Opinion
A131130
01-26-2012
GILBERT MORALES, Plaintiff and Appellant, v. WASTE MANAGEMENT OF ALAMEDA COUNTY, INC., Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Alameda County Super. Ct. No. HG08371517)
Plaintiff Gilbert Morales sued his former employer, defendant Waste Management of Alameda County, Inc. (Waste Management), for wrongful termination, discrimination, retaliation, and other claims. Waste Management successfully moved for summary judgment, demonstrating it terminated plaintiff only after he had made threats of lethal violence against his supervisors. Plaintiff contends the trial court erred in granting summary judgment because, among other reasons, he was not given proper notice of the motion and raised triable issues of fact. We affirm.
I. BACKGROUND
Plaintiff's first amended complaint (complaint) alleges he worked for Waste Management for 19 years before his termination in February 2007. At various times throughout his employment, he was subjected to unsafe working conditions. When he complained about those conditions to supervisors, he was subjected to retaliatory abuse and discriminatory treatment on the basis of his ethnic heritage and religious beliefs. The complaint alleges claims for unfair competition, intentional infliction of emotional distress, wrongful termination on several theories, retaliation, fraud, and wage and hour violations.
On July 30, 2010, two months before the scheduled trial date of October 1, Waste Management filed a motion to continue the trial date in order to permit it to file a timely motion for summary judgment. The motion to continue explained that the October trial date was set at a hearing in April 2010. At that time, Waste Management intended to file a motion for summary judgment following the anticipated completion of plaintiff's deposition on May 5. As it happened, the deposition was not concluded until June 3. On June 8, Waste Management's attorney contacted the court and was assigned a summary judgment hearing date of August 17. Although that date did not provide sufficient time to meet the statutory 75-day notice requirement, counsel did not recognize the problem and served and filed an untimely motion for summary judgment on June 18. Waste Management did not learn of the mistake until notified by opposing counsel on July 20.
According to Waste Management's reply brief in support of the motion to continue, plaintiff argued in opposition there was no good cause for a continuance and he would be prejudiced by a continuance. The court nonetheless granted the motion on grounds of good cause and continued the trial date to January 3, 2011.
Because plaintiff's opposition to the motion to continue is not included in the appellate record, we cannot confirm this.
Waste Management refiled its motion for summary judgment on August 30 for hearing on November 23, thereby providing plaintiff adequate notice. The motion for summary judgment argued, as relevant to this appeal, that plaintiff's wrongful termination and retaliation claims failed because he was terminated for a legitimate, nondiscriminatory reason, his retaliation claim failed because he was not engaged in protected activity, and his intentional infliction claim was preempted by workers' compensation.
In his opening brief, plaintiff does not challenge the grant of summary judgment on his claims for unfair competition, fraud, and wage and hour violations. Although plaintiff claims in his reply brief to be contesting all of the trial court's rulings, he waived any further challenges by not raising them in his opening brief. (Martin v. PacifiCare of California (2011) 198 Cal.App.4th 1390, 1410, fn. 12.)
The declarations submitted by Waste Management in support of the motion for summary judgment established the company maintained a written code of conduct (code) in which all employees were instructed. The provision of the code dealing with "Workplace Violence" states: "Waste Management has a zero tolerance policy on acts of violence and verbal or physical behavior that could lead to or cause workplace violence. . . . Included in prohibited behavior are: making threatening remarks, causing physical injury to someone else, . . . and/or acting aggressively in a way that causes someone else to fear they could be injured." Plaintiff expressly acknowledged the workplace violence policy in an agreement he executed in 2005 to resolve a grievance.
Plaintiff had some history of making threatening statements to coworkers. During a workers' compensation hearing in March 2005, he twice suggested that, as a result of stress, he might commit murder in the workplace. The supervisor who was testifying at the time plaintiff made these remarks "understood his statement to be a threat to my personal safety. . . . [¶] . . . [¶] I took Plaintiff's statements seriously and believed he could be capable of workplace violence . . . ." In late December 2005, plaintiff was reported by two other employees to have said he "wished he had an AK47 machine gun." When managers met with plaintiff to discuss this comment, he did not deny making it and promised to refrain from making further threatening remarks.
In February 2007, plaintiff was reported to have engaged in unsafe conduct at work. Toward the end of a meeting with two supervisors and the shop steward called to discuss the unsafe conduct, plaintiff was asked to sign an "employee counseling report" acknowledging the meeting. Plaintiff became "confrontational[,] . . . . claimed that he was being picked on, and said, 'you know, this could make a guy want to get an Uzi and bring it back here.' " When the shop steward protested the threat, "Plaintiff reiterated that he was very serious when he made the comment." A supervisor ordered plaintiff to leave the premises, and the police were called. Before the end of the month, following an investigation, plaintiff was terminated "for threats of workplace violence in violation of Company policy." The district manager responsible for the decision to terminate plaintiff explained, "I felt that terminating Plaintiff's employment was appropriate. Threats of workplace violence are not appropriate, and no other employee had ever remained employed after making such a threat."
Asked about this incident during the deposition taken in connection with this lawsuit, plaintiff recalled the February 2007 meeting. When counsel asked plaintiff about "an allegation or an accusation that you had said something about an [Uzi] or an AK-47," he responded, "Those are allegations that they made, you know. I don't believe I use[d] either of those terms. [¶] I used the term in that room, I think, 'a machine gun.' And what I did was I used a hypothetical construct. [The supervisor] was asking me—you know, I was sitting there saying, Look, why are you pushing my buttons? You want to give me a letter? Give me a letter. That's fine. You know, but don't harass me. . . . [¶] . . . [¶] So what I'm saying is, why do you push folk's buttons? You don't know. Nobody can tell you when somebody is going to go off, you know." Plaintiff recalled the shop steward responded to his comment with, " 'You can't say that. You're threatening the company.' " When one of the supervisors smiled at his comment, plaintiff was "provoked" to say, "[I]f somebody was to come in here and kill folks, I don't think that's something you would be happy about."
The appellate record does not contain the entirety of plaintiff's opposition to the motion for summary judgment, but we have plaintiff's statement of undisputed facts, his own declaration, and the declarations of four coworkers. In his declaration, plaintiff explained his career at Waste Management changed dramatically after he ran for union office in 1998. At that time, he began to "voic[e] more concerns" about issues in the workplace and became a "target for harassment." The declaration described and documented incidents in 2003 and 2005 for which plaintiff received what he believed to be unwarranted discipline. Concerning the February 2007 meeting that led to his termination, plaintiff stated that the unsafe work practice of which he was accused "was a minor one and not something that would usually require special approval." During the meeting, he told the supervisors they should not harass people and "tried to explain to them that one could never be sure what type of reaction they would get if they continuously harassed a person. . . . [¶] [But] I did not threaten to kill anyone or to go postal." Three of the coworker declarations submitted by plaintiff described incidents of workplace violence and threats of violence that did not lead to termination and disparate treatment of Caucasian and Latino workers. A fourth declaration described the 2005 incident at which plaintiff mentioned an AK-47, explaining it did not involve a threat of violence, and documented mistreatment of plaintiff.
Although these documents were not contained in the clerk's transcript, plaintiff has moved to augment the record with his undisputed statement of facts, his own declaration, and the declarations of Rob Mora, Theodora Velasquez, Mel Gutleben, and Tony Victoria. The motion is granted as to these documents, which were contained in the trial court record. For similar reasons, we grant Waste Management's motion to augment the record with the declaration of Jack Isola, which was inadvertently omitted from the clerk's transcript. We deny plaintiff's motion to augment with respect to a 2002 medical report that was not before the trial court.
The trial court granted summary judgment, holding (1) there was no admissible evidence establishing a prima facie case of discrimination; (2) there was no triable issue of fact with respect to the making of the threat causing plaintiff's termination, which constituted a "legitimate reason" for the termination; and (3) there was no triable issue the termination was made in retaliation for earlier safety complaints.
II. DISCUSSION
Plaintiff contends the trial court's judgment should be reversed because (1) the court improperly granted the motion for summary judgment in violation of the 75-day notice requirement of Code of Civil Procedure section 437c, subdivision (a); (2) there were disputed issues of material fact that precluded summary judgment; (3) he established a prima facie case of retaliation; (4) reporting of safety violations is a protected activity; (5) workers' compensation law does not preempt his claims for discrimination; and (6) his claims were not barred by the statute of limitations. A. The 75-day Notice Period
Plaintiff contends the trial court abused its discretion in permitting the motion for summary judgment to be heard on less than the 75 days of notice required by Code of Civil Procedure section 437c, subdivision (a).
Plaintiff's argument is premised on a mistake of fact. While the trial court would have erred had it permitted the motion to be heard on less than 75 days' notice (e.g., Robinson v. Woods (2008) 168 Cal.App.4th 1258, 1262), that did not happen. As discussed above, Waste Management initially scheduled the motion on less than 75 days' notice. When counsel discovered the error, Waste Management moved for a continuance of the trial to permit the filing of a summary judgment motion on proper notice. The court granted the continuance, and the motion was renoticed on August 30 for hearing on November 23, thereby complying with the 75-day notice requirement. Accordingly, there was no violation of the notice provision of Code of Civil Procedure section 437c, subdivision (a).
Plaintiff also argues Waste Management erred in seeking relief under Code of Civil Procedure section 473, subdivision (b), which allows the court to relieve a party "from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect." Section 473 was not, however, the only ground on which Waste Management sought relief. The California Rules of Court expressly permit a trial date to be continued upon a showing of "good cause." (Cal. Rules of Court, rule 3.1332(c); Forrest v. Department of Corrections (2007) 150 Cal.App.4th 183, 199, disapproved on other grounds in Shalant v. Girardi (2011) 51 Cal.4th 1164, 1172 & fn. 3.) Waste Management prominently relied on rule 3.1332 in making its motion for a continuance, arguing in one of the subheadings of its motion, "Good Cause Exists To Continue The Trial Date Under CRC 3.1332." The court thereafter granted the motion under rule 3.1332, noting there was good cause for the continuance. Plaintiff does not argue good cause did not exist under rule 3.1332, and we find no reason to question the trial court's exercise of discretion. It is therefore irrelevant whether the court would have erred had it relied on Code of Civil Procedure section 473. B. Disputed Issues of Fact
Defendant contends his declaration and the declarations of his coworkers created a triable issue of fact as to the legitimacy of his termination. He also argues the coworker declarations demonstrated that other workers had made similar threats without incurring discipline.
We review de novo the trial court's ruling on summary judgment. (Dollinger DeAnza Associates v. Chicago Title Ins. Co. (2011) 199 Cal.App.4th 1132, 144.) "In determining whether the parties have met their respective burdens, the court must ' "consider all of the evidence" and "all" of the "inferences" reasonably drawn therefrom [citation], and must view such evidence [citations] and such inferences [citations], in the light most favorable to the opposing party.' [Citation.] 'There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.' [Citation.] Thus, a party 'cannot avoid summary judgment by asserting facts based on mere speculation and conjecture, but instead must produce admissible evidence raising a triable issue of fact.' " (Id. at pp. 1144-1145.)
Further, a party cannot create a triable issue of fact merely by submitting a declaration that is in conflict with the declarant's prior sworn testimony. "In determining whether any triable issue of material fact exists, the trial court may give 'great weight' to admissions made in discovery and 'disregard contradictory and self-serving affidavits of the party.' [Citation.] Our Supreme Court has explained that such admissions 'have a very high credibility value,' particularly when they are 'obtained not in the normal course of human activities and affairs but in the context of an established pretrial procedure whose purpose is to elicit facts.' [Citation.] 'Accordingly, when such an admission becomes relevant to the determination, on motion for summary judgment, of whether or not there exist triable issues of fact (as opposed to legal issues) between the parties, it is entitled to and should receive a kind of deference not normally accorded evidentiary allegations in affidavits.' [Citation.] Where a declaration submitted in opposition to a motion for summary judgment clearly contradicts the declarant's earlier deposition testimony or discovery responses, the trial court may fairly disregard the declaration and ' "conclude there is no substantial evidence of the existence of a triable issue of fact." ' " (Whitmire v. Ingersoll-Rand Co. (2010) 184 Cal.App.4th 1078, 1087.)
Even assuming plaintiff's declaration was sufficiently clear in its denial to create a triable issue of fact regarding his making of the alleged threat, the trial court was entitled to disregard the declaration to the extent it contradicted his prior deposition testimony. In that testimony, plaintiff essentially admitted having made the threat. Although he denied having specifically referred to an "Uzi" or "AK-47," he acknowledged having used the term, " 'a machine gun.' " Further, plaintiff acknowledged he had combined this reference to an automatic weapon with the suggestion that someone in his position might commit violence. As plaintiff admitted saying, "Nobody can tell you when somebody is going to go off, you know," and "if somebody was to come in here and kill folks, I don't think that's something you would be happy about." The "somebody" to whom plaintiff referred was plainly him, since he was the person being provoked. Regardless of whether the threat was explicit, as Waste Management's witnesses declared, or implicit, as plaintiff admitted, the message was clear: the supervisors had placed themselves at risk of being shot by plaintiff by pushing him too far. The trial court did not err in concluding there was no triable issue of fact that plaintiff had made a threat of lethal violence against his supervisors.
The declarations of plaintiff's coworkers did not raise a triable issue as to the legitimacy of Waste Management's claimed grounds for terminating plaintiff. None of the declarations described a threat of lethal violence, made under circumstances suggesting serious intent. Further, neither of the persons involved was shown to have made similarly serious threats on at least two prior occasions, as plaintiff had. Nor is plaintiff's attempt to characterize his statements as "hyperbole" successful. Regardless of his intent, plaintiff's statements threatened a very serious form of violence that genuinely alarmed his supervisors. They were entitled to take these threats at face value. C. Evidence of Retaliation
Plaintiff contends he "established a prima facie case of retaliation." Given the undisputed evidence of a legitimate, nonretaliatory reason for plaintiff's termination, however, it is legally irrelevant that he established a prima facie case of retaliation. As his own brief recognizes, once an employer demonstrates a legitimate, nonretaliatory reason for the termination, a prima facie case of retaliation is insufficient. Instead, the burden shifts back to the plaintiff to demonstrate a triable issue of intentional retaliation. (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.)
Plaintiff does not argue he provided adequate evidence of intentional retaliation, and we find none. Taken at face value, plaintiff's evidence of discrimination and retaliation consisted of a small number of incidents scattered over several years. The most recent incident of protected activity cited in his declaration, a letter to one of his supervisors, occurred in December 2005, over a year before his termination. Although Waste Management began termination proceedings through the grievance procedure soon after that letter, plaintiff's termination did not occur through those proceedings or for the reasons cited as grounds in those proceedings. Instead, he was terminated for new conduct that is in clear violation of the company's code. Nor is there " 'substantial' " evidence to suggest the new conduct was merely a pretextual cover for retaliation or discrimination. (Horn v. Cushman & Wakefield Western, Inc. (1999) 72 Cal.App.4th 798, 806-807.) D. Workers' Compensation Preemption
We do not separately address plaintiff's argument that reporting a safety violation is a protected activity. Assuming he engaged in a protected activity, plaintiff failed to provide evidence tying the protected activity to his termination.
Plaintiff argues his claims for wrongful termination were not preempted by workers' compensation. The argument misunderstands Waste Management's arguments in seeking summary judgment. In the trial court, Waste Management argued only that plaintiff's claim for intentional infliction of emotional distress was preempted by workers' compensation, not that his discrimination and retaliation claims were preempted. The trial court's order granting the summary judgment motion cited preemption as ground for decision only with respect to the intentional infliction claim. A claim for intentional infliction of emotional distress is preempted by workers' compensation unless the distress was caused by intentional discrimination. (Phillips v. Gemini Moving Specialists (1998) 63 Cal.App.4th 563, 577.) Because plaintiff's discrimination claims were found to be without merit, any further claim for intentional infliction of emotional distress was properly found to be preempted. (Ibid.) E. Statute of Limitations
Plaintiff argues his claims for discrimination and retaliation were not barred by the statute of limitations. While Waste Management cited the statute of limitations in connection with plaintiff's wage and hour claims, arguing plaintiff "admit[ted] he received all meal and rest breaks within the statute of limitations period," it did not cite the statute of limitations in connection with his other claims. The trial court did not cite the statute of limitations at all in its order granting summary judgment. Further, the existence of a legitimate, nondiscriminatory basis for termination is a complete defense to plaintiff's claims, making reliance on the statute of limitations unnecessary. Accordingly, we do not address this contention.
III. DISPOSITION
The judgment of the trial court is affirmed.
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Margulies, J.
We concur: ________________
Marchiano, P.J.
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Dondero, J.