 reported the incident to Mr. Emerson. Id. at 64, 68–69, 77–78. Mr. Emerson instructed Plaintiff 8 and Mr. Burger to apologize to Chief Caballero and approach her with a “yes” attitude as long as 9 her directives were “legal, moral, and ethical.” Ex. A at A-92. 10 On June 22, 2017, Chief Caballero met with Mr. Emerson and Dr. Steve Alexander 11 (Plaintiff’s SPS superiors) for a quarterly check-in meeting. Ex. D, Emerson Depo. at 81–82. 12 Most of the meeting was spent discussing Plaintiff’s performance. Id. at 84–85. Dr. Alexander 13 referred to the meeting with Chief Caballero as “the worst client meeting” he had ever had. SJ 14 Tran-Nguyen Decl., Ex. C (“Alexander Depo.”) at 74. After this meeting, Mr. Emerson and Dr. 15 Alexander determined Plaintiff had to be terminated for failure to meet company and customer 16 expectations. Ex. D, Emerson Depo. at 80–81, 86. 17 B. Procedural History 18 Plaintiff originally filed his Complaint in state court. Defendant’s removed the case to 19 federal court alleging this Court has diversity jurisdiction over the case.2 See Dkt. 1. On October 20 17, 2019, Defendant filed a motion for partial summary judgment as to Claims 1 and 4. Motion 21 for Partial Summary Judgment (“MSJ”), Dkt. 33. On November 18, 2019, Plaintiff filed his 22 Opposition. Opposition/Response re Motion for Partial Summary Judgment (“Opp.”), Dkt. 37. 23 Defendant filed its Reply on December 2, 2019. Reply re Motion for Partial Summary Judgment 24 (“Reply”), Dkt. 38. 25
26 2 Plaintiff does not contest that diversity jurisdiction exists and the Court sees no reason to question whether it has diversity jurisdiction. See Ruhrgas AG v. Marathon Oil, 526 U.S. 574, 27 583 (9th Cir. 1999) (noting federal courts have a duty to police subject-matter jurisdiction). 1 II. LEGAL STANDARD 2 A court must grant summary judgment if the movant shows “that there is no genuine 3 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. 4 Civ. P. 56(a). In order to satisfy this burden, “the moving party must either produce evidence 5 negating an essential element of the nonmoving party’s claim or defense or show that the 6 nonmoving party does not have enough evidence of an essential element to carry its ultimate 7 burden of persuasion at trial.” Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Cos., Inc., 210 F.3d 8 1099, 1102 (9th Cir. 2000). “In order to carry its ultimate burden of persuasion on the motion, the 9 moving party must persuade the court that there is no genuine issue of material fact.” Id. 10 If the moving party meets its burden of production, the nonmoving party must produce 11 evidence to support its claim or defense. Id. at 1103. If the nonmoving party fails to produce 12 enough evidence to create a genuine issue of material fact, Rule 56(c) mandates the moving party 13 win the motion for summary judgment. See id. 14 III. DISCUSSION 15 A. Overview of NEPA3 16 “NEPA is a procedural statute that requires the federal government to carefully consider 17 the impacts of and alternatives to major environmental decisions.” Native Ecosystems Council v. 18 Weldon, 697 F.3d 1043, 1051 (9th Cir. 2012) (citing 42 U.S.C. §§ 4321, 4331); see also Bering 19 Strait Citizens for Responsible Res. Dev. v. U.S. Army Corps of Eng’rs, 524 F.3d 938, 947 (9th 20
21 3 Defendant requests this Court take judicial notice of Exhibit 1. See Defendant’s Request for 22 Judicial Notice (“RJN”), Dkt. 33-2. Exhibit 1 is a printout of a NEPA Guidance Document located on the Council on Environmental Quality (“CEQ”) website. Id. at ECF 2. The Court may 23 take judicial notice of a fact capable of accurate and ready determination by a source whose accuracy cannot reasonably be questioned. Fed. R. Evid. 201(b); see also Daniels-Hall v. Nat’l 24 Educ. Ass’n, 629 F.3d 992, 998–99 (9th Cir. 2010) (finding court may take judicial notice of publicly accessible websites whose accuracy and authenticity is not subject to dispute). A court 25 may consider facts contained in the noticed materials. Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir. 1994). 26 Plaintiff does not object to the Court taking judicial notice of Exhibit 1. Further, judicial notice is 27 proper because Exhibit 1 is a document on a publicly available, government-maintained website. Accordingly, Defendant’s request for judicial notice is GRANTED. 1 Cir. 2008) (“Unlike the [Clean Water Act], NEPA does not contain substantive environmental 2 standards, nor does the Act mandate that agencies achieve particular substantive environmental 3 results.”). NEPA ensures that federal agencies take a “hard look” at the environmental 4 consequences of their proposed actions before deciding to proceed. Robertson v. Methow Valley 5 Citizens Council, 490 U.S. 332, 350–51 (1989). Judicial review of agency decision-making under 6 NEPA is limited to determining “whether the agency took a ‘hard look’ at the proposed action as 7 required by a strict reading of NEPA’s procedural requirements.” Bering Strait, 524 F.3d at 947. 8 At issue in this case is USARC’s decision to exclude information about prior land use from 9 the Conroe EA. Hence, a past action is at issue. The Council on Environmental Quality (“CEQ”) 10 provides guidance on the extent to which agencies of the Federal Government are required to 11 analyze the environmental effects of past actions. RJN, Ex. 1 at 1. The CEQ interprets NEPA and 12 promulgates regulations. Id. Exhibit 1 is a CEQ guidance document which interprets NEPA and 13 CEQ regulations regarding agencies requirement to consider past actions in their cumulative 14 effects analysis. Importantly, “CEQ’s interpretation of NEPA is entitled to substantial deference.” 15 Andrus v. Sierra Club, 442 U.S. 347, 358 (1979). 16 The environmental analysis required in NEPA is “forward-looking.” RJN, Ex. 1 at 1. The 17 effects of past actions—like the prior helicopter hovering—may warrant consideration in the 18 agency’s cumulative effects analysis. Id. Agencies should use “scoping” to focus on the extent to 19 which information is relevant. Id. (citing 40 CFR 1502.22). Based on scoping, “agencies have 20 discretion to determine whether, and to what extent, information about the specific nature, design, 21 or present effects of a past action is useful for the agency’s analysis.” Id. (emphasis added). 22 Agencies are not required to list or analyze the effects of individual past actions unless it is 23 necessary to describe the cumulative effect of all past actions combined. Id. Notably, agencies 24 retain substantial discretion as to the “extent of such inquiry and the appropriate level of 25 explanation.” Id.; see also Marsh v. Or. Nat. Res. Council, 490 U.S. 360, 376–77 (1989) 26 (deferring to agency factual resolution because it “implicates substantial agency expertise”). 27 “Generally, agencies can conduct an adequate cumulative effects analysis by focusing on the 1 current aggregate effects of past actions without delving into the historical details of individual 2 past actions.” RJN, Ex. 1 at 2 (emphasis added). Indeed, “[s]imply because information about 3 past actions may be available or obtained with reasonable effort does not mean that it is relevant 4 and necessary to inform decision making.” Id. at 3. Accordingly, USARC retained “substantial 5 discretion” in determining whether past activity was relevant for the Conroe EA. 6 B. Violation of California Labor Code Section 1102.5 7 California Labor Code Section 1102.5(b) prevents an employer from retaliating against an 8 employee for disclosing information to a person with authority over the employee or another 9 employee who has the authority to investigate, discover, or correct the violation or noncompliance, 10 if the employee has reasonable cause to believe that the information discloses a violation of a 11 state, federal, or local law. California Labor Code Section 1102.5(c) prevents an employer from 12 retaliating against an employee for refusing to “participate in an activity that would result in a 13 violation of state or federal statute, or a violation of or noncompliance with a local, state, or 14 federal rule or regulation.” 15 To establish a prima facie case for retaliation under Section 1102.5, an employee must 16 show that (1) he engaged in protected activity, (2) he was thereafter subjected to an adverse 17 employment action by his employer, and (3) there was a causal link between the protected activity 18 and the adverse employment action. Morgan v. Regents of the Univ. of Cal., 105 Cal. Rptr. 2d 19 652, 666 (Ct. App. 2000). 20 1. Protected Activity Under Section 1102.5(b) 21 “Protected activity” under Section 1102.5(b) requires: (1) a disclosure; (2) based on 22 reasonably based suspicions; (3) of illegal activity. Johnson v. Johns Hopkins Univ. Applied 23 Physics Lab. LLC, 2013 WL 4046668, at *6 (S.D. Cal. Aug. 8, 2013) (citing Mokler v. Cty. of 24 Orange, 68 Cal. Rptr. 3d 568, 580 (Ct. App. 2007)). “To have a reasonably based suspicion of 25 illegal activity, the employee must be able to point to some legal foundation for his suspicion— 26 some statute, rule or regulation which may have been violated by the conduct he disclosed.” 27 Turner v. City & Cty. of S.F., 892 F. Supp. 2d 1188, 1199–1200 (N.D. Cal. 2012) (citation 1 omitted). Plaintiff need only show a “genuine and reasonable concern” that USARC was engaged 2 in unlawful activity to be protected as a whistleblower. McVeigh v. Recology S.F., 152 Cal. Rptr. 3 3d 595, 608 (Ct. App. 2013). Plaintiff argues he engaged in protected activity by repeatedly 4 disclosing to supervisors that the Conroe EA was being prepared in a manner that failed to comply 5 with NEPA, Army Regulations, and other applicable laws.4 Opp. at 13. The Court disagrees and 6 holds that Plaintiff’s expression of concern about the timeline did not amount to a “protected 7 disclosure.” 8 a. Timeline to Complete the Conroe EA 9 Defendant argues that Plaintiff failed to “blow the whistle” on a NEPA violation because 10 Plaintiff’s testimony indicates only that he told Mr. Emerson that the timeline was unreasonable, 11 that he was concerned about the performance of his team in completing the Conroe EA, and that 12 he questioned if completion “[was] even possible even in the best of circumstances.” Mot. at 14; 13 Ex. A, Killgore Depo. at 113. Likewise, Defendant notes that Plaintiff only told Chief Caballero 14 that three months “probably” was not enough time to complete the EA. Id. at 124. Defendant 15 argues Plaintiff’s testimony shows that he merely expressed his “personal worries and reservations 16 about whether SPS would be able to meet the deadline.” Opp. at 14. 17 Notably, Ms. Russ, who agreed with Plaintiff that the timeline was unusually quick, 18 testified that she never heard Plaintiff indicate that the timeline violated NEPA.
19 Q: Did Mr. Killgore ever express concerns to you about the timeline to complete the Conroe EA? 20 A: Not specifically that I can remember no. 21 Q: What do you mean by “not specifically”? 22 A: Well, I mean, honestly, we all laughed at it when we first heard it. 23
24 4 Notably, Plaintiff fails to identify any other regulations or laws with specificity; instead he 25 simply concludes “other laws” were violated. This is improper. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (“A summary judgment motion cannot be defeated by relying solely on 26 conclusory allegations unsupported by factual data.”); see also Love v. Motion Indus., Inc., 309 F. Supp. 2d 1128, 1135 (N.D. Cal. 2004) (concluding that without citing to “any statute, rule or 27 regulation,” the plaintiff lacked any foundation for the reasonableness of his belief”). Plaintiff has only identified one law: NEPA. The Court thus focuses its analysis on NEPA. It was, you know, a little bit -- It was asking a lot you know. Like I 1 said, it was doable, but -- No. I mean, he did not express specific concern or doubt that it could be done. 2 Q: Okay. And he never indicated or suggested that it was somehow 3 illegal or it just couldn’t be done in compliance with NEPA?
4 A: No. 5 Ex. F, Russ Depo. at 47 (emphasis added). 6 Plaintiff contends that he communicated his concerns about the timeline to Mr. Emerson 7 and Chief Caballero and reasonably believed that the three-month timeline violated NEPA because 8 it was insufficient for USARC to take a “hard look” at the potential environmental impact of the 9 Conroe project. Opp. at 5, 14 (“[Plaintiff] told his supervisors that there would not be enough 10 time to satisfy all of the procedural requirements of NEPA . . . in the time allotted and therefore 11 SPS was engaged in an EA process that was not in compliance with NEPA and other applicable 12 federal laws and/or regulations.”). Plaintiff directs the Court to his deposition testimony for 13 support. Ex. A, Killgore Depo. at 179. After reviewing this testimony and other parts of the 14 record, the Court finds two issues with Plaintiff’s theory that he “blew the whistle” on the 15 “timeline violation.” 16 First, Plaintiff provides this Court with no evidence that he told his supervisor, specifically 17 Chief Caballero, that the rushed timeline constituted a NEPA violation. Pursuant to Section 18 1102.5(b), any “whistleblowing” must be made to a “government or law enforcement agency” or 19 to someone with “authority” over the employee who has the power to “investigate, discover, or 20 correct the violation of noncompliance.” Defendant is a private environmental compliance firm, 21 not a “government or law enforcement agency.” Plaintiff does not argue to the contrary. Further, 22 Mr. Emerson, an SPS employee, with authority over Plaintiff, lacks the power to correct the 23 USARC’s alleged noncompliance. Indeed, Mr. Emerson, a private citizen, cannot compel or force 24 the USARC to do something it has chosen not to do. Accordingly, the Court looks only to what 25 Plaintiff told Chief Caballero as his statements to Mr. Emerson are irrelevant under 1102.5(b). 26 Page 179 of Plaintiff’s deposition testimony details what Plaintiff told Mr. Emerson about 27 the Conroe EA. Ex. A, Killore Depo. at 179. The conversation between Plaintiff and Mr. 1 Emerson fails to show that Plaintiff complained of illegal activity to Chief Caballero, especially 2 because Mr. Emerson and Plaintiff barely discussed Chief Caballero. See id. (mentioning only 3 that Chief Caballero reported to Mr. Emerson that Plaintiff was “pushing back” on the Conroe 4 EA); see also id. at 113 (“[A]fter I had communicated with Will Emerson that that timeline was 5 unreasonable . . . .”). A conversation with Mr. Emerson about an alleged violation of law is 6 insufficient as a matter of law to establish a whistleblower violation. Problematically, Plaintiff’s 7 briefing and Complaint focuses largely on what he told Mr. Emerson. See Plaintiff’s Separate 8 Statement of Disputed and Additional Material Facts and Conclusions of Law, Dkt. 37-1. 9 Looking to what Plaintiff actually told Chief Caballero: in May 2017, Plaintiff testified he 10 told Chief Caballero that “there’s no way that we can do this in three months. It probably isn’t 11 even possible to do this in 18 months.” Id. at 124. The Court cannot locate, and Plaintiff does not 12 provide, any other testimony in which Plaintiff either expressly tells Chief Caballero that the 13 timeline violates NEPA’s “hard look” review or implicitly suggests it does. Cf. id. at 137 14 (highlighting more evidence for Plaintiff’s second theory of non-compliance, lack of prior history 15 in the EA, as Plaintiff states he and Ms. Russ expressed to Chief Caballero it was “not legal to -- 16 to create [the Conroe EA] without the analysis [of the prior operations]”). Concern about meeting 17 a deadline, as exists here, is not protected activity. Without more, it does not disclose a legal 18 violation. See Love, 309 F. Supp. 2d at 1134 (finding the plaintiff failed to show protected activity 19 because the disclosed activity did not violate any law). A contrary finding would render the 20 whistleblower statute limitless; anytime an employee disagreed with a deadline, they could have a 21 whistleblower claim. This is antithetical to California courts interpretation of the statute. See 22 Patten v. Grant Joint Union High Sch. Dist., 37 Cal. Rptr. 3d 113, 118 (Ct. App. 2005) (noting 23 judiciary need to police boundaries of California whistleblower statute so as to not “thrust the 24 judiciary into micromanaging employment practices”). Accordingly, because Plaintiff has only 25 provided facts that he told Chief Caballero of his concern with meeting the deadline but not that he 26 expressed concern over the legality of the deadline, he has not met his burden of showing he 27 engaged in protected activity. 1 Second, the disclosures made by Plaintiff were part of his “normal duties” and thus are not 2 entitled to whistleblower protection. An employee’s communications can fall into three 3 categories: (1) disclosures made as part of normal duties through normal channels, (2) disclosures 4 made as part of normal duties outside of normal channels, and (3) disclosures made outside of 5 normal or assigned duties. Id. at 725. Only the latter two categories qualify as protected 6 disclosures. Id. Plaintiff’s communications to Chief Caballero do not qualify as protected 7 disclosures because the communications were part of his normal duties and were made through 8 normal channels. Chief Caballero was his supervisor; his “normal channel” was to report to her. 9 Ex. A, Killgore Depo. at 179–80. Plaintiff’s duties at SPS, and for the 63rd, were “environmental 10 compliance.” See Ex. A, Dkt. 37-2 at ECF 95 (Plaintiff’s resume). Accordingly, any disclosures 11 to Chief Caballero about the EA timeline being non-compliant with NEPA were part of Plaintiff’s 12 “normal duties to ensure ‘compliance with [environmental regulations]’” and are unprotected by 13 1102.5(b). Manavian v. DOJ, 239 Cal. Rptr. 3d 710, 725 (Ct. App. 2018). As noted by California 14 courts interpreting Section 1102.5(b), “[n]ot every ‘thought, suggestion, or discussion of an action 15 that someone might consider to be a violation of a law, rule, or regulation is a justification for a 16 whistleblower complaint. Discussion among employees and supervisors concerning various 17 possible courses of action is healthy and normal . . . . [and] may in fact avoid a violation.’” Id. at 18 726 (emphasis omitted) (quoting Mize-Kurzman v. Marin Cmty. College Dist., 136 Cal. Rptr. 3d 19 259, 282 (Ct. App. 2012)). 20 In an attempt to escape these findings, Plaintiff cites to Ross v. County of Riverside, 248 21 Cal. Rptr. 3d 696 (Ct. App. 2019). Opp. at 18. There, the plaintiff, a district attorney, 22 recommended that his supervisors dismiss a homicide case after he uncovered DNA evidence 23 exculpating the defendant and obtained a confession from another witness admitting to the murder. 24 Ross, 248 Cal. Rptr. 3d at 699–700. The plaintiff’s boss told him not to turn over the exculpatory 25 evidence to defense counsel and became upset when the plaintiff informed his boss that he already 26 had turned over the evidence. Id. at 700. The plaintiff was subsequently terminated and sued the 27 County of Riverside for wrongful termination under Section 1102.5(b). Id. at 704. The court 1 concluded that a triable issue of fact existed as to the question of whether the plaintiff engaged in 2 protected activity. Id. at 704–05. The court based its determination on two things: (1) contrary to 3 the defendant’s argument that the plaintiff had to specifically identify in his disclosures the legal 4 violation, Section 1102.5(b) does not require a whistleblower to “expressly state in [their] 5 disclosures” which law they believe is being violated. The employee must only disclose 6 information that they reasonably believe discloses unlawful activity and (2) the plaintiff’s 7 disclosure “should have raised the same constitutional, statutory, and ethical concerns” to the 8 plaintiff’s superiors since all prosecutors are constrained by the same legal and ethical standards. 9 Id. at 705. 10 This case is different from Ross. First, even while an employee’s disclosure needs not 11 expressly state the legal violation, it must provide sufficient detail such that the disclosure 12 identifies the supposed legal violation. For instance, in Ross, the plaintiff “provided evidence 13 showing he disclosed information to his superiors indicating the district attorney's office would not 14 be able to prove a particular murder case beyond a reasonable doubt and lacked probable cause to 15 continue prosecuting” the case. Id. The disclosure was thus plainly rooted in prosecutor’s ethical 16 and legal obligations. Here, however, Plaintiff provides no testimony indicating that he told Chief 17 Caballero the root of his concerns. He only provides evidence that he was concerned about the 18 timeline. See supra. 19 Moreover, in Ross, the plaintiff’s disclosure of exculpatory evidence to his superiors 20 clearly implicated his and their duties under California law (and possibly federal law like Brady v. 21 Maryland, 373 U.S. 83) to cease prosecution once the prosecutor knows a charge is not supported 22 by probable cause. Id. at 705. Hence, in Ross, there was no question that by ordering the plaintiff 23 to suppress evidence and continue prosecuting the accused, a legal violation would result. In 24 contrast, here, agencies have vast discretion over how much time an EA should receive and what 25 information should be included in an EA. See supra III.A. Plaintiff’s expressions of concern 26 regarding the timeline thus are more analogous to unprotected “business discussions.” See 27 Manavian, 239 Cal. Rptr. 3d at 726 (noting that not all employee-employer discussions of legality 1 are protected disclosures). 2 Accordingly, Plaintiff has not provided evidence showing that a genuine dispute of 3 material fact exists as to whether his timeline disclosures are protected by Section 1102.5(b) and 4 Defendant’s motion for partial summary judgment is GRANTED as to this claim. 5 b. Failure to Discuss Past Operations in Conroe EA 6 Plaintiff next claims that he reasonably believed the Conroe EA violated NEPA because 7 the report did not discuss the prior helicopter hovering and its impact on noise, air quality, 8 airspace management and safety or its environmental consequences on earth, biological, and 9 cultural resources. Opp. at 7. He argues the decision to exclude consideration of and reference to 10 the prior operations at Conroe violated NEPA’s “hard look” requirement and its “intent” and 11 “spirit” of full disclosure to the public. Id. As noted in the factual background, Chief Caballero 12 instructed Plaintiff and his team to exclude any mention of the prior helicopter activity in emails, 13 written correspondence, and the Conroe EA. Plaintiff “repeatedly expressed [his] objections to 14 Ms. Caballero.” Opp. at 8 15 There are two issues with Plaintiff’s claim that he “blew the whistle” about the exclusion 16 of the prior helicopter operations from the Conroe EA: (1) Plaintiff did not make a “disclosure” 17 within the meaning of Section 1102.5(b) and (2) agencies retain substantial discretion over 18 whether to include a discussion about past land use in an EA. 19 First, in order to be protected by Section 1102.5(b), the whistleblower must make a 20 “disclosure.” See, e.g., Mize-Kurman, 136 Cal. Rptr. at 281–82. “[T]he report of information that 21 was already known did not constitute a protected disclosure.” Id. at 281 (citing Meuwissen v. 22 Dep’t of Interior, 234 F.3d 9, 12–13 (Fed. Cir. 2000)). The term “disclosure” means to “reveal 23 something that was hidden and not known.” Id. “This conclusion is consistent with those cases 24 holding that the employee’s report to the employee’s supervisor about the supervisor’s own 25 wrongdoing is not a ‘disclosure’ and is not protected whistleblowing activity, because the 26 employer already knows about his or her wrongdoing.” Id. at 282 (first emphasis added) 27 (collecting cases). Indeed, criticism delivered to the wrongdoer does not further the purpose of 1 California whistleblower laws because it fails “to encourage disclosure of wrongdoing to persons 2 who may be in a position to remedy it.” Id. Thus, implicit in the whistleblower statute is the 3 concern that employees not be terminated for reporting a violation to someone they believe can do 4 something about the violation, i.e., someone the employee thinks does not already know about it. 5 Plaintiff alleges that he blew the whistle to Chief Caballero, his supervisor. 6 Simultaneously, however, Plaintiff argues Chief Caballero personally engaged in the illegal act of 7 suppressing information of the prior land use. In other words, Plaintiff fails to allege and prove 8 that Chief Caballero never knew about the illegal suppression. Indeed, Plaintiff contends Chief 9 Caballero not only knew that the Conroe EA failed to disclose the prior land use, but that she 10 actively sought to prevent Plaintiff and Plaintiff’s team from mentioning the prior use. Hence, 11 Plaintiff’s disclosure to Chief Caballero is not protected under 1102.5(b) because California law 12 requires the report be made to a “superior . . . [who] is not the person involved in the alleged 13 wrongdoing.” Id. 14 Plaintiff argues Mize-Kurman does prevent Section 1102.5(b) from protecting the 15 disclosure of known information. Opp. at 12. He cites Hager v. County of Los Angeles, 176 Cal. 16 Rptr. 3d 268 (Ct. App. 2014) as support. But, Hager’s analysis of Mize-Kurman never says 17 “disclosure” of known information is protected. To the contrary, Hager concluded only that Mize- 18 Kurman did not announce a “first to report” rule. 176 Cal. Rptr. at 276 (“Consistent with federal 19 law, the Mize-Kurzman court held reporting information that already was known to the employer 20 did not constitute a protected disclosure. . . . No [] ‘first report’ limitation was discussed in Mize- 21 Kurzman.”). Hager and Mize-Kurzman thus both concern situations where an employee discloses 22 a legal violation to someone who does not already know about it. A contrary finding would make 23 the whistleblower statute limitless and render the “disclosure” requirement meaningless. See 24 Patten, 37 Cal. Rptr. 3d at 118 (noting whistleblower statute should not “thrust the judiciary into 25 micromanaging employment practices.”). Thus, because Chief Caballero already knew about the 26 alleged illegal omission of prior land use, Plaintiff did not “disclose” anything to her within the 27 meaning of Section 1102.5(b). 1 Second, as Defendant notes, pursuant to CEQ guidelines, USARC had significant 2 discretion to determine “whether, and to what extent, information about the specific nature, 3 design, or present effects of [the past helicopter operation] is useful for the agency’s analysis.” 4 RJN, Ex. 1 at 1. Because the EA required for NEPA is “forward looking,” it need only assess the 5 potential impacts of a proposed action. Id. Plaintiff, and his counsel at oral argument, points this 6 Court to Klamath-Siskiyou Wildlands Center v. Bureau of Land Management, 387 F.3d 989 (9th 7 Cir. 2004) to argue that USARC had a legal duty to discuss the past helicopter hovering in the 8 Conroe EA. Opp. at 14. This mischaracterizes Klamath. Klamath discussed an agencies 9 requirement to consider cumulative impacts in an EA and held that, under NEPA, an EA must 10 “sufficiently identify or discuss the incremental impact that can be expected from [later sales] or 11 how those individual impacts might combine or synergistically interact with each other to affect 12 the [] environment.” 387 F.3d at 997 (emphasis added). As this quotation and the emphases 13 added show, Klamath is consistent with NEPA being a “forward looking” statute. Klamath 14 discusses an agencies requirement to discuss future cumulative impact of a proposed action. It 15 does not discuss an agency’s requirement to consider past action. Plaintiff’s attempt to confuse 16 the issue is rejected. The Court holds, consistent with NEPA, CEQ guidance, and Klamath, 17 agencies have substantial discretion over whether to include past actions in their EAs and what 18 extent those past actions should be discussed in a cumulative effects analysis. 19 While Section 1102.5 does not require an employee’s disclosure to expressly state the 20 alleged legal violation, it does require that the employee “reasonably believe the information 21 discloses unlawful activity.” Ross, 248 Cal. Rptr. 3d at 593. Plaintiff had prior NEPA experience:
22 Q: At the time you started your employment with SpecPro, did you have any prior experience writing environmental assessments or 23 EAs?
24 A: Not for a consulting firm like SpecPro.
25 Q: So you did have prior experience writing an EA for him?
26 A: So my experience with NEPA documentation, including environmental assessments, involved the analysis of these documents, 27 analyzing the writing, participating in NEPA, and understanding the regulatory implications of these documents. 1 Q: And for whom did you perform what you just described? 2 A: Marstel-Day, Oregon Natural Desert Association. 3 Ex. A, Killgore Depo. at 68. Indeed, while Plaintiff had never written an EA before starting his 4 employment with Defendant, he had experience with the EA writing process. Id. at 71. 5 Q: At the time you started your employment with Specpro, did you 6 have any prior experience writing environmental impact studies?
7 A: The -- with the Oregon Natural Desert Association, my job responsibilities were to analyze environmental impact statements and 8 environmental assessments and understand their legal implications, participate in the NEPA process through the outreach process. And 9 with Marstel-Day, it was a similar type of engagement in the NEPA process. 10 Id. As Plaintiff notes in his resume, he was responsible for “environmental compliance” for 11 Defendant’s clients. Id. at ECF 95. 12 This is all to say, Plaintiff understood NEPA’s requirements and any regulations 13 promulgated under it. He knew about the substantial discretion an agency receives in deciding 14 whether to include past land uses in an EA and that the agency is not required to include past land 15 uses if it finds it unnecessary. See RJN, Ex. 1 at 1. He also understood that NEPA does not 16 require an agency to “adopt any particular internal decisionmaking structure.” Baltimore Gas & 17 Elec. Co. v. NRDC, 462 U.S. 87, 100 (1983); see also Robertson v. Methow Valley Citizens 18 Council, 490 U.S. 332, 350 (1989) (“[I]t is now well settled that NEPA itself does not mandate 19 particular results, but simply prescribes the necessary process.”). Accordingly, it is unreasonable 20 for Plaintiff to believe he engaged in protected activity by disclosing to Chief Caballero that the 21 Conroe EA failed to discuss the prior use of the land when he knew (or should have known given 22 his experience) that the agency had substantial discretion over the decision about whether to 23 include past uses. 24 Accordingly, because Plaintiff neither “disclosed” information nor could have “reasonably 25 believed” the information disclosed constituted a legal violation, Defendant’s motion for summary 26 judgment is GRANTED as to the prior land use claim. 27 1 2. Protected Activity Under Section 1102.5(c) 2 Section 1102.5(c) states: “An employer, or any person acting on behalf of the employer, 3 shall not retaliate against an employee for refusing to participate in an activity that would result in 4 a violation of state or federal statute, or a violation of or noncompliance with a local, state, or 5 federal rule or regulation.” (emphasis added). This section protects employees who “refuse to act 6 at the direction of their employer or refuse to participate in activities of an employer that would 7 result in a violation of law.” Casissa v. First Republic Bank, 2012 WL 3020193, at *8 (N.D. Cal. 8 July 24, 2012). “Refuse” is accorded its plain meaning. It requires “that an employee asked to 9 perform an act stated that he would not perform the act and/or did not perform the act.” Scheu v. 10 Charter Commc’ns, LLC, 2011 WL 3204672, at *21 (C.D. Cal. July 27, 2011). 11 Plaintiff argues Defendant’s violated Section 1102.5(c) because “insistence that a report, 12 void of necessary information, should be redone, could constitute protected activity under 13 1102.5(c).” Opp. at 18–19. This misconstrues Section 1102.5(c); mere reporting of a violation is 14 insufficient. To survive summary judgment, the employee must show a genuine dispute of 15 material fact over whether they refused to engage in illegal activity. As Defendant notes, Plaintiff 16 has not established refusal. To the contrary:
17 Q: Did you at any point ever refuse to comply with Ms. Caballero’s directives to complete the Conroe EA within three months? 18 . . . . 5 19 A: I didn’t directly refuse. I raised extensive concerns with the 20 completion of the document and told her that we had members of the teams that were extremely concerned about it and relayed those 21 concerns and --
22 Q: Did you ever tell her that you refused to complete the Conroe EA within three months? 23 . . . . 24 A: I think it was clear based on our concerns and based on -- concerns 25 raised before we even got into the writing of the document from both Oskar and myself that we felt like it was not possible to complete 26
27 5 Throughout this block quote, these ellipses refer to omitted objections. them given the issues that we were aware of. 1 Q: Did you ever tell her that you refused to make the efforts necessary 2 to get the Conroe EA completed within three months?
3 . . . .
4 A: I felt like our conversations were clear.
5 Q: Did you ever tell her, No, I’m not going to do it?
6 . . . .
7 A: I didn’t have a chance before I was terminated. 8 Ex. A, Killgore Depo. at 228–29 (emphasis added). Plaintiff also testified that he “continued to 9 work on the document to the day [he] was fired.” Id. at 231. 10 Thus, as a matter of law, Plaintiff cannot show that he refused to work on the Conroe EA 11 or that he refused to complete the project within three months. Indeed, Plaintiff worked on it up 12 until he was terminated, which plainly shows he did not “refuse to participate in an activity that 13 would result in a violation of” law. Accordingly, he cannot maintain his Section 1102.5(c) action 14 and Defendant’s motion for summary judgment as to this claim is GRANTED. 15 C. Violation of California Labor Code Section 1102.6 16 Section 1102.6 is a burden shifting statute. It is not at issue because, as established, 17 Defendant has shown no genuine dispute of material fact exists as to Plaintiff’s 1102.5 claim. The 18 Court thus does not reach any arguments regarding Section 1102.6. 19 D. Wrongful Termination in Violation of Public Policies 20 Plaintiff’s wrongful termination in violation of public policy claim is premised on his 21 whistleblower retaliation claim. Compl. ¶ 57. Plaintiff’s whistleblower retaliation claim fails as a 22 matter of law. Thus, his wrongful termination in violation of public policy cause of action also 23 fails. Defendant’s motion for summary judgment as to this claim is GRANTED. 24 E. Punitive Damages 25 Finally, Defendant asks this Court to hold that Plaintiff is not entitled to punitive damages. 26 Mot. at 25. Plaintiff’s request for punitive damages is rooted in his first and fourth causes of 27 action. See Compl. ¶¶ 40, 59. Because these claims are dismissed from the action, punitive 1 damages are no longer pleaded. The Court thus GRANTS Defendant’s punitive damages request. 2 IV. CONCLUSION 3 For the foregoing reasons, Defendants’ Motion for Partial Summary Judgment is 4 GRANTED and Plaintiff’ s whistleblower (count 1) and wrongful termination in violation of 5 || public policy (count 4) claims are DISMISSED with prejudice. Nothing in this Order should be 6 || construed as affecting Counts 2 and 3. 7 IT IS SO ORDERED. 8 Dated: December 19, 2019 9 EDWARD J. DAVILA 10 United States District Judge 11 12
15 16 &
Z 18 19 20 21 22 23 24 25 26 27 28 || Case No.: 5:18-cv-03413-EJD ORDER GRANTING DEFENDANT’S MOTION FOR PARTIAL SUMMARY JUDGMENT