Opinion
A166406
12-15-2023
TERESA McATEE, Plaintiff and Appellant, v. SHAKE SHACK INC., Defendant and Respondent.
NOT TO BE PUBLISHED
(San Mateo County Super. Ct. No. 20-CIV-01636)
TUCHER, P.J.
In 2020, Teresa McAtee filed the underlying wrongful termination action against her former employer, Shake Shack Inc. The trial court entered judgment in favor of Shake Shack after granting a defense motion for summary judgment. On appeal, McAtee contends the court applied an incorrect standard to conclude erroneously that there is no triable issue of material fact precluding summary judgment of McAtee's claim that she was terminated in retaliation for protected whistleblowing activities. (Lab. Code, § 1102.5, statutory references are to this code, unless otherwise indicated.) We affirm the judgment.
In the trial court, Shake Shack submitted a separate statement of 62 undisputed material facts, each supported by citations to evidence. McAtee purported to dispute virtually every fact, but she repeatedly failed to cite contrary evidence. Our background summary is based on facts that are not contradicted by evidence brought to our attention.
McAtee's Employment and Temporary Assignment
McAtee began working for Shake Shack in February 2019, as a Manager-In-Training at a San Diego store. Shake Shack staffs its restaurants with a hierarchy of managers, with corresponding levels of responsibility; the General Manager (GM) has the most responsibility, followed by the Assistant General Manager (AGM), and then the Manager. The GM and AGM are salaried positions, and in California the Manager job is a non-exempt hourly position.
In late 2019, McAtee volunteered to relocate to a store that was opening in Sacramento. While the Sacramento Shake Shack was under construction, McAtee agreed to work at the San Mateo store, which had just opened, a few days after Christmas 2019. At that time, the store's permanent staff included GM Deepali B., AGM Fabiola C., and Manager Ronica A. In addition, Cassie P., who had been hired for the GM position in Sacramento, was helping out in San Mateo. McAtee and two other Managers were also given temporary assignments to help out at the store and assist with training new team members. The other two Managers were Justise L. and Symphony S.
According to the appellant's opening brief, McAtee was an AGM and was promoted to be GM of the Sacramento store. McAtee fails to cite the record for these assertions, which are inconsistent with the evidence. In conducting our review, we will not address numerous factual assertions in McAtee's brief that are not supported by a citation to pertinent evidence.
McAtee's Deposition Testimony About Working in San Mateo
On January 9, 2020, McAtee reported for her first day of work in San Mateo. When she arrived, Deepali assigned her to the front of the store. McAtee felt this assignment was not "normal" because she arrived for work at opening time and should have been assigned tasks that an opening manager performs. However, she complied with Deepali's directive, without questioning it.
On her first day at the San Mateo location, McAtee encountered conditions that she considered to be safety hazards and violations of company policy: team members were not wearing non-slip shoes and were not washing their hands; temperature checks on food were not done; minors were pouring beer and alcohol; and malt custard was being made in regular custard sleeves, which was "a cross-contamination for allergens." McAtee discussed "the non-slip shoes and the selling of alcohol" with the other temporary managers. Justise responded with words to the effect that "everything there was shit," and Symphony agreed the situation was" 'crazy.'" McAtee recalled that she and Symphony separately asked team members about failing to wear non-slip shoes, and both were told that Deepali already knew about the situation. McAtee did not follow up with team members about her other issues because she was already getting push-back. Also, she felt that some of them were following her lead.
The next day, January 10, Deepali asked McAtee how her first shift went, and McAtee brought up the issues of the non-slip shoes and selling of alcohol, and also raised concerns about uniforms and spoiled food. Deepali was receptive to the feedback, supportive of McAtee's ideas, and requested McAtee's assistance in fixing problems. Over the next few days, McAtee started checking food products and found that some items had expired dates recorded on their containers, and others had been left out of the freezer for more than four hours. McAtee threw away expired food and reported what she had done to Deepali, who was shocked but supported McAtee's decision to throw the food away.
On January 11, McAtee had an exchange with Fabiola, her AGM, about custard mix that was left out of the refrigerator too long. She offered suggestions, but Fabiola rejected them, stating the custard would all be used in the next few hours. After this exchange, Fabiola started following McAtee around as she went about her tasks, and repeatedly questioned her about what she was doing.
That same day, Shake Shack's Area Director, Shawn Chao, went to the San Mateo store to meet with some of the staff. During his meeting with McAtee and Symphony, they both expressed concern about the team failing to wear non-slip shoes and other uniform issues. They also complained about being followed around by Fabiola, and feeling like they were constantly being "checked" when they were just trying to help. Chao was receptive, and said he would address the uniform issues, and would also follow up on McAtee's concern that managers were not playing their proper roles. Later that day, after Deepali had her meeting with Chao, she approached McAtee and instructed her to send a team member home because he was not wearing non- slip shoes. Deepali also sent an email to staff directing them to wear non-slip shoes, and she elicited McAtee's assistance in complying with other policies. Before leaving work on the 11th, McAtee printed several copies of a "role chart," which summarized the responsibilities of each job position, and left a copy with the schedule for the team to use the next day.
Appellant's opening brief asserts that on January 11 she reported regulatory violations to Chao, including "health and safety issues" and that underage servers were pouring alcohol. But none of the cited pages of the record refers to any communication from McAtee to Chao, nor to minors serving alcohol. The cited portions of the record disclose non-confrontational conversations in the store about food safety, and otherwise address unrelated issues. Compounding the problem, in another portion of the record where appellant is asked whether she ever reported her concerns about spoiled beef to Chao or any other manager not present in the store, she answers unequivocally: "No. I didn't talk to anyone . . . ever outside of work."
When McAtee arrived at work on January 12, she found her role chart in the trash, which led to a negative exchange with Justise, one of the other managers. McAtee attempted to explain that the chart would address the chaotic work environment and help achieve compliance with company policies, but Justise responded," 'F*ck it. It doesn't f*cking work.'" McAtee told Justise to just" 'give it a try,'" and then posted another copy of the chart, and wrote her name next to the role of mid-shift manager. Throughout the day, she checked off tasks listed on the chart as she completed them. Justise and Fabiola questioned McAtee when she started giving team members breaks and accused her of messing with the schedule. When McAtee said she was just following her role of the day, Justise made fun of her, and Fabiola rolled her eyes. Then Fabiola instructed McAtee to work at the cash register, which prevented McAtee from "doing any of [her] manager roles at all."
On January 16, McAtee was doing a compliance check when she found that one of the meat patties on the service line had turned brown. She examined the date on the container, which indicated the meat had expired, and then pulled it from the line. McAtee showed the meat to Deepali, who took photos of the meat and of a "date dot" on a container from a different delivery batch. McAtee claims that when she pointed out to Deepali that she had photographed the wrong package, Deepali responded that she was going to get Shake Shack's money back from the vendor. Later that day, Deepali asked McAtee about the role chart. McAtee reported that the other managers did not want to follow the chart and she did not understand why they were always so angry. She told Deepali about finding the chart in the trash and that Justise said," 'F*ck this and f*ck the rules.'" Deepali was receptive to McAtee's feedback and said she would talk to Justise.
On January 17, after McAtee clocked in, she posted a copy of her role chart, and then checked to see if Deepali needed help with anything. Deepali asked if McAtee would assist with training employees in the front of the store and she agreed. When she got to the store front, she noticed Deepali and Fabiola were talking. Then Deepali came over and asked McAtee why she was wearing a watch when she knew she was not supposed to wear it at work. McAtee said it was a Fitbit that she wore all the time for health reasons, and offered to get a note from her doctor. Deepali responded that was not necessary. McAtee was upset by the encounter and felt she was singled out, although she admitted noticing that when Fabiola returned from her break that day, she had taken off her watch.
Part of the training McAtee agreed to do on January 17 included training an employee named Keesha to pack food. McAtee was excited about that assignment because it was more responsibility than just working the register. At McAtee's direction, Keesha left the register and went to wash her hands and put on an apron. When Keesha returned, Fabiola asked why she was wearing an apron and told her to take it off. McAtee intervened and explained the apron was necessary so that McAtee could train Keesha about food packing. Fabiola said she did not care; Keesha was on the register and was not to wear an apron. Since Fabiola was the senior employee, McAtee told Keesha to do what Fabiola said and take off the apron. While McAtee was training Keesha about how to pack food orders, Keesha pumped hot cheese onto an order of fries, and it squirted all over her stomach. Keesha screamed and when she returned from cleaning up, she reported that she had burned her stomach, but thought she would be okay.
On January 18, Deepali sent an email to all managers reminding them of their responsibility for complying with break policies, and stating that break violations would not be excused absent a "really good reason." This email upset McAtee. She did not know whether other managers had violated the break policy, but she had two prior break violations. And even though both violations were excused by Deepali, McAtee believed that the January 18 email was directed specifically at her.
On January 19, McAtee obtained permission from Deepali to leave work an hour early because her family was visiting. Two days later, on January 21, Symphony sent an email to the managers and their area director, Shawn Chao, which discussed concerns about her shift on January 19. The email stated that Symphony had a plan for the shift that" 'went out the window,'" and pointed out that McAtee and another manager had left early and that Justise had to stay late. McAtee felt that Symphony sent her email as retaliation because she was "pissed" at McAtee for leaving early.
On January 21, McAtee shared her concerns about the San Mateo restaurant with a regional representative in Shake Shack's human resources department, Ms. Shannak. McAtee had a telephone conversation with Shannak, and then sent an email summarizing the issues they had discussed. McAtee reported that managers did not uphold Shake Shack standards, gave examples of unprofessional behavior, described incidents during which she felt mistreated, and complained that she was a professional person who was being treated like "cr*p."
On January 22, Deepali took McAtee into the office at the restaurant and asked why McAtee would "call HR." McAtee responded that she had to protect herself because she had talked to Deepali several times about problems that Deepali did not fix, including that McAtee was being" 'harassed'" for trying to do her job, and" 'unfairly treated for trying to uphold the policies and procedures'" of the company. Deepali talked with McAtee about McAtee's concerns, repeatedly said she was sorry, and urged McAtee to hang in there.
On January 25, McAtee was assigned to work at the cash register, which she felt was retaliation because it treated her as though she was not a manager anymore. That day, McAtee also felt mistreated by Fabiola and Justise because both of them had questioned her about leaving her station to use the bathroom. Later that day, a team member said," 'We need bacon 911,'" so McAtee went to the "hot side," where Justise was making bacon. When McAtee picked up a few trays, Justise questioned what she was doing, using profanity. McAtee explained what she was doing, but Justise continued to use the f-word, telling her not to take it all, and then when she offered to cook more, telling her to just forget it. McAtee was upset by the way Justise talked to her. She attempted to hide her tears as she chopped the bacon and gave it to team member before retreating to the bathroom, where she "cried [her] eyes out."
When McAtee came out of the bathroom, Symphony saw she was upset and tried to usher her into the office, but Fabiola was in the office with Justise, and she told McAtee and Symphony to come back later. Symphony told them that McAtee was crying, but they both said she should just go to the bathroom. McAtee responded," 'You know what? I can't take being treated like this by you guys anymore.'" When her coworkers appeared confused, she repeated:" 'Just give me my sh*t....I can't keep letting you guys treat me like this. Give me my sh*t.'" Somebody handed McAtee her bag, and she grabbed the rest of her things and went out the back door.
McAtee's Termination
On January 25, at 9:51 p.m., Symphony sent an email to Shawn Chao, and her two GMs, Deepali and Cassie. Symphony reported that at around 7:00 that night she saw McAtee in the hallway and asked her about a "[G]rubhub" order that was overdue. Then she noticed McAtee was crying, offered to talk, and walked McAtee toward the office. But McAtee said that she was "tired of getting into it with everyone," that she did not like working there, and that she "was leaving." Symphony reported that McAtee said she would call Shawn herself and she was "not coming back." Then she grabbed her stuff and went out the back door.
By the time Symphony sent her email, McAtee had already communicated with Shawn Chao. In a text message that was sent at 8:22 p.m., McAtee told Chao that she left her shift, she could not work "at this Shack," and she was not "going to be treated like cr*p" when she was trying to help. McAtee testified that she also had a phone conversation with Deepali after she left her shift, and that Deepali apologized to her, stating that she thought her talk with the team had "fixed the issue." At 8:42 p.m., Deepali sent McAtee a text message, telling her to "rest," "take care," and not to "over think at all."
Throughout the evening on January 25, McAtee exchanged messages with Scott S., her former GM in San Diego. In her first message, sent at 8:20 p.m., McAtee said "I walked out." During their exchange, McAtee said she tried to "stay tough" but couldn't "be treated like shit." She told Scott that Deepali had agreed with her that she was being mistreated and told her to "come back tomorrow." Scott advised McAtee to get documentation of Deepali acknowledging there was "wrong doing by the other managers."
On January 26, at 2:22 a.m., McAtee sent an email to Ms. Shannak in human resources. Her email stated that things were not going well since she made her "original complaint" and she was not "being treated right." McAtee listed many complaints: she was left "on stations all day" and not allowed to do things managers do; people talked about her right in front of her face; managers talked down to her and to others; and she witnessed a hostile interaction between a manager and a guest when the GM did nothing to intervene. McAtee also told Shannak that she had walked out of work the previous night, offering this explanation: "I left . . . after being talked to like cr*p and being talked about right in front of my face. I tried to go to the bathroom and just clear my face and get it together but I couldn't keep it together. There is only so much I could take." In her email, McAtee told Shannak that when she discussed what had happened with Deepali, Deepali made assurances that things would be better when McAtee returned to work. McAtee ended her email with the following statement: "How much more do I have to take? Is quitting the only option I have to protect myself? Because I'm not being protected."
Later, on the morning of January 26, Shawn Chao sent McAtee a text message asking her to call him when she had time. McAtee testified that when she talked to Chao that morning, he told her she could take the day off with Deepali's permission. At 9:42 a.m., McAtee sent a text to Deepali asking for the day off to get herself together, saying her eyes were "very swollen." Deepali responded, "Take a day off . . . Take rest."
On January 26, Cassie P. called McAtee to ask what happened the previous night, and took notes. McAtee said that she cried after arguing with Justise about the bacon because it was the second or third time that he had yelled at her. Then she took her bag and left. McAtee told Cassie that Deepali had apologized for not "fixing it." According to Cassie's notes, McAtee went off topic during their conversation and complained about other incidents, including that she told Deepali that Symphony and Justise sold bad meat and Deepali did nothing about it. Near the end of the conversation, McAtee started crying and told Cassie "I don't want to be here anymore, I can't be talked to like cr*p."
On the evening of January 26, Symphony sent two follow-up emails about the January 25 incident. Her first email was addressed to Shawn Chao and Deepali. Symphony reported that in trying to piece together what had happened she realized the following additional facts were pertinent: When Symphony found McAtee in the hallway crying, McAtee kept saying she wanted to leave, but her shift did not end until 10:00 p.m. Symphony wanted to go to the office so they could talk through the problem because she needed McAtee's help with the shift, but McAtee gave her "push back." Then when they got to the office, Symphony realized that Fabiola and Justise were in there disciplining an employee. By the time they cleared the office, McAtee had gone out the back emergency door. The next morning, another team member found a key in the hallway near the back door. Justise checked with all the managers except for McAtee, and they all had their keys, Symphony reported.
A few hours later, Symphony sent another email just to Shawn Chao, which shared her impressions about McAtee. Symphony said that when she and McAtee first started working at San Mateo they talked about things they thought were wrong. After a few days of working with McAtee, Symphony began to see the negative impact of her "blame mindset," and felt that McAtee used their conversations as "a time to talk badly about the other managers." Symphony opined that McAtee had personal issues with the San Mateo team; she felt like she did not fit in, she thought Cassie did not like her for personal reasons, and she believed that Fabiola was given an AGM position that was promised to her. Symphony told Chao that she tried to be a friend to McAtee, and McAtee was a good manager, but her negative impact overshadowed her work ethic.
On January 26 and 27, Shawn Chao conferred with human resources about McAtee and her situation, sharing information he had collected about the January 25 incident, including Symphony's emails and Cassie's notes. Chao also reported that McAtee did not obtain permission to leave her shift early. Deepali had already gone home when the incident occurred and Fabiola was not aware McAtee walked out until after the incident was over. Ultimately Chao and the human resources representatives agreed that McAtee had abandoned her job.
According to McAtee, in the days after the January 25 incident, she attempted to get somebody at Shake Shack to respond to her complaints. When Shawn Chao called her back on January 28, he told her that "Shake Shack was parting ways with [her], because [she] went about things the wrong way."
PROCEDURAL HISTORY
I. McAtee's Complaint
In March 2020, McAtee filed a complaint against Shake Shack alleging causes of action for whistleblower retaliation (§ 1102.5) and wrongful termination in violation of public policy. According to the complaint, McAtee was wrongfully terminated from her full-time job as a Manager while she was temporarily assigned to the Shake Shack store in San Mateo. McAtee alleged that she performed all employment duties "competently and satisfactorily," and Shake Shack's stated reasons for terminating her were "pretexts for unlawful discrimination and retaliation." McAtee based her claims on encounters with coworkers or supervisors, which she characterized as her reporting health violations or her being subjected to unlawful retaliation. McAtee also alleged that when she reported concerns about the San Mateo Shake Shack to the human resources department, they did not follow up with her, other than to direct her to talk to her GM, Deepali. McAtee alleged that she complied with this directive by "reiterat[ing]" problems to Deepali that she believed were health violations.
McAtee also alleged a cause of action for failure to pay wages due upon termination of employment. (§ 202.) Because McAtee does not challenge the grant of summary judgment as to this claim for unpaid wages, we do not address it further in this opinion.
Regarding her employment termination, McAtee alleged the following facts: On January 25, she witnessed Symphony yell at a guest while Deepali stood by and failed to intervene. Later that day, Symphony and Justise yelled at her "for no reason," and then she received a text from Deepali telling her to go home. The next day, McAtee alleged, Shawn Chao yelled at her for trying to "cause problems," but also asked her to" 'stick it out'" for another week. McAtee "took the rest of [that] day off," with Deepali's permission. Subsequently, McAtee received a deposit in her bank account from Shake Shack, and made calls to inquire about the purpose of the payment and if she should report to work the next day. On January 28, Chao informed her that "Shake Shack Inc. would be parting ways with her, as she had 'gone about things the wrong way.' "
The allegation that Deepali told McAtee to go home on January 25 is one of several complaint allegations that conflict with McAtee's deposition testimony. Undisputed evidence shows that McAtee made a unilateral decision to leave work before the end of her shift without seeking permission from Deepali or anybody else.
In her cause of action for whistleblower retaliation, McAtee alleged that she engaged in protected activity by reporting and refusing to participate in activities that she reasonably believed were violations of state and/or federal health laws and regulations, and that Shake Shack retaliated against her by taking "adverse employment actions." She alleged further that Shake Shack's termination of her employment violated well established public policies set forth in multiple state statutes. For these allegedly unlawful employment actions, McAtee sought "no less than" $500,000 in compensatory damages, as well as punitive damages, statutory damages and penalties, and unspecified injunctive relief.
II. Summary Judgment Proceedings
In May 2022, Shake Shack moved for summary judgment, arguing that McAtee could not prove her section 1102.5 retaliation claim and that her wrongful termination claim also failed as it was derivative of her whistleblower claim.
Section 1102.5 prohibits retaliatory employment action against a whistleblower. Specifically, an employer is prohibited from retaliating against an employee for disclosing information when "the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation." (§ 1102.5, subd. (b).) Section 1102.6 further provides that "once it has been demonstrated by a preponderance of the evidence that an activity proscribed by Section 1102.5 was a contributing factor in the alleged prohibited action against the employee, the employer shall have the burden of proof to demonstrate by clear and convincing evidence that the alleged action would have occurred for legitimate, independent reasons even if the employee had not engaged in activities protected by Section 1102.5." (§ 1102.6.)
In its summary judgment motion, Shake Shack argued that McAtee's section 1102.5 claim failed for two independent reasons: (1) her complaints about the San Mateo branch did not constitute protected whistleblower activity; and (2) she could not show that her allegedly protected complaints were a contributing factor in her termination because she was terminated for independent reasons based on her behavior during the January 25 incident. McAtee opposed summary judgment, arguing that the evidence showed she made complaints that were protected activities under the statute because she reasonably believed she was reporting health and safety regulatory violations, and it was these complaints that culminated in her termination.
On August 11, 2022, the trial court held a hearing on the summary judgment motion, where parties presented arguments about what standards apply to evaluate a claim for wrongful termination that is premised on an alleged violation of section 1102.5. At the conclusion of the hearing, the court took the matter under submission. In an order signed on August 25, the court granted Shake Shack summary judgment. Because the parties agreed McAtee's wrongful termination claim was derivative of her section 1102.5 claim, the trial court made a single ruling applicable to both causes of action.
As a preliminary matter, the court found that the only adverse employment action that was supported by the evidence was McAtee's termination from her job, notwithstanding that McAtee had alleged that she was subject to multiple other acts of retaliation. As the court explained, a violation of section 1102.5 must be based on an adverse employment action, which is defined as an action that"' "materially affects the terms, conditions, or privileges of employment." '" (Quoting Francis v. City of Los Angeles (2022) 81 Cal.App.5th 532, 540 (Francis).) In this case, McAtee alleged that Shake Shack retaliated against her in multiple ways before she was terminated, including by assigning her to the cash register, having managers follow her around, preventing her from performing managerial duties, rejecting her role sheet, asking her to remove her watch, and sending two particular emails, which she felt were directed at her. The court found that these alleged actions do not rise to the level of adverse employment action, whether considered individually or cumulatively.
By contrast, the trial court found that McAtee's employment termination "undoubtedly constitutes an adverse employment action." However, the court concluded, Shake Shack produced clear and convincing evidence that it would have terminated McAtee for legitimate reasons "even if she had not engaged in any protected activity." The court based this ruling on undisputed evidence regarding the January 25 incident, and other facts in the record. The court relied specifically on the following facts: McAtee walked off the job in the middle of her shift, after only 16 days of starting her temporary assignment. She left work after a dispute with another manager over a tray of bacon, which had nothing to do with any health or safety concerns she may have had. She left work "abruptly," stating" 'I'm not going to keep being treated like this anymore. Give me my sh*t,'" and she did not ask for permission to leave her shift early. McAtee's "abrupt decision to leave work in the middle of her shift without permission," led Chao and human resources to conclude that McAtee abandoned her job. Consistent with "this conclusion," Chao told McAtee that she" 'went about things the wrong way.' "
The court found this evidence sufficient to satisfy Shake Shack's burden of establishing a defense to McAtee's retaliation claim under section 1102.6. In reaching this decision, the court discussed Lawson v. PPG Architectural Finishes, Inc. (2022) 12 Cal.5th 703 (Lawson), which articulates a two-part test for evaluating whistleblower retaliation claims: First, the plaintiff bears the burden of establishing, "by a preponderance of the evidence, that retaliation for an employee's protected activities was a contributing factor in a contested employment action." (Lawson, at p. 718.) Second, "[o]nce the plaintiff has made the required showing, the burden shifts to the employer to demonstrate, by clear and convincing evidence, that it would have taken the action in question for legitimate, independent reasons even had the plaintiff not engaged in protected activity." (Ibid.)
In this case, the court declined to decide the summary judgment motion under the first prong of Lawson, making it unnecessary to determine whether McAtee could show that her complaints constituted protected activities within the meaning of section 1102.5, and that they contributed to her termination. Instead, the court granted Shake Shack summary judgment pursuant to the second prong of Lawson, based on clear and convincing evidence that Shake Shack would have terminated McAtee for a legitimate independent reason even if she had not engaged in protected activity. In this regard, the court found specifically that undisputed evidence would require a reasonable trier of fact to conclude that it was"' "highly probable" '" that McAtee would have been terminated for legitimate reasons even if she had not complained. (Citing Vatalaro v. County of Sacramento (2022) 79 Cal.App.5th 367, 386 (Vatalaro).) Because Shake Shack carried its burden under section 1102.6, while McAtee failed to raise a triable issue of material fact as to this issue, the court granted summary adjudication of the retaliation and wrongful termination claims.
DISCUSSION
McAtee contends that triable issues of material fact preclude finding that Shake Shack is entitled to judgment as a matter of law. Because McAtee's wrongful termination claim is derivative of her cause of action for whistleblower retaliation, we limit our discussion to the claim that Shake Shack violated section 1102.5.
McAtee's complaint contains an allegation that terminating her employment violated public policies codified in the California Fair Employment and Housing Act (FEHA). (Govt. Code, § 12900 et seq.) FEHA prohibits employers from engaging in discriminatory conduct based on "race, religious creed, color, national origin, ancestry, physical disability, mental disability, reproductive health decisionmaking, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or veteran or military status." (Govt. Code, § 12940, subd. (a).) Evidence an employer discharged an employee for opposing a practice prohibited by FEHA may support a cause of action for FEHA retaliation. (See e.g. Moore v. Regents of University of California (2016) 248 Cal.App.4th 216, 244; Govt. Code, § 12940, subd. (h).) McAtee's retaliation claim, however, does not implicate FEHA. There is no evidence nor material factual allegation that Shake Shack engaged in activity prohibited by FEHA. And McAtee concedes on appeal that her wrongful termination claim is derivative of and rises or falls with her whistleblower claim, which is based solely on reporting alleged health and safety violations.
I. Standard of Review
"We review a grant of summary judgment de novo, effectively assuming the role of a trial court, and applying the rules and standards that govern a trial court's determination of a motion for summary judgment." (Building Industry Assn. of Bay Area v. City of San Ramon (2016) 4 Cal.App.5th 62, 73.)
Summary judgment may be granted "if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (Code Civ. Proc., § 437c, subd. (c); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) Under this standard, the moving party bears the burden of persuasion that one or more elements of the plaintiff's cause of action cannot be established or that there is a complete defense to the plaintiff's claim. (Aguilar, at p. 850.) If this burden is met, the burden shifts to the opposing party to show that a material factual issue exists as to the cause of action alleged or a defense thereto. (§ 473c, subd. (p).) "In determining whether the nonmoving party, in this case the plaintiff, has demonstrated the existence of a triable issue of fact, we must strictly construe the moving party's evidence, and liberally construe the opposing party's evidence, with any doubt as to the granting of the motion being resolved in favor of the opposing party." (Renna v. County of Fresno (2000) 78 Cal.App.4th 1, 5.)
II. The First Prong of the Section 1102.6 Framework
As discussed, the trial court declined to base its summary judgment ruling on the first prong of the section 1102.6 framework, which places an initial burden on the plaintiff' to prove she engaged in protected whistleblowing activity that contributed to an adverse employment action. On appeal, McAtee contends there are triable issues of material fact regarding whether she can meet this initial burden of proof, and these alleged factual disputes require reversal of the judgment because the trial court was required by law to evaluate McAtee's claim under the first prong of the Section 1102.6 framework. As support for this argument, McAtee mistakenly relies on Lawson, supra, 12 Cal.5th 703.
In Lawson, our state Supreme Court answered a question certified to it by the Ninth Circuit regarding "the proper method for presenting and evaluating a claim for whistleblower retaliation" under section 1102.5. (Lawson, supra, 12 Cal.5th at p. 707.) Finding that section 1102.6 provides the framework for evaluating a section 1102.5 claim, the court explained that the plain language of section 1102.6 "places the burden on the plaintiff to establish, by a preponderance of the evidence, that retaliation for an employee's protected activities was a contributing factor in a contested employment action.... Once the plaintiff has made the required showing, the burden shifts to the employer to demonstrate, by clear and convincing evidence, that it would have taken the action in question for legitimate, independent reasons even had the plaintiff not engaged in protected activity." (Id. at p. 718.)
Because these statutory standards are materially different from the three-step burden shifting test courts use to evaluate discrimination claims based on circumstantial evidence (see McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792), the Lawson court disapproved authority that applied the McDonnell Douglas test in section 1102.5 retaliation cases. (Lawson, supra, 12 Cal.5th at pp. 712 &718, fn. 2.) The court reasoned that the McDonnell Douglas method of proving an unlawful intent does not square with section 1102.6, which "sets forth the evidentiary burdens of both sides in a whistleblower retaliation suit." (Lawson, at p. 712.) Under section 1102.6, the whistleblower plaintiff meets her burden by proving that retaliation for protected activity was a contributing factor in the challenged decision, without having to make any additional showing that a proffered legitimate reason was pretextual. Instead, once the employee makes a prima facie showing, the employer must "demonstrate, by clear and convincing evidence, that it would have taken the action in question for legitimate, independent reasons even had the plaintiff not engaged in protected activity." (Lawson, at p. 718.)
Lawson does not support McAtee's claim of error in the present case. In resolving confusion about the employee's burden of proving unlawful retaliation, the Lawson court did not hold or intimate that a court ruling on summary judgment must determine whether the plaintiff can carry her prima facie burden before deciding whether there is a triable issue as to the employer's defense. By the same token, section 1102.6 does not preclude courts from granting summary judgment based an employer's affirmative defense in lieu of having to decide whether the plaintiff carried her preliminary burden of proving that she engaged in activities protected under the whistleblowing law and that retaliation for those protected activities contributed to the challenged employment decision.
Vatalaro, supra, 79 Cal.App.5th 367, supports our conclusion that the trial court's approach was procedurally sound. In that case, the plaintiff alleged she was terminated from her position with Sacramento County in retaliation for reporting that she was working below her service classification. (Id. at p. 371.) The County was granted summary judgment on two alternative grounds: the plaintiff could not show she had a reasonable belief that the substance of her complaint (doing work below her classification) was a violation of the law; and, in any event, the County had a legitimate, nonretaliatory reason for terminating her. (Ibid.)
The Vatalaro judgment was affirmed on appeal. (Vatalaro, supra, 79 Cal.App.5th at p. 383.) Applying Lawson, the appellate court declined to decide whether the plaintiff could carry her burden under the first prong of the section 1102.6 framework because it was unsure about the proper interpretation of the statutory requirement in section 1102.5, subdivision (b) that the employee must have had "reasonable cause to believe that the information" she reported disclosed a violation of state, federal, or local law. (Vatalaro, at pp. 380-383.) Instead of adopting a definitive interpretation of that provision, the court affirmed summary judgment on the ground that the County established by clear and convincing evidence that it would have terminated the plaintiff for legitimate independent reasons even if she had not engaged in the allegedly protected activity. (Id. at p. 384.)
The trial court in this case relied on Vatalaro in granting summary judgment without first deciding whether McAtee could establish a prima facie case of retaliation. Like the Vatalaro court, this trial court observed the law is unsettled as to whether a plaintiff's prima facie showing can be based on evidence that she reasonably believed the information she reported constituted a violation of the law even if her belief was incorrect. The court avoided the issue by concluding that, in any event, Shake Shack would have terminated McAtee for a legitimate reason even if she had not engaged in the allegedly protected activity. We see no error in Vatalaro's analytical approach and follow it here in rejecting McAtee's first claim of error.
McAtee argues that if a court is permitted to skip the first prong of Lawson when ruling on a summary judgment motion, its application of prong two will necessarily be skewed to unfairly favor the employer because the plaintiff's evidence of retaliative motive will be disregarded, thus leading inevitably to a finding that the challenged employment action was not retaliation. This argument is based on a misconception of Lawson's second prong and the statutory defense upon which it is based. Nothing about that inquiry permits the court to disregard evidence of a retaliatory motive for an adverse employment action. Instead, such evidence is directly relevant to the question whether the employer can prove by clear and convincing evidence that the challenged action was taken for legitimate, non-retaliatory reasons.
McAtee spends considerable time discussing cases that were decided under the Sarbanes-Oxley Act of 2002, 18 U.S.C. § 1514A(b)(2)(A). As she contends, Sarbanes-Oxley contains a burden-shifting framework that is similar to section 1102.6. (See generally, Lawson, supra, 12 Cal.5th at p. 715.) But she fails to show that any case decided under Sarbanes-Oxley supports her claim of error. For example, McAtee relies heavily on Johnson v. Stein Mart, Inc. (11th Cir. 2011) 440 Fed.Appx. 795, 803-804. The Johnson plaintiff alleged that she was discharged in retaliation for reporting fraudulent business practices that may have impacted her employer's shareholders. (Id. at p. 799.) In affirming summary judgment in favor of the plaintiff's employer, the appellate court assumed "without deciding" that the plaintiff had "satisfied her prima facie burden," including that her conduct was protected under Sarbanes-Oxley, and affirmed the judgment on the basis that the defendant "affirmatively demonstrated, by clear and convincing evidence, that it would have terminated Ms. Johnson's employment in the absence of her protected conduct." (Id. at p. 801, italics omitted.)
McAtee insists that Johnson and other cases decided under comparable anti-discrimination laws routinely evaluate the plaintiff's evidence to determine whether there is a factual dispute as to the employer's defense. But that is a different issue, distinct from the claim of legal error that McAtee presents here. Her claim that the trial court was required to determine whether she made a prima facie case of retaliation before it could grant summary judgment based on Shake Shack's defense is not supported by pertinent case law or sound reasoning.
Building on the erroneous premise that the trial court misapplied Lawson, McAtee argues that there are triable issues of material fact as to whether her complaints while working at the San Mateo store (1) constituted protected activity, and (2) contributed to Shake Shack's decision to terminate her employment. As McAtee acknowledges, these issues pertain to a plaintiff's burden of proof under prong one of Lawson, which is not the ground upon which summary judgment was granted. We decline to address these issues under our de novo standard of review because, as we explain next, the trial court properly granted summary judgment based on undisputed evidence supporting Shack Shack's defense.
III. The Second Prong of the Section 1102.6 Framework
Shake Shack carried its burden as the party moving for summary judgment by producing clear and convincing evidence that it would have terminated McAtee for abandoning her shift even if she had not engaged in activity that was allegedly protected by the whistleblower law. (§ 1102.6.) As our background summary reflects, undisputed evidence shows that McAtee left work in the middle of her shift without permission for reasons that had nothing to do with a real or perceived violation of a health and safety law, voicing her intention not to return to work at the San Mateo Shake Shack. And, after reviewing information pertaining to the January 25 incident, Chao and the human resources department concluded that McAtee had abandoned her job. A reasonable jury faced with this undisputed evidence, and the other evidence regarding McAtee's interactions while she was temporarily assigned to the San Mateo store, would be required to find that McAtee's termination was not retaliation for protected whistleblower activity.
McAtee contends there are triable issues of material fact regarding the true reason for her termination. The record shows otherwise. McAtee's primary argument is that a retaliatory motive can be inferred from evidence that "management's responses" to her complaints "escalated from receptive, to angry cursing (and termination)." This argument seriously misconstrues the evidence. For example, McAtee relies heavily on evidence of cursing by Justise, whom she erroneously describes as an "AGM." Like McAtee, Justise was another temporary manager at the Shake Shack and, according to McAtee's own testimony, virtually every interaction with Justise involved curse words. Justise's alleged disrespect for McAtee is not evidence of escalation, nor is it evidence that her employer was ever angry about her complaints. The same is true of other alleged personal slights by coworkers, such as Symphony's email suggesting that the January 19 shift was ruined because McAtee left early. McAtee herself testified that Symphony was mad at her for taking a day off, not for reporting some alleged health or safety violation.
McAtee contends that Shake Shack's escalating displeasure with her complaints can be inferred from evidence that the more she complained, (1) the more she was assigned to work at the register, and (2) the more she was followed around by other managers when she was not working a register. However, McAtee's testimony that she was assigned to work at the register on her first day of work undermines her theory that this assignment was retaliatory. Moreover, McAtee and Symphony both complained to Shawn Chao that Fabiola was following them around, which shows this conduct was neither directed at McAtee specifically nor indicative of some growing frustration with her.
McAtee also points out that after she made a complaint to human resources, Deepali questioned her about it. We note that McAtee's email, in which she summarized her conversation with the human resources representative, stated that McAtee noticed the San Mateo Shake Shack was not upholding company standards pertaining to an array of matters, but the crux of her complaint pertained to alleged personal mistreatment by supervisors and fellow mangers. McAtee's email does not indicate that she reported any specific violation of a health or safety law. Beyond that, McAtee admitted during her deposition that when Deepali followed up with her, she was receptive and supportive, not angry or retaliatory. Indeed, McAtee's testimony about all of her encounters with Deepali demonstrates that Deepali did not ever become angry or frustrated with McAtee. Equally important, undisputed evidence shows that Deepali was not involved in McAtee's decision to abandon her shift or in Shake Shack's subsequent decision to terminate McAtee for that conduct.
McAtee peppers her arguments with synopses of cases involving discrimination or retaliation claims brought under different statutes, without showing these cases are pertinent to our review. For example, McAtee relies on Mamou v. Trendwest Resorts, Inc., (2008) 165 Cal.App.4th 686, for the proposition that an employee's refusal to participate in FEHA discrimination can support an inference of retaliatory motive. In Mamou, there was evidence the plaintiff was terminated after refusing to participate in his supervisors' express plan to discriminate against employees based on their national origin. (Id. at p. 714.) In contrast to Mamou, the present case does not involve allegations or evidence of national origin discrimination, or any other activity prohibited by FEHA. Moreover, in this case the summary judgment evidence shows that McAtee was terminated for conduct that had nothing to do with the health and safety issues that she relies on as the basis for her whistleblower claim.
Through a second set of factual arguments, McAtee attempts to show that a retaliatory motive can be inferred from evidence that Shake Shack did not genuinely believe McAtee abandoned her job. Undisputed evidence shows that on January 25 McAtee left work before the end of her shift and without permission because of a petty argument with Justise that had nothing to do with a perceived violation of any law or regulation. That night, she told Symphony she would not return to the San Mateo store and she conveyed the same message in her email to Shawn Chao. Further, we find nothing in the record to contradict Chao's testimony about his investigation of the January 25 incident and resulting determination that McAtee abandoned her shift.
McAtee contends that Deepali's January 25 text, telling McAtee to rest, take care, and relax, supports an inference that Shake Shack did not "actually believe McAtee abandoned her job." Undisputed evidence shows that Deepali had already left work when the January 25 incident occurred, and that she did not give permission for McAtee to leave work before her shift was over. Evidence Deepali attempted to placate McAtee after the fact is not probative of McAtee's theory that she was terminated for a reason other than her unilateral decision to abandon her shift. For similar reasons, evidence that Shake Shack granted McAtee's request to take a few days off after the January 25 incident is immaterial to the motive underlying her termination. As the record shows, Chao used that time to investigate what happened on January 25 and decide how to proceed.
Finally, McAtee intimates that Shake Shack failed to carry its burden of proof because it did not produce evidence that any other employee was terminated for abandoning a shift. We reject the unsupported premise that such a showing was required. McAtee cites Diaz v. Eagle Produce Ltd. Partnership (9th Cir. 2008) 521 F.3d 1201, which affirmed in part and reversed in part a grant of summary judgment against four farm-worker plaintiffs who alleged their former employer violated federal age discrimination law by terminating their employment. (Id. at p. 1204.) In that context, the Diaz court held that evidence an employer violated a company policy by terminating the plaintiffs' employment could be evidence of pretext under the McDonnell Douglas test. (Id. at p. 1214, fn. 7.) Here, by contrast, we find no evidence that McAtee's termination was inconsistent with company policy, nor any other evidence supportive of McAtee's allegation that Shake Shack used the January 25 incident as a pretext for retaliating against her for alleged whistleblowing activity.
As discussed, a section 1102.5 plaintiff is not required to produce evidence of pretext. (Lawson, supra, 12 Cal.5th at pp. 712 &718, fn. 2.) Instead, the employer establishes a statutory defense with clear and convincing evidence that it would have terminated the employee for a legitimate reason, even if the employee had not engaged in the allegedly protected activity. For the reasons outlined above, we affirm the trial court's finding that Shake Shack carried its burden of proving this defense. Thus, the burden shifted back to McAtee to show there is a triable issue of fact, which she failed to do.
IV. McAtee's Theory That She Was Subjected to Other Adverse Employment Action
McAtee contends there are triable issues as to whether Shake Shack violated section 1102.5 by taking other adverse employment actions against her before it terminated her employment. In a section 1102.5 case, "the plaintiff 'must demonstrate that he or she has been subjected to an adverse employment action that materially affects the terms, conditions, or privileges of employment.'" (Francis, supra, 81 Cal.App.5th at pp. 540-541.) Contrary to McAtee's appellate argument, Lawson does not discuss the meaning of the adverse employment action requirement. However, we find pertinent guidance in Francis, which was cited in the trial court's summary judgment order.
In Francis, a criminalist employed by the Los Angeles Police Department alleged that the Department violated section 1102.5 by retaliating against her after she uncovered DNA in a cold-case murder file that led to the prosecution and conviction of a detective who also worked for the Department. (Francis, supra, 81 Cal.App.5th at pp. 535-536.) The trial evidence showed that the Department did not terminate plaintiff's employment, demote her, suspend her, or deny her any pay. (Id. at p. 543.) However, she claimed she was subject to other adverse employment actions after she made her disclosure in the cold case. For example, she was ordered to attend therapy after showing signs of experiencing stress; she was taken off high-profile cases after a district attorney refused to work with her; she was criticized by other officers and accused of dishonesty; and she testified less frequently in court cases. (Ibid.)
The Francis jury returned a defense verdict, which was affirmed on appeal. (Francis, supra, 81 Cal.App.5th at pp. 534-535.) The court found that a nonsuit should have been granted because the trial evidence was insufficient to permit a jury to find that the plaintiff suffered adverse employment action. (Ibid.) In reaching this conclusion, the court summarized the following pertinent factors:" 'Minor or relatively trivial adverse actions by employers or fellow employees that, from an objective perspective, are reasonably likely to do no more than anger or upset an employee do not materially affect the terms or conditions of employment.' [Citations.] This requirement '" 'guards against both "judicial micromanagement of business practices" [citation] and frivolous suits over insignificant slights.' [Citation.] Absent this threshold showing, courts will be thrust into the role of personnel officers, becoming entangled in every conceivable form of employee job dissatisfaction." '" (Id. at p. 540.) Ultimately, the Francis court held the plaintiff did not prove an adverse employment action because the actions about which she complained, whether considered in isolation or collectively, did not materially affect the terms, conditions, or privileges of her employment. (Id. at p. 543.)
Applying the principles summarized in Francis, we affirm the trial court's finding that there is no triable issue as to McAtee's theory that she suffered adverse employment actions prior to the termination of her employment. McAtee's own testimony and the other summary judgment evidence establishes conclusively that McAtee was not demoted or otherwise penalized by her employer during her temporary assignment at the San Mateo store until she left in the middle of her shift without permission. McAtee intimates she was effectively demoted when she was assigned to work at the register, which prevented her from performing other managerial duties. This contention is undermined by McAtee's testimony that she was assigned to the register on her first day of work at San Mateo, and her admission that this was not an uncommon assignment for a manger working at that location. We find no evidence that having McAtee perform what she considered to be non-managerial tasks while on a temporary work assignment had any material effect on the terms of her employment.
The other incidents McAtee describes as adverse employment actions are more accurately characterized as personality conflicts among coworkers. Specifically, McAtee argues that Justise was verbally abusive, and Fabiola should not have followed her around and questioned her. McAtee cites no authority supportive of her position that these sort of encounters with a coworker constitute an adverse employment action. Instead, she relies on E.E.O.C. v. National Education Assn. (9th Cir. 2005) 422 F.3d 840, an action against a labor organization for violating Title VII of the Civil Rights Act of 1964 by creating a sex-based hostile work environment for three former female employees. In that case, the employees' male supervisor routinely yelled at them in a loud and hostile manner, the "shouting was frequent, profane, and often public," there was "little or no provocation for these episodes," and the supervisor's conduct "created a general atmosphere of intimidation in the workplace." (Id. at pp. 843-844.) Under these circumstances, the Ninth Circuit found a triable issue whether the work environment created by the employer's supervisor was sufficiently severe to be illegal under Title VII. In contrast to National Education Assn., McAtee did not allege a claim against Shake Shack for creating a hostile work environment, and the evidence of her petty disputes with coworkers does not warrant drawing any material factual parallel between this case and the Title VII authority upon which McAtee relies.
" '[W]ork places are rarely idyllic retreats, and the mere fact that an employee is displeased by an employer's act or omission does not elevate that act or omission to the level of a materially adverse employment action.'" (Thomas v. Department of Corrections (2000) 77 Cal.App.4th 507, 511.) "The employment action must be both detrimental and substantial." (Ibid.) McAtee's testimony about interactions with other employees during her temporary work assignment did not describe any substantially detrimental action, and even when considered collectively, these interactions did not materially alter the terms or conditions of her employment with Shake Shack. The only employment action alleged by McAtee that meets this requirement is the decision to terminate McAtee for abandoning her shift. And, as discussed, Shake Shack carried its burden on summary judgment of proving that it terminated McAtee's employment for a legitimate, nonretaliatory reason. Because McAtee failed to raise a triable issue of fact as to this defense, summary judgment was properly granted.
DISPOSITION
The judgment is affirmed. In the interests of justice, each party is to bear its own costs.
WE CONCUR: FUJISAKI, J., RODRÍGUEZ, J.