Larry Luchetti v. Hershey Company

412 F. App'x 978

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 27, 2011
• Docket: 09-17193
• Status: Unpublished

Opinion

MEMORANDUM **

Luchetti appeals from the district court’s summary judgment in favor of The Hershey Company (Hershey). The district court had jurisdiction pursuant to 28 U.S.C. § 1332(a)(1) and we have jurisdiction over this timely appeal pursuant to 28 U.S.C. § 1291. We affirm.

Both California Labor Code § 1102.5 (West 2010) and § 6310 (West 2003) require that Luchetti prove he expressed his opposition to Hershey’s safety practices or lack thereof. Daly v. Exxon Corp., 55 Cal.App.4th 39, 63 Cal.Rptr.2d 727, 729 (Cal.Ct.App.1997); Taylor v. Lockheed Martin Corp., 78 Cal.App.4th 472, 92 Cal.Rptr.2d 873, 881-82 (Cal.Ct.App.2000); Yanowitz v. L’Oreal USA, Inc., 36 Cal.4th 1028, 32 Cal.Rptr.3d 436, 116 P.3d 1123, 1133 (2005). Luchetti argues that his oral complaints to Soles, his supervisor, together with his email with a copy to Soles, create a triable issue of fact as to whether Luchetti was expressing opposition to participation in the status quo, which included ongoing violations of Cal-OSHA. The district court disagreed and so do we. Neither Luchetti’s email, nor his conversation with Soles, is evidence of any opposition to Hershey’s safety practices. The evidence shows only that Luchetti discussed how to best address safety practices at the plant with his supervisors and co-worker. In addition, none of Luchetti’s evidence shows that he complained about the legality of Hershey’s practices or procedures. See Holmes v. General Dynamics Corp., 17 Cal.App.4th 1418, 22 Cal.Rptr.2d 172, 181 (Cal.Ct.App.1993). Finally, Luchetti failed to rebut Hershey’s evidence that his termi nation was for a legitimate reason that was not a pretext for retaliation.

AFFIRMED.

** This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.