Opinion
B299792
08-31-2021
RICARDO ORTEGA, Plaintiff and Appellant, v. NESTLÉ WATERS NORTH AMERICA et al., Defendants and Respondents.
Shegerian & Associates, Carney R. Shegerian, Anthony Nguyen and Mahru Madjidi for Plaintiff and Appellant. Ogletree, Deakins, Nash, Smoak & Stewart, Linda Claxton and Kathleen J. Choi for Defendants and Respondents.
NOT TO BE PUBLISHED
APPEAL from judgment and order of the Superior Court of Los Angeles County No. BC668072, Stuart M. Rice, Judge. Affirmed in part and reversed in part with directions.
Shegerian & Associates, Carney R. Shegerian, Anthony Nguyen and Mahru Madjidi for Plaintiff and Appellant.
Ogletree, Deakins, Nash, Smoak & Stewart, Linda Claxton and Kathleen J. Choi for Defendants and Respondents.
ROTHSCHILD, P. J.
Ricardo Ortega appeals the judgment resulting from an order granting summary judgment in favor of his former employer Nestlé Waters North America (Nestle), and his former supervisors, Angel Lomeli and Jim Donelson (collectively, respondents), on all claims in Ortega's lawsuit against them.
The record contains references to both Jim or James “Donelson” and Jim or James “Donaldson.” Respondents' brief likewise contains both spellings. We adopt the spelling that appears in the declaration of this individual (Donelson).
We affirm the judgment as to Ortega's defamation and intentional infliction of emotional distress causes of action, which the trial court correctly concluded were barred by the common interest privilege and Worker's Compensation Act exclusivity, respectively.
With respect to Ortega's claims for wrongful termination in violation of public policy and retaliation in violation of Labor Code section 1102.5, we hold the court erred in concluding that these causes of action were entirely preempted by the National Labor Relations Act (NLRA). To the extent these causes of action are based on allegations that respondents terminated or otherwise retaliated against Ortega not because of his unionization efforts, but rather because he complained, on his own behalf, about unsafe working conditions at Nestle, they are not based on activity protected by the NLRA. We therefore reverse the judgment as to the wrongful termination and retaliation causes of action, as well as the order granting respondents' motion for summary judgment as to these causes of action.
Because respondents did not argue preemption in their summary judgment motion, the court informed the parties it would address the issue as one raised in the court's own motion for judgment on the pleadings. In substance, the preemption analysis in the court's order does just that. Nevertheless, the court's order is captioned as one granting respondents' motion for summary judgment as to these causes of action based on preemption.
FACTS AND PROCEEDINGS BELOW
Nestle distributes several brands of water and other drinkable products. Nestle hired Ortega as a route sales representative (RSR) at its Chatsworth, California facility in April 2006. As an RSR, Ortega delivered Nestle water products to homes and businesses. Nestle also requires RSRs to “up sell” other Nestle products. An RSR's pay is based in part on meeting upselling goals.
A. Ortega's Complaints Regarding Working Conditions at Nestle
Throughout his career at Nestle, Ortega regularly expressed concerns about unsafe working conditions and alleged wage and hour violations, including to Ishmael Harrington, James Donelson, and Angel Lomeli, each of whom supervised Ortega at various times.
Some of these complaints regarded working conditions shared by all RSRs. For example, Ortega complained that their delivery trucks did not have air conditioning, which caused temperatures in the truck to reach 120 degrees at times, and that the number of deliveries each RSR was required to complete within a given time frame was not possible without skipping meal breaks. Ortega also complained about RSR pay being based on sales, rather than safety, and that his supervisors tried to keep him and other employees from discussing their pay. Ortega also complained about issues that were specific to him, such as that his route involved streets too narrow for Ortega to safely maneuver his large commercial delivery truck, and that he was required to make deliveries to a particular building under unsafe conditions.
On several occasions when Ortega raised safety concerns to Harrington, Harrington called Ortega a “pussy” or told him “don't be a pussy wuss” and “be a Mexican.” According to Ortega, Nestle took virtually no steps to address his health and safety complaints.
B. Ortega's Unionization Efforts
Ortega was also involved in efforts to unionize Nestle workers at the Chatsworth location that began around September 2014. Ortega was an “extremely vocal” proponent of unionization to his coworkers and management, but was not considered a union leader. Nestle management and Ortega's supervisors openly discouraged unionization.
A few months before Nestle employees in Chatsworth were slated to vote on unionization in 2015, Harrington began following Ortega on his routes almost daily. Harrington had never followed Ortega before then, and explained he began doing so for “ ‘safety' reasons.” Harrington attempted to discourage Ortega's union efforts. Harrington also told Ortega to “shut up” and stop talking about his pay with his coworkers, and that if Ortega did not like the job, “there are four exits in [the] building” and Ortega could “just leave.”
The employees ultimately voted against unionization in or around July 2015. After the failed 2015 union vote, Harrington stopped following Ortega on his routes. Ortega continued to wear a “Support the Union” button, continued to advocate for a union at Nestle, and told management he would keep doing so until the workers unionized.
Ortega also continued to complain about the same health and safety and wage/hour issues he had previously raised, complaining about them several times a week.
C. Ortega's Termination
On March 16, 2016, events took place that Nestle cited as a basis for terminating Ortega. On that day, Ortega's handheld device was not working, so his supervisor reminded him to keep a handwritten record of all deliveries. Ortega loaded five cases of premium Resource brand bottled water onto his truck, telling logistics manager Gaby Haddad that an existing customer had requested the water after Ortega had convinced her to try it.
According to Ortega, Haddad approved the product removal, and Ortega delivered the water to the customer, leaving it on the side of the house at the instruction of the housekeeper, because the customer was not home. He was unable to log the cases electronically in the system without his handheld device. After Ortega returned that evening, he documented his deliveries on paper, but initially forgot to include the cases of Resource water. His supervisor, Donelson, asked him about the cases and reminded him to document them. Ortega ultimately noted the cases on the appropriate form. According to Ortega, when he made deliveries in the same neighborhood the next day he saw the water bottles he had delivered still sitting on the side of the house.
There was no written record of the customer at issue ordering the cases of Resource bottled water, and Donelson investigated the delivery. Donelson suspended Ortega during the investigation. Donelson investigated by speaking with the customer, the customer's housekeeper, Ortega, and Haddad, and by driving by the customer's home to see if the cases of water were on the side of the house. Donelson indicated he could see water bottles on the side of the home, but no cases of water. According to Donelson, Ortega changed his responses regarding where he had left the cases of water over the course of several days, and both the customer and the customer's housekeeper repeatedly denied having requested or received the water.
According to Nestle's area human resources manager, the human resources department typically handles investigations into employee misconduct, but the investigation regarding Ortega was conducted “[p]rimarily” by Donelson. Donelson emailed a summary of his investigation and findings to the area human resources manager, zone service manager, and zone operations manager. Donelson's investigation was then “supported” by the area human resources manager, who reviewed reports of Donelson's investigation, interviewed Ortega, and interviewed a coworker Ortega indicated may have seen the customer's home the day after Ortega claimed the water was delivered. In that interview, the coworker denied seeing the water at the customer's home.
Based on this investigation, Nestle ultimately concluded that Ortega had violated the company's procedures regarding inventory and delivery. Specifically, the company concluded that Ortega had failed to go through leadership before loading the water, had claimed to have loaded the water for a customer who neither requested nor received it, and had failed to properly document the water delivery. Nestle further concluded Ortega had stolen the cases of water.
In deciding what actions to take as a result of these findings, the human resources department considered not only the information gained through the investigation, but Ortega's prior history as an employee, which included “prior concerns of theft” involving some Perrier water.
A former coworker of Ortega also testified in connection with the lawsuit Ortega would later file that he suspected Ortega might have been “selling cases on the side” on a separate occasion, although nothing suggests management was aware of these suspicions during the investigation.
Nestle terminated Ortega's employment effective April 1, 2016. Ortega was not provided with any paperwork documenting the termination. Although it is undisputed that Ortega was terminated, the forms in his personnel file indicate he voluntarily left the company.
D. Statements by Ortega's Former Coworkers Regarding the Basis for Ortega's Termination
Ortega testified that, in mid-2017, he ran into a former coworker at the grocery store, who “said something about stealing.” Ortega subsequently declared that during this interaction, the former coworker had “informed [Ortega] that he was aware that [Ortega] had been terminated for stealing.”
One of Ortega's former coworkers also testified that he had heard non-management personnel discussing how Ortega was terminated for stealing, and specifically that he thought they referred to Ortega as “Ricardo Or-take-a, like he's taking something.” The record contains no direct evidence of management telling non-management employees that Ortega was terminated for stealing, except that Donelson informed logistics manager Haddad, whom Donelson had interviewed during the investigation, about the reasons for Ortega's termination.
E. Ortega Sues Nestle and His Former Supervisors
In July 2017, Ortega sued Nestle, Harrington, Donelson, and Lomeli based on his termination and Nestle's response to his complaints and unionization efforts. The operative pleading in Ortega's lawsuit (first amended complaint or FAC) alleges causes of action for wrongful termination of employment in violation of public policy, retaliation in violation of Labor Code section 1102.5; intentional infliction of emotional distress (IIED); breach of implied-in-fact contract not to terminate without good cause, defamation, and violation of Labor Code sections 232 and 232.5, which provide that an employer may not prohibit employees' wage and working condition discussions.
Harrington did not appear in the proceedings below and the trial court dismissed him without prejudice effective October 17, 2019. Ortega does not seek reversal of Harrington's dismissal.
Although respondents demurred to Ortega's initial complaint, they took the demurrer off calendar when Ortega filed the FAC, which respondents then answered.
F. Respondents' Motion for Summary Judgment and Related Adjudication of Preemption Issues
Respondents filed a motion for summary judgment, or alternatively, summary adjudication (the MSJ) on several bases. Although they had raised the issue of NLRA preemption in their demurrer to the initial complaint (which was ultimately taken off calendar and never decided), they did not raise it in any way in the MSJ. As to Ortega's IIED claim, the MSJ argued it was barred by Worker's Compensation Act exclusivity, and that the evidence could not establish the requisite extreme or outrageous conduct in any event. As to Ortega's defamation claim, respondents argued, inter alia, that the allegedly defamatory statements-Nestle revealing the basis for Ortega's termination to non-management personnel at Nestle-were protected under the common interest privilege.
At the outset of the hearing on the MSJ, the court noted that respondents had raised the NLRA preemption issue in their demurrer, and that the court was “surprised... the preemption issue was never raised by the defendant in [the MSJ].” Defense counsel attributed this to her own oversight, and requested additional briefing on the preemption issue. The court then asked Ortega's counsel to address the court's preemption comments. The court noted that, because the court had raised the issue, the proper procedural mechanism for deciding whether any causes of action were preempted by the NLRA was a motion for judgment on the pleadings, not the MSJ. It therefore continued the MSJ and “put[ ] both sides on notice that the court may choose to treat the [MSJ as to] causes of action[ ] 1, 2, 3 and 6... as a motion for judgment on the pleadings” and requested “additional briefing on the subject of preemption due to the nature of the allegations raised by plaintiff.” The court set a date for “further hearing on the [MSJ], as well as... a motion for judgment on the pleadings based upon what has been put before the court.”
The parties filed simultaneous supplemental briefing as requested by the court. In addition, Ortega filed a two page responsive brief to respondents' supplemental brief and the respondents filed a reply to Ortega's further supplemental brief.
The court held a further hearing on the matter, and ultimately issued an order in which the court concluded that Ortega's first, second, and sixth causes of action were preempted by the NLRA. The order further concluded that respondents had met their burden of establishing the IIED claim was barred by Worker's Compensation Act exclusivity. Finally, the order concluded that the common interest privilege applied to the statements Ortega alleged were defamatory. Although the court had indicated it would treat the MSJ as a motion for judgment on the pleadings to the extent it addressed the causes of action the court concluded were preempted, the court's order granted “[respondents'] motion for summary judgment” as to these causes of action as well.
Judgment was entered in the respondents' favor on August 1, 2019 on all causes of action. Ortega timely appealed.
The trial court also summarily adjudicated the breach of implied contract cause of action, and concluded that the Labor Code section 232 cause of action was preempted by the NLRA. Ortega does not challenge these decisions on appeal.
DISCUSSION
A. Ortega's Wrongful Termination and Retaliation Causes of Action
Ortega first argues that the trial court erred by ruling that his wrongful termination in violation of public policy (WTVPP) and retaliation causes of action are preempted by the NLRA, because (1) the court should not have considered an issue not raised in respondents' MSJ, and (2) these causes of action are not preempted to the extent they are based on Ortega's health and safety complaints, rather than his unionization efforts. We conclude the trial court was right to consider the preemption issue, but erred in concluding that these causes of action were preempted by the NLRA.
1. Ortega's threshold procedural argument
Ortega argues that the trial court could not summarily adjudicate Ortega's WTVPP and retaliation causes of action based on federal preemption, because the respondents did not seek summary adjudication on that basis. We need not address this argument, because the court stated that it would-and in substance did-treat the preemption issue as one raised in a motion of the court for judgment on the pleadings.
Code of Civil Procedure expressly authorizes a court to, “upon its own motion[, ] grant a motion for judgment on the pleadings.” (Code Civ. Proc., § 438, subd. (b)(2).) The court may grant such a motion “in favor of the defendant” (id., § 438, subd. (c)(3)(B)) based on “the court ha[ving] no jurisdiction of the subject of the cause of action alleged in the complaint.” (Id., § 438, subd. (c)(3)(B)(i).) Ortega acknowledges that the court informed the parties it would consider the preemption issue in this context, but argues the court did not actually do so, pointing to language in the court's order stating it is granting a motion for summary judgment. This argument elevates form over substance and ignores the analysis contained in that order, which unquestionably treats the preemption issue as one raised in the context of a motion for judgment on the pleadings.
In assessing a motion for judgment on the pleadings, a court considers only allegations in the operative pleading (or matters of which judicial notice may be taken) (Code Civ. Proc., § 438, subd. (d)); it accepts the allegations as true and may not consider other evidence controverting the pleadings. (Gerawan Farming, Inc. v. Lyons (2000) 24 Cal.4th 468, 515−516 [factual allegations accepted as true and given liberal construction].) The court's order in this case analyzed the preemption issue based on the allegations in the FAC, accepting them as true. It did not consider whether the evidence put forth creates a triable issue of fact on any point relevant to preemption, as it would have in deciding a motion for summary judgment or adjudication. (See Code Civ. Proc., § 437c, subd. (c).) Indeed, the court's discussion of the WTVPP and retaliation causes of action does not contain a single reference to evidence or either party's statement of undisputed facts. Thus, in substance, the court ruled on the preemption issue in the context of deciding the court's own motion for judgment on the pleadings-something the court had statutory authority to do-and we will review the decision as one on a motion for judgment on the pleadings. Our review of such a decision is de novo. (Travelers Property Casualty Co. of America v. Engel Insulation, Inc. (2018) 29 Cal.App.5th 830, 834.)
2. The NLRA and NLRA preemption generally
“The NLRA's declared purpose is to remedy ‘[t]he inequality of bargaining power between employees who do not possess full freedom of association or actual liberty of contract, and employers who are organized in the corporate or other forms of ownership association.'... 29 U.S.C. § 151.” (Metropolitan Life Ins. Co. v. Massachusetts (1985) 471 U.S. 724, 753-754.) The NLRA seeks to “restor[e] equality of bargaining power” by, inter alia, “encouraging the practice and procedure of collective bargaining and by protecting the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection.” (29 U.S.C. § 151.) The NLRA protects and prohibits certain acts by employees and employers, respectively. Section 7 of the NLRA (section 7) guarantees “[e]mployees... the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and... also... the right to refrain from any or all of such activities.” (29 U.S.C. § 157.) Section 8 of the NLRA (section 8) prohibits employers from engaging in five defined “[u]nfair labor practices, ” namely “interfer[ing] with, restrain[ing], or coerc[ing] employees in the exercise of the rights guaranteed in section 7” (29 U.S.C. § 158 (a)(1)); “dominat[ing] or interfer[ing] with the formation or administration of any labor organization or contribut[ing] financial or other support to it” (29 U.S.C. § 158(a)(2)); “discriminat[ing] in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization” (29 U.S.C. § 158(a)(3)); “discharg[ing] or otherwise discriminat[ing] against an employee because he has filed charges or given testimony under [this subchapter]” (29 U.S.C. § 158(a)(4)); or “refus[ing] to bargain collectively with the representatives of his employees.” (29 U.S.C. § 158(a)(5).)
The National Labor Relations Board (NLRB) has exclusive jurisdiction over alleged unfair labor practices and protected activities as defined in the statute. (See Local 926, Intern. Union of Operating Engineers v. Jones (1983) 460 U.S. 669, 681 (Jones) [NLRA reflects the “decision of Congress to vest in one administrative agency nationwide jurisdiction to adjudicate controversies within the [NLRA's] purview”].) Thus, “the Supreme Court mandates that state courts ‘ “must defer to the exclusive competence of the [NLRB] in cases in which the activity that is the subject matter of the litigation is arguably subject to the protections of [section] 7 or the prohibitions of [section] 8 of the [NLRA].”' ” (Luke v. Collotype Labels USA, Inc. (2008) 159 Cal.App.4th 1463, 1469-1470, quoting Linn v. Plant Guard Workers (1966) 383 U.S. 53, 60.) “[C]ourts are not primary tribunals to adjudicate... issues” such as “whether the particular activity regulated by the [s]tates [is] governed by [section] 7 or [section] 8 or [is], perhaps, outside both these sections”; rather, “[i]t is essential to the administration of the [NLRA] that these determinations be left in the first instance to the [NLRB].” (San Diego Building Trades Council, etc. v. Garmon (1959) 359 U.S. 236, 244−245 (Garmon).) Thus, the party seeking to defeat a claim based on NLRA preemption must establish only that the claim is based on conduct that “arguably” falls within the scope of that described in section 7 and/or section 8. (Garmon, supra, at p. 245; accord, Jones, supra, 460 U.S. at p. 676.)
3. Ortega's WTVPP and retaliation causes of action based on conduct other than union activity are not preempted
Ortega contends that the court incorrectly concluded that his WTVPP and retaliation causes of action were preempted by the NLRA, because the FAC alleges conduct that does not fall within the scope of the NLRA. We agree.
We acknowledge that the FAC includes allegations of conduct that falls squarely within the protection of section 7-namely, Ortega's efforts “to form, join, or assist labor organizations” (29 U.S.C. § 157) and employee discussions of working conditions and pay. (See Parexel Internat. (2011) 356 NLRB No. 82, 516, 518 [“wage discussions among employees are considered to be at the core of [s]ection 7 rights”].)
Ortega does not appeal the court's ruling regarding his Labor Code section 232 cause of action, which is necessarily based on such employee discussions of pay protected under section 7 and thus preempted by the NLRA.
It also includes allegations that Ortega complained to Nestle management regarding unsafe or illegal working conditions. Nothing in the FAC suggests that Ortega's complaints to management were part of or furthered efforts to “form, join, or assist labor organizations” (29 U.S.C. § 157), as was the case in the authorities on which respondents rely in urging preemption. (See Rodriguez v. Yellow Cab Cooperative, Inc. (1988) 206 Cal.App.3d 668, 679 [“[n]o matter how they may be labeled, the activities in question all sought to advance the interests of the [u]nion, ” and cause of action based on such activities thus preempted by NLRA]; Henry v. Intercontinental Radio, Inc. (1984) 155 Cal.App.3d 707, 715 [plaintiff's “political activit[ies]” were undertaken for the purpose of furthering his unionization activities, and NLRA preempted claims that plaintiff was terminated for his political activities in violation of California law].)
Ortega's health and safety complaints might still fall within the scope of section 7 if they constitute “concerted activities for the purpose of collective bargaining” or “concerted activities for... mutual aid or protection” of fellow employees, however. (29 U.S.C. § 157; Haney v. Aramark Uniform Services, Inc. (2004) 121 Cal.App.4th 623, 634 & 638 (Haney) [“concerted activity” is necessary for non-union-related conduct to fall within the scope of section 7, even if the activity is for the “mutual aid and protection” of other workers].) To determine whether Ortega's complaints about working conditions and pay constitute “concerted activity, ” we apply “ ‘an objective test requiring some linkage to group action.' ” (Haney, supra, 121 Cal.App.4th at p. 635.) “The requirement for some linkage or nexus between the acts of the individual employee and a group is met in at least three distinct factual situations, ” only one of which is even potentially implicated on the facts alleged in the FAC: Namely, when “ ‘... an individual acts, formally or informally, on behalf of a group' [citation]” meaning he “ ‘engaged in [the alleged conduct] with or on the authority of other employees.' ” (Ibid.) A court may not impute concerted action based on the nature of an employee's complaints-i.e., that a broader group of employees necessarily share the same concerns voiced in the complaint. (Id. at p. 638; see Hentzel v. Singer Co. (1982) 138 Cal.App.3d 290, 296−297, fn. 4 [“ ‘public venting of a personal grievance, even a grievance shared by others, is not a concerted activity' ”].) Rather, concerted action requires the plaintiff to have acted with “ ‘actual participation or on the authority of his co workers.' ” (Haney, supra, 121 Cal.App.4th at p. 636, italics added; compare International Ladies' Garment Workers' U. v. N.L.R.B. (D.C. Cir. 1962) 299 F.2d 114, 116 [letter of complaint written by a single employee and approved in advance by several other employees reflected concerted action] with Manimark Corp. v. N.L.R.B. (6th Cir. 1993) 7 F.3d 547 & 549-552; id. at p. 551 [driver complaining to general manager that he and other drivers had certain complaints about various issues not concerted despite “evidence that drivers [as a group] were irritated by working conditions, [because] there [wa]s nothing to indicate that they had decided to act upon those annoyances” and no “evidence that [the driver] was acting in anyone's interest but his own”].) Whether a plaintiff intended to benefit a group with his or her action is likewise irrelevant to the analysis. (See Haney, supra, at pp. 635−636.)
The other two situations are “when an individual's act stems from prior concerted activity” and when “an individual attempts to bring about or prepare for group action, even if those attempts are unsuccessful in achieving group action.” (Haney, supra, 121 Cal.App.4th at pp. 634−635.)
Applying this definition, the allegations in the FAC regarding Ortega's complaints about working conditions do not arguably reflect concerted activity. The FAC alleges that, in addition to complaining to Nestle management about his working conditions, Ortega discussed those conditions and pay with his fellow RSRs, and that he encouraged them to unionize as a result of concerns about these conditions. But neither these nor any other allegations suggest that any employee authorized Ortega to bring such concerns to the attention of management. “The applicable standard of review, which obliges us to indulge all inferences in favor of [Ortega]..., clearly bars us from inferring a fact that might defeat... [Ortega's] claim.” (Treweek v. City of Napa (2000) 85 Cal.App.4th 221, 234, italics omitted.) Thus, the FAC's allegations regarding Ortega's health and safety and wage and hour complaints do not reflect conduct protected by section 7.
The FAC alleges that “[Ortega's] employment was terminated in part because of his protected activity (i.e., good faith complaints), ” including “good faith complaints about [respondents'] illegal business practices, ” “the unattainable and unsafe daily requirements of 80 to 90 deliveries per day, ” and complaints “at least twice a week to Harrington about [Ortega's] and [Ortega's] coworkers' inability to take proper meal periods and rest breaks throughout the day.” The FAC further alleges that Nestle retaliated against him based on his complaints to management “that [respondents] impeded his efforts toward unionization, ” complaints of “numerous wage and hour violations and safety issues” and complaints “that he and the rest of the employees were told to not talk about their pay.”
Thus, the FAC alleges that Nestle terminated and retaliated against Ortega in part because of conduct that is outside the scope of section 7 and the NLRA-namely, Ortega's complaints regarding working conditions. “[S]o long as defendants' intentional wrongful conduct was motivated by impermissible considerations other than solely a desire or plan to interfere with collective bargaining or unionization, ” or other conduct prohibited or protected by the NLRA, “they may be held liable under state law.” (Balog v. LRJV, Inc. (1988) 204 Cal.App.3d 1295, 1304 (Balog); see id. at pp. 1307-1308 [no preemption where employee alleged five distinct reasons for his alleged wrongful termination, only one of which was an unfair labor practice under the NLRA].) This is because, in order to state a cause of action for WTVPP or retaliation, a plaintiff need not allege that the plaintiff's protected status (here, his status as an individual raising health and safety complaints) was the only motivating factor in the employer's decision to terminate or take other retaliatory action, nor that it was a but-for cause for the employer's conduct. (See Lab. Code, § 1102.6 [discriminatory reason must be a “contributing factor in the alleged [retaliatory conduct]”]; Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 229−230 [discrimination need not be “a ‘but[ ]for' cause of the disputed employment action” to support FEHA employment discrimination claim, to which a “substantial motivating factor” standard applies]; Mendoza v. Western Medical Center Santa Ana (2014) 222 Cal.App.4th 1334, 1341 [substantial motivating factor/reason causation standard enunciated in Harris for FEHA cases is equally applicable to common law claims for WTVPP].) Because the FAC alleges Ortega's health and safety complaints were a substantial motivation for respondents' conduct, allegations supporting possible additional motivations that fall within the scope of NLRA do not prevent Ortega from proceeding with his state law claim. (Balog, supra, 204 Cal.App.3d at p. 1304 [“deference to the rationale behind the doctrine of [NLRA] preemption does not require” that where “one of defendants' motives for firing [an employee] may have been, or was... [conduct protected by the NLRA], ... that... state cause of action must be dismissed”].)
Our conclusion is consistent with the overall goal of an NLRA preemption analysis, in which “[t]he critical inquiry, ... is... whether the controversy presented to the state court is identical to... or different from... that which could have been, but was not, presented to the [NLRB]. For it is only in the former situation that a state court's exercise of jurisdiction necessarily involves a risk of interference with the unfair labor practice jurisdiction of the [NLRB] which the arguably prohibited branch of the Garmon doctrine was designed to avoid.” (Sears, Roebuck & Co. v. San Diego County, etc. (1978) 436 U.S. 180, 197.) Here, the NLRB would not have authority to adjudicate a claim that Ortega was fired based on his complaining, on his own behalf, about Nestle violating California health and safety and wage and hour laws. Permitting a state court to determine whether Ortega's health and safety complaints constituted a contributing cause to Nestle's conduct would not usurp the role of the NLRB, nor would it run the risk of conflicting NLRB and state court outcomes. As the Court of Appeal explained in Balog, the court “retaining jurisdiction over [Ortega]'s wrongful termination action [would] not require the state court to exercise any power which might interfere with the policy behind preemption, i.e., the need to obtain uniform interpretation and application of federal labor law. The only issue related to the unfair labor practices-related reason for [Ortega]'s discharge which the trier of fact need reach is whether or not that reason was the only cause for [his] discharge. If the trier of fact determines that such was the sole reason, then the action is indeed preempted, and the court cannot proceed any further.... If, however, it determines that [Ortega] was discharged for the other illegal reasons alleged, which are not related to unfair labor practices under the NLRA, then the action is not preempted, and [respondents] will be liable to [Ortega] for damages caused by a wrongful discharge which was motivated in whole or in part by such other illegal reasons.” (See Balog, supra, 204 Cal.App.3d at pp. 1308−1309, italics omitted.)
B. Ortega's Defamation Cause of Action
Ortega next argues that the trial court erred in granting summary adjudication in respondents' favor on Ortega's defamation claim based on the common interest privilege. We disagree.
Code of Civil Procedure section 437c “requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence' and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119, italics omitted.) “There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 (Aguilar).)
Our review of a trial court's grant of summary judgment is de novo. (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037.) We therefore independently analyze the evidence in the record that was presented to the trial court, except that to which objections were sustained, under the same summary judgment legal framework applicable in the trial court. In so doing, “[w]e liberally construe the evidence in support of the party opposing summary judgment [citation], and assess whether the evidence would, if credited, permit the trier of fact to find in favor of the party opposing summary judgment under applicable legal standards.” (Loggins v. Kaiser Permanente Internat. (2007) 151 Cal.App.4th 1102, 1109.)
The party moving for summary judgment bears the initial burden of producing a prima facie showing that there is no triable issue of material fact. (Aguilar, supra, 25 Cal.4th at p. 850; Code Civ. Proc., § 437c, subd. (p)(2).) Respondents sought to defeat Ortega's defamation claim by showing the applicability of a conditional privilege (see id., § 437c, subd. (o)(2))-namely, the common interest privilege, codified in Civil Code section 47, subdivision (c). That section provides in pertinent part that a publication or broadcast is privileged if made “[i]n a communication, without malice, to a person interested therein, (1) by one who is also interested, or (2) by one who stands in such a relation to the person interested as to afford a reasonable ground for supposing the motive for the communication to be innocent, or (3) who is requested by the person interested to give the information.” (Civ. Code, § 47, subd. (c); see Noel v. River Hills Wilsons, Inc. (2003) 113 Cal.App.4th 1363, 1368 (Noel).) Determining whether this privilege applies to an allegedly defamatory statement “involves a two-step inquiry, ” and “[o]n summary judgment, ... the defendant bears the burden of showing in the first instance that there is no triable issue of fact as to [both] issue[s]-that the statement was made on a privileged occasion, and that it was made ‘without malice.' ” (Mamou v. Trendwest Resorts, Inc. (2008) 165 Cal.App.4th 686, 729 (Mamou).)
“[B]ecause an employer and its employees have a common interest in protecting the workplace from abuse, an employer's statements to employees regarding the reasons for termination of another employee generally” satisfy the first prong of this analysis. (King v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 440; see McGrory v. Applied Signal Technology, Inc. (2013) 212 Cal.App.4th 1510, 1538[a statement is made on a privileged occasion when it is a “statement[ ] by management and coworkers to other coworkers explaining why an employer disciplined an employee”].) The logic behind the privilege applying to employer statements about employee misconduct is that such open communications is necessary “so that (1) appropriate action may be taken against the employee; (2) the danger of such breaches occurring in the future may be minimized; and (3) present employees may not develop misconceptions that affect their employment with respect to certain conduct that was undertaken in the past.” (Deaile v. General Telephone Co. (1974) 40 Cal.App.3d 841, 849-850 (Deaile).) On these bases, both the employer and employee have an interest in the employee knowing the reason for a fellow (or former fellow) employee's discipline or termination. (See Civ. Code, § 47, subd. (c)(1); Cuenca v. Safeway San Francisco Employees Fed. Credit Union (1986) 180 Cal.App.3d 985, 995 (Cuenca) [“ ‘[i]nterested persons' within the meaning of section 47... have been defined as a communicator and a recipient with a common interest, although to be protected the communication must be one ‘reasonably calculated to further that interest' ”]; accord, Deaile, supra, 40 Cal.App.3d at p. 846.) Under such circumstances, “an employer is privileged in pursuing its own economic interests and that of its employees” by sharing such information, “even though it is substantially certain that emotional distress will result from uttered statements.” (Id. at pp. 849−850.)
Ortega's defamation claim is based on statements by Nestle management to Haddad and unidentified former coworkers of Ortega revealing that Ortega was terminated for stealing. To the extent Ortega can prove that such communications occurred, they necessarily satisfy the first prong of the common interest privilege analysis. Haddad, Ortega's former coworkers at Nestle, and the company itself all had a shared interest in clarifying employee misconceptions about the basis for Ortega's firing, as well as in employees understanding the repercussions of stealing. Moreover, Nestle explaining the basis for Ortega's termination to Haddad and Ortega's former coworkers is a communication “ ‘reasonably calculated to further that interest.' ” (Cuenca, supra, 180 Cal.App.3d at p. 995; Deaile, supra, 40 Cal.App.3d at p. 847 [privilege applies to non malicious statements “of a kind reasonably calculated to protect or further a common interest of both the communicator and the recipient”].) Thus, to the extent Ortega can establish at trial that the allegedly defamatory statements were made at all, they will necessarily satisfy the first prong of the common interest privilege analysis.
The only evidentiary support for Nestle telling Ortega's coworkers about the basis for his termination is that they apparently knew about it, given Ortega's testimony that one coworker mentioned “something about stealing” and the testimony that his former coworkers referred to him after he left as “Or-take-a.” Respondents argue that it is “at least equally possible” employees associated Ortega with stealing because of some rumors about his having stolen water on other occasions, rather than because Nestle management told them the basis for Ortega's termination. We need not address this issue in light of our conclusion that, if Ortega can establish Nestle did indeed make the allegedly defamatory statements, the common interest privilege precludes liability based on them.
We then consider whether respondents have demonstrated that there is no triable issue of material fact as to whether respondents made the alleged statements with malice. (See Mamou, supra, 165 Cal.App.4th at p. 729.) “ ‘ “The malice necessary to defeat a qualified privilege is ‘actual malice' which is established by a showing that the publication was motivated by hatred or ill will towards the plaintiff or by a showing that the defendant lacked reasonable grounds for belief in the truth of the publication and thereafter acted in reckless disregard of the plaintiff's rights [citations].”' ” (Taus v. Loftus (2007) 40 Cal.4th 683, 721 (Taus), italics omitted.) “ ‘A failure to investigate [citation], anger and hostility toward the plaintiff [citation], reliance upon sources known to be unreliable [citations], or known to be biased against the plaintiff [citations]... may, in an appropriate case, indicate that the publisher himself had serious doubts regarding the truth of his publication.' ” (Christian Research Institute v. Alnor (2007) 148 Cal.App.4th 71, 84−85.)
Ortega primarily argues that the jury can infer malice from what he characterizes as the inadequate and unusual nature of the investigation leading to Ortega's termination. He argues that Nestle deviated from its usual procedures by allowing Donelson, rather than human resources, to lead the investigation, that Donelson provided contradictory statements as to what he did during his investigation, and that there are errors and inaccuracies in the paperwork documenting the investigation and termination. Although “[a] plaintiff may rely on... evidence of... failure to adhere to professional standards” to demonstrate malice (Khawar v. Globe Internat., Inc. (1998) 19 Cal.4th 254, 275 (Khawar)), “such evidence is relevant only to the extent that it reflects on the subjective attitude of the publisher. [Citations.] The failure to conduct a thorough and objective investigation, standing alone, does not prove actual malice, nor even necessarily raise a triable issue of fact on that controversy.” (Reader's Digest Assn. v. Superior Court (1984) 37 Cal.3d 244, 258.) Rather, “ ‘there must be sufficient evidence to permit the conclusion that the defendant... had a “high degree of awareness of... probable falsity.”' ” (Khawar, supra, 19 Cal.4th at p. 275.) The irregularities in Nestle's investigation that Ortega identifies fall far short of establishing a triable question as to whether Nestle and/or Donelson ignored usual or proper procedures to such an extent or in such a manner that this could provide a basis for proving actual ill will towards Ortega. (Cf. Mamou, supra, 165 Cal.App.4th at pp. 716, 720 [evidence that employer “never rested on a single coherent explanation for its firing of [plaintiff], ” “several if not all of its explanations were, to put it mildly, questionable, ” and the employer immediately dismissed the plaintiff without allowing him to be heard regarding the employer's allegations of misconduct, including theft, “support[ed] an inference that the claimed reason for dismissing him was not genuinely felt but was instead assumed, like a cloak, to conceal some other motivation”].)
As to whether Nestle acted in “reckless disregard for the truth of the statements” in stating Ortega had stolen cases of water, the record simply cannot support that Nestle management “ ‘ “lacked reasonable grounds for belief in the truth of [such a statement].”' ” (Taus, supra, 40 Cal.4th at p. 722; see Agarwal v. Johnson (1979) 25 Cal.3d 932, 945 [“ ‘the privilege is lost if the publication is motivated by hatred or ill will toward plaintiff [citations], or by any cause other than the desire to protect the interest for the protection of which the privilege is given' ”], repudiated on another point in White v. Ultramar, Inc. (1999) 21 Cal.4th 563, 574, fn. 4.) Ortega correctly notes that no witness saw him steal the water, and that Nestle admitted customers might forget or deny ordering water for various reasons. But it is uncontradicted that the customer denied receiving the water and that an individual Ortega indicated could corroborate his version of events would not do so. Whether or not this is sufficient to prove Ortega stole anything, it precludes a finding that Nestle lacked any reasonable basis for reaching such a conclusion. (See Noel, supra, 113 Cal.App.4th at pp. 1370−1371[“ ‘Mere negligence in inquiry cannot constitute lack of reasonable or probable cause.' ” “ ‘[I]t is only when the negligence amounts to a reckless or wanton disregard for the truth, so as to reasonably imply a wilful disregard for or avoidance of accuracy, that malice is shown.' ”].)
Thus, respondents met their burden of establishing there was no triable question of whether, assuming Ortega can prove Nestle informed its non-management employees about the basis for Ortega's termination, Nestle acted out of malice in making such statements. The trial court correctly granted the MSJ as to Ortega's defamation claim on the basis that the claim is prohibited by the common interest privilege.
C. Ortega's IIED Cause of Action
Finally, Ortega argues the trial court erred in summarily adjudicating his IIED claim on the basis that the Worker Compensation Act (the WCA) bars that claim. We disagree.
The WCA provides the exclusive remedy for personal injury sustained by an employee in the course and scope of employment. (See Lab. Code, §§ 3600, subd. (a), 3602, subd. (a); Charles J. Vacanti, M.D., Inc. v. State Comp. Ins. Fund (2001) 24 Cal.4th 800, 813 (Vacanti).) The WCA exclusivity rule is based on the “presumed ‘compensation bargain' ” in which, in exchange for limitations on the amount of liability, the employer assumes liability regardless of fault for injury arising out of and in the course of employment. (Shoemaker v. Myers (1990) 52 Cal.3d 1, 16 (Shoemaker).) The compensation bargain encompasses both psychological and physical injury arising out of and in the course of the employment. (Lab. Code, §§ 3600, subd. (a), 3208.3.) The general rule of workers' compensation exclusivity “applies only if the risks resulting in the injury were encompassed within the ‘compensation bargain[ ]' ” which “does not encompass conduct that contravenes a fundamental public policy or exceeds the risks inherent in the employment relationship.” (Singh v. Southland Stone, U.S.A., Inc. (2010) 186 Cal.App.4th 338, 366 (Singh); accord, Vacanti, supra, 24 Cal.4th at pp. 811-812.) Thus, claims based on such conduct “may be the subject of both workers' compensation proceedings and civil actions.” (Claxton v. Waters (2004) 34 Cal.4th 367, 373.)
Ortega argues that several types of conduct reflected in the evidence can support an IIED claim not blocked by WCA exclusivity. Namely, Ortega points to evidence that Ortega's work performance was unfairly or overly scrutinized and critiqued, evidence respondents insulted and “bull[ied]” him (for example, Harrington telling Ortega “don't be a pussy wuss” and “be a Mexican”), and evidence of Nestle's allegedly defamatory statements to Ortega's former coworkers about Ortega having been fired for stealing.
To the extent Ortega's IIED claim is based on the allegedly defamatory statements regarding the reason for his firing, it is barred by the common interest privilege for the reasons discussed above. We thus need not consider whether this aspect of the IIED claim is also barred by WCA exclusivity.
The WCA exclusivity clearly applies to criticism of an employee's work performance, because such criticism is a normal part of the employment relationship. (Singh, supra, 186 Cal.App.4th at p. 367.) This is the case “even if the [criticism] could be characterized as ‘manifestly unfair, outrageous, harassment, or intended to cause emotional disturbance.' ” (Ibid., quoting Cole v. Fair Oaks Fire Protection Dist. (1987) 43 Cal.3d 148, 160; accord, Shoemaker, supra, 52 Cal.3d at p. 25.) WCA exclusivity also applies to abusive or insulting language in connection with “conflicts arising from the employment.” (Singh, supra, 186 Cal.App.4th at pp. 367.) Such conduct, even if “offensive and clearly inappropriate, ” “ar[ises] from risks encompassed within the compensation bargain” and, unless it violates a fundamental public policy reflected in a statute, falls within the scope of WCA exclusivity. (See id. at p. 367−368; see also ibid. [“absent a violation of a fundamental public policy, ” WCA exclusivity rule “applie[d] to any emotional injury arising from the described misconduct” by employer, including the employer “berat[ing] and humiliat[ing] [employee plaintiff]” “and insult[ing] him with profanities on a regular basis, ” for example by “shout[ing] at [plaintiff], grabb[ing] his lapels, and threaten[ing] to throw him out of the office if he did not sign a release”].) Thus, respondents insulting, unfairly criticizing, or using abusive language with Ortega cannot form the basis of an IIED claim, as all of this conduct occurred in the context of “conflicts arising from [Ortega's] employment.” (Id. at pp. 367 368.) WCA exclusivity thus bars Ortega's IIED claim, to the extent that claim is not already barred by the common interest privilege.
We note that Ortega does not and has not ever argued that abusive or insulting language falls outside the compensation bargain when the language has a racial component-for example, Harrington telling Ortega he should “be a Mexican.” We thus need not and do not decide this issue. Nor has Ortega ever argued that Harrington's comment that Ortega should “be a Mexican” reflected harassment or discrimination based on race. Were Ortega's IIED claim one based on racially motivated discrimination or harassment, it would not fall within the scope of WCA exclusivity, as such racially-motivated misconduct violates fundamental public policy set forth in the FEHA. (See City of Moorpark v. Superior Court (1998) 18 Cal.4th 1143, 1153.)
DISPOSITION
The judgment and order granting respondents' motion for summary judgment are reversed as to Ortega's wrongful termination and retaliation claims. The judgment and order are otherwise affirmed.
Ortega is awarded his costs on appeal.
We concur: CHANEY, J., BENDIX, J.