1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 PETER TUCKER, No. 2:18-cv-00528-MCE-CKD 12 Plaintiff, 13 v. MEMORANDUM AND ORDER 14 CYSTIC FIBROSIS FOUNDATION, 15 Defendant. 16 CYSTIC FIBROSIS FOUNDATION, 17 Cross-Complainant, 18 v. 19 PETER TUCKER, 20 Cross-Defendant. 21 22 23 Through the present action, Plaintiff Peter Tucker (“Plaintiff” or “Tucker”) seeks 24 damages from his former employer, Defendant Cystic Fibrosis Foundation (“Defendant” 25 or “CFF”) after he was terminated by CFF in 2017. Plaintiff’s Complaint includes three 26 different causes of action, for age discrimination in violation of California’s Fair 27 Employment and Housing Act (“FEHA”), Cal. Govt. Code §§ 12940, et seq., wrongful 28 termination premised on the alleged FEHA violation, and for defamation under California 1 law given statements that were purportedly made by other CFF personnel about Plaintiff 2 and the circumstances following his termination. 3 This case was initiated in state court, after which Defendant removed it to this 4 Court, citing diversity jurisdiction under 28 U.S.C. § 1332. Now before the Court is 5 Defendant’s Motion for Summary Judgment, or alternatively for summary adjudication of 6 issues brought pursuant to Federal Rule of Civil Procedure 56.1 According to Defendant, 7 Plaintiff cannot establish a viable claim for age discrimination and, as a consequence, 8 his derivative wrongful termination claim fails as well. Finally, Defendant alleges that 9 Plaintiff’s defamation cause of action is also fatally flawed because the statements in 10 question were privileged as internal communications regarding a matter of common 11 interest and were true in any event. As set forth below, Defendant’s Motion is 12 GRANTED.2 13 14 BACKGROUND 15 16 After previously working for CFF’s Sacramento Chapter between 2000 and 2005, 17 Plaintiff was rehired in 2010 as the Chapter’s Senior Development Director. In 2012, he 18 received a promotion to Executive Director and remained in that position until he was 19 terminated on December 13, 2016. It appears that Plaintiff performed successfully as an 20 Executive Director and was the subject of no disciplinary proceedings until late 2016, 21 when certain discrepancies were noted during the course of an office audit handled by 22 CFF’s Senior Internal Auditor, Brian Presley. 23 A. Crow Canyon Country Club Event 24 In the course of Presley’s October 18, 2016, visit to the Sacramento office in 25 conjunction with the audit, he questioned Plaintiff about the coding of certain revenue
26 1 All further references to “Rule” or “Rules” are to the Federal Rules of Civil Procedure unless otherwise noted. 27
2 Having determined that oral argument would not be of material assistance, the Court ordered this 28 matter submitted on the briefs in accordance with E.D. Local Rule 230(g). 1 received during a third-party fundraising event held at the Crow Canyon Country Club 2 and organized by a CFF volunteer, JoAnne Williams. Plaintiff told Presley that Williams 3 had asked that the proceeds from the event be used to support the Sacramento 4 Chapter’s 2017 “Unmask the Cure” event, but Plaintiff was unable to locate the letter he 5 claimed Williams had sent in making that request. 6 About a month later, on November 14, 2016, Plaintiff sent Presley an email 7 attaching “the request[ed] letter that I had received from the event organizer, JoAnne 8 Williams, late last year.” CFF’s Exhibits in Support of Mot for Summ J., ECF No. 12-8 9 (“Def.’s Exs.), Ex. 12. The letter, however, was unsigned and dated two months before 10 the event proceeds were known to have been received. Further investigation revealed 11 that the document had been created less than four minutes before Plaintiff sent the 12 email to which it was attached. Decl. of Brian Presley, ECF No. 12-5, ¶ 7. 13 During a follow-up call three days later with Presley and two members of CFF’s 14 audit department, Ashleigh Duce and Eleana Seek, Plaintiff was further questioned 15 about the circumstances in which the letter he had forwarded to Presley had been 16 received. According to Presley, Plaintiff repeatedly indicated that the letter had been 17 received in the mail and that he had simply scanned and attached it to his November 18, 18 2016 email. Id. at ¶ 8. When confronted with the fact that the document’s properties 19 showed that it had been created only recently, Plaintiff changed his story, indicating that 20 he created the letter using Microsoft Word based on a verbal conversation with 21 Ms. Williams. Id. at ¶ 9. Then, about forty-five minutes later, Plaintiff emailed a signed 22 copy of the letter in question, stating that “attached is the signed letter from JoAnne 23 Williams that we discussed and that I knew I had received via the mail as I recalled.” Id. 24 at ¶ 9. Ultimately, when CFF’s IT Department examined the letter, it determined the 25 document had not been generated until January of 2016, several months after it was 26 dated and about the time the funds for the Crow Canyon Event were received. See 27 Def.’s Ex. 14. 28 /// 1 B. The Ladies’ Tea Event 2 During his initial October 18, 2016, in-office audit visit already discussed above, 3 Brian Presley also asked Plaintiff about another event from which the Sacramento 4 Chapter had received proceeds. JoAnne Williams, the same volunteer responsible for 5 the Crow Canyon Country Club event discussed above, also hosted a “Ladies-Tea 6 Event” to raise awareness of cystic fibrosis and to encourage donations. The Chapter 7 had received 72 checks from the event, all in unique amounts. When asked about why 8 the amounts were different, Plaintiff told Presley that the odd amounts were meant as a 9 “joke” by the attendees and were not related to any purchases that were made. Presley 10 Decl., ¶ 12. When Presley later reviewed the checks themselves, however, he 11 discovered that several referred to a “craft fair” and a “boutique event”. Id. at ¶ 13. 12 When Presley asked Plaintiff again about the event during his follow-up telephone call 13 with Ms. Duce and Ms. Seek, Plaintiff admitted that the information he provided during 14 his initial meeting with Presley was inaccurate, and that in fact, many of the checks were 15 used to purchase donated merchandise at the event, including “ornaments, necklaces 16 and other crafts.” Id. at ¶ 14. CFF alleges that Plaintiff tried to conceal the nature of the 17 donations at the Ladies’ Tea Event because to the extent physical items were 18 purchased, a fair market value must be assigned to each item in order to properly 19 account the donation for tax purposes. See Def.’s Opening Mem., n.2, 13:27-28. 20 C. 2016 Sacramento Great Strides Auction 21 Brian Presley also brought up a third concern during the course of his initial in- 22 office audit visit on October 18, 2016, concerning certain items sold by the Sacramento 23 Chapter at yet another CFF fundraiser, the 2016 Sacramento Great Strides Auction. 24 When Plaintiff was unable to provide a list of the items sold at that time, Presley followed 25 up with an email on October 25, 2016, reiterating his request for the auction list. Plaintiff 26 emailed a list three days later. 27 In the course of discovery, CFF claims it discovered that information provided by 28 Plaintiff concerning the items sold was intentionally inaccurate. An email string between 1 Plaintiff and CFF Field Operations Supervisor Damon Tennyson discussed how Plaintiff 2 should respond to the auditor, with Plaintiff suggesting he planned to not disclose two 3 items sold at the auction, a pre-lit Christmas tree and group guitar lessons. See Def.’s 4 Ex. 5. Plaintiff admitted at deposition that Tennyson had told him, in response, to 5 disclose everything to the auditors, even if there were documentation or other issues. 6 Pl.’s Dep., 50:22-25.3 Plaintiff nonetheless failed to include either the Christmas tree or 7 the guitar lessons on the list provided to the auditors, thereby concealing the sale of 8 those items from them. Def.’s Ex. 6. In addition, when questions were raised by the 9 auditor as to whether three other items listed as “donor not claimed” had in fact been 10 sold, Plaintiff’s email to Tennyson conceded that two of the items had been sold. Id. 11 at 8. Plaintiff’s subsequent email to the auditor on October 31, 2016 nonetheless 12 indicated that the “[t]wo items were not paid for nor picked up leaving only the one 13 tangible item needing sales tax to be paid.” Id. at 9 (emphasis added). Plaintiff admitted 14 at deposition that, to the extent this was untrue, it was violation of CFF policy to provide 15 the auditor with inaccurate information. Pl.’s Dep., 67:21-24. 16 D. The Internal Audit Report and Plaintiff’s Response 17 After completing its investigation, CFF’s Internal Audit Group circulated a draft 18 report (the “Report”) raising serious questions about representations made by Plaintiff 19 during the course of the audit, concluding, with respect to the above-enumerated 20 circumstances, that “there were at least two instances where the Executive Director 21 provided false or misleading information to the auditor.” Report, Def.’s Ex. 1, p. 3, ¶ 3. 22 Plaintiff responded to the Report by sending an email to his immediate supervisor, Anne 23 Harris (CFF’s Director of Field Management), on December 4, 2016. Def’s Ex. 18. He 24 stated he was caught off guard and “startled” by the auditors’ request for information 25 concerning events that had occurred, in some cases, as much as a year beforehand. 26 Plaintiff also attributed some of the discrepancies concerning JoAnne Williams’ letter to 27 3 Complete copies of Plaintiff’s deposition transcripts were lodged with the Court by both sides in 28 connection with their briefing on the instant Motion. 1 clerical error. He further claimed that after his initial meeting with Brian Presley on 2 October 18, 2016, he contacted Ms. Williams, who helped jog his memory about the 3 nature of the Ladies’ Tea Event and the items that were sold. Id. at p. 5. 4 E. Plaintiff’s Termination 5 On December 5, 2016, CFF placed Plaintiff on leave pending the results of its 6 investigation. Plaintiff asked to provide additional information and did so by a 7 December 11, 2016, email to Glen Goldmark, CFF’s Senior Vice President of Human 8 Resources. In that email, Plaintiff reiterated much of the same information he had 9 already offered during the course of the audit and his subsequent email to Anne Harris 10 discussed above. Def.’s Ex. 19. 11 On December 13, 2016, CFF notified Plaintiff by letter from Ms. Harris that it was 12 terminating his employment on grounds that CFF had “lost confidence” in Plaintiff’s 13 ability to lead the Sacramento chapter given the “changing information” he provided to 14 the auditors. Pl.’s Appendix of Exhibits, ECF No. 15-2 (Pl.’s Exs.), Ex. 11. According to 15 CFF, it was Marc Ginsky, Defendant’s Executive Vice President and Chief Operating 16 Officer (“COO”), who actually made the decision to discharge Plaintiff. Ginsky Decl., 17 ECF No. 12-7, ¶¶ 4-5. 18 F. Defendant’s Post-Termination Statements 19 Following his termination, Plaintiff asked Anne Harris to provide a further 20 explanation as to why CFF had ended his employment. Ms. Harris, in turn, sent an 21 email to other management personnel asking for their input on how she should reply, 22 stating that “[m]ay I respond to him explaining that he lied during the audit process and 23 his story changed, and as a result we lost trust and confidence.” Def.’s Ex. 22. Plaintiff 24 claims this statement was defamatory. 25 CFF’s staff also were faced with inquiries from the public as to why Plaintiff had 26 been terminated, perhaps in response to information Plaintiff himself provided about the 27 circumstances surrounding his discharge. During emails that ensued as to both that 28 issue and Plaintiff’s own inquiry mentioned above, Eleana Seek, CFF’s Chief Audit and 1 Compliance Officer, wrote Marc Ginsky, Defendant’s COO, stating, in pertinent part, that 2 “[P]laintiff made up stories and changed them on multiple occasions.” She added that 3 had Plaintiff “been truthful from the start when we followed up with him, termination could 4 have been avoided.” Def.’s Ex. 21. Ginsky concurred with that assessment in another 5 email, suggesting that “nothing we have received changes the underlying fact that he 6 made up a story and changed it.” Id. Plaintiff alleges he was defamed by those 7 statements. 8 Finally, in the initial session of Plaintiff’s deposition he claimed that his 9 replacement as Executive Director for the Sacramento Chapter, Cole Jacobson, told him 10 that he had been told by “someone in management” that he was terminated for 11 “misappropriating funds.” Pl.’s Dep., 186:18-187:5. At the second session of Plaintiff’s 12 deposition, however, his testimony changed when Plaintiff stated that he was terminated 13 for “lying during the audit” and claimed that it in fact was Marc Ginsky who conveyed that 14 information to Jacobson. Pl.’s Dep., 330:25-331:25; 340:17-341:14. Plaintiff alleges that 15 Ginsky defamed him by making that statement. Ginsky, for his part, does not recollect 16 having made the statement but claims that any information he did convey to Jacobson 17 concerning Plaintiff’s departure was only for purposes of helping Jacobson deal with any 18 community backlash as a result of Plaintiff’s termination, and in order to impress on 19 Jacobson the importance of strict financial compliance. Ginsky Decl., ¶ 8. 20 21 STANDARD 22 23 The Federal Rules of Civil Procedure provide for summary judgment when “the 24 movant shows that there is no genuine dispute as to any material fact and the movant is 25 entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v. 26 Catrett, 477 U.S. 317, 322 (1986). One of the principal purposes of Rule 56 is to 27 dispose of factually unsupported claims or defenses. Celotex, 477 U.S. at 325. 28 /// 1 Rule 56 also allows a court to grant summary judgment on part of a claim or 2 defense, known as partial summary judgment. See Fed. R. Civ. P. 56(a) (“A party may 3 move for summary judgment, identifying each claim or defense—or the part of each 4 claim or defense—on which summary judgment is sought.”); see also Allstate Ins. Co. v. 5 Madan, 889 F. Supp. 374, 378-79 (C.D. Cal. 1995). The standard that applies to a 6 motion for partial summary judgment is the same as that which applies to a motion for 7 summary judgment. See Fed. R. Civ. P. 56(a); State of Cal. ex rel. Cal. Dep’t of Toxic 8 Substances Control v. Campbell, 138 F.3d 772, 780 (9th Cir. 1998) (applying summary 9 judgment standard to motion for summary adjudication). 10 In a summary judgment motion, the moving party always bears the initial 11 responsibility of informing the court of the basis for the motion and identifying the 12 portions in the record “which it believes demonstrate the absence of a genuine issue of 13 material fact.” Celotex, 477 U.S. at 323. If the moving party meets its initial 14 responsibility, the burden then shifts to the opposing party to establish that a genuine 15 issue as to any material fact actually does exist. Matsushita Elec. Indus. Co. v. Zenith 16 Radio Corp., 475 U.S. 574, 586-87 (1986); First Nat’l Bank v. Cities Serv. Co., 391 U.S. 17 253, 288-89 (1968). 18 In attempting to establish the existence or non-existence of a genuine factual 19 dispute, the party must support its assertion by “citing to particular parts of materials in 20 the record, including depositions, documents, electronically stored information, 21 affidavits[,] or declarations . . . or other materials; or showing that the materials cited do 22 not establish the absence or presence of a genuine dispute, or that an adverse party 23 cannot produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1). The 24 opposing party must demonstrate that the fact in contention is material, i.e., a fact that 25 might affect the outcome of the suit under the governing law. Anderson v. Liberty Lobby, 26 Inc., 477 U.S. 242, 248, 251-52 (1986); Owens v. Local No. 169, Assoc. of W. Pulp and 27 Paper Workers, 971 F.2d 347, 355 (9th Cir. 1987). The opposing party must also 28 demonstrate that the dispute about a material fact “is ‘genuine,’ that is, if the evidence is 1 such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 2 477 U.S. at 248. In other words, the judge needs to answer the preliminary question 3 before the evidence is left to the jury of “not whether there is literally no evidence, but 4 whether there is any upon which a jury could properly proceed to find a verdict for the 5 party producing it, upon whom the onus of proof is imposed.” Anderson, 477 U.S. at 251 6 (quoting Improvement Co. v. Munson, 81 U.S. 442, 448 (1871)) (emphasis in original). 7 As the Supreme Court explained, “[w]hen the moving party has carried its burden under 8 Rule [56(a)], its opponent must do more than simply show that there is some 9 metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 586. Therefore, 10 “[w]here the record taken as a whole could not lead a rational trier of fact to find for the 11 nonmoving party, there is no ‘genuine issue for trial.’” Id. at 587. 12 In resolving a summary judgment motion, the evidence of the opposing party is to 13 be believed, and all reasonable inferences that may be drawn from the facts placed 14 before the court must be drawn in favor of the opposing party. Anderson, 477 U.S. at 15 255. Nevertheless, inferences are not drawn out of the air, and it is the opposing party’s 16 obligation to produce a factual predicate from which the inference may be drawn. 17 Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff’d, 18 810 F.2d 898 (9th Cir. 1987). 19 20 ANALYSIS 21 22 A. Second Cause of Action: Age Discrimination under FEHA 23 FEHA prohibits an employer from terminating an employee for various reasons, 24 including the employee’s age. Cal. Gov. Code § 12940(a). As Defendant points out, 25 age discrimination can be established either by direct or circumstantial evidence. Here, 26 Plaintiff points to no direct evidence suggesting that he was terminated because of his 27 age. No comments made by any of CFF’s management team who decided to terminate 28 Plaintiff, for example, have been identified. 1 In order to establish age discrimination claim circumstantially, both California and 2 federal courts utilize the so-called McDonnell-Douglas burden shifting framework to 3 determine whether a viable claim has been presented. Guz v. Bechtel Nat’l Ins., 4 24 Cal. 4th 317, 359 (2000). Under that framework, the initial burden of establishing a 5 prima facie case of age discrimination rests with the plaintiff. To satisfy that burden, the 6 plaintiff must demonstrate that he was: (1) a member of the protected class (at least age 7 40); (2) performing his job satisfactorily; (3) subject to an adverse employment action; 8 and (4) replaced by a substantially younger employee. Coleman v. Quaker Oats Co., 9 232 F.3d 1271, 1281 (9th Cir. 2000). If Plaintiff establishes these elements, then the 10 burden shifts to the employer, here CFF, to articulate a legitimate nondiscriminatory 11 reason for its employment decision. Id. Then, if CFF is successful in doing so, the 12 burden shifts again to Plaintiff to show that Defendant’s reason is a pretext for a 13 discriminatory motive. Id. Evidence too weak to support a rational inference of 14 discriminatory intent cannot support a finding of discrimination or prevent summary 15 judgment for CFF. Guz v. Bechtel, 24 Cal. 4th at 369-70. 16 In Plaintiff’s case, it is undisputed that he was over 40 years old Defendant 17 nonetheless claims he cannot make a prima facie case of discrimination because 18 Plaintiff, having provided the CFF internal auditors false and/or misleading information 19 prior to his termination, was not performing his job in a satisfactory manner. Plaintiff told 20 Brian Presley that he was attaching a copy of the letter he received from JoAnne 21 Williams concerning the Crow Canyon Country club event, rather than a Word version he 22 created on his own computer. Moreover, when repeatedly questioned about how he had 23 received the letter he emailed to the auditors, Plaintiff continued to insist that he had 24 received it in the mail. Additionally, while Plaintiff ultimately told the auditors he had 25 emailed the draft letter for Ms. Williams to sign in November of 2015, Plaintiff never 26 provided any such emails and a search of Plaintiff’s computer failed to show that any 27 were sent. Finally, when CFF had its IT Department examine the letter, it found that the 28 letter had not been created until approximately January of 2016, several months later 1 and at about the time the funds in question were received. Def.’s Ex. 14. Even Plaintiff 2 admitted that he had provided misleading information to the auditors concerning 3 Ms. Williams’ donor letter. Pl.’s Dep., 136:17-139:4. 4 On another topic, as detailed above, Plaintiff failed to disclose that physical items 5 had been purchased at the Ladies’ Tea event, and while he initially claimed to have 6 forgotten the details, Plaintiff failed to update the auditors even after a telephone 7 conversation with Ms. Williams in October of 2016 “jogged” his memory. 8 Finally, at yet another event, the 2016 Sacramento Great Strides Auction, Plaintiff 9 failed to disclose that several items had sold when, as evidenced by his email to Damon 10 Tennyson described above, he knew that they had been. He nonetheless persisted in 11 telling the auditors otherwise even after being advised by Tennyson that he needed to 12 make a full disclosure to the auditors. 13 Particularly when considered together, these collective lapses were of legitimate 14 concern to CFF. As CFF’s Motion points out, donations are the lifeblood of any non- 15 profit charitable organization and audits ensuring that such donations are properly 16 handled are of paramount importance since the discovery of mishandled donations can 17 lead to potentially crippling tax audit consequences. As CFF’s Chief Audit and 18 Compliance Officer attests, “financial transparency and donor confidence in the financial 19 integrity of non-profits are critical to their continued existence.” Decl. of Eleana Seek, 20 ECF No. 12-6, ¶ 2. 21 The numerous inconsistencies raised by the evolving explanations Plaintiff 22 provided during the audit cannot be discounted, and certainly implicate whether Plaintiff 23 was performing adequately at the time he was terminated for purposes of making a 24 prima facia claim of age discrimination. 25 Even if we assume that Plaintiff has satisfied his burden in making a prima facie 26 case such that the burden shifts to Defendant to provide a legitimate, non-discriminatory 27 reason for his termination, the result does not change since, given the circumstances 28 described above, the Court believes that CFF has satisfied its burden in demonstrating 1 non-discriminatory reasons why it discharged Plaintiff. Marc Ginsky, Defendant’s COO, 2 made the actual termination decision based on the findings in the Audit Report 3 concluding that Plaintiff had provided false and misleading information during the course 4 of the Sacramento Chapter’s 2016 Audit. Ginsky concluded that “the findings in the 5 Audit Report were too egregious to allow Plaintiff to continue overseeing the Sacramento 6 Chapter,” particularly given the fact that Ginsky had emphasized since assuming his 7 position earlier in 2016 “the need for strict financial compliance” and a lack of tolerance 8 for “anything less than complete financial transparency in the operation of our local 9 Chapters.” Ginsky Decl., ¶¶ 4-5. Perhaps even more significantly, as Anne Harris’ 10 termination letter attests, Plaintiff’s shifting explanations during the audit caused CFF 11 management to lose confidence in his ability to lead the Sacramento Chapter. Pl.’s 12 Ex. 1, Seek Decl., ¶ 9. 13 While Plaintiff claims that CFF’s investigation was inadequate because, for 14 example, it failed to contact JoAnne Williams to confirm that her donor intent was indeed 15 as stated in the November 2015 letter, as CFF points out the issue became not 16 Ms. Williams’ intent but rather its trust in Plaintiff’s leadership as a result of the 17 misleading and/or inaccurate information he provided. Additionally, although Plaintiff 18 takes issue with CFF’s failure to provide the progressive discipline it normally utilizes in 19 addressing employee shortcomings, CFF felt that the gravity of the situation, involving as 20 it did an Executive Director who its auditors had concluded provided false and 21 misleading information, warranted immediate termination. Even Plaintiff admits that 22 there are instances of misconduct where immediate termination is indicated in 23 accordance with CFF’s policy and procedure. Pl.’s Ex. 1, Aff. of Peter Tucker, ¶ 3. 24 Because the Court concludes, for all the above reasons, that CFF has met its 25 burden in showing it had legitimate reasons for terminating Plaintiff, the burden once 26 again shifts to Plaintiff to demonstrate that those reasons were merely pretextual and 27 that CFF’s real motivation in terminating Plaintiff rests with his age. Plaintiff offers two 28 arguments in that regard. First, he claims he was replaced by Cole Jacobson, a 1 younger, less experienced employee. Second, Plaintiff argues that “he was terminated 2 under extremely suspicious circumstances, raising an issue of pretext.” Pl.’s Opp. 9; 3 16-17. 4 Having considered all the evidence, the Court does not believe that the 5 circumstances surrounding Plaintiff’s termination give rise to an inference of 6 discrimination so as to suggest that CFF’s rationale for terminating Plaintiff was 7 pretextual. CFF has articulated legitimate reasons for acting as it did. While Plaintiff 8 argues that he had received favorable performance evaluations during the entirety of his 9 employment and claims CFF’s investigation was inadequate (citing, for example, its 10 failure to contact JoAnne Williams to verify her donor intent and its alleged refusal to 11 permit Plaintiff “to tell his side of the story”), the fact remains that Plaintiff was an at-will 12 employee, and CFF claims it lost faith in his ability to continue serving as Executive 13 Director given the inconsistent and misleading information he provided during the audit. 14 As an at-will employee, Plaintiff could be terminated at any time and for any 15 reason, so long as those reasons were not for the present purposes discriminatory in 16 nature. See, e.g., Silo v. CHW Med. Found, 27 Cal. 4th 1097,1104 (2002) (under 17 California law an employee can terminate an at-will employee for no reason or for an 18 arbitrary or irrational reason). Consequently, even if CFF “overreacted” to the Audit 19 Report or otherwise acted in an arbitrary fashion in discharging Plaintiff, it could legally 20 do so unless its termination was motivated by a discriminatory purpose, which Plaintiff 21 alleges here is age discrimination. 22 To that end, the Court is left only with Plaintiff’s allegation that he was replaced by 23 a younger employee. Any inference from that fact alone is compromised at the onset by 24 the fact that Plaintiff was 51 years old at the time he was hired by CFF as Executive 25 Director. In any event, without more the Court finds the fact that Plaintiff was replaced 26 by a younger person, without any other evidence corroborating age discrimination, to be 27 insufficient to meet his burden in showing that CFF’s stated reasons for his discharge 28 were pretextual. Plaintiff must produce evidence sufficient as a matter of law to support 1 a finding of intentional age discrimination in order to show pretext, and he has not done 2 so here. See Guz v. Bechtel, supra, 24 Cal. 4th at 356-57. As indicated above, 3 evidence too weak to support a rational inference of discriminatory intent cannot suffice 4 in that regard. Id. at 369-70. Because Plaintiff has not met the requisite burden, 5 summary judgment as to his age discrimination claim is proper and Defendant’s Motion 6 is GRANTED as to the Second Cause of Action. 7 B. Third Cause of Action: Wrongful Termination 8 Plaintiff concedes that his Third Cause of Action, which claims he was wrongfully 9 terminated in violation of public policy, is based on the viability of his age discrimination 10 claim. Pl.’s Opp., 18:5-9. Given that his age discrimination claim fails, this claim thus 11 necessarily fails as well. Defendant’s Motion is accordingly also GRANTED as to the 12 Third Cause of Action. 13 C. First Cause of Action: Defamation 14 Having determined that Plaintiff’s two causes of action premised on age 15 discrimination do not survive summary judgment, the only remaining question for the 16 Court’s consideration is whether statements made by CFF’s management concerning his 17 termination constitute actionable defamation. The Court concludes they do not. 18 In contending that CFF’s internal communications about Plaintiff’s termination 19 were not defamatory, CFF makes two arguments. First, it claims that because the 20 statements were true, they cannot give rise to a claim for defamation. Second, Plaintiff 21 alleges that the statements are subject to a conditional privilege under California law in 22 any event because, having been made internally to other CFF management employees 23 without malice, they were communicated to persons with a “common interest” in the 24 subject matter at issue. Cal. Civ. Code § 47(c); London v. Sears, Roebuck & Co., 25 619 F. Supp. 2d 854, 864-65 (N.D. Cal. 2009); Noel v. River Hills Wilsons, Inc., 26 113 Cal. App. 4th 1363, 1369 (2003). Employees have a privilege to communicate 27 concerns about employees to other employees within the employer’s organization, and 28 such communications are presumptively privileged. Bierbower v FHP, Inc., 1 70 Cal. App. 4th 1, 2 (1999). The presumption of privilege applies so long as the 2 statements at issue are made without malice. The malice necessary to overcome the 3 qualified privilege created by California Civil Code § 47(c) is “actual malice,” which 4 depends on a showing that allegedly defamatory communications are motivated by 5 hatred or ill-will towards the plaintiff, or by a showing that the employer lacked 6 reasonable grounds to believe the communications were true and therefore acted in 7 conscious disregard of the truth. Taus v. Loftus, 40 Cal. 4th 683, 721 (2007). 8 All the statements Plaintiff identifies as being defamatory were made internally by 9 and between CFF employees concerning the reasons for Plaintiff’s termination and his 10 conduct during the audit in the context of discussing how to respond either to Plaintiff’s 11 own request for a further explanation as to why he was terminated, or in connection with 12 inquiries made by members of the public as to why Plaintiff had been discharged. As 13 such, they are subject to qualified privilege attaching to such communications unless 14 Plaintiff can show that the CFF employees made the statements with actual malice. 15 Again, Plaintiff cannot meet that burden. 16 The statements in question all stemmed from the findings of Defendant’s Audit 17 Report which expressly found that Plaintiff had provided false and misleading information 18 to the auditors in connection with their work. Relying on the auditor’s findings in that 19 regard gives rise to no inference of malice on the part of CFF’s management personnel. 20 In addition, the individuals who made the statements have all submitted declarations 21 denying that they acted with any malice whatsoever. Anne Harris, Plaintiff’s immediate 22 supervisor, denied harboring any ill-will toward Plaintiff, stating that she in fact advocated 23 for a lesser form of discipline despite ultimately being overruled in that regard by Ginsky. 24 Decl. of Anne Harris, ECF No. 12-4, ¶ 8. Ginsky, for his part, does not recall even 25 meeting Plaintiff previously and also denied any malice, stating that as the chief steward 26 for CFF’s operations he felt that engaging in communications with other management 27 about Plaintiff’s termination was simply part of his job duties. Ginsky Decl., ¶ 9. Finally, 28 Chief Compliance Officer Eleana Seek claims she made the comments she did in good 42.L0 UV VUVOOUVINGL WINALL bMVVULIICIIL CU PHUmu VOoOrcorev PaQyet av Vii sv
1 | faith and as part of her job duties in responding to COO Ginsky’s inquiries. She denies 2 || any malice in doing so. Seek Decl., { 10. 3 Aside from generalities that malice should be inferred simply given the nature of 4 | the statements made, Plaintiff offers no evidence to suggest that the statement he 5 | claimed defamed him were made maliciously. As such, he has failed to show any actual 6 || malice sufficient to defeat the qualified privilege attaching to the internal communications 7 || between management that he alleges were defamatory. Since the statements are 8 || protected on that basis alone, whether or not they were also true (as alternatively argued 9 || by CFF) need not be considered. Defendant's request for summary judgment as to the 10 | First Cause of Action is also GRANTED. 11 12 CONCLUSION 13 14 Based on all the foregoing, the Court concludes that Defendant CFF is entitled to 15 || judgment as a matter of law. Consequently, Defendant’s Motion for Summary Judgment 16 | (ECF No. 12) is GRANTED and the Clerk of Court is directed to enter judgment in CFF’s 17 | favor.4 18 IT |S SO ORDERED. 19 || Dated: August 28, 2020 Eo i F _ AMX’ 21 MORRISON C. ENGLA JR) (_) SENIOR UNITED STATES DISTRICT JUDGE 22 23 24 4 The Court recognizes that in addition to the case-in-chief, CFF filed a Cross-Complaint against Plaintiff in state court on December 5, 2017, prior to Defendant’s removal herein. CFF’s Cross-Complaint 25 alleges that Plaintiff interfered with its prospective economic advantage with donors in the wake of his termination and defamed CFF in so doing. On September 6, 2019, Plaintiff filed a Motion for Summary 26 Judgment as to CFF’s Cross-Complaint concurrently with CFF’s own Motion as discussed in this Memorandum and Order. Defendant’s Opposition to Plaintiff's Motion, however, states unequivocally that in the event CFF’s Motion for Summary Judgment is granted, as the Court does here, it “hereby agrees to 27 dismiss its Cross-Complaint.’ Def.’s Opp. ECF No. 16, 3:15-16. Consequently, Plaintiffs Motion (ECF No. 11) is DENIED as moot and the Cross-Complaint is dismissed such that the entire case is now 28 concluded. 16