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granting summary judgment to employer where employer advised employee of investigation into purported misconduct via letter and offered to allow the employee to answer questions relating to the investigation but did not contact the employee further during his leave when the employee declined to participate
Summary of this case from Krause v. Eihab Human Servs., Inc.Opinion
CASE NO. 14cv181-MMA (RBB)
04-24-2015
ROBERT NEUMEYER, Plaintiff, v. WAWANESA GENERAL INSURANCE COMPANY, et al., Defendants.
ORDER AFFIRMING TENTATIVE RULING;
[Doc. No. 55]
GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
[Doc. No. 44]
Defendants Wawanesa General Insurance Company and Catherine Marlar move for summary judgment as to Plaintiff Robert Neumeyer's claims in this employment discrimination action. See Doc. No. 44. In the alternative, Defendants move to limit Neumeyer's recoverable damages at trial. On April 13, 2015, the parties appeared before the Court for a hearing on Defendants' motion. In anticipation of the hearing, the Court issued a tentative ruling on the motion. See Doc. No. 55. After considering the oral arguments of counsel, for reasons stated on the record during the hearing and set forth in more detail below, the Court AFFIRMS its tentative ruling and GRANTS IN PART and DENIES IN PART Defendants' motion.
FACTUAL BACKGROUND
These facts are taken from Defendants' separate statement of undisputed facts and Plaintiff's response thereto, together with pertinent cited exhibits and relevant deposition testimony. Where a material fact is in dispute, it will be so noted.
Wawanesa hired Robert Neumeyer as an at-will employee in March 1994. Neumeyer was promoted to a supervisory role in the Subrogation Unit in 2002. Neumeyer married fellow Wawanesa employee Laura (Hanson) Neumeyer in 2007. Wawanesa employed Laura in its Special Investigations Unit. In January 2011, Neumeyer states that he voiced concern to Claims Manager Catherine Marlar that Laura was being treated unfairly due to her emotional disability. Laura suffers from bipolar disorder. Marlar does not recall having any sort of discussion of this nature with Neumeyer, and neither Marlar nor Wawanesa have any record of Neumeyer complaining that Laura was the target of harassment or discrimination.
In February 2011, Wawanesa hired Tim Johnson to be the new supervisor of the Special Investigations Unit. Johnson became Laura's immediate supervisor. In March 2011, Wawanesa fired Laura Neumeyer for poor performance. The day she was fired, Robert exchanged some unpleasant words with Johnson. During March 2011, Marlar had two conversations with Neumeyer regarding unprofessional outbursts he directed at Johnson.
The stress from his job, Laura's employment situation, and financial problems resulted in clinical depression for which Neumeyer began treatment in February 2011 with Dr. Jane Chin. Neumeyer states that after protesting Laura's treatment and the termination of her employment, Neumeyer's supervisors, co-workers, and subordinates began treating him with animosity. Neumeyer states that his subordinates made mean, personal remarks about him behind his back in email exchanges.
On September 1, 2011, Johnson's vehicle was vandalized with paint stripper while parked in the garage at Wawanesa. Credit card records show that on August 31, 2011, Neumeyer bought a can of paint stripper at a Lowe's Home Improvement store in Santee, California. Neumeyer has no recollection of buying any paint stripper. Neumeyer denies vandalizing Johnson's car. When asked during her deposition whether her husband vandalized Johnson's car, Laura invoked her Fifth Amendment right to not answer the question.
In the meantime, also on September 1, 2011, Andrea Siao, one of Neumeyer's subordinates in the Subrogation Unit, accessed a database maintained by the California Department of Motor Vehicles ("DMV") to identify the current owner of a 2005 Chrysler PT Cruiser (license plate number 5KDM410). Neumeyer previously owned the PT Cruiser, and had sold the vehicle earlier that year. Neumeyer denies all of the following: according to Siao, she accessed the DMV database at Neumeyer's instruction in order to identify the current owner of the PT cruiser. Neumeyer told Siao he wanted to contact the new owner because he had been receiving tickets from the DMV for FasTrak Express Lane violations pertaining to the PT Cruiser. After she performed the search, Siao gave Neumeyer a print out of the new owner's personal information. Neumeyer gave Siao the claim number from an unrelated claim to use when she performed the DMV database search, and he did not complete any of the paperwork ordinarily required when accessing the database.
On September 2, 2011, Tim Johnson reported to his supervisor, Steve Cescolini, that he overheard Neumeyer ask Siao to run an improper search of the DMV database for personal reasons. Cescolini in turn reported the incident to his supervisor, Catherine Marlar. On September 6, 2011, Marlar launched an official investigation into the incident. That same morning, Marlar and Mercedes Betanco, the Liability Division supervisor, interviewed Siao about the incident. Siao ultimately admitted during the interview that she had accessed the DMV database at Neumeyer's request and for his personal reasons.
Neumeyer did not come to work on September 6, 2011. Siao claims she called Neumeyer that morning to alert him that they had been caught. Neumeyer denies ever receiving such a call. According to Neumeyer, he did not come to work because he was sick. Later that day, Neumeyer requested a medical leave of absence from Wawanesa through their Human Resources department. Wawanesa granted his request. On September 12, 2011, Neumeyer provided a supporting note from his treating psychiatrist, Dr. Chin, stating that Neumeyer would not be able to return to work until November 1, 2011. This date was later extended to November 3, 2011.
Marlar attempted to contact Neumeyer by telephone during his leave of absence to discuss matters related to the incident and investigation. Neumeyer declined to discuss those matters and Marlar suspended the investigation until his return from leave.
On November 2, 2011, Neumeyer began the process of filing an administrative charge against Wawanesa with the Equal Employment Opportunity Commission ("EEOC") for discrimination and retaliation based on his and Laura's emotional disabilities.
On November 3, 2011, Neumeyer returned from his medical leave of absence. That morning, Marlar and Siobhan Graham, the Human Resources supervisor, interviewed Neumeyer regarding the September 1 incident. During the interview, Neumeyer denied asking Siao to access the DMV database. Neumeyer suggested that Siao had searched the database for her own reasons or at someone else's request. Marlar and Graham interviewed Siao again that morning. After interviewing Siao, Marlar and Graham interviewed several employees who worked the early shift near Siao's cubicle. They also interviewed Tim Johnson, Christina Dullek, and Rick Albanese. All three individuals reported overhearing Neumeyer ask Siao to access the DMV database in order to search for the PT Cruiser's current owner. Later that day, Wawanesa placed Neumeyer on administrative leave.
Neumeyer disputes the truth of these individuals' statements, but does not appear to dispute that the individuals actually made those statements during their interviews.
On November 9, 2011, the EEOC mailed Wawanesa a notice of the "unperfected" version of Neumeyer's administrative charge. The notice indicated that Neumeyer alleged discrimination based on disability and retaliation, beginning on or about February 1, 2011.
Throughout the month of November 2011, the investigation continued. Marlar worked with Glynnis Mull of the DMV in an effort to corroborate witness statements about Neumeyer and Siao's conduct. Graham prepared a written summary of the investigation on November 22, 2011. In her summary, Graham concluded, inter alia, that Neumeyer had asked Siao to access the DMV database for personal reasons; that Siao did as Neumeyer asked; and that Neumeyer lied during his interview when he denied asking Siao to access the database. Graham recommended that both Neumeyer and Siao's employment at Wawanesa be terminated. David Fitzgibbons, Vice President of U.S. Operations, approved the termination of Neumeyer and Siao's employment on November 22, 2011.
Wawanesa terminated Neumeyer's employment on November 29, 2011. Marlar and Graham met with Neumeyer that day to inform him that his employment was being terminated for misusing the DMV database and lying during the investigation. Neumeyer responded with profanity, threatened Marlar, told Marlar to "fuck off," and told her that he didn't like working with her. Neumeyer does not dispute that he did these things.
According to Graham's records, Siao's employment was officially terminated on November 30, 2011. During deposition, Siao couldn't recall when she was terminated.
Neumeyer subsequently amended his EEOC charge to reflect the termination of his employment. On July 19, 2013, the EEOC dismissed Neumeyer's claim because the facts of his claim did not establish a violation of any statute.
On October 16, 2013, Neumeyer, proceeding pro se, filed a civil complaint against Wawanesa and Catherine Marlar in San Diego County Superior Court. Neumeyer asserts in his complaint that his employment at Wawanesa was terminated because he complained about the disability harassment of his wife, took leave due to his own disability, and filed charges with the EEOC. Neumeyer alleges the following claims against Wawanesa: retaliation, associational disability discrimination, and disability discrimination in violation of California's Fair Employment and Housing Act ("FEHA"), Cal. Gov. Code § 12940, et seq.; violation of the California Family Rights Act ("CFRA"), Cal. Gov. Code § 12945.2, et seq., and the Federal Medical Leave Act ("FMLA"), 28 U.S.C. § 2617, et seq.; and wrongful termination in violation of public policy. Neumeyer alleges a single claim against Marlar for violation of the FMLA.
Plaintiff filed his complaint pro se. Thereafter, Plaintiff obtained legal representation. On October 25, 2013, Plaintiff filed a notice in state court, substituting Dennis Grady as his counsel. See Notice of Removal, Ex. E.
Defendants removed the action to this Court on January 27, 2014. See Notice of Removal, Doc. No. 1.
MOTION FOR SUMMARY JUDGMENT
Defendants move for summary judgment as to all claims. Defendants assert that Neumeyer did not exhaust his administrative remedies with respect to his FEHA disability discrimination and CFRA interference claims. Defendants further argue that all of Neumeyer's claims fail as a matter of law. Defendants also seek an order limiting Neumeyer's recoverable damages based on after-acquired evidence of wrongdoing and dismissing Neumeyer's punitive damages claim. Neumeyer opposes the motion, arguing that genuine issues of fact mandate that his claims go to trial. 1. Legal Standard
"A party may move for summary judgment, identifying each claim or defense - or the part of each claim or defense - on which summary judgment is sought. The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The party seeking summary judgment bears the initial burden of establishing the basis of its motion and of identifying the portions of the declarations, pleadings, and discovery that demonstrate absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A fact is material if it could affect the outcome of the suit under applicable law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). A dispute about a material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the non-moving party. Id. at 248.
The party opposing summary judgment cannot "'rest upon the mere allegations or denials of [its] pleading' but must instead produce evidence that 'sets forth specific facts showing that there is a genuine issue for trial.'" Estate of Tucker v. Interscope Records, 515 F.3d 1019, 1030 (9th Cir.), cert. denied, 555 U.S. 827 (2008) (quoting Fed. R. Civ. P. 56(e)). However, as the Ninth Circuit recently reminded district courts:
[I]t should not take much for plaintiff in a discrimination case to overcome a summary judgment motion. This is because the ultimate question is one that can only be resolved through a searching inquiry - one that is most appropriately conducted by a factfinder, upon a full record.Nigro v. Sears, Roebuck & Co., 778 F.3d 1096 (9th Cir. 2015), as amended and superseded, — F.3d —, 2015 WL 1591368 (9th Cir. Apr. 10, 2015) (citations and internal quotation omitted). See also Schechner v. KPIX-TV, 686 F.3d 1018, 1022 (9th Cir. 2012) ("As a general matter, the plaintiff in an employment discrimination action need produce very little evidence in order to overcome an employer's motion for summary judgment."); Lalau v. City & Cnty. of Honolulu, 938 F. Supp. 2d 1000, 1012 (D. Haw. 2013) (even "slight evidence is sufficient to defeat [a] summary judgment motion" in an employment discrimination case). // // // // 2. Neumeyer's Evidentiary Objections
Neumeyer has lodged 64 objections to the defense's exhibits. Neumeyer objects to individual exhibits in whole or in part, based on hearsay, relevance, and other evidentiary grounds. Defendants move to strike Neumeyer's objections because he filed them as a separate document, in violation of this Court's Civil Chambers Rules, which provide that "any evidentiary and procedural objections to [a] motion for summary judgment must be contained within the opposition brief. . . . Any separately filed objections shall be stricken and will not be considered by the Court." Civ. Chambers R. III. Defendants are correct that Neumeyer violated this rule by filing separate evidentiary objections with his opposition to the motion. However, in the interests of justice, the Court declines to strike Neumeyer's objections.
The Court will not address each of Neumeyer's individual relevance objections. Because a court may rely only on relevant evidence in addressing a motion for summary judgment, a citation to evidence subject to a relevance objection means the objection has been overruled. Burch v. Regents of Univ. Of Cal., 433 F. Supp. 2d 1110, 1119 (E.D. Cal. 2006) (stating that relevance objections are redundant because a court cannot rely on irrelevant facts in resolving a summary judgment motion).
The Court advised the parties during the April 13 hearing of its decision to consider the merits of Neumeyer's evidentiary objections and granted Defendants leave to file a response to the objections. See Doc. No. 58.
Many of Neumeyer's objections are "boilerplate recitations of evidentiary principles or blanket objections without analysis applied to specific items of evidence." Doe v. Starbucks, Inc., 2009 WL 5183773, at *1 (C.D. Cal. 2009). On this basis alone, the Court need not scrutinize each objection and give a full analysis of identical objections raised as to each fact. Capitol Records, LLC v. BlueBeat, Inc., 765 F. Supp. 2d 1198, 1200 n.1 (C.D. Cal. 2010) (quotation omitted) (noting that on motions with voluminous objections "it is often unnecessary and impractical for a court to methodically scrutinize each objection and give a full analysis of each argument raised."). Nevertheless, the Court has reviewed each of Neumeyer's evidentiary objections that are material to its ruling, and Defendants' responses. Norse v. City of Santa Cruz, 629 F.3d 966, 973 (9th Cir. 2010).
To the extent any particular objection merits specific mention, the Court does so when appropriate below. Generally, Neumeyer objects to two groups of exhibits on hearsay grounds. The first group consists of emails, notes, reports, and letters written or prepared by Wawanesa employees, including Catherine Marlar. See Def. Exs. 9-10, 12-17, 21-25, and 43-47. The Court agrees with Defendants that these documents are admissible in most instances under one of two hearsay exceptions. Notes taken during meetings are admissible as present sense impressions under Federal Rule of Evidence 803(1). The letters and reports qualify as records of regularly conducted activity under Rule 803(6), since these documents memorialize the official acts of management during the investigation into Neumeyer's alleged misconduct. Neumeyer also objects to a second group of exhibits that includes various business records and records from the California DMV. See Def. Exs. 11, 19-20, 26-29, 31, 41. These records are admissible as business records or public records. See Fed. R. Evid. 803(6), (8). 3. Administrative Exhaustion
As an initial matter, Defendants move for summary judgment on Neumeyer's FEHA disability discrimination claim and his CFRA interference claim based on his purported failure to exhaust his administrative remedies as to these two claims.
a) Relevant Law
A claimant must exhaust his or her administrative remedies before filing a discrimination or retaliation case in federal court. Rodriguez v. Airborne Express, 265 F.3d 890, 896 (9th Cir. 2001). To properly exhaust these claims, a claimant must first file the charge with either the EEOC (enforcing Title VII) or the DFEH (enforcing FEHA). When Title VII and FEHA claims overlap, under the worksharing agreement, the EEOC and DFEH are each the agent of the other for purposes of receiving charges, and thus a filing with one agency is considered to be constructively filed with the other. See, e.g., EEOC v. Dinuba Med. Clinic, 222 F.3d 580, 585 (9th Cir. 2000) ("Constructive filing is made possible by 'worksharing agreements,' which designate the EEOC and the state agency each other's agents for the purpose of receiving charges."); Paige v. State of Cal., 102 F.3d 1035, 1041 (9th Cir. 1996) ("[T]he filing of a charge with one agency is deemed to be a filing with both.").
This Court only has jurisdiction over conduct alleged in the administrative charge(s) filed with the EEOC, and conduct that is "like or reasonably related to" the administrative allegations. Rodriguez, 265 F.3d at 896-97 (internal quotation marks and citation omitted). "This standard is met where the allegations in the civil suit are within the scope of the administrative investigation which can reasonably be expected to grow out of the charge of discrimination." Id. at 897 (internal quotation marks and citation omitted).
When determining whether an unexhausted retaliation or discrimination claim is reasonably related to the exhausted charge, a court may consider the following factors: (1) the alleged basis of the discrimination or retaliation; (2) the dates of discriminatory or retaliatory acts specified in the charge; (3) the identity of the perpetrators named in the charge; and (4) the location(s) of the discriminatory or retaliatory acts. B.K.B. v. Maui Police Dep't, 276 F.3d 1091, 1100 (9th Cir. 2002). In evaluating whether the standard has been satisfied, administrative charges must be liberally construed. Id.
b) Neumeyer's EEOC Charge
Neumeyer filed a Charge of Discrimination with the EEOC on November 2, 2011. Def. Ex. 36, 37. The EEOC provided Wawanesa with a notice of the charge on November 9, 2011. Def. Ex. 36. The notice consisted of a standard form, which included a section entitled "Circumstances of Alleged Discrimination." Id. The form listed nine types of discrimination, with a box next to each type. Id. The boxes next to "Disability" and "Retaliation" were checked. Id. On December 9, 2011, the EEOC provided Wawanesa with notice of Neumeyer's perfected charge, dated November 25, 2011. Def. Ex. 38. Neumeyer used the standard form, where the claimant checks the appropriate boxes based on the nature of the charges. Id. Neumeyer checked the boxes necessary to indicate that he was charging his employer with retaliation, and that the discrimination was continuing. Id. In the space provided on the form for the "particulars" of the charges, Neumeyer stated:
I. From on or about March 1994 through November 25, 2011 and continuing, I have been employed at Wawanesa Mutual Insurance. The position I hold is Subrogation Supervisor. On or about January 2011, I complained to Catherine Marlar, Claims Manager that Laura Neumeyer, Claim Specialist, my spouse, was being subjected to harassment based on her disability.
On or about February 23, 2011, I received my annual performance review from Ed Chapin, Division Supervisor, who gave me five areas marked "Below Expectations" and described my performance as "deteriorated".
On or about November 3, 2011, I was placed on paid administrative leave per Ms. Marlar and Siobhan Graham, Manager of Human Resources. To date, I have not returned to work.
Id. An internal document titled a "Charge Detail Inquiry," dated December 8, 2011, includes the notes of the EEOC Intake staff member who processed Neumeyer's charge. Def. Motion to Dismiss, Ex. 2. Those notes contain a detailed description of the staff member's conversation with Neumeyer regarding the charges. Id. The notes include the facts referenced in Neumeyer's charge, as retold by Neumeyer to the staff member. The notes also include the following additional details:
II. The reason given by Mr. Chapin for the "Below Expectations" on my annual performance review is due to poor performance. The reason given by Ms. Marlar and Ms. Graham for placing me on paid administrative leave is due to an investigation as to a potential company violation.
III. I believe I have been retaliated against for participating in a protected activity by reporting the harassment of a co-worker, which is my spouse, based on her disability, in violation of Title VII of the Civil Rights Act of 1964, as amended.
CP [Neumeyer] stated that on or about September 6, 2011 through November 2, 2011, he was out on leave due to a medical condition (Depression). CP told me that he was diagnosed with this condition in February 201l, also stated that he never informed R [Defendant] about his condition and never requested a reasonable accommodation. CP told me that his leave was granted without a problem and never questioned. CP stated that it was a paid leave of absence.Id. at 3. The staff member further indicated in her notes that "CP said that he believes that Ms. Marlar has been retaliating against him for having participated in protected activity." Id. at 4. On November 30, 2011, the staff member added a note that she spoke to Neumeyer on the phone, and he informed her that his employment had been terminated and he wanted to amend his complaint. Id.
CP stated that he returned to work on November 3, 2011, and was told to report to Ms. Marlar's office. CP said that he met with Ms. Marlar and Siobhan Graham, SPHR, Manager, Human Resources. CP told me that he was informed that he would be placed on unpaid administrative leave pending an investigation regarding a potential violation of company policy.
CP said that he was told that his automobile license plate was run through California Department of Motor Vehicle (DMV) database in violation of company policy and California law. CP said that he was also told that Andrea Siao, Subrogation Clerk, processed the Information, at his verbal request. CP said he denied making the request and also found out that Ms. Siao was not placed on administrative leave and continues to work with R. CP told me that he was escorted out of the office after the meeting in front of all of his employees and ordered not to speak about this personnel action.
Defendants moved to dismiss these claims on the same grounds over a year ago, shortly after removing the case from state court. See Doc. No. 3. The Court denied the motion after finding that Neumeyer's administrative charges, and the EEOC's documentation of the inquiry into Plaintiff's charges, establish that he exhausted his administrative remedies as to the challenged causes of action. See Doc. No. 9. It is unclear why Defendants have raised this issue again, when the Court previously denied relief on these grounds.
On December 23, 2011, Neumeyer amended his charge and checked the box next to "disability." Def. Ex. 39. He did not check the box next to "retaliation." Neumeyer added the information regarding the termination of his employment. Id.
On July 19, 2011, the EEOC issued a Notice of Dismissal and Rights, dismissing Neumeyer's charge on the following grounds: "Based upon its investigation, the EEOC is unable to conclude that the information obtained establishes violations of the statutes. This does not certify that the respondent is in compliance with the statutes. No finding is made as to any other issues that might be construed as having been raised by this charge." Def. Ex. 41.
c) Analysis
Defendants argue that Neumeyer's disability discrimination and CFRA interference claims were not administratively exhausted due to his failure to include those allegations in his EEOC Charge of Discrimination. As noted above, a court may address all claims of discrimination that fall within the scope of the EEOC's actual investigation, or are reasonably expected to grow out of the charge made to the EEOC. Nazir v. United Airlines, Inc., 178 Cal. App. 4th 243, 266-67 (1st Dist. 2009) (the scope of the judicial complaint may "encompass any discrimination 'like and reasonably related to' the allegations of the EEOC charge.").
i) Disability Discrimination Claim
Neumeyer's December 23, 2011 Amended Charge of Discrimination plainly demonstrates on its face that Neumeyer was charging Defendants with disability discrimination - he checked the box next to the word "disability" in response to the form's question regarding the nature of the charge. Furthermore, in the Charge Detail Inquiry, the EEOC staff member recorded that her discussion with Neumeyer included information regarding his medical condition, depression, and his need to take leave because of the condition. The staff member's notes further indicate that Neumeyer informed her the request for leave was granted without a problem, he was never questioned, and he was paid. Neumeyer went on to recount to the staff member that on the day he returned from leave, he was immediately told by Defendants that he was being charged with a violation of company policy and being placed on unpaid leave.
Neumeyer's discussion of his disability (depression), and the concurrent timing of his return from paid leave and his immediate placement on unpaid leave due to a purported company violation, put Neumeyer's current disability discrimination claim "within the scope of the administrative investigation." While a plaintiff cannot rely solely on temporal proximity to establish an employment discrimination claim, such proximity between events is relevant and material to such charges. Neumeyer's allegations, as reported to and recorded by an EEOC staff member, could reasonably be expected to "grow" into a charge of disability of discrimination.
ii) CFRA Interference Claim
As to Neumeyer's claim for violation of the CFRA, Neumeyer's charges with the EEOC included allegations concerning his medical leave (a right he exercised under the CFRA), and his immediate placement on unpaid leave when he returned from his medical leave (an adverse employment action). Liberally construing his administrative charges, as this Court must, Neumeyer exhausted this claim.
d) Conclusion
Neumeyer's administrative charges and the EEOC's documentation of the inquiry into Neumeyer's charges, establish that he exhausted his administrative remedies as to the challenged causes of action. The Court DENIES Defendants' motion for summary judgment as to these claims on this basis. 4. Neumeyer's Retaliation and Discrimination Claims
Defendants move for summary judgment on Neumeyer's FEHA retaliation and discrimination claims, arguing that Neumeyer cannot make out a prima facie case for any of the claims. Defendants further assert that the evidence indisputably shows that Wawanesa fired Neumeyer for a legitimate, non-discriminatory, non-retaliatory reason: a thorough, well-documented investigation revealed that Neumeyer violated company policy and the law. These claims will be discussed in tandem, as they require the Court to apply the McDonnell Douglas burden-shifting framework set forth below.
a) The McDonell Douglas Burden-Shifting Framework
A plaintiff in a FEHA retaliation or discrimination case may create genuine issues of material fact by offering direct or circumstantial evidence of retaliation. "Direct evidence is evidence which, if believed, proves the fact of animus without inference or presumption. Comments demonstrating animus may be found to be direct evidence if there is evidence of a causal relationship between the comments and the adverse job action at issue." DeJung v. Superior Court, 169 Cal. App. 4th 533, 550 (2008); cf. Patten v. Wal-Mart Stores East, Inc., 300 F.3d 21, 25 (1st Cir. 2002) (direct evidence "'consists of statements by a decision maker that directly reflect the alleged animus and bear squarely on the contested employment decision'") (internal citation omitted). In the case of circumstantial evidence, the California Supreme Court has adopted the tripartite burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973), to analyze retaliation and discrimination claims brought under FEHA. See Guz v. Bechtel Nat'l, Inc., 24 Cal. 4th 317 (2000). If the plaintiff chooses to rely on direct evidence, the three-part test of McDonnell Douglas does not apply. DeJung, 169 Cal. App. 4th at 550. Here, Neumeyer has not pointed to any direct evidence of discriminatory or retaliatory animus in the record. Therefore, the analysis in this case proceeds under the McDonnell Douglas framework.
Under McDonnell Douglas, the plaintiff has the initial burden of establishing a prima facie case of discrimination. McDonnell Douglas, 411 U.S. at 802-04. Once a prima facie case is shown, a presumption of discrimination arises and the burden shifts to the defendant to show that the adverse employment action was taken for a legitimate, non-discriminatory or non-retaliatory reason. Id. Stating a legitimate, non-discriminatory, non-retaliatory reason negates the presumption of discrimination and shifts the burden back to the plaintiff to demonstrate that the proffered reason is pretext for discrimination. Id.
When an employer moves for summary judgment, however, "the burden is reversed . . . because the defendant who seeks summary judgment bears the initial burden." Dep't of Fair Emp't & Hous. v. Lucent Techs., Inc., 642 F.3d 728, 745 (9th Cir. 2011) (quotation omitted). "Thus, [t]o prevail on summary judgment, [the employer is] required to show either that (1) plaintiff could not establish one of the elements of [the] FEHA claim or (2) there was a legitimate, nondiscriminatory reason for its decision to terminate plaintiff's employment." Id. (quotation omitted) (alterations in original). If the employer meets its burden, the discharged employee must demonstrate either "that the defendant's showing was in fact insufficient or . . . that there was a triable issue of fact material to the defendant's showing." Id. at 746 (quotation omitted) (omission in original).
b) Prima Facie Case of Retaliation or Discrimination
i) Retaliation Claim
Neumeyer's first claim for relief accuses Wawanesa of violating FEHA by terminating his employment in retaliation for complaints he purportedly made to Marlar about disability discrimination against his wife; for taking a protected medical leave of absence; and for filing charges with the EEOC.
(1) Relevant Law
FEHA makes it unlawful for an employer "to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part." Cal. Gov. Code § 12940(h). To establish a prima facie case of retaliation under FEHA, a plaintiff must demonstrate that: (1) he engaged in a protected activity, (2) his employer subjected him to an adverse employment action, and (3) there is a causal link between the protected activity and the employer's action. See Morgan v. Regents of Univ. of Cal., 88 Cal. App. 4th 52 (2000).
(2) Analysis
Neumeyer establishes a prima facie case of retaliation. Neumeyer's complaint with the EEOC, which he initially filed on November 2, 2011, prior to his termination, is protected activity. See McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1125 n.19 (9th Cir. 2004). Wawanesa terminated Neumeyer's employment on November 29, 2011, less than one month after he filed his complaint, and four days after Neumeyer perfected his administrative charge. This temporal proximity is sufficient in the Ninth Circuit to establish a prima facie case of retaliation. Thomas v. City of Beaverton, 379 F.3d 802, 812 (9th Cir. 2004); Brandon v. Rite Aid Corp., Inc., 408 F. Supp. 2d 964, 979 (E.D. Cal. 2006) ("Temporal proximity along with knowledge by the employer of the protected activity can satisfy the causation requirement.")
ii) Associational Discrimination Claim
Neumeyer claims that Wawanesa treated him worse than other employees, and ultimately terminated his employment, because of his association with his emotionally disabled wife.
(1) Relevant Law
FEHA makes clear that its prohibition against discrimination on the basis of disability "includes a perception that the person has any of those characteristics or that the person is associated with a person who has, or is perceived to have, any of those characteristics." Cal. Gov. Code § 12926(n) (italics added). To prove an associational disability discrimination claim, a plaintiff must show that (1) he was a member of a protected class; (2) he was qualified for his position; (3) he suffered an adverse employment action; and (4) the adverse action was discriminatory (causation). Id. (citing Cal. Gov. Code § 12926(n)).
(2) Analysis
Neumeyer makes out a prima facie case of associational disability discrimination. There does not appear to be any dispute that Laura suffered from an emotional disability. Defendants argue that Neumeyer was not qualified for his position, and point to a number of purported instances of misconduct and sub-par performance reviews. However, Neumeyer continued to serve in his supervisory role for years despite these blemishes in his personnel file. And Defendants offer no evidence that Neumeyer could not perform the requirements of his job. There is no dispute that Neumeyer suffered an adverse employment action, thus the remaining element to satisfy is causation.
"The issue of disability-based discrimination on the basis of an employee's association with an individual with a disability has been the subject of very little litigation." Rope v. Auto-Chlor System of Washington, Inc., 220 Cal. App. 4th 635, 656 (2013). As such, there is little direct guidance in the case law as to what constitutes a prima facie case of associational disability discrimination. Neumeyer points to the following supporting evidence: his complaints to Marlar in January 2011 regarding Laura's treatment and harassment, and the termination of Laura's employment two months later; his altercation with Tim Johnson on the day Laura's employment was terminated; and, mention of his relationship with Laura and the vandalism to Johnson's vehicle in Siobhan Graham's notes during an October 26, 2011 meeting of supervisors. The Court finds this evidence sufficient to support a prima facie case of associational disability discrimination.
iii) Disability Discrimination Claim
Neumeyer also claims discrimination by Wawanesa based on his own emotional disability.
(1) Relevant Law
Section 12940(a) of FEHA prohibits an employer from discharging a disabled employee because of that employee's disability. To show a prima facie case of disability discrimination under FEHA, a plaintiff must show that: (1) he is a member of a protected class; (2) he was qualified for the position he held; (3) he suffered an adverse employment action, such as termination; and (4) some other circumstances that suggest a discriminatory motive. Zeinali v. Raytheon Co., 636 F.3d 544, 552 (9th Cir. 2011).
(2) Analysis
Neumeyer establishes a prima facie case of disability discrimination. Neumeyer suffered from an emotional disability, and as discussed above, Defendants do not offer sufficient evidence that Neumeyer was unqualified for his position. In addition, he suffered an adverse employment action. With respect to the element of causation, Neumeyer asserts that "there is a causal connection [between termination of his employment and disability discrimination] because Plaintiff's performance was not questioned until he took a medical leave of absence on September 6, 2011 [due to his emotional disability]. Indeed, the proximity in time between the leave of absence and the "investigation" into misconduct is strong circumstantial evidence that his medical condition motivated Defendants' behavior." See Plt. Opp. at 18. Wawanesa terminated Neumeyer's employment on November 29, 2011, less than one month after he returned from taking a medical leave of absence due to his disability. This is sufficient circumstantial evidence to establish a prima facie case of disability discrimination.
c) Legitimate Non-Retaliatory, Non-Discriminatory Reason for Termination
Because Neumeyer has established a prima facie case of retaliation and discrimination, Wawanesa must show that there was a legitimate, non-retaliatory, non-discriminatory reason for its decision to terminate Neumeyer's employment.
i) Relevant Law
If a plaintiff establishes a prima facie case of discrimination or retaliation, the defendant must articulate a legitimate, non-discriminatory or non-retaliatory reason for taking an adverse employment action against the plaintiff. "The burden that shifts to the defendant, therefore, is to rebut the presumption of discrimination by producing evidence that the plaintiff was rejected, or someone else was preferred, for a legitimate, nondiscriminatory reason. The defendant need not persuade the court that it was actually motivated by the proffered reasons. . . . The explanation provided must be legally sufficient to justify a judgment for the defendant. If the defendant carries this burden of production, the presumption raised by the prima facie case is rebutted, and the factual inquiry proceeds to a new level of specificity." Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 254-55 (1981). Under FEHA, a defendant's true reasons, "if nondiscriminatory, . . . need not necessarily have been wise or correct . . . While the objective soundness of an employer's proffered reasons supports their credibility, the ultimate issue is simply whether the employer acted with a motive to discriminate illegally. Thus, 'legitimate' reasons . . . in this context are reasons that are facially unrelated to prohibited bias, and which, if true, would thus prohibit a finding of discrimination." Guz, 24 Cal. 4th at 358 (emphasis in original) (citing Burdine, 450 U.S. at 254).
ii) Analysis
Defendants assert that Wawanesa had a legitimate reason for placing Neumeyer on administrative leave upon his return from medical leave and for ultimately terminating his employment: Neumeyer violated company policy, DMV policy, and federal law by ordering his subordinate to access the DMV database for his own personal reasons.
On February 15, 2011, Neumeyer signed an acknowledgment of the California DMV's Information Security Statement. See Def. Ex. 3. By signing the statement, Neumeyer acknowledged the following policy:
I may access information only when necessary to accomplish the responsibilities of my employment. I may not access or use information from the CA DMV for personal reasons. (Examples of inappropriate access or misuse of CA DMV information include, but are not limited to: making personal inquiries or processing transactions on my own records or those of my friends or relatives; accessing information about another person, including locating their residence address for any reason that is not related to my job responsibilities.)Id. (emphasis added). Neumeyer further acknowledged under penalty of perjury that he understood that failure to comply with this policy could result in criminal prosecution and/or civil liability. Id.
The Logan Registration Report of DMV database searches performed by Wawanesa employees for the week encompassing September 1, 2011, showed that Andrea Siao performed a search request for California license plate number 5KDM410, using a false (i.e., unrelated and irrelevant) claim number. See Def. Ex. 10. DMV records showed that Neumeyer owned the vehicle bearing that license plate number until he sold the vehicle in May 2011. See Def. Ex. 19. Siao admitted in two separate interviews with investigators that Neumeyer asked her to perform the search. Glynnis Mull, a DMV representative from the Policy and Information Privacy Section, confirmed for purposes of Wawanesa's investigation that on September 1, 2011, Wawanesa requested a search through Logan Registration of license plate number 5KDM410.
Neumeyer represents in his moving papers that Siao denied that he ever asked her to perform the search. See Plt. Opp. at 6. Defendants' evidence, including notes from each meeting that investigators had with Siao and Siao's deposition testimony, establish that while Siao initially denied knowledge, she ultimately conceded her role in the incident and cooperated with the investigation. See, e.g., Def. Exs. 13, 56.
Marlar and Siobhan Graham interviewed Christina Dullek, a clerk in the Subrogation Unit and co-worker of Siao and Neumeyer. Dullek has offered a sworn declaration confirming that she:
reported to work on the morning of September 1, 2011 around 7: 15 a.m. and went to my desk. Andrea [Siao] was also present that morning. Shortly thereafter, Robert Neumeyer, walked up to Andrea who was sitting at her desk and asked her to search DMV records by license plate for the current owner of a Chrysler PT Cruiser he had sold. Neumeyer told Andrea: "Run this for me. I keep getting bills for the PT Cruiser." Neumeyer explained that he believed his name was still on the PT Cruiser's title because he had received tickets fining him for improper use of California's FasTrak freeway express lane system. He said he wanted to contact the current owner of the PT Cruiser to resolve the issue. In response to Neumeyer's request, I observed Andrea turn to her computer and log into the Logan Registration system. Andrea then provided Neumeyer with the information he requested.Dulleck Decl'n ¶¶ 3-4. Tim Johnson and Rick Albanese, a fellow employee, each independently confirmed to investigators that they observed Neumeyer making the request of Siao, and corroborated the information provided by Siao and Dullek.
Neumeyer emphasizes in his opposition brief that co-worker Matt Olszewski did not overhear Neumeyer ask Siao to run the DMV search. See Plt. Opp. at 5; Plt. Ex. C. However, Matt was not present when the incident occurred, as he had not yet arrived to work. See Def. Exs. 17, 20; Marlar Decl'n ¶ 19.
Defendants have submitted substantial evidence that Neumeyer's employment was terminated for a legitimate, non-discriminatory, non-retaliatory reason. See Guz, supra, 24 Cal. 4th at 357. "A reason is 'legitimate' if it is 'facially unrelated to prohibited bias, and which if true, would thus preclude a finding of [retaliation or discrimination].'" Reid v. Google, Inc., 50 Cal. 4th 512, 520 n. 2 (2010) (citing Guz, 24 Cal. 4th at 358) (emphasis omitted). Neumeyer was found to have accessed the DMV database for personal reasons in violation of the law and Wawanesa's own policy. Illegal conduct and violation of company policy is a legitimate, non-discriminatory, non-retaliatory reason for terminating an individual's employment. See, e.g., Dumas v. New United Motor Mfg., Inc., 305 F. App'x 445, 448 (9th Cir. 2008) ("NUMMI proffered a legitimate, non-discriminatory reason for terminating Mr. Dumas - his violation of company policy."); Elmore v. New Albertson's, Inc., 2012 WL 3542537, at *4 (C.D. Cal. Aug. 15, 2012) ("Albertson's has provided a legitimate, nondiscriminatory reason for Elmore's termination. Specifically, Elmore violated Albertson's company policy through her conduct."); Rezentes v. Sears, Roebuck & Co., 729 F. Supp. 2d 1197, 1205 (D. Haw. 2010) ("Sears may have 'honestly believed' that Rezentes violated company policy and then lied about her actions. Firing an employee because of honesty and integrity concerns is a legitimate, nondiscriminatory reason for a termination."). Accordingly, the burden shifts to Neumeyer to offer evidence of retaliatory or discriminatory motive in order to show the reason for termination was pretextual.
d) Pretext for Retaliation or Discrimination
The question is whether a reasonable jury could find that Wawanesa's legitimate, non-discriminatory, non-retaliatory reason for terminating Neumeyer's employment was in fact a pretext for discrimination or retaliation. Neumeyer asserts that the evidence of pretext in this case is "overwhelming." See Plt. Opp. at 23. Not so.
i) Relevant Law
A plaintiff may demonstrate pretext by showing that the employer's proffered explanation is unworthy of credence because it is "internally inconsistent or otherwise not believable." Chuang v. University of California Davis, Bd. of Trustees, 225 F.3d 1115, 1127 (9th Cir. 2000). "When evidence of pretext is circumstantial, rather than direct," as in this case, "the plaintiff must produce 'specific' and 'substantial' facts to create a triable issue of pretext." Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1222 (9th Cir. 1998). "'An employee in this situation can not simply show the employer's decision was wrong, mistaken or unwise.' 'Rather, the employee must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence . . . and hence infer that the employer did not act for the . . . non-[retaliatory or discriminatory] reasons.'" Dep't of Fair Empl't and Hous. v. Lucent Techns., 642 F.3d 728, 746 (9th Cir. 2011) (citing Morgan v. Regents of the Univ. of Cal., 88 Cal. App. 4th 52 (2000)).
ii) Analysis
Neumeyer characterizes the DMV database incident as "a simple misuse of database protocol," and argues that Wawanesa's investigation was a pretext for firing him. See Plt. Opp. at 22. As discussed above, however, accessing the DMV database for an unauthorized reason is a violation of federal law, specifically the Driver's Privacy Protection Act ("DPPA"), 18 U.S.C. § 2721, et seq. As the Supreme Court explained in Maracich v. Spears, - U.S. - , 133 S. Ct. 2191 (2013), "[t]he enactment of the DPPA responded to at least two concerns over the personal information contained in state motor vehicle records. The first was a growing threat from stalkers and criminals who could acquire personal information from state DMVs. The second concern related to the States' common practice of selling personal information to businesses engaged in direct marketing and solicitation." Id. at 2198. The court went on to explain the DPPA's regulatory scheme:
The DPPA provides that, unless one of its exceptions applies, a state DMV "shall not knowingly disclose or otherwise make available" "personal information" and "highly restricted personal information." §§2721(a)(1)-(2). "[P]ersonal information" is "information that identifies an individual, including [a] . . . driver identification number, name, address . . . [or] telephone number, . . . but does not include information on vehicular accidents, driving violations, and driver's status." §2725(3). "[H]ighly restricted personal information" is defined as "an individual's
photograph or image, social security number, [and] medical or disability information." §2725(4). The DPPA makes it unlawful "for any person knowingly to obtain or disclose personal information, from a motor vehicle record, for any use not permitted under section 2721(b) of this title." §2722(a). A person "who knowingly obtains, discloses or uses personal information, from a motor vehicle record, for a purpose not permitted under this chapter shall be liable to the individual to whom the information pertains." §2724(a).Id. at 2198-99. Here, Wawanesa had reason to believe that Neumeyer "knowingly obtain[ed], disclose[d] or use[d] personal information, from a motor vehicle record, for a purpose not permitted" by one of the DPPA's exceptions, in contravention of his own acknowledgment that he would not do so. See Def. Ex. 3; 18 U.S.C. § 2724(a).
Furthermore, Defendants have offered substantial evidence that Wawanesa conducted a reasonable investigation into the incident and found Neumeyer's conduct to be unlawful, inappropriate, and in contravention of Wawanesa's policy involving access to the DMV database. The evidence further shows Wawanesa terminated Neumeyer's employment because of the findings made pursuant to the investigation. In other words, the evidence establishes that the termination of Neumeyer's employment resulted from Wawanesa's reasonable belief that Neumeyer had acted inappropriately and violated federal law and company policy. Whether Neumeyer did in fact violate company policy or do anything illegal is irrelevant, so long as Wawanesa reasonably believed he did. See King, 152 Cal. App. 4th at 433 (citing Villiarimo, 281 F.3d at 1063) ("For purposes of establishing the moving employer's initial burden of proof, it does not matter whether plaintiff actually did commit a[ ] . . . violation as long as [the employer] honestly believed he did."). Thus, in the context of the pretext analysis, Neumeyer's testimony to the contrary is of minimal significance.
Neumeyer also suggests the proffered reason for termination was pretextual because other Wawanesa employees were not subject to adverse employment actions after engaging in conduct similar to his. This argument fails for want of proof. "A plaintiff may raise a triable issue of pretext through comparative evidence that the employer treated . . . similarly situated employees more favorably than the plaintiff." Earl v. Nielsen Media Research, Inc., 658 F.3d 1108, 1113 (9th Cir. 2011). However, Neumeyer provides no comparative evidence of disparate treatment. And Defendants offer the testimony of David Fitzgibbons, who acknowledged that prior to 2011 Wawanesa had "investigated, disciplined, and terminated other employees who misused the DMV database for personal reasons." Fitzgibbons Decl'n ¶ 9.
Neumeyer relies heavily on the time line of events in this case to show pretext. A questionably short time-frame between a protected activity and an adverse employment action may help establish pretext under federal law, but California courts have explicitly held that temporal proximity under FEHA will only satisfy Plaintiff's initial burden to establish a prima facie case. See Arteaga v. Brink's, Inc., 163 Cal. App. 4th 327, 353 (2008). In Arteaga, the court held that "[a]lthough temporal proximity, by itself, may be sufficient to establish a prima facie case of discrimination or retaliation, it does not create a triable fact as to pretext once the employer has offered evidence of a legitimate, nonprohibited reason for its action. This is especially so where the employer raised questions about the employee's performance before he engaged in protected activity, and the subsequent discharge was based on those performance issues." Id. at 333-35 (emphasis in original).
The time line in this case - the temporal proximity between the termination of Neumeyer's employment and the investigation - cannot by itself establish pretext. Id.; see also, Franco v. Pier 1 Imps., Inc., 372 F. App'x 803, 804 (9th Cir. 2010) ("Although Franco alleged that she was discharged within a short time of disclosing her medical condition to her supervisor, 'temporal proximity alone is not sufficient to raise a triable issue as to pretext once the employer has offered evidence of a legitimate nondiscriminatory reason for the termination.'") (citing Arteaga, 163 Cal. App. 4th at 353). The DMV database incident occurred (on September 1) and was reported (on September 2) before Neumeyer took a medical leave of absence (on September 6). Marlar initiated the investigation into the incident on the morning of September 6 - before Neumeyer requested and was granted medical leave, later that day by David Disque in the Human Resources department. The investigation also began prior to Neumeyer filing charges with the EEOC on November 2.
In a further attempt to establish pretext, Neumeyer argues that he "had worked for Wawanesa since 1994, and had served as a supervisor without incident beginning in 2002, and only after he protested disability discrimination, and only after his wife was fired, was he the subject of ridicule, defamatory remarks, a reprimand and administrative leave." See Plt. Opp. at 23. In support of this assertion, Neumeyer offers his own sworn declaration. According to Neumeyer, "[a]t one point in time, I remember recalling that Betanco [his immediate supervisor] had referred to me as a 'pig.'" Neumeyer Decl'n ¶ 14. Neumeyer goes on to state that "[f]rom February 12, 2011 through September 6, 2011, I recall having weekly meetings with Betanco and my colleagues, one of which was Sabrina Garcia. During those meetings I was frequently subjected to belittling and humiliating remarks." Id. ¶ 15. Neumeyer asserts that "[o]n June 23, 2011, I obtained emails that were written behind my back by two of my subordinates. In one email one of my subordinates referred to me as a 'fool.' In another email, my subordinates were making fun of me because I had failed to bring a dish to an office pot luck." Id. ¶ 17.
Under the appropriate circumstances, Neumeyer's self-serving, uncorroborated declaration could be sufficient to establish a genuine issue of fact as to pretext in this circuit. See Nigro v. Sears, Roebuck & Co., 778 F.3d 1096 (9th Cir. 2015), as amended and superseded, — F.3d —, 2015 WL 1591368 (9th Cir. Apr. 10, 2015). In the Nigro case, the plaintiff's declaration, "albeit uncorroborated and self-serving," was sufficient by itself to establish a triable issue as to pretext because "[h]e related statements made to him both in person and over the telephone. His testimony was based on personal knowledge, legally relevant, and internally consistent." Id. Likewise, in this case, Neumeyer's testimony is based on personal knowledge, internally consistent, and cannot be disregarded.
Defendants rely upon Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054 (9th Cir. 2002), as supporting the disregard of "uncorroborated and self-serving" declarations. However, that case involved a situation where the declaration in question included facts beyond the declarant's personal knowledge, and "provide[d] no indication how she knows [these facts] to be true." Id. at 1059 n.5, 1061. Here, Neumeyer's declaration does not have a similar defect, as he testifies regarding issues based on his personal knowledge and involving his own actions.
Unlike the Nigro case, however, Neumeyer's testimony is not sufficient to establish a genuine dispute of material fact as to pretext. With respect to Neumeyer's assertion that he was only subject to reprimand after he protested Laura's treatment, Defendants offer evidence from Neumeyer's personnel file showing that he received a reprimand for misconduct dated 7/18/2003, and a mediocre performance appraisal dated 2/17/2004. See Def. Exs. 43-44. And while it is true that Neumeyer received an official reprimand after Wawanesa fired Laura, the incident involved Neumeyer's sexual harassment of a colleague. See Def. Ex. 46. There is no evidence that the reprimand was the result of any retaliatory or discriminatory animus.
Neumeyer's general assertion that he was subjected to "belittling" and "defamatory" remarks from his co-workers is vague and lacking in detail. F.T.C. v. Publ'g Clearing House, Inc., 104 F.3d 1168, 1171 (9th Cir. 1997) ("A conclusory, self-serving affidavit, lacking detailed facts and any supporting evidence, is insufficient to create a genuine issue of material fact."). Mercedes Betanco purportedly referred to Neumeyer as a "pig." However, Neumeyer does not say when Betanco made this remark or whether she made the remark directly to him. Betanco had been working as a supervisor at Wawanesa since 2006. Betanco Decl'n ¶ 2. If she called Neumeyer a "pig" some time prior to January 2011, the remark cannot be evidence of retaliatory or discriminatory animus. Even if the comment is considered a discriminatory statement, it is a mere stray remark. See Merrick v. Farmers Ins. Grp., 892 F.2d 1434, 1438 (9th Cir. 1990) (holding that "'stray' remarks are insufficient to establish discrimination").
Neumeyer also asserts in his declaration that after he complained to Catherine Marlar in January 2011 about Laura's treatment, he received a criticism in his performance review. Neumeyer states:
On February 10, 2011, I received a performance appraisal that was done by my prior supervisor, Chapin, in which Chapin made a number of unwarranted criticisms of my work performance. Although I received an overall satisfactory appraisal, I was troubled by new criticisms of my performance. Prior to my change in supervision, and before I voiced opposition to my wife's treatment, I had a fairly steady relationship with Chapin, and I found my prior appraisals were warranted.Neumeyer Decl'n ¶ 10. However, Defendants offer evidence that Neumeyer had performance appraisals pre-dating January 2011 in which he received criticism, including an appraisal done by Marlar in 2004 in which she concluded that Neumeyer needed improvement. See Def. Ex. 44. Neumeyer's testimony on this point "is contradicted by the record and therefore the Court is not obligated to 'adopt that version of the facts for purposes of ruling on a motion for summary judgment.'" Gates v. MCT Group, Inc., - F. Supp. 3d - , 2015 WL 1349985, at *5 (S.D. Cal. 2015) (citing Scott v. Harris, 550 U.S. 372, 380 (2007)).
Neumeyer complains further that in July 2011, "I recall having significant tension with Betanco because she was asking me to overhaul an auditing system we had for the uninsured motorist unit of the subrogation department. I felt that Betanco was creating extra work for me and treating me differently from other supervisors . . . I met with Betanco and Marlar about this on August 1, 2011, and during the meeting I was accused of insubordination." Id. ¶ 19. However, Neumeyer goes on to admit that "there was a discrepancy with a number of attorney invoices that I had approved in connection with the new auditing process" and "I blamed one of my subordinates for that discrepancy by mis-dating certain documents." Id. ¶ 20. Thus, it would appear that any issues were related directly to Neumeyer's work performance and not discrimination against him based on his or Laura's disability.
Neumeyer's testimony is not sufficient to create a genuine issue for trial as to whether Defendants' stated reason for termination of his employment was actually a pretext for retaliation or discrimination. Based on documentation, as well as the testimony of four employees, Defendants came to the conclusion that Neumeyer violated company policy and the law by ordering his subordinate to conduct a personal search of confidential DMV records. Even if a jury believed every word of Neumeyer's declaration, it would not be sufficient evidence to discredit Defendants' legitimate reason for terminating his employment.
e) Conclusion
In sum, Neumeyer has failed to put forth evidence that would permit a reasonable jury to find that Defendants' legitimate reason for terminating his employment was in fact a pretext for retaliation or discrimination. As such, the Court GRANTS Defendants' motion for summary judgment as to Neumeyer's claims for retaliation, associational disability discrimination, and disability discrimination. 5. Neumeyer's CFRA/FMLA Interference Claims
Neumeyer also alleges that Defendants interfered with his right to take a protected medical leave of absence in violation of the California Family Rights Act ("CFRA"), Cal. Gov. Code § 12945.2, et seq., and the Federal Medical Leave Act ("FMLA"), 28 U.S.C. § 2617, et seq.
It is unclear from the parties' pleadings whether Neumeyer alleges a separate retaliation claim under the FMLA and CFRA. It appears he may do so in his pro se complaint, but neither party addresses his retaliation claim within the rubric of CFRA/FMLA in its summary judgment papers. In any event, the facts related to such a claim are identical to those related to Neumeyer's FEHA claims for retaliation and disability discrimination and the claims are subject to the same McDonnell Douglas burden-shifting. See Faust, 150 Cal. App. 4th at 885. Therefore, for the reasons discussed above, the Court would similarly find that Neumeyer establishes a prima facie case of retaliation, but Defendants have articulated a legitimate, non-retaliatory, non-discriminatory reason for terminating Neumeyer's employment and Neumeyer fails to raise a triable issue as to pretext.
a) Relevant Law
CFRA makes it unlawful for an employer with 50 or more employees to refuse an employee's request for up to 12 weeks of family care and medical leave in a year. Cal. Gov. Code § 12945.2(a). Under CFRA, it is unlawful "for an employer to interfere with, restrain, or deny the exercise of, or the attempt to exercise, any right provided under" CFRA. Cal. Gov. Code § 12945.2(t). The elements of an interference claim under CFRA are: (1) the employee's entitlement to CFRA leave rights; and (2) the employer's interference with or denial of those rights. Faust v. Cal. Portland Cement Co., 150 Cal. App. 4th 864, 879 (2007). The elements of an FMLA interference claim are similar: (1) the plaintiff must be an eligible employee who was entitled to take leave and gave notice of his intent to do so; and (2) his employer is an employer under the FMLA and denied him the benefits to which he was entitled under the FMLA. Sanders v. City of Newport, 657 F.3d 772, 778 (9th Cir. 2011). The provisions of CFRA mirror its federal counterpart, the FMLA, and "courts use language from the FMLA and CFRA interchangeably." Richey v. AutoNation, Inc., 60 Cal. 4th 909, 919 (2015). Therefore, the Court addresses both causes of action together. See Liu v. Amway Corp., 347 F.3d 1125, 1132 n.4 (9th Cir. 2003).
"The FMLA creates two interrelated, substantive employee rights: first, the employee has a right to use a certain amount of leave for protected reasons, and second, the employee has a right to return to his or her job or an equivalent job after using protected leave." Bachelder v. American West Airlines, 259 F.3d 1112, 1122 (9th Cir. 2001) (citing 29 U.S.C. §§ 2612(a), 2614(a)). Because the FMLA entitles employees to these substantive rights, the employer violates the FMLA if it interferes with an FMLA-created right to medical leave or reinstatement after a qualified leave. Arban v. West Publ'g Corp., 345 F.3d 390, 400-01 (6th Cir. 2003).
In Bachelder, 259 F.3d at 1124-25, the Ninth Circuit held that the McDonnell Douglas burden-shifting analysis does not apply to interference claims. See also Liu, 347 F.3d at 1136. Rather, an employee asserting an interference claim "need only prove by a preponderance of the evidence that her taking of FMLA-protected leave constituted a negative factor in the decision to terminate her." Bachelder, 259 F.3d at 1125. The employer carries the full burden to "establish that he has a legitimate reason to deny an employee reinstatement," as there is no burden-shifting. Sanders, 657 F.3d at 780.
b) Analysis
In this case, there is no dispute that Wawanesa granted Neumeyer's request for protected medical leave and Neumeyer took his full leave of absence. The dispute, rather, is whether Marlar personally interfered with Neumeyer's leave by contacting him during his leave about the investigation; whether Defendants interfered with Neumeyer's rights under the FMLA and CFRA by initiating an investigation into his purported misconduct while he was on medical leave; and whether Defendants interfered with Neumeyer's rights by counting his protected leave as a negative factor in the decision to place to him on administrative leave and terminate his employment.
(i) Contact During Leave
Neumeyer asserts that Marlar personally interfered with his leave when she contacted him during his leave regarding the investigation, first via letter, and then by telephone, despite Dr. Chin's note relieving him of all work obligations. In response, Defendants argue that Marlar's direct contact with Neumeyer during his medical leave was so limited in scope as to be non-actionable.
Neumeyer's interference claim against Marlar arises under the FMLA only. Supervisors and corporate officers may be held individually liable under the FMLA, due to its expansive definition of "employer." See Haybarger v. Lawrence Cnty. Adult Prob. & Parole, 667 F.3d 408, 414 (3d Cir. 2012). The same is not true under CFRA. See Nazir v. United Airlines, Inc., 178 Cal. App. 4th 243, 287 (2009).
The FMLA prohibits employer activities that "deter employees' participation" in activities protected by the FMLA. Bachelder, 259 F.3d at 1124. Neumeyer describes his contact with Marlar while on medical leave as follows:
On September 22, 2011, I received a letter from Marlar stating that she was investigating an issue on DMV procedures. Marlar called me on September 28, 2011 and asked to record a conversation on the topic. I told
her that I would need to discuss that with my doctor, and on my doctor's advice, I told Marlar that I would not be able to discuss the issue until I returned from work. This, however, did not thwart Marlar's efforts to discuss the issue with me as I received a voice mail on the topic from her on September 29, 2011.Neumeyer Decl'n ¶ 27. Marlar's investigation notes indicate that beginning September 12, 2011, she tried unsuccessfully to get in touch with Neumeyer via telephone. Def. Ex. 17. According to her notes, Marlar sent Neumeyer a letter on September 22, 2011, in which she asked him to call her regarding "DMV database registration and a claim file at his earliest convenience." Id. Marlar's notes set forth a different time line with respect to the telephone contact between Marlar and Neumeyer, but confirm that she eventually spoke to him about answering questions regarding the investigation. Id. After meeting with his doctor, Neumeyer called Marlar back and indicated he would not do so. Id.
This record, even viewed in the light most favorable to Neumeyer, does not support a finding that Marlar's limited contact interfered with Neumeyer's ability to exercise his FMLA rights. Marlar's communications with Neumeyer directly involved the investigation into his purported misconduct. Neumeyer does not suggest that Marlar required or asked him to perform any of the essential functions of his job. She advised him of the investigation in a letter, and followed up by telephone to offer Neumeyer the opportunity to answer questions related directly to the investigation. When he declined, she did not pursue it any further. "[T]here is no right in the FMLA to be 'left alone'" or to be completely relieved from responding to an employer's discrete inquiries. See, e.g., O'Donnell v. Passport Health Communications, Inc., 561 F. App'x 212, 218 (3d Cir. 2014) ("[D]e minimis contacts did not require [employee] to perform work to benefit the company and did not materially interfere with her leave."); Sabourin v. Univ. of Utah, 676 F.3d 950, 961 (10th Cir. 2012) ("[T]he University's request for materials from [the employee] was not an impermissible demand for work during FMLA leave."); Reilly v. Revlon, Inc., 620 F. Supp. 2d 524, 537 (S.D.N.Y. 2009) ("Fielding occasional calls about one's job while on leave is a professional courtesy that does not abrogate or interfere with the exercise of an employee's FMLA rights.").
(ii) Initiation of the Investigation
Neumeyer asserts that Defendants interfered with his rights under the FMLA and CFRA when they initiated an investigation into the September 1 DMV database incident "shortly after learning of the leave request." Plt. Opp. at 18. However, Defendants have put forth substantial evidence that Wawanesa technically initiated the investigation before Neumeyer requested a medical leave of absence.
As detailed above, the DMV database incident was reported on September 2 by Johnson to Cescolini, and by Cescolini to Marlar. Marlar began making her initial inquiries into the incident by interviewing Siao on the morning of September 6. Neumeyer called in sick the morning of September 6 (due to body aches and vomiting), and met with Dr. Chin regarding his need to take a medical leave of absence "later that day." Neumeyer Decl'n ¶ 24. Neumeyer does not indicate what time he met with Dr. Chin, but asserts that Dr. Chin faxed a doctor's note to Tony Messerrer in Wawanesa's Human Resources department "that morning." Id. Marlar has testified that she did not know about Neumeyer's leave request when she initiated the investigation on the morning of September 6. According to Marlar, she "attempted to speak with Neumeyer on September 6, but he was not in his office." Marlar Decl'n ¶ 16. Marlar "learned from Human Resources that Neumeyer had called in sick that day" and "eventually learned later that day that Neumeyer had requested a leave of absence . . ." Id.
Neumeyer states that he submitted his leave request directly to the Human Resources department and otherwise does not offer any evidence to support his assertion that Wawanesa, i.e., Marlar, knew of his leave request prior to interviewing Siao or attempting to interview Neumeyer. An unsupported assertion in an opposition brief cannot, by itself, create a genuine dispute for trial. S.A. Empresa de Viacao Aerea Rio Grandense v. Walter Kidde & Co., 690 F.2d 1235, 1238 (9th Cir. 1982) ("[A] party cannot manufacture a genuine issue of material fact merely by making assertions in its legal memoranda.").
(iii) Leave as a Negative Factor
Neumeyer also argues that his placement on administrative leave immediately upon his return from medical leave, and his subsequent firing, violated his right to reinstatement. Once again, Neumeyer relies heavily on the temporal proximity of events in this case to establish a genuine issue of fact. Neumeyer points to an October 26, 2011 management meeting where Marlar, Graham, and others discussed his performance problems and the investigation. Defendants assert that the purpose of this meeting was not to discuss Neumeyer, but to bring Graham - a recent hire - up to speed on various personnel issues. Def. Reply at 10. This may be so, but Graham's notes from that meeting include the heading "Robert Neumeyer Meeting" and information regarding the investigation and Neumeyer's subpar skills as a supervisor. Plt. Ex. F. Neumeyer returned to work on November 3, 2011, and was interviewed that morning about the September 1 incident. Wawanesa placed Neumeyer on administrative leave before the end of the work day. Neumeyer remained on administrative leave until Wawanesa terminated his employment on November 29, 2011. In the Ninth Circuit, the fact that Neumeyer's medical leave immediately preceded his forced administrative leave and subsequent discharge "provides supporting evidence of a connection between the two events." Liu, 347 F.3d at 1137.
Defendants argue that Wawanesa did in fact reinstate Neumeyer. Wawanesa paid Neumeyer for attending work on November 3, 2011, and paid him during his administrative leave. Defendants rely upon White v. County of Los Angeles, 225 Cal. App. 4th 690 (2014), for support. Def. Memo. at 16. In that case, White returned to work after taking leave under the FMLA. White's employer placed her on paid administrative leave the day after her return, based on an ongoing investigation into allegations of criminal misconduct. White, 225 Cal. App. 4th at 698 n.8. The employer ordered White to submit to a medical evaluation due to her erratic behavior prior to her protected leave of absence. Id. at 699-700. White refused, and filed suit claiming interference with her rights under the FMLA. Under this set of facts, the appellate court found that White's interference claim failed as a matter of law. Id. at 707. The court determined that "under the FMLA, White was entitled to be restored to employment, no more. White was restored to employment, as required." Id.
Citing to White, Defendants urge the Court to find that Wawanesa reinstated Neumeyer to his position after he returned from his medical leave and prior to his ultimate discharge. However, the White case is not binding authority. See Strother v. S. Cal. Permanente Medical Group, 79 F.3d 859, 865 (9th Cir. 1996) ("When interpreting state law, federal courts are bound by decisions of the state's highest court.") (emphasis added). And at least one circuit court has held that when "the employer cites only factors predating the employee's return to work to justify the adverse action, the plaintiff is not foreclosed from bringing an interference claim. To hold otherwise would create a perverse incentive for employers to make the decision to terminate during an employee's FMLA leave, but allow the employee to return for a brief period before terminating her so as to insulate the employer from an interference claim." Campbell v. Gambro Healthcare, Inc., 478 F.3d 1282, 1288 (10th Cir. 2007). Here, Neumeyer's purported misconduct predated his return to work, and Wawanesa began the investigation into his misconduct immediately prior to his leave of absence. As discussed above, the evidence shows that Marlar and Betanco interviewed Siao for the first time prior to learning of Neumeyer's medical leave and knew her version of events. Evidence exists in the record from which a jury reasonably could conclude that Neumeyer's temporary reinstatement to his position was in fact "illusory." Id.
Defendants also contest Neumeyer's right to reinstatement, arguing that even if Neumeyer had never taken leave, he would not have been entitled to keep his job due to his violation of company policy and the law. It is true that "[t]he FMLA does not entitle the employee to any rights, benefits, or positions they would not have been entitled to had they not taken leave." Liu, 347 F.3d at 1132 (citing 29 U.S.C. § 2614(a)(3)(B)). As such, the right to reinstatement is not absolute. Defendants have presented strong evidence that Wawanesa fired Neumeyer for a legitimate reason. However, as noted above, "there is no room for a McDonnell Douglas type of pretext analysis when evaluating an 'interference' claim under [the FMLA]." Bachelder, 259 F.3d at 1131. "[T]he regulations clearly prohibit the use of FMLA-protected leave as a negative factor at all." Id. (emphasis in original). Thus, "[t]he question . . . is not whether [Wawanesa] had additional reasons for the discharge, but whether [Neumeyer's] taking of . . . FMLA-protected leave was used as a negative factor in [his] discharge." Id. Viewing the evidence in the light most favorable to Neumeyer, a reasonable jury could find that his protected medical leave was a negative factor in the termination of his employment.
Finally, Defendants contend that Marlar cannot be held individually liable under the FMLA for failing to reinstate Neumeyer or for his discharge because she did not participate in the decision to terminate Neumeyer's employment. Def. Memo. at 17. However, this is not entirely accurate. The record reflects that Siobhan Graham made the official recommendation that Wawanesa terminate Neumeyer's employment, and Fitzgibbons ultimately approved the recommendation. However, Marlar admitted during deposition that "[s]ince I was the claims manager and [Neumeyer] was in my department, I, of course, played a role with regard to termination from his employment with Wawanesa." Marlar Depo. at 156:2-5. Because the Subrogation Unit fell under the umbrella of the Claims Department, Marlar spearheaded the investigation into the DMV database incident. So in this respect, she played a significant role in the events that led to Neumeyer's discharge. A reasonable trier of fact could find that Marlar, while acting "directly or indirectly, in the interest of an employer to any of the employees of such employer," 29 U.S.C. § 2611(4)(A)(ii)(I), considered Neumeyer's protected leave, at least in part, as a negative factor while investigating his purported misconduct and participating in the events that led directly to his discharge.
c) Conclusion
Neumeyer has raised a triable issue of fact as to whether he was subjected to "negative consequences" by Wawanesa because he took a medical leave of absence. Liu, 347 F.3d at 1136. Accordingly, the Court DENIES Defendants' motion for summary judgment as to Neumeyer's CFRA/FLMA interference claims against Wawanesa. 6. Neumeyer's Wrongful Termination in Violation of Public Policy Claim
Neumeyer also brings a tortious wrongful termination cause of action against Defendants. California law recognizes a claim for wrongful termination in violation of a public policy reflected in a statute or constitutional provision. See Tameny v. Atl. Richfield Co., 27 Cal. 3d 167, 172 (1980). The policies set forth in the FMLA and CFRA have been held, as a matter of law, sufficient to support a claim for wrongful termination in violation of public policy. See Nelson v. United Tech., 74 Cal. App. 4th 597, 612 (1999) (citing Mora v. Chem-Tronics, Inc., 16 F. Supp. 2d 1192 (S.D. Cal. 1998)). Because the Court denies Defendants' motion for summary judgment as to Neumeyer's CFRA/FLMA interference claims against Defendants, it also DENIES Defendants' motion as to Neumeyer's tortious wrongful termination claim. See Liu, 347 F.3d at 1138 ("[B]ecause there is a triable issue of material fact as to whether Liu was terminated in violation of the FMLA and CFRA, summary judgment must also be denied on the question of whether her termination violated public policy."). 7. Limitations on Recoverable Damages
In anticipation of trial, Defendants move the Court for a ruling limiting Neumeyer's compensatory damages based on after-acquired evidence of wrongdoing. Defendants also argue that Neumeyer's punitive damages claim fails for lack of evidence.
a) Compensatory Damages
Defendants seek summary judgment to limit the compensatory damages Neumeyer can recover based on after-acquired evidence of wrongdoing. Defendants argue that Neumeyer's employment would have been terminated for reasons independent of those complained of in this action. Specifically, Defendants highlight three incidents that they claim would have resulted in Neumeyer's discharge: (1) Neumeyer's purported vandalism of Tim Johnson's vehicle on September 1, 2011; (2) Neumeyer's purported vandalism of Wawanesa's office building on March 18, 2012; and (3) Neumeyer's purported involvement in sending threatening emails to Laura's former supervisor, Patty Bacher, in August 2013.
i) Relevant Law
"The after-acquired evidence doctrine precludes or limits an employee from receiving remedies for wrongful discharge if the employer later discovers evidence of wrongdoing that would have led to the employee's termination had the employer known of the misconduct." Rivera v. NIBCO, Inc., 364 F.3d 1057, 1070-71 (9th Cir. 2004) (internal quotations omitted). The burden is on the employer to prove by a preponderance of the evidence "not only that it could have fired an employee for the later-discovered misconduct, but that it would in fact have done so." O'Day v. McDonnell Douglas Helicopter Co., 79 F.3d 756, 759 (9th Cir. 1996) (citations omitted) (emphasis in original). "[A]fter-acquired evidence of wrongdoing generally limits an employee's remedy in three significant ways. If an employer discovers that the plaintiff committed an act of wrongdoing and can establish that the 'wrongdoing was of such severity that the employee in fact would have been terminated on those grounds alone if the employer had known of it at the time of the discharge,' the employer does not have to offer reinstatement or provide front pay, and only has to provide backpay 'from the date of the unlawful discharge to the date the new information was discovered.'" O'Day, 79 F.3d at 759 (quoting McKennon v. Nashville Banner Publ. Co., 513 U.S. 352, 359 (1995)) (internal citations omitted).
ii) Neumeyer's Evidentiary Objections
Neumeyer objects to several key pieces of relevant evidence offered by Defendants in support of their motion. Defendants have submitted a copy of an email sent from an anonymous email address to Patty Bacher in August 2013 that states, in part, as follows:
IK GONNA FUCKING KILL YOU PATTY BACHER!!!!!!! IM GONNA WALK INTO YOUR OFFICE AND FILL YOU FULL OF BULLETS AND SEND YOU TO THE DEPTHS OF HELLLLLLLLL! ! ! ! ! ! ! ! ! I HOPE YOU HAVE AN INSURANCE POLICY YOU FUCKING BITCH BECAUSE YOUR FAMILY IS GONNA NEED IT AFTER IM DONE WITH YOU FUCKING BIIIIIIITTTTCCCHHHHH! ! ! ! ! ! ! ! ! ! ! ! ! DON'T THINK THAT THIS IS OVER BECAUSE IT WILL NEVER BE OVER YOU GODDAMN JEW PIECE OF SHIT SON OF A BITCH!!!!!!!!!!!!!!Def. Ex. 30. Neumeyer objects to this exhibit on hearsay grounds.
The Federal Rules of Evidence define hearsay as "a statement that (1) the declarant does not make while testifying at the current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in the statement." See Fed. R. Evid. 801(c). Here, Defendants are not offering the email to prove the truth of its content, i.e., that the sender is going to kill the recipient, fill her with bullets, send her to the depths of hell, etc. This email therefore does not fit the definition of hearsay. Accordingly, the Court OVERRULES Neumeyer's objection and finds Exhibit 30 is admissible as non-hearsay.
Neumeyer also objects to admission of the police reports regarding the email that Patty Bacher received above. See Def. Ex. 31. Accompanying the police reports is a certification of records, certifying under penalty of perjury that the police reports were prepared by the named personnel, in the ordinary course of business, at or near the time of the acts, conditions, or events recorded. Id. Neumeyer argues that the reports are inadmissible hearsay.
A police report, including the police officer's statements and observations, are admissible in civil cases under the public records hearsay exception. See Fed. R. Evid. 803(8); see also Colvin v. United States, 479 F.2d 998, 1003 (9th Cir. 1973) ("Entries in a police report based on an officer's observation and knowledge may be admitted, but statements attributed to other persons are clearly hearsay."); Blanton v. Cnty. of Sacramento, 2012 WL 2798920, at *1 n.4 (E.D. Cal. 2012) ("The police officers' statements and observations recorded in a police report are admissible, as is the summary of Blanton's statement made to Officer Bricker under the public-records hearsay exception contained in Fed. R. Evid. 803(8) and Cal. Evid. Code § 1280."); Josfan v. Indochine, 2012 WL 113371, at *2 (C.D. Cal. 2012) ("A police officer's statements and observations recorded in a police report are admissible under the public-records hearsay exception contained in Federal Rule of Evidence 803(8)."). Therefore, the Court OVERRULES Neumeyer's objection.
Although Plaintiff does not raise this objection, the Court notes that the police reports may present a double hearsay problem. The reports include a summary of Patty Bacher's statement to the investigating police officer indicating that she became fearful for her safety and believed Laura Neumeyer sent the email. If Defendants intend to rely on the reports at trial to establish that Neumeyer was in fact involved in this purported wrongdoing, the reports may be inadmissible absent an additional hearsay exception.
iii) Analysis
Defendants argue that Wawanesa would have terminated Neumeyer's employment based on any one of the three aforementioned incidents. Neumeyer does not address the issue of after-acquired evidence in his opposition brief. However, Neumeyer specifically denies vandalizing either Johnson's car or Wawanesa's office building, as well as any involvement in sending threatening emails to Patty Bacher. Neumeyer Decl'n ¶¶ 30-34.
First, Defendants move to limit Neumeyer's compensatory damages based on after-acquired evidence that Neumeyer vandalized Tim Johnson's vehicle on September 1, 2011. Johnson discovered the damage to his vehicle on the day it occurred, and others at Wawanesa learned of the incident prior to Neumeyer's discharge. Johnson shared his suspicions regarding Neumeyer's responsibility for the vandalism. Management discussed the incident, as well as Johnson's suspicions, at an October 26, 2011 meeting about Neumeyer, as recorded in Graham's notes. The after-acquired evidence doctrine can apply to limit backpay only if the employer "can prove by a preponderance of the evidence that it would have fired the employee for that misconduct." O'Day, 79 F.3d at 761. Defendants argue that "[h]ad Wawanesa known on September 1, 2011 what it knows now, it would certainly have fired Neumeyer that day." Def. Memo. at 21. Yet Wawanesa continued to employ Neumeyer even after learning of the vandalism to Johnson's vehicle and of Johnson's suspicion that Neumeyer was the perpetrator.
Defendants also seek to limit Neumeyer's damages based on evidence that Neumeyer vandalized Wawanesa's office building on March 18, 2012, and that he was involved with sending threatening emails to Patty Bacher in August 2013. However, Neumeyer denies his involvement in these incidents. It is also unclear whether Wawanesa would have fired Neumeyer in the face of his denials based on the evidence in the record. Although vandalism and death threats constitute criminal behavior, there is no evidence that the police charged Neumeyer in relation to either incident. Defendants have not presented any evidence regarding Wawanesa's employment practices with respect to employees who are accused of criminal wrongdoing, but not necessarily charged or convicted. Nor have Defendants offered any testimony that Wawanesa would have accepted the findings set forth in the police reports without conducting any further investigation, and discharged Neumeyer solely on the basis of the reports.
iv) Conclusion
Defendants have not met their burden of proving by a preponderance of the evidence that Wawanesa would have terminated Neumeyer's employment based on after-acquired evidence of wrongdoing, and triable issues of fact exist as to whether Neumeyer committed the above-referenced acts. Accordingly, the Court DENIES Defendant's motion to limit compensatory damages based on after acquired evidence.
Defendants also request that the Court limit Neumeyer's remedies "[b]ased on 'extraordinary equitable circumstances.'" Def. Memo. at 21 (citing McKennon, 513 U.S. at 361). The Court declines to do so based on its finding that triable issues of fact exist with respect to Neumeyer's perpetration of, or involvement in, the three incidents of wrongdoing relied upon by Defendants.
b) Punitive Damages
Defendants also request that the Court dismiss Neumeyer's punitive damages claim on the grounds that "there is no evidence - let alone clear and convincing evidence - to justify such an award." Def. Memo. at 30.
i) Relevant Law
In order to obtain punitive damages for his CFRA claim against Wawanesa, Neumeyer must show by clear and convincing evidence that an officer, director, or managing agent at Wawanesa "ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice." Cal. Civ. Code § 3294(a)-(b). "Managing agents" are "those employees who exercise substantial independent authority and judgment over decisions that ultimately determine corporate policy." White v. Ultramar, Inc., 21 Cal. 4th 563, 573 (1999). "[R]atification generally occurs where, under the particular circumstances, the employer demonstrates an intent to adopt or approve oppressive, fraudulent, or malicious behavior by an employee in the performance of his job duties." Coll. Hosp. Inc. v. Superior Court, 8 Cal. 4th 704, 726 (1994). "Corporate ratification in the punitive damages context requires actual knowledge of the conduct and its outrageous nature." Id.
Neumeyer is not entitled to punitive damages for his interference claim under the FMLA because the FMLA does not allow for such damages. See Farrell v. Tri-Cnty. Metro. Transp. Dist. of Oregon, 530 F.3d 1023, 1025 (9th Cir. 2008). --------
For purposes of § 3294, "malice" means "conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others," and "oppression" means "despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights." Cal. Civ. Code § 3294(c)(1), (2). Despicable conduct is conduct that is ". . . so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people." Id. Such conduct has been described as "[having] the character of outrage frequently associated with crime." American Airlines, Inc. v. Sheppard, Mullin, Richter & Hampton, 96 Cal. App. 4th 1017, 1050-51 (2002). "If the plaintiff is going to prevail on a punitive damages claim, he or she can only do so by establishing malice, oppression or fraud by clear and convincing evidence. Thus, any evidence submitted in response to a motion for summary adjudication must necessarily meet that standard." Basich v. Allstate Ins. Co., 87 Cal. App. 4th 1112, 1118-19 (2001).
ii) Analysis
Defendants argue that Neumeyer's claim for punitive damages fails because "the employees who took the lead in handling Neumeyer's situation - Marlar and Graham - do not fit" the definition of "managing agent." Def. Memo. at 24-25. Defendants further assert that there is no clear and convincing evidence that anyone involved in this case acted with malice, fraud, or oppression. In response, Neumeyer contends that David Fitzgibbons, Catherine Marlar, and David Disque are managing agents. According to Neumeyer, "Defendants used a pretext (i.e., fraud) to justify the termination," a decision that was "based on malice for taking a medical leave of absence and reporting unlawful conduct to the EEOC and DFEH" and that together the termination of his, Siao's, and Laura's employment constitutes despicable conduct. Plt. Opp. at 23-24.
Defendants do not appear to seriously contest Fitzgibbons' qualification as a "managing agent" at Wawanesa, and are silent as to Disque, but argue that Marlar does not fall within the definition of the term. Neumeyer presents evidence, primarily excerpts from Marlar's own deposition testimony, to raise a genuine issue as to Marlar's status as a "managing agent." However, to be awarded punitive damages, Neumeyer must demonstrate by clear and convincing evidence that Fitzgibbons, Disque, or Marlar "adopt[ed] or approve[d] oppressive, fraudulent, or malicious behavior by an employee in the performance of his job duties." College Hosp. Inc. v. Superior Court, 8 Cal. 4th 704, 726 (1994). "Corporate ratification in the punitive damages context requires actual knowledge of the conduct and its outrageous nature." Id. (emphasis added).
Certainly, all three individuals had knowledge of the facts underlying Neumeyer's discharge, including the investigation, and Marlar directly participated in the events leading up to the termination of Neumeyer's employment. However, the evidence does not raise a triable issue as to whether any of Wawanesa's employees engaged in "outrageous conduct" or "oppressive, fraudulent, or malicious behavior." American Airlines, Inc., 96 Cal. App. 4th at 1051. Neumeyer's CFRA interference claim is the only claim eligible for an award of punitive damages that survives summary judgment. While a reasonable jury may determine that Wawanesa's conduct warrants liability for compensatory damages, Neumeyer has not shown that anyone involved in his discharge acted so reprehensibly that a finding of punitive damages would be appropriate. Simply put, "[t]he conduct engaged in by defendants in this case does not reach the level of despicability found in cases in which punitive damages were found to be proper." Id.
iii) Conclusion
The Court GRANTS Defendants' motion for summary judgment as to Neumeyer's punitive damages claim. // // // // // //
CONCLUSION
Based on the foregoing, the Court GRANTS IN PART and DENIES IN PART Defendants' motion for summary judgment. Neumeyer's remaining claims will proceed to trial.
IT IS SO ORDERED. DATED: April 24, 2015
/s/_________
Hon. Michael M. Anello
United States District Judge