1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 NORTHERN DISTRICT OF CALIFORNIA 9 10 REGINA SALUD, CASE NO. 18-cv-01677-YGR
11 Plaintiff, ORDER GRANTING IN PART AND DENYING 12 vs. IN PART MOTION FOR SUMMARY JUDGMENT 13 EXPEDITORS INTERNATIONAL, Re: Dkt. Nos. 69, 71 14 Defendant.
15 Plaintiff Regina Salud brings the instant employment discrimination and wrongful 16 termination action against her former employer of 17 years, defendant Expeditors International 17 (“Expeditors”), alleging claims for: (1) wrongful termination/abusive discharge in violation of 18 public policy; (2) violation of California Labor Code section 1102.5; (3) age discrimination in 19 violation of the Fair Employment and Housing Act (“FEHA”), Cal. Gov’t. Code §§ 12940 et seq.; 20 (4) retaliation in violation of FEHA; and (5) failure to prevent discrimination and retaliation in 21 violation of FEHA. 22 Now before the court is Expeditors’ motion for summary judgment on all claims and on 23 plaintiff’s request for punitive damages. Having carefully considered the papers submitted, the 24 admissible evidence, the pleadings in this action, and the oral argument held on February 11, 25 2020, and for the reasons set forth below, the Court (1) GRANTS the motion for summary 26 judgment as to the FEHA claims for age discrimination, retaliation, and failure to prevent 27 discrimination, as well as plaintiff’s request for punitive damages; and (2) DENIES the motion for 1 I. BACKGROUND 2 The following facts are undisputed unless otherwise noted:1 3 Expeditors hired plaintiff as an Operations Agent on December 30, 1998. She began work 4 in January 1999. On or about August 4, 2014, plaintiff transitioned from working on-site at 5 Expeditors to working as Supervisor in the Order Management Department in the Office of 6 Shipping at Google On-Site, a special division of Expeditors that provided support for the 7 shipping activities for data centers at Google. As Supervisor in the Order Management 8 Department, plaintiff was responsible for a team of employees who executed order management 9 tasks, including, for example, processing shipments requested via Google’s ticketing systems. 10 Plaintiff initially reported to Johnathan Jenio. During that time, Jenio received a complaint 11 from Google’s Global Compliance Manager, Keunho Bae, regarding plaintiff not following 12 procedures for classifying products. Bae told Jenio that such issues put Google at risk of fines, 13 penalties, and loss of import and export privileges. The parties dispute whether these complaints 14 were communicated to plaintiff. 15 In or about October 2014, Jenio assigned Marilyn Vargas to be plaintiff’s new supervisor. 16 Jenio hoped Vargas could devote more time to coaching plaintiff and give plaintiff additional tools 17 and resources to be successful. As plaintiff’s supervisor, Vargas spent time training plaintiff by, 18 for example, showing plaintiff how to resolve customer issues and explaining how plaintiff’s 19 department should manage and process orders. 20 In or around November 2014, after approximately four months in the Supervisor role, 21 plaintiff was transferred to another role as Logistics Coordinator, a non-exempt position in the 22 NCD and GIG divisions of Google.2 As Logistics Coordinator, plaintiff was no longer responsible 23 for a team of employees. Instead, plaintiff was responsible for her own duties, including 24 25 1 See Defendant’s Separate Statement of Undisputed Material Facts, Dkt. No. 69-1; 26 Plaintiff’s Responsive Separate Statement, Dkt. No. 70-1. 27 2 The parties disagree as to the reason for plaintiff’s transfer. Expeditors proffers that 1 processing tickets and supporting the daily operations of the NCD and GIG Business Units. 2 Plaintiff continued to report to Vargas. During the period when Vargas supervised plaintiff, 3 Vargas made plaintiff aware of at least one complaint from a Google employee named Christina 4 Galea related to plaintiff’s handling of a shipping issue. Vargas also told plaintiff that Expeditors 5 wanted her to “step up” and be “more active.” On multiple occasions, Vargas and Jenio discussed 6 issues with plaintiff’s job performance, but the evidence does not indisputably show that such 7 issues were communicated to plaintiff. 8 When Vargas left Expeditors in April 2015, Eduardo Yamsuan became plaintiff’s new 9 supervisor. Thereafter, Galea complained to Yamsuan about plaintiff’s performance, specifically 10 noting that she sent orders to the wrong location, pulled orders from the wrong inventory, and 11 produced inaccurate reports. Yamsuan communicated Galea’s complaints to plaintiff, although it 12 remains in dispute when plaintiff was made aware of the issue and how much detail she was 13 given. In addition, during this period, Yamsuan made plaintiff aware of certain attendance issues. 14 Specifically, plaintiff was occasionally absent at work due to an issue with a lock hip joint. 15 Plaintiff had informed Yamsuan about the issue but did not submit documentation to Expeditors 16 for a reasonable accommodation. On several other occasions, plaintiff was late to work due to 17 traffic. 18 In or about December 2015, plaintiff again transitioned to the role of Logistics Coordinator 19 for City Block. Her new role was similar to her previous role, except that she was responsible for 20 only one Google account rather than several. Plaintiff’s direct supervisor was Violet Do. After 21 plaintiff assumed her new role, Yamsuan made Do aware of Galea’s prior complaint about 22 plaintiff and an issue raised by a Google manager named Monica Montoya, who complained that 23 plaintiff had improperly provided compliance information when doing so exceeded the scope of 24 her role in logistics. 25 While supervising plaintiff, Do became aware of at least two other customer complaints 26 regarding plaintiff’s performance. First, Google employee Perla Rios approached Do to complain 27 about plaintiff’s lack of attention to detail, which resulted in delivery of the wrong type and 1 concerns, stating that plaintiff’s improper execution of orders could cause a global delay in the 2 customer’s project. Do spoke to plaintiff about these issues and retrained her. Plaintiff appeared 3 to understand the retraining and was not the subject of any additional customer complaints.3 4 With respect to plaintiff’s employment, a separate issue arose. In late 2015 and again in 5 early 2016, Yamsuan removed overtime hours from plaintiff’s timecard. Pursuant to Expeditors 6 policy, plaintiff was supposed to obtain permission before working overtime, but plaintiff 7 understood that even if she did not obtain such permission, she would still be paid for the overtime 8 worked. After plaintiff requested that Yamsuan put the overtime back on her timecard, and 9 Yamsuan declined to do so, plaintiff complained to Jenio, who was then a District Manager. Jenio 10 corrected the timecard to reflect the overtime worked. Jenio also raised the issue with Yamsuan. 11 Yamsuan later approached plaintiff to ask why she had “throw[n] [him] under the bus.” Plaintiff 12 denied having done so, telling Yamsuan that she only wanted her timecard fixed and Yamsuan had 13 not responded to her requests. 14 In or around February 2016, Justin Hill, a Regional Manager for Expeditors, directed Jenio 15 and Yamsuan to conduct a formal performance review immediately for plaintiff, who had not 16 received such a review since July 21, 2010. Hill told Jenio and Yamusan that failure to schedule 17 and execute the annual reviews was contrary to Expeditors’ policies and would have a negative 18 effect on employee satisfaction. Jenio prepared a draft performance review, which he sent to 19 Yamsuan for comments, but the review never occurred. 20 Expeditors terminated plaintiff’s employment on March 17, 2016, purportedly due to poor 21 performance, poor attendance, and customer complaints. Expeditors did not provide plaintiff with 22 any written warning or a Performance Improvement Plan prior to the termination. On March 16, 23
24 3 The parties appear to dispute the number of times plaintiff’s supervisors spoke to her 25 about performance issues and customer complaints. Expeditors proffers evidence of several such conversations. In her separate statement, plaintiff contends that the only issues her supervisors 26 discussed with her related to absenteeism and a single customer complaint from Galea. In her own deposition testimony, however, plaintiff indicates that she had conversations with multiple 27 supervisors, including Vargas, Jenio, and Yamsuan, about customer complaints. Her testimony 1 2017, plaintiff filed a Charge of Discrimination with the Department of Fair Employment and 2 Housing (“DFEH”) against Expeditors.4 3 II. LEGAL STANDARD 4 Summary judgment is appropriate when “there is no genuine dispute as to any material fact 5 and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “A party 6 asserting that a fact cannot be or is genuinely disputed must support that assertion by . . . citing to 7 particular parts of materials in the record, including depositions, documents, electronically stored 8 information, affidavits, or declarations, stipulations . . . admissions, interrogatory answers, or other 9 materials,” or by “showing that materials cited do not establish the absence or presence of a 10 genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” 11 Id. 56(c)(1)(A), (B). Thus, summary judgment is mandated “against a party who fails to make a 12 showing sufficient to establish the existence of an element essential to that party’s case, and on 13 which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 14 322, 106 S.Ct. 2548, 2552, 91 L. Ed. 2d 265 (1986). 15 A moving party defendant bears the burden of specifying the basis for the motion and the 16 elements of the causes of action upon which the plaintiff will be unable to establish a genuine 17 issue of material fact. Id. at 323, 106 S.Ct. 2548. The burden then shifts to the plaintiff to 18 establish the existence of a material fact that may affect the outcome of the case under the 19 4 Plaintiff objects to Exhibits G, H, I, and J to the Declaration of Theodora Lee, and 20 Exhibits A, B, and C to the Declaration of Eduardo Yamsuan on the basis that they on the basis 21 that they lack authenticity, constitute hearsay, and lack foundation and personal knowledge as to comments on the email exhibits (e.g., “example of customer dissatisfaction from a customer 22 service standpoint”). With respect to authentication of Exhibits A-C, Expeditors points to Yamsuan’s declaration in which he states that the exhibits are true and correct copies of emails he 23 received from Google employees. This, however, does not explain why the documents as presented do not evidence normal, undoctored records, i.e., they do not appear to be complete 24 emails, and more notably, it does not explain when, why, and by whom the comments were added. 25 Yamsuan also testified that he had never seen the emails and tickets now proffered in Exhibit J (Bates label EXPEDITORS-000124 – EXPEDITORS-000128). Additionally, although plaintiff’s 26 deposition testimony suggests she is familiar with some of the substance of the emails, none of her statements suffice to authenticate the documents as they are presented here. Even with 27 authentication, the documents constitute classic hearsay and the evidence required to proffer them 1 governing substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2 2510, 91 L. Ed. 2d 202 (1986). 3 In the summary judgment context, the court construes all disputed facts in the light most 4 favorable to the non-moving party. Ellison v. Robertson, 357 F.3d 1072, 1075 (9th Cir. 2004). If 5 the plaintiff “produces direct evidence of a material fact, the court may not assess the credibility of 6 this evidence nor weigh against it any conflicting evidence presented by” defendants. Mayes v. 7 WinCo Holdings, Inc., 846 F.3d 1274, 1277 (9th Cir. 2017). “[C]redibility determinations, the 8 weighing of the evidence, and the drawing of legitimate inferences from facts are jury functions, 9 not those of a judge.” George v. Edholm, 752 F.3d 1206, 1214 (9th Cir. 2014) (alteration in 10 original) (quotation omitted). Thus “where evidence is genuinely disputed on a particular issue— 11 such as by conflicting testimony—that issue is inappropriate for resolution on summary 12 judgment.” Zetwick v. Cty. of Yolo, 850 F.3d 436, 441 (9th Cir. 2017) (internal quotation marks 13 omitted). 14 III. ANALYSIS 15 Defendant moves for summary judgment as to each of plaintiff’s five claims. The Court 16 considers each cause of action in turn. 17 A. Age Discrimination in Violation of FEHA 18 Plaintiff asserts a claim for age discrimination in violation of FEHA in connection with the 19 terms and conditions of her employment and the performance standard to which she was held. 20 Age discrimination claims brought under FEHA are analyzed using a three-step 21 framework. The plaintiff bears the initial burden of establishing a prima facie case of 22 discrimination. The employer then must offer a legitimate, nondiscriminatory reason for the 23 adverse employment decision. Finally, the plaintiff bears the burden of proving, by specific and 24 substantial evidence, that the employer’s proffered reason was pretextual. Godwin v. Hunt 25 Wesson, Inc., 150 F.3d 1217, 1220-21 (9th Cir. 1998); Horn v. Cushman & Wakefield W., Inc., 72 26 Cal. App. 4th 798, 806, 85 Cal. Rptr. 2d 459, 465 (1999). “The ultimate burden of persuading the 27 trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times 1 1093, 67 L. Ed. 2d 207 (1981). Consequently, if plaintiff fails to establish a prima facie case or 2 fails to present sufficient proof of pretext, the defendant is entitled to summary judgment. Martin 3 v. Lockheed Missiles & Space Co., 29 Cal. App. 4th 1718, 1734, 35 Cal. Rptr. 2d 181, 189 (1994). 4 1. Prima Facie Case 5 To establish a prima facie case of age discrimination, a plaintiff must show that (1) she 6 belongs to a protected class; (2) she was performing satisfactorily in the position held; (3) she 7 suffered an adverse employment action; and (4) some other circumstances suggesting a 8 discriminatory motive. Guz v. Bechtel Nat. Inc., 24 Cal. 4th 317, 355, 8 P.3d 1089, 1113 (2000). 9 The Ninth Circuit has noted that the fourth element should be evaluated “with some flexibility.” 10 Santillan v. USA Waste of California, Inc., 853 F.3d 1035, 1043 (9th Cir. 2017) (quoting Nidds v. 11 Schindler Elevator Corp., 113 F.3d 912, 917 (9th Cir. 1996)). Here, the parties do not dispute that 12 the first and third elements are satisfied. That is, plaintiff is in a protected category (over 40 years 13 of age) and suffered an adverse employment action (termination). 14 With respect to whether plaintiff’s job performance was satisfactory, the Court finds that 15 the record contains evidence sufficient to establish a prima facie case. While defendant proffers 16 evidence of plaintiff’s tardiness and absenteeism, as well as performance issues, plaintiff proffers 17 contrary evidence, including that Expeditors received positive feedback about plaintiff from at 18 least two Google employees.5 Further, Jenio prepared a draft performance review in or around 19 2016 with mixed comments. While rating plaintiff “below expectations” in three categories (work 20 quality and timeliness, job execution, and exceptional customer service), he also rated her as 21 “meets expectations” in four categories (effort and teamwork, attendance, training, and Expeditors 22 culture). Moreover, although at various times Jenio, Vargas, Yamsuan, and Do discussed 23 performance issues with plaintiff, the extent of the discussions is in dispute and plaintiff was never 24 given any written warning or placed on a Performance Improvement Plan before she was 25 26 5 Plaintiff contends that Expeditors has withheld plaintiff’s positive performance reviews 27 (called “KPIs”). Expeditors avers that Google has the documents, while Google directed plaintiff 1 terminated from 17 years of employment. Accordingly, plaintiff has met her initial burden on the 2 second element of the prima facie case, that is, showing that she performed satisfactorily in her 3 positions with Expeditors. 4 However, with respect to whether circumstances suggest a discriminatory motive, 5 plaintiff’s arguments fail. Although plaintiff avers that Expeditors gave preferential treatment to 6 plaintiff’s substantially younger, less experienced colleagues, the Court finds scant evidence in the 7 record to support this assertion. Plaintiff testified at her deposition that she “feel[s] like 8 [Expeditors] prefer[red] the younger ones with [a] fresh mind” and “gave them more support in 9 terms of . . . not training but guidance.” When pressed for details, plaintiff testified that she had 10 no evidence or examples of such differential treatment. She even testified that like her colleagues, 11 she had one-on-one trainings with Jenio, Vargas and Yamsuan during her time at Expeditors. 12 Mere supposition of discrimination is insufficient to state a prima facie case. 13 Further, although plaintiff’s younger colleagues, Bernard Bach, Tawny San Juan, and Do, 14 were promoted in 2015, plaintiff has not proffered evidence that she was competing or even 15 eligible for those promotions. Plaintiff also testified that Bach was qualified for his new position 16 and she had no reason to believe San Juan was not qualified for her new position. With respect to 17 Do, plaintiff testified that besides her belief that Do had limited logistics experience, plaintiff had 18 no reason to believe Do was not qualified for her new supervisory position or that Do did not 19 perform her duties as a supervisor competently. 20 Likewise, although Expeditors did not grant plaintiff’s request for a transfer to another 21 department in 2016, this decision is not surprising given that plaintiff already had been transferred 22 several times, to positions with declining responsibility, over the previous two years. Finally, 23 plaintiff’s proffered evidence that Yamsuan “blamed” plaintiff for a mistake made by Miriam 24 Tam, another Logistics Coordinator, is not evidence of discriminatory motive. The evidence 25 shows that Yamsuan noted both plaintiff’s and Tam’s involvement in the relevant error, and in any 26 event, plaintiff has not proffered any evidence of Tam’s age relative to her own.6 27 1 Because there is no evidence in the record suggesting discrimination on the basis of age, 2 the Court finds plaintiff has failed to state a prima facie case of age discrimination. Accordingly, 3 Expeditor’s motion for summary judgment as to this claim is GRANTED.7 4 B. Retaliation in Violation of FEHA 5 Plaintiff does not oppose Expeditor’s motion for summary judgment as to plaintiff’s claim 6 of retaliation in violation of FEHA. (Dkt. No. 70 at 6 n.1.) Accordingly, this cause of action is 7 DISMISSED WITH PREJUDICE. 8 C. Failure to Prevent Discrimination and Retaliation 9 The parties agree that plaintiff’s cause of action for failure to prevent discrimination is 10 derivative of her claim for age discrimination. Thus, this claim fails for the same reasons. 11 Defendant’s motion for summary judgment as to plaintiff’s claim for failure to prevent 12 discrimination claim is GRANTED. 13 D. Retaliation in Violation of California Labor Code § 1102.5 14 Plaintiff next asserts a cause of action for violation of California Labor Code section 15 1102.5 arising out of her alleged requests for corrections to her timecard in December 2015 and in 16 January 2016. 17 Section 1102.5 is a “whistleblower” statute which prohibits an employer from retaliating 18 against an employee who discloses information to a government or law enforcement agency 19 7 Even if plaintiff had stated a prima facie case, her age discrimination claim still would 20 fail. Expeditors has proffered evidence that plaintiff was terminated due to absenteeism, 21 performance issues, and customer complaints, and thus, would satisfy its burden of proffering a legitimate, non-discriminatory reason for terminating plaintiff’s employment. The burden would 22 then shift back to plaintiff to show, by specific and substantial evidence, that Expeditor’s legitimate reason for terminating her employment was pretextual. Plaintiff has not met satisfied 23 this burden. Although plaintiff may have performed well or adequately in some respects, the evidence shows shortcomings in her performance that lend support to the decision to terminate. 24 Further, that Yamsuan and Jenio met to discuss plaintiff’s termination in 2016, at which time Jenio 25 asked Yamsuan to provide him with customer complaints about plaintiff, is not specific and substantial evidence of pretext. Jenio already was aware that plaintiff had received some positive 26 feedback from customers, and there is no evidence Jenio did not consider this feedback when deciding to terminate her. Merely asking for customer complaints that could support termination, 27 without more, is reasonable from the standpoint of any employer and is not evidence of pretext. 1 “where the employee has reasonable cause to believe that the information discloses a violation of 2 state or federal statute, or a violation or noncompliance with a state or federal rule or 3 regulation.” Cal. Lab. Code § 1102.5(b). To establish a prima facie case for retaliation under 4 section 1102.5, an employee must show (1) she engaged in protected activity, (2) the employer 5 subjected the employee to an adverse employment action, and (3) a causal link between the 6 protected activity and the adverse employment action. Akers v. Cty. of San Diego, 95 Cal. App. 7 4th 1441, 1453, 116 Cal. Rptr. 2d 602, 610 (2002). 8 The same prima facie elements and burden-shifting framework applicable to the FEHA 9 retaliation claim apply to the section 1102.5 claim. That is, if an employee establishes the prima 10 facie case, the employer must offer a legitimate, nonretaliatory reason for the adverse employment 11 action, after which the burden shifts back to the employee to show the proffered reason is pretext 12 for retaliation. Mokler v. Cty. of Orange, 157 Cal. App. 4th 121, 138, 68 Cal. Rptr. 3d 568, 580 13 (2007).8 14 Expeditors does not appear to dispute that plaintiff engaged in a protected activity by 15 reporting to Jenio that Yamsuan had removed overtime hours from her timecard. Further, and as 16 previously explained, there is no dispute that Expeditors subjected plaintiff to an adverse 17 employment decision, namely, termination. Rather, Expeditors argues that plaintiff’s section 18 1102.5 claim fails as a matter of law because plaintiff cannot (1) show the requisite nexus between 19 her request to have her timecard corrected and her termination, or (2) rebut Expeditors’ legitimate 20 non-retaliatory reason for terminating her employment. The Court considers each purported basis 21 for summary judgment in turn. 22
23 8 In her opposition, plaintiff cites California Labor Code section 1102.6 for the proposition that Expeditors is subject to a “heightened evidentiary burden” on summary judgment and must 24 provide “clear and convincing evidence” that plaintiff would have been terminated even if she had 25 not engaged in protected activity. However, section 1102.6 “does not alter the analysis of pretext at the summary judgment stage in cases involving [section] 1102.5.” Abdel v. Ikon Office Sols., 26 Inc., No. C-05-1685 JCS, 2006 WL 2474331, at *10 n.5 (N.D. Cal. Aug. 25, 2006) (citing Patten v. Grant Joint Union High School Dist., 134 Cal. App. 4th 1378, 1384, 37 Cal. Rptr. 3d 113 27 (2005)); Killgore v. Specpro Prof’l Servs., LLC, No. 5:18-CV-03413-EJD, 2019 WL 6911975, at 1 1. Nexus 2 Plaintiff argues that a causal nexus exists based on, among other things, the timing 3 plaintiff’s complaints relative to her termination and Yamsuan approaching her after she 4 complained to Jenio about her timecard. The Court agrees. 5 Both Jenio and Yamsuan were aware of plaintiff’s complaints about the omission of 6 overtime hours from her timecard. Plaintiff has proffered evidence that Yamsuan confronted her 7 about raising this issue to Jenio. Fewer than three months later, without warning, Expeditors 8 terminated plaintiff’s employment. This evidence is sufficient to demonstrate a nexus between 9 plaintiff’s complaints and her termination. See Morgan v. Regents of Univ. of Cal., 88 Cal. App. 10 4th 52, 69-70, 105 Cal. Rptr. 2d 652, 666 (2000) (courts may infer causation from circumstantial 11 evidence, including “the employer’s knowledge that the [employee] engaged in protected activities 12 and the proximity in time between the protected action and allegedly retaliatory employment 13 decision”) (quoting Jordan v. Clark, 847 F.2d 1368, 1376 (9th Cir. 1988)); Villiarimo v. Aloha 14 Island Air, Inc., 281 F.3d 1054, 1065 (9th Cir. 2002) (“[C]ausation can be inferred from timing 15 alone where an adverse employment action follows on the heels of protected activity.”). 16 2. Rebuttal to Legitimate Reason for Termination 17 Expeditors further contends that plaintiff’s section 1102.5 claim fails because she cannot 18 rebut Expeditors’ legitimate, non-retaliatory reasons for terminating her employment, namely, 19 absenteeism, customer complaints, and poor job performance. 20 Expeditors’ argument fails to persuade. Although temporal proximity alone does not 21 create a triable fact as to pretext, the timing of plaintiff’s complaints to Jenio about her timecard 22 (late 2015 and early 2016), Jenio’s meeting with Yamsuan to discuss plaintiff’s termination 23 (February 2016), plaintiff’s ultimate termination (March 2016), and her 17-year employment, 24 undermine Expeditors’ explanation for the adverse employment action. Further, plaintiff has 25 proffered evidence that Yamsuan began treating her differently after she reported the timecard 26 issue to Jenio, and on one occasion, directly confronted her about it by asking why she had 27 “throw[n] [him] under the bus.” During this same period of time in early 2016, Jenio drafted a 1 Yamsuan did not bother to complete the review prior to terminating plaintiff’s employment, nor 2 did Expeditors provide plaintiff with any written warning or a Performance Improvement Plan. 3 Ultimately, although Expeditors has proffered evidence of absenteeism, performance issues, and 4 customer complaints beginning in 2014, plaintiff was a 17-year employee of the company, and 5 there remains a triable issue of material fact regarding what precipitated her termination in 2016.9 6 For its part, Expeditors has proffered evidence that plaintiff violated Expeditors policy by 7 working overtime without seeking prior approval. Plaintiff, however, has proffered 8 counterevidence that Expeditors’ overtime policy provided that employees were to be paid 9 overtime whether or not time was authorized. Expeditors further proffers that it eventually paid 10 plaintiff for all time worked. Even if it did pay plaintiff, however, a reasonable jury could find 11 that Expeditors also terminated plaintiff for retaliatory reasons. 12 Thus, the Court finds that the evidence in the record, when viewed as a whole, raises a 13 triable issue of fact regarding whether Expeditors’ proffered reason for terminating plaintiff was 14 pretext for retaliation arising out of her complaints about timekeeping. As such, Expeditors’ 15 motion for summary judgment on the section 1102.5 claim is DENIED. 16 E. Wrongful Termination/Abusive Discharge in Violation of Public Policy 17 The parties agree that plaintiff’s cause of action for wrongful termination in violation of 18 public policy is derived, at least in part, from her section 1102.5 claim. As such, the claim 19 survives for the reasons previously explained. Expeditors’ motion for summary judgment as to the 20 wrongful termination claim is DENIED. 21 F. Punitive Damages 22 Finally, the Court must consider whether Expeditors is entitled to summary judgment on 23 plaintiff’s request for punitive damages. “Punitive damages are proper only when the tortious 24 conduct rises to levels of extreme indifference . . . a level which decent citizens should not have to 25
26 9 Expeditors argues that although plaintiff’s issues began in 2014, there were at least two customer tickets raising concerns about plaintiff’s performance in early 2016, shortly before her 27 termination. However, there is no evidence that Do, who addressed these customer concerns, was 1 tolerate.” Tomaselli v. Transamerica Ins. Co., 25 Cal. App. 4th 1269, 1287, 31 Cal. Rptr. 2d 433, 2 || 444 (1994). Such a remedy should be granted only with the greatest caution. Dyna-Med, Inc. v. 3 || Fair Emp’t & Hous. Comm’n., 43 Cal. 3d 1379, 1392, 743 P.2d 1323, 1330 (1987). To state a 4 || claim for punitive damages, a plaintiff must show “by clear and convincing evidence that the 5 defendant is guilty of fraud, oppression or malice.” Cal. Civ. Code § 3294(a). With respect to 6 || corporate employers, punitive damages may be awarded if a plaintiff can show that an “officer, 7 || director, or managing agent of the corporation” (1) had “advance knowledge of the unfitness of the 8 employee [accused of wrongdoing] and employed him or her with a conscious disregard of the 9 || rights or safety of others” or (2) “authorized or ratified the wrongful conduct for which the 10 || damages are awarded” or (3) engaged in “oppression, fraud, or malice.” Cal. Civ. Code § 3294(b). 11 Here, the Court is not persuaded by plaintiff's argument that there is evidence of animus 12 || on the part of Jenio and Yamsuan, or that Expeditors concealed material facts about plaintiffs 5 13 favorable job performance. Although plaintiff has established triable issues related to retaliation, 14 she has not proffered evidence that Expeditors, through any officer, director, or managing agent, 15 acted with a level of culpability that rises to the level of extreme indifference. Thus, Expeditors’ 16 || motion for summary judgment on plaintiff's request for punitive damages is GRANTED. 3 17 IV. CONCLUSION 18 For the reasons stated above, the Court (1) GRANTS the motion for summary judgment as 19 to the FEHA claims for age discrimination, retaliation, and failure to prevent discrimination, as 20 || well as plaintiff's request for punitive damages; and (2) DENIES the motion for summary judgment 21 as to the wrongful termination and section 1102.5 claims.'° 22 This Order terminates Docket Numbers 69 and 71. 23 IT Is SO ORDERED. 24 || Dated: April 10, 2020 Dypeee Mitel tecge— YVONNE GONZALEZ ROGERS UNITED STATES DISTRICT COURT JUDGE 26 27 10 For the reasons stated on the record at the hearing on the motion, plaintiff’s 28 administrative motion to seal certain documents designated as “Confidential” by Expeditors. (Dkt. No. 71) is DENIED.