This case was last updated from Los Angeles County Superior Courts on 12/07/2021 at 19:08:58 (UTC).

VAL MADRIGAL VS STARRY, INC., A DELAWARE CORPORATION, ET AL.

Case Summary

On 06/25/2020 VAL MADRIGAL filed a Labor - Wrongful Termination lawsuit against STARRY, INC , A DELAWARE CORPORATION. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is MONICA BACHNER. The case status is Pending - Other Pending.
Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******4078

  • Filing Date:

    06/25/2020

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Labor - Wrongful Termination

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

MONICA BACHNER

 

Party Details

Plaintiff

MADRIGAL VAL

Defendants

ZUNIGA CARLOS

STARRY INC.

Attorney/Law Firm Details

Plaintiff Attorney

EBRAHIMIAN ARIE

Defendant Attorneys

RUIMY LITAL REBECCA

MA STEPHEN

 

Court Documents

Declaration - DECLARATION OF BRANDY SANDBORG IN SUPPORT OF DEFENDANTS' MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION

10/21/2021: Declaration - DECLARATION OF BRANDY SANDBORG IN SUPPORT OF DEFENDANTS' MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION

Declaration - DECLARATION OF CARLOS ZUNIGA IN SUPPORT OF DEFENDANTS' MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION

10/21/2021: Declaration - DECLARATION OF CARLOS ZUNIGA IN SUPPORT OF DEFENDANTS' MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION

Motion for Summary Judgment

10/21/2021: Motion for Summary Judgment

Declaration - DECLARATION OF KEITH E. SMITH IN SUPPORT OF DEFENDANTS' MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION

10/21/2021: Declaration - DECLARATION OF KEITH E. SMITH IN SUPPORT OF DEFENDANTS' MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION

Separate Statement

10/21/2021: Separate Statement

Notice - NOTICE COMPENDIUM OF EVIDENCE IN SUPPORT OF DEFENDANTS' MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION

10/21/2021: Notice - NOTICE COMPENDIUM OF EVIDENCE IN SUPPORT OF DEFENDANTS' MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION

Separate Statement

11/1/2021: Separate Statement

Opposition - OPPOSITION TO PLAINTIFF VAL MADRIGAL'S MOTION TO COMPEL DEFENDANT CARLOS ZUNIGA TO ANSWER DEPOSITION QUESTION AND FOR SANCTIONS; DECLARATION OF KEITH E. SMITH IN SUPPORT THEREOF

11/1/2021: Opposition - OPPOSITION TO PLAINTIFF VAL MADRIGAL'S MOTION TO COMPEL DEFENDANT CARLOS ZUNIGA TO ANSWER DEPOSITION QUESTION AND FOR SANCTIONS; DECLARATION OF KEITH E. SMITH IN SUPPORT THEREOF

Reply - REPLY TO DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL DEFENDANT TO ANSWER DEPOSITION QUESTION AND REQUEST FOR SANCTIONS

11/5/2021: Reply - REPLY TO DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL DEFENDANT TO ANSWER DEPOSITION QUESTION AND REQUEST FOR SANCTIONS

Notice - NOTICE DEFENDANT CARLOS ZUNIGA'S INFORMAL DISCOVERY CONFERENCE STATEMENT

9/9/2021: Notice - NOTICE DEFENDANT CARLOS ZUNIGA'S INFORMAL DISCOVERY CONFERENCE STATEMENT

Minute Order - MINUTE ORDER (INFORMAL DISCOVERY CONFERENCE (IDC))

9/10/2021: Minute Order - MINUTE ORDER (INFORMAL DISCOVERY CONFERENCE (IDC))

Informal Discovery Conference - INFORMAL DISCOVERY CONFERENCE STATEMENT

9/7/2021: Informal Discovery Conference - INFORMAL DISCOVERY CONFERENCE STATEMENT

Request for Judicial Notice

6/29/2021: Request for Judicial Notice

Separate Statement

6/29/2021: Separate Statement

Motion to Compel - MOTION TO COMPEL FURTHER DEPOSITION TESTIMONY

6/30/2021: Motion to Compel - MOTION TO COMPEL FURTHER DEPOSITION TESTIMONY

Request for Judicial Notice

6/30/2021: Request for Judicial Notice

Separate Statement

6/30/2021: Separate Statement

Minute Order - MINUTE ORDER (POST-MEDIATION STATUS CONFERENCE)

6/9/2021: Minute Order - MINUTE ORDER (POST-MEDIATION STATUS CONFERENCE)

22 More Documents Available

 

Docket Entries

  • 07/05/2022
  • Hearing07/05/2022 at 10:00 AM in Department 71 at 111 North Hill Street, Los Angeles, CA 90012; Jury Trial

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  • 06/24/2022
  • Hearing06/24/2022 at 09:00 AM in Department 71 at 111 North Hill Street, Los Angeles, CA 90012; Final Status Conference

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  • 04/12/2022
  • Hearing04/12/2022 at 08:30 AM in Department 71 at 111 North Hill Street, Los Angeles, CA 90012; Post-Mediation Status Conference

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  • 01/06/2022
  • Hearing01/06/2022 at 09:30 AM in Department 71 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Motion for Summary Judgment

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  • 11/15/2021
  • Docketat 09:30 AM in Department 71, Monica Bachner, Presiding; Hearing on Motion to Compel (Further Deposition Testimony) - Not Held - Taken Off Calendar by Party

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  • 11/05/2021
  • DocketReply (TO DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL DEFENDANT TO ANSWER DEPOSITION QUESTION AND REQUEST FOR SANCTIONS); Filed by Val Madrigal (Plaintiff)

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  • 11/03/2021
  • Docketat 08:30 AM in Department 71, Monica Bachner, Presiding; Post-Mediation Status Conference - Held - Continued

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  • 11/01/2021
  • DocketSeparate Statement; Filed by Carlos Zuniga (Defendant)

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  • 11/01/2021
  • DocketOpposition (TO PLAINTIFF VAL MADRIGAL'S MOTION TO COMPEL DEFENDANT CARLOS ZUNIGA TO ANSWER DEPOSITION QUESTION AND FOR SANCTIONS; DECLARATION OF KEITH E. SMITH IN SUPPORT THEREOF); Filed by Carlos Zuniga (Defendant)

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  • 10/21/2021
  • DocketDeclaration (OF KEITH E. SMITH IN SUPPORT OF DEFENDANTS' MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION); Filed by Starry, Inc. (Defendant); Carlos Zuniga (Defendant)

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25 More Docket Entries
  • 10/16/2020
  • DocketNotice of Posting of Jury Fees; Filed by Val Madrigal (Plaintiff)

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  • 08/20/2020
  • DocketAnswer; Filed by Starry, Inc. (Defendant); Carlos Zuniga (Defendant)

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  • 07/27/2020
  • DocketNotice (OF ERRATA TO HIS COMPLAINT FOR DAMAGES); Filed by Val Madrigal (Plaintiff)

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  • 07/27/2020
  • DocketNotice and Acknowledgment of Receipt; Filed by Val Madrigal (Plaintiff)

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  • 07/27/2020
  • DocketNotice and Acknowledgment of Receipt; Filed by Val Madrigal (Plaintiff)

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  • 06/26/2020
  • DocketNotice of Case Management Conference; Filed by Clerk

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  • 06/25/2020
  • DocketComplaint; Filed by Val Madrigal (Plaintiff)

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  • 06/25/2020
  • DocketCivil Case Cover Sheet; Filed by Val Madrigal (Plaintiff)

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  • 06/25/2020
  • DocketSummons (on Complaint); Filed by Val Madrigal (Plaintiff)

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  • 06/25/2020
  • DocketNotice of Case Assignment - Unlimited Civil Case; Filed by Clerk

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Tentative Rulings

Case Number: *******4078 Hearing Date: February 17, 2022 Dept: 71

Superior Court of California

County of Los Angeles

DEPARTMENT 71

TENTATIVE RULING

VAL MADRIGAL,

vs.

STARRY, INC., et al.

Case No.: *******4078

Hearing Date: February 17, 2022

Defendants’ motion for summary judgment is denied.

Defendants’ motion for summary adjudication denied as to Issues Nos. 1, 2, 3, 4, 5, 6, 7, 8, 14, and 16 and as to the 1st, 2nd, 3rd, 4th, and 9th causes of action, as well as the prayer for punitive damages. Defendant’s motion for summary adjudication is granted as to Issues Nos. 9, 11, 12, 13, and 15 and as to the 5th, 6th, 7th, 8th and 10th causes of action. The Court does not reach Issue No. 10.

Defendants Starry, Inc. (“Starry” or “Defendant”) and Carlos Zuniga (“Zuniga”) (collectively, “Defendants”) move for summary judgment against Plaintiff Val Madrigal (“Plaintiff”), or, in the alternative, for summary adjudication of the 1st (whistleblower retaliation – Labor Code 1102.5) [Issues Nos. 1-2], 2nd (retaliation for complaining about unsafe working conditions – Labor Code 6310) [Issue Nos. 3-4], 4th (retaliation for refusing to work in unsafe working conditions – Labor Code 6311) [Issues No. 5-6], 4th (violation of Labor Code 6400) [Issue Nos.7-8], 5th (disability discrimination) [Issues Nos. 9-10], 6th (failure to accommodate) [Issue No. 11], 7th (failure to engage in the interactive process) [Issue No. 12], 8th (retaliation - FEHA) [Issue No. 13], 9th (wrongful termination in violation of public policy) [Issue No. 14], and 10th (intentional infliction of emotional distress (“IIED”)) [Issue No. 15] causes of action in Plaintiff’s complaint as well as Plaintiff’s prayer for punitive damages [Issue No. 16]. (Notice of Motion, pgs. 1-4.)

As a preliminary matter, some of the issues on which Defendant moves for summary adjudication overlap. Issues Nos. 1, 3, 5, 7, and 13 all relate to whether Plaintiff can establish a prima facie case of retaliation. Issues Nos. 2, 4, 6, and 8 all relate to whether Starry articulated a legitimate, non-retaliatory reason for its actions and Plaintiff cannot submit any evidence that the reasons were pretextual. Similarly, Issue No. 9 involves whether Plaintiff can establish Defendants’ actions were a pretext for unlawful discrimination.

Procedural Issues

The Court notes the Separate Statement of Facts is 183 pages long and, in support of the motion for summary judgment, sets forth 52 material facts, all of which are repeated for each of the noticed issues as to which Defendants move for summary adjudication. As a result, the Response Separate Statement, which includes Plaintiff’s response to each of the 52 material facts, some of which span multiple pages and improperly include argument, which are also repeated 17 times, is over 2,000 pages long. In light of the volume of the Separate Statement and Response Separate Statement, the Court considers only the Separate Statement’s first 52 facts and the responses thereto, as well as Plaintiff’s Additional Material Facts Nos. 1-112 in ruling on the motion.

Evidentiary Objections

Plaintiff’s 12/23/21 evidentiary objections to the Declaration of Brandy Sandborg (“Sandborg”) are overruled as to Nos. 1, 2, and 3.

Plaintiff’s evidentiary objections to individual material facts asserted in Defendant’s Separate Statement of Fact (“SSFs”) are improper. The SSFs are not evidence subject to objection. Plaintiff’s evidentiary objections are accordingly overruled as to Nos. 4-13.

Defendants’ 12/30/21 evidentiary objections to the Declaration of Ivan Chapman (“Chapman”) are overruled as to Nos. 5 and 6, and sustained as to Nos. 1 (only as to “which once exposed to sunlight, melted or fell apart, creating a tripping hazard” otherwise overruled), 2 (only as to “This all created a serious fire hazard” otherwise overruled), 3 (only as to “this created a serious shocking and fire hazard” otherwise overruled), and 4.

Defendants’ evidentiary objections to the Declaration of Samuel Perez (“Perez”) are overruled as to Nos. 1, 2, and 4 and sustained as to No. 3 (only as to “In my opinion, Starry does not take the safety of its employees seriously” otherwise overruled).

Defendants’ evidentiary objection to the entire Declaration of Jason M. Lancaster (“Lancaster”) is overruled.

Defendants’ evidentiary objections to the Declaration of Plaintiff are overruled as to Nos. 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16 (only to the extent it is not submitted for truth of matters asserted), 17, 18, 19, and 20 (only to the extent Plaintiff’s prior statements and the responses thereto are not submitted for the truth of the matters asserted).

Defendants’ Response to Plaintiff’s Additional Material Facts includes objections to various AMFs. These objections are not procedurally proper and are overruled. AMFs are not evidence subject to objection.

The Court has considered Plaintiff’s 1/3/22 objections to Defendants’ submission of “new evidence” in support of their Response to Plaintiff’s Additional Material Facts (i.e., Defendants’ Reply Separate Statement) and the submission of a Reply Separate Statement. (Objection, pg. 2.) Except in instances in which Defendants cite to evidence they previously submitted and cited to in their moving papers, the Court excludes from consideration Defendants’ responses to Plaintiff’s AMFs and cited evidence.

Procedural Background

On June 25, 2020, Plaintiff filed his initial complaint against his former employer Starry and Zuniga, Starry’s Associate Vice President of Operations, alleging causes of action for whistleblower retaliation, FEHA retaliation, violation of Labor Code 6400, disability discrimination, failure to provide reasonable accommodation, failure to engage in the interactive process, and IIED. The Court notes all causes of action are asserted against Starry; however, only the IIED cause of action is also asserted against Zuniga. Defendants filed their answer on August 20, 2020, and on October 21, 2021, Defendants filed the instant motion.

Summary of Allegations

On July 9, 2018, Plaintiff began his employment at Starry as a technical support manager with duties that included hiring and training installation technicians, performing safety and quality observations, and responding to customer concerns. (Complaint 13, 15.) Plaintiff alleges Starry’s installation technicians were responsible for activating internet services, investigating and resolving device network issues, and logging customer feedback and concerns; however, prior to activating such internet services, Starry’s construction technicians had to install telecommunications facilities to support residential high-speed internet. (Complaint 16, 17.)

Plaintiff alleges that during his employment, he discovered and reported to Starry unsafe and hazardous working conditions that placed himself, employees, and customers at risk of injury including industrial injuries, tripping hazards, electric shock hazards, and fire hazards. (Complaint 21.) Plaintiff alleges he regularly complained to Zuniga that electrical work was dangerous, the construction technicians were not certified to handle complicated electrical work, and for the safety of Starry employees and customers, professional and certified electricians should be used. (Complaint 22.) Plaintiff alleges he made the following reports to Zuniga regarding work performed by construction technicians: (1) a May 13, 2019 complaint that they had tapped into an electrical circuit feeding a customer’s boiler, creating excessive demands on the circuit and causing it to trip, to which Zuniga was indifferent, responding that “Starry has limited resources and [the construction technicians] are the guys that I have to get the work done”; (2) a June 20,2019 complaint they had installed an equipment cabinet behind a copper pipe without following clearance requirements, thereby creating a tripping hazard, in response to which Zuniga was indifferent, stating “as long as the manager of the building does not complain, the equipment will stay as is”; and (3) an August 3, 2019 complaint they had tapped into a ground-fault circuit interrupter (“GFCI”) that was feeding the building’s washer and dryer, thereby creating excessive demands on the circuit and causing it to trip. (Complaint 23-24.)

Plaintiff alleges he regularly complained to Zuniga that employees were performing strenuous work without first receiving proper OSHA training and the appropriate safety devices and safeguards, including Zuniga’s September 2, 2019, instruction that installation team members carry cinder blocks to a rooftop despite Plaintiff’s concerns they had not received requisite OSHA training and safeguards. (Complaint 25-26.) On or October 29, 2019, Plaintiff complained to Zuniga and Starry’s Senior Vice President and General Manager, David Montierth (“Montierth”), that construction technicians’ running cable lines down a building’s trash chute caused a trash build-up, presenting a fire hazard to Starry employees and customers; however, Monteith was indifferent to the complaint. (Complaint 27.) On October 29, 2019, Plaintiff complained to Starry Human Resources (“HR”) Generalist, Mariah Smith (“Smith”) of: (1) Zuniga’s indifference to Plaintiff’s complaints of unsafe working conditions; (2) that members of the construction team had become hostile towards members of the installation team; and (3) Zuniga’s favoritism toward construction technicians made them immune to any negative feedback or disciplinary action. (Complaint 27.)

On December 13, 2019, Plaintiff complained to Zuniga and Montierth that construction technicians had created a tripping hazard a building’s roof; however, they displayed an indifference to the complaint’s urgency, and the next day Plaintiff and two technicians corrected the issue. (Complaint 28.) On December 20, 2019, Plaintiff complained to Zuniga that construction technicians had run an extension cord in a manner that overloaded the customer's electric circuit, resulting in a building power outage. (Complaint 29.) On December 23, 2019, Plaintiff reported an escalated call to Zuniga that equipment installed by construction technicians in an unprotected outdoor shack was covered in water, causing a building power outage, and that this was not the first time the crew had installed equipment in such a manner; however, Zuniga was indifferent to the complaint. (Complaint 30.) On January 30, 2020, Plaintiff complained to Smith and Zuniga that the construction team were still hostile toward the installation team. (Complaint 31.) On January 31, 2020, Plaintiff complained to Zuniga that construction technicians had removed fire caulking from a conduit to run cables and after completing the job, the crew unsuccessfully attempted to reapply the removed caulking material to seal the conduit, causing it to fall off. (Complaint 32.)

On February 4, 2020, Plaintiff participated in a conference call with Smith and Zuniga during which Smith did not address Plaintiff’s complaints; rather, Plaintiff was notified a project manager had suddenly quit, and Starry wanted Plaintiff to assume his duties while continuing his technical support manager duties. (Complaint 33.) Plaintiff alleges that in retaliation for his repeated complaints of unsafe working conditions, Zuniga, with Starry’s knowledge, sought to increase Plaintiff’s workload to set him up for failure. (Complaint 34.) After the conference call, Plaintiff spoke with Zuniga regarding the project manager position, during which conversation Plaintiff was informed the increased duties were without increased pay. (Complaint 34.) When Plaintiff expressed concern that the increased workload would be untenable and recommended Starry promote a dispatcher to the project manager position, Zuniga, in threatening tone, said, “This is your last chance. Either you comply, or your future with this company will be in question!” (Complaint 34.) On February 4, 2020, Madrigal complained to Smith that Zuniga had threatened him and the following day, Smith and Brandy Sandborg (“Sandborg”) [Starry’s People Operations Manager], called Plaintiff to discuss his complaint. (Complaint 35.) Sandborg: (1) downplayed Plaintiff’s complaints, (2) accused Plaintiff of coming from “a very structured background… and Starry could never become a structured company,”; (3) Zuniga was tired of Plaintiff’s unsafe working condition complaints. (Complaint 35.) Plaintiff alleges when he questioned why Starry was suddenly imposing an increased, Sandborg responded that Plaintiff had one day to make up his mind. (Complaint 35.) Plaintiff alleges that, in fear of further retaliation or termination, he accepted the increased workload on February 6, 2020. (Complaint 36.)

Plaintiff alleges that during routine quality observation on February 7, 2020, he sustained a right shoulder injury, which he reported to Zuniga, and thereafter made a scheduled call to Zuniga and Sandborg to discuss the project manager position and his shoulder injury, during which, Plaintiff reported the details of his shoulder injury, complained that he was in pain, and requested to see a doctor. (Complaint 37.) During this call, Sandborg informed Plaintiff he was a “mismatch” for Starry and terminated his employment. (Complaint 37.)

Undisputed Facts

It is undisputed that, as a Technical Support Manager, Plaintiff was involved in the end phase of Starry's projects which included customer installation and trouble calls. (USSF No. 2 (“USSF” refers to undisputed facts).) Plaintiff's duties included hiring and training installation technicians, performing safety and quality observations, and responding to customer concerns. (USSF No. 3.) Zuniga, Plaintiff’s supervisor/manager, had the title “Area Vice President of Operations.” (USSF Nos. 4-5.) Plaintiff was terminated on February 7, 2020, and Plaintiff claims he suffered a shoulder injury prior to his termination. (USSF Nos. 42, 47.) All remaining facts are disputed in whole or in part.

Whistleblower Retaliation – Labor Code 1102.5; Retaliation for Complaining About Unsafe Working Conditions – Violation of Labor Code 6310; and Retaliation for Refusing to Work in Unsafe Working Conditions – Labor Code 6311 (1st, 2nd, and 3rd COAs)

As a preliminary matter, Defendants’ motion improperly groups the 1st, 2nd, 3rd, 4th, and 8th causes of action together as “retaliation” causes of action. However, the 4th cause of action is not for retaliation, but for violation of Labor Code 6400, which only prohibits employers from requiring employees to work in unsafe environments and does not involve claims an employer retaliated against an employee for complaining about an unsafe working environment. In addition, while the 8th cause of action is for FEHA retaliation, the cause of action is not based on Plaintiff’s workplace safety complaints but on retaliation against him for requesting accommodations for his alleged disability. As such, this ruling considers these causes of action separately from the 1st, 2nd, and 3rd causes of action.

A prima facie case of whistleblower retaliation in violation of Labor Code 1102.5(b) requires a showing that Plaintiff engaged in a protected activity, the employer subjected Plaintiff to adverse employment action, and there is a causal link between the two. (Patten v. Grant Joint Union High School Dist. (2005) 134 Cal.App.4th 1378, 1384.)

Labor Code 1102.5(b) provides that, “An employer… shall not retaliate against an employee for disclosing information… to… a person with authority over the employee… if the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation, regardless of whether disclosing the information is part of the employee’s job duties.”

A cause of action for Labor Code 6310 whistleblower protection (health or safety complaint), in which a plaintiff alleges a defendant engaged in an adverse employment action against plaintiff in retaliation for plaintiff’s safety complaint, requires establishing the following: (1) plaintiff was an employee of defendant; (2) plaintiff, on his own behalf or on behalf of others, made an oral or written complaint to an entity regarding unsafe/unhealthy working conditions or initiated a proceeding relating to his or another’s rights to workplace health or safety; (3) defendant engaged in adverse employment action against plaintiff; (4) plaintiff’s complaint was a substantial motivating reason for defendant’s adverse employment action; (5) plaintiff was harmed; and (6) defendant’s conduct was a substantial factor in causing plaintiff’s harm. (CACI 4605; See Labor Code 6310(a), (c).)

Labor Code 6311 provides as follows, “No employee shall be… discharged for refusing to perform work [in which] any occupational safety or health standard… will be violated, where the violation would create a real and apparent hazard to the employee or their fellow employees. Any employee… discharged in violation of this section… shall have a right of action for wages for the time the employee is without work as a result of the… discharge…”

Plaintiff’s causes of action for retaliation based on workplace safety complaints involve the same underlying factual allegations, discussed above. In support of the 1st cause of action, Plaintiff alleges Starry retaliated against him for disclosing information Plaintiff reasonably believed involved violations of state or federal statutes including workplace safety issues and, as a result of Plaintiff’s disclosure, Starry retaliated against Plaintiff y denying employment opportunities, denying a retaliation-free work environment, and terminating Plaintiff’s employment, and Starry’s adverse employment actions were motivated by Plaintiff’s complaints. (Complaint 54-56.) In support of the 2nd cause of action, Plaintiff alleges he complained to Starry about unsafe and hazardous working conditions and Starry terminated him in retaliation of such reporting. (Complaint 63-66.) In support of his 3rd cause of action, Plaintiff alleges that during his employment he complained to Starry about hazardous working conditions and Starry terminated his employment in retaliation for those reports. (Complaint 72-75.)

Defendants move for summary adjudication of the 1st, 2nd, and 3rd cause of action on the following issues: (1) Plaintiff cannot establish a prima facie case for retaliation because he cannot establish a causal nexus between Plaintiff’s workplace safety complaints and his termination [Issues Nos. 1, 3, & 5]; and (2) Starry had legitimate, non-retaliatory reasons for its termination and/or adverse employment actions against Plaintiff and Plaintiff cannot establish the stated reasons were pretextual [Issues Nos. 2, 4, & 6]. The Court notes Defendants argue for the first time in reply that the subject matter of Plaintiff’s complaints does not constitute “whistleblower” complaints for purposes of the cause of action. (Reply, pg. 3.) However, this argument was not raised in Defendants’ moving papers and as such, the Court does not consider it.

  1. Whether Plaintiff can Establish a Prima Facie Case of Retaliation based on Workplace Safety Complaints [Issues Nos. 1, 3, & 5]

    Defendants argue Plaintiff cannot establish causal nexus between his alleged protected activity and his termination for the following reasons: (1) Defendants expressly requested Plaintiff advise them of any issues he found, which Starry wished to rectify, and as such there was no negative reaction to Plaintiff raising safety issues in complaints; (2) Plaintiff first reported safety concerns in May 2019, but his termination occurred nine months later in February 2020 and as such there was no temporal proximity; (3) Plaintiff was provided with means of reporting hazardous conditions via the Slack channel; and (4) Starry offered Plaintiff the project manager position. (Motion, pg. 20.)

    Defendants submitted evidence Zuniga explicitly asked Plaintiff to report to Starry any unsafe or incorrect conditions he found. ([Disputed Separate Statement of Fact (“D-SSF”) Nos. 8-9] Decl. of Smith, Exh. G (“Zuniga Depo”) 98:18-25; Decl. of Zuniga 4.) Defendants submitted evidence Plaintiff and his team were Starry management’s “eyes and ears” and that Zuniga wanted to hear about issues from Plaintiff. ([D-SSF No. 11] Zuniga Depo 99:13-21; 100:5-25; 173:9-14; 174:4-20; Decl. of Zuniga 5.) Defendants submitted evidence that when Plaintiff pointed out mistakes made by Starry employees, he was thanked for pointing out issues so Starry could identify the cause and correct the issue going forward. ([D-SSF No. 13] Decl. of Smith, Exh. D [Starry’s Amended Responses to Employment Form Interrogatories (“Exh. D”)], No. 201.1; Zuniga Depo pgs. 98:18-99:12 [the Court notes the only evidence Defendants submit as to their assertion that Plaintiff was “thanked” for pointing out issues is Starry’s own responses to discovery without contemporaneous documentation (e.g., email, text message) supporting those assertions.) Defendants submitted evidence Starry had a dedicated Slack message room for Plaintiff’s submission of issues to management. ([D-SSF No. 10] Zuniga Depo 99:13-21, 100:5-25, 173:9-14; 174:4-20; Decl. of Zuniga 5.) Defendants note Plaintiff's first report of an unsafe or hazardous condition occurred on May 13, 2019. ([D-SSF No. 12] Complaint 22.) Defendants argue that because the termination was on February 7, 2020, approximately nine months later, there is no causal link between the complaints and his termination as it does not make sense for Starry to wait nine months to retaliate. (Motion, pg. 20.) Defendants argue that Starry’s offer of the project manager position to Plaintiff further negated any alleged retaliatory animus. (Motion, pg. 20.) Defendants submitted evidence that on February 4, 2020, Plaintiff was asked to assume the duties of a project manager to involve him in the earlier phases of projects and encourage his interface with other teams, a decision Zuniga suggestion and Zuniga offered Plaintiff the position. ([D-SSF Nos. 31, 32] Zuniga Depo 178:2-6; Exh. D, No. 201.1; Decl. of Smith Exh. H (“Smith Depo”) 103:6-22.)

    Defendants have not met their burden on summary adjudication of this issue. Notably, Defendants contend that simply because Defendants welcomed complaints regarding health and safety violations, because there was a Slack channel designated for such complaints, and because Defendants thanked Plaintiff for raising such issues, Plaintiff cannot establish that his termination was caused by his repeated workplace safety complaints. However, the evidence does not suggest the two are mutually exclusive—notably, Defendant could have had a company policy and means for Plaintiff to report violations and accepted Plaintiff’s reporting while also retaliating against those same reports. [To the extent Defendants argue Plaintiff cannot establish causation because the decision to terminate had a different, valid cause, that issue is addressed below.] In addition, Defendants’ argument that the nine-months between Plaintiff’s first complaint and his termination precludes Plaintiff from establishing causation given a lack of temporal proximity ignores the allegations on the face of the complaint, that Plaintiff continued to raise workplace safety complaints with Defendants up and until January 31, 2020, one week prior to his termination. Finally, evidence Defendants asked Plaintiff to take on more responsibilities three days before his termination does not show Plaintiff cannot establish causation especially considering Plaintiff’s unrefuted allegations that the increase in work duties would materially affect the terms of his employment since they did not involve an increase in pay. In addition, Defendants do not submit evidence addressing Plaintiff’s allegations that he was offered the position because of the sudden departure of the project manager.

    Based on the foregoing, Defendants’ motion for summary adjudication of Issues Nos. 1, 3, and 5 is denied.

  1. Whether Plaintiff Can Establish Starry Had at Least One Retaliatory Reason for Terminating Plaintiff Notwithstanding Starry’s Assertion That it Had a Valid Reason for Termination [Issues Nos. 2, 4, & 6]

    The Court notes the recent January 27, 2022, decision in Lawson v. PPG Architectural Finishes, Inc. (Cal., Jan. 27, 2022, No. S266001) 2022 WL 244731 holds that the evidentiary standard set forth in the Labor Code, not the McDonnell Douglas burden-shifting standard, applies to California whistleblower retaliation claims. The Court notes the instant motion, opposition, and reply were filed prior to Lawson, and as such, address whether Plaintiff can submit evidence establishing Defendant’s stated reasons for termination were pretextual in the face of Defendant’s evidence that it had a legitimate reason for termination; however, this is no longer the standard. The Court applies the new standard based on the evidence and arguments submitted by the parties.

    Labor Code 1102.6 provides that, “In a civil action… brought pursuant to Section 1102.5, once it has been demonstrated by a preponderance of the evidence that an activity proscribed by Section 1102.5 was a contributing factor in the alleged prohibited action against the employee, the employer shall have the burden of proof to demonstrate by clear and convincing evidence that the alleged [prohibited] action would have occurred for legitimate, independent reasons even if the employee had not engaged in activities protected by Section 1102.5.”

    In Lawson, the Supreme Court of California held as follows: “Under section 1102.6, a plaintiff does not need to show that the employer’s nonretaliatory reason was pretextual. Even if the employer had a genuine, nonretaliatory reason for its adverse action, the plaintiff still carries the burden assigned by statute if it is shown that the employer also had at least one retaliatory reason that was a contributing factor in the action.” (Lawson v. PPG Architectural Finishes, Inc. (Cal., Jan. 27, 2022, No. S266001) 2022 WL 244731, at *7.) The Court held that Section 1102.6 first, “places the burden on the plaintiff to establish, by a preponderance of the evidence, that retaliation for an employee’s protected activities was a contributing factor in a contested employment action [and] [t]he plaintiff need not satisfy McDonnell Douglas… to discharge this burden. Once the plaintiff has made the required showing, the burden shifts to the employer to demonstrate, by clear and convincing evidence, that it would have taken the action in question for legitimate, independent reasons even had the plaintiff not engaged in protected activity.” (Id. at *8.)

    Defendants submitted evidence suggesting Starry had a legitimate non-retaliatory reason for terminating Plaintiff’s employment. Defendants submitted evidence that around the date of his termination and for some time beforehand, Plaintiff was performing below Zuniga’s expectations given his poor attitude and conflicts with others. ([D-SSF No. 24] Exh. D, No. 201.1; Zuniga Depo 73:15-79:23 [testimony that Zuniga felt Plaintiff was not stepping up to take on responsibilities or the lead on operations in the way he should have been and that when Zuniga involved HR in possibly promoting Plaintiff to temporarily take on project manager duties, HR indicated it would not work out and Zuniga decided to terminate Plaintiff], 85:22-86:11 [testimony that Plaintiff failed to cooperate the construction team], 176:15-25 [testimony that as of February 4, 2020, Plaintiff was performing below Zuniga’s expectations that Zuniga needed for the position]; Smith Depo 39:15-40:14 [testimony that Plaintiff had been struggling with focusing on the team and interpersonally and that Plaintiff’s reaction to the promotion was confrontational and sour and she felt his attitude was not going to change].) Defendants submitted evidence that Plaintiff demonstrated an ongoing inability to work cooperatively with other teams, namely, the construction team and that Zuniga had discussed with Plaintiff his path to advancement and the need for him to learn to work productively with the other teams to advance. ([D-SSF Nos. 26, 27] in addition to the evidence cited in support of No. 24, discussed above, Zuniga Depo 86:9-11 [testimony that Plaintiff failed to cooperate with the construction team], 88:18-89:3 [testimony that Plaintiff demonstrated an ongoing inability to work with the warehouse manager Jacob in saying he would bypass Jacob to do what he needed to do with corporate and that Plaintiff and Jacob seemed unable to agree on expectations for ordering parts, requiring Zuniga to step in].) Defendants submitted evidence Plaintiff acted insubordinately to Zuniga. ([D-SSF No. 29] Zuniga Depo 73:15-79:23 [summarized above].) Defendants submitted evidence that Plaintiff perceived his complaints of other teams’ mistakes as opportunities to dwell on their perceived shortcomings, and not as a starting point for fixing the issues. ([D-SSF No. 14] Exh. D, No. 201.1; Zuniga Depo 77:9-14 [testimony that Plaintiff was not working or mixing well with other teams, and he would keep his team separate when the company needed to be a cohesive whole]; 85:22-86:3 [summarized above].)

    Defendants submitted evidence that on February 4, 2020, he was asked to assume the duties of project manager to involve him in the earlier phases of projects and encourage his interface with other teams. ([D-SSF No. 31] Zuniga Depo 178:2-6 [testimony that Plaintiff was asked to temporarily assume the role of project manager to learn the role’s duties]; Exh. D, No. 201.1.) Defendants contend this offer was as a last-ditch effort to turn Plaintiff’s attitude toward the other teams around and rectify the situation. ([D-SSF No. 33] Exh. D, No. 201.1.) Defendants submitted evidence that Plaintiff accepted the role but his attitude toward the other teams did not improve, and he acted insubordinate towards Zuniga. ([D-SSF No. 34] Exh. D, No. 201.1; Zuniga Depo 192:15-195:13 [testimony that after Plaintiff accepted the role (date not specified), Zuniga talked with him on the phone to discuss the role and Plaintiff became increasingly combative with Zuniga and ended the conversation; Zuniga testified he informed HR of what happened, and when he spoke to HR again, they indicated having Plaintiff in the new role would not work and asked if Plaintiff should be terminated and Zuniga agreed to terminate; Zuniga testified that Plaintiff’s insubordination (i.e., his dictating the conversation about his employment) was a factor in the termination decision].) Defendants submitted evidence that on February 6, 2020, the decision to terminate Plaintiff was made. ([D-SSF No. 46] Zuniga Depo 69:6-8 [testimony that the decision to terminate Plaintiff was made on February 6], Decl. of Sandborg, Exh. K [2/6/20 Slack communication between Zuniga and Sandborg] Decl. of Zuniga 9.) It is undisputed that Starry’s management, including Zuniga, informed Plaintiff that he was being terminated on February 7, 2020. (USSF No. 42.) Defendants’ evidence suggests a history of Plaintiff’s behavior toward other teams and Zuniga that ultimately came to a head in the manner in which Plaintiff accepted the project manager role and, as a result, Zuniga decided to terminate him.

    Accordingly, Defendants met their burden on summary judgment, shifting the burden to Plaintiff to create a triable issue of material fact. As discussed below, Plaintiff met his burden.

    Plaintiff submitted evidence creating a triable issue as to whether Starry also had at least one retaliatory reason that was a contributing factor in the decision to terminate Plaintiff. [The Court notes Plaintiff need not submit evidence creating a triable issue of fact as to whether Starry’s stated reason for termination was pretextual.] Plaintiff submitted evidence he first agreed to assume the project manager duties on February 6, 2020, by notifying Smith he was accepting because it was the only option given him. ([Plaintiff’s Additional Material Facts (“AMF”) No. 53] Decl. of Plaintiff 83, Exh. 42.) Plaintiff submitted evidence that he did not have a conversation with Zuniga, Smith, or Sandborg regarding the position after accepting the additional project manager duties. ([AMF No. 54] Decl. of Plaintiff 83, 85, Exh. 43.) Rather, Plaintiff’s evidence suggests that his conversation with Zuniga in which he allegedly became combative occurred on February 4, 2020, when they discussed the project manager position duties. (Decl. of Plaintiff 80, 81.) Plaintiff argues that, as such, any assertion that Plaintiff was combative after accepting the role as a basis for his termination is without merit. Plaintiff submitted evidence that, aside from evidence obtained in the course of litigation including responses to discovery and deposition testimony, Defendants produced no documentary evidence from the time of Plaintiff’s employment affirming Defendants’ assertion that Plaintiff had a bad attitude with team members and/or was insubordinate. (Opposition, pgs. 12-13; [AMF Nos. 93-94].)

    Plaintiff submitted evidence that Zuniga did not document a single incident in which Plaintiff became defensive or combative about issues other teams reported of Plaintiff’s team. ([AMF No. 64] Zuniga Depo 91:18-25; 92:1-16.) Plaintiff submitted evidence Zuniga did not write up Plaintiff for performing below his expactions and could not identify a documented incident wherein he informed Plaintiff he was performing below expectations. ([AMF No. 86] Zuniga Depo at 81:9-14; 81:22-25; 82:1-20.) In addition, Plaintiff submitted evidence suggesting Starry did not adhere to a progressive discipline policy in effect since January 2018 pursuant to which managers were required to document performance issues given there is no documentation supporting Zuniga’s assertion Plaintiff had performance issues warranting termination. (Opposition, pgs. 12-13; AMF No. 60; Decl. of Ebrahimian, Exh. 31, Smith Depo. at 27:14-25; 34:23-25; 35:1.) Plaintiff asserts that Defendants’ stated reasons for his termination are unsupported because there is no documented history of Plaintiff being written up or disciplined for allegedly being unable to work with other teams and/or being insubordinate to Zuniga. ([AMF Nos. 88, 73-75].)

    Plaintiff submitted evidence suggesting Defendants failed to investigate Plaintiff’s complaints. Plaintiff submitted evidence that in October to November 2019, Plaintiff directed some complaints to Starry’s HR department and Plaintiff had discussions with Smith and Sandborg about Zuniga and the Los Angeles office’s issues. (AMF Nos. 23, 24, 33-37.) However, Smith testified she could not recall the specifics of these meetings, did not document her discussions with Plaintiff, and could not recall the outcome of any investigations, suggesting Plaintiff’s complaints were not actually investigated. (AMF Nos. 37-38.) This evidence is sufficient to create a triable issue of fact as to whether Starry had at least one retaliatory reason for terminating Plaintiff, namely, his repeated complaints of workplace safety issues.

    The Court notes Plaintiff asserts there is direct evidence that his termination was in retaliation for his complaints. (Opposition, pgs. 10-11.) Specifically, Plaintiff cites to evidence that prior to Plaintiff’s acceptance of the project manager role, Smith messaged Zuniga and Sandborg indicating Plaintiff was “not happy” about assuming the project manager duties, to which Sandborg responded, “I think he's going to stay short term and that in a few weeks/months or so will leave…” ([AMF No. 52] Decl. of Ebrahimian, Exh. 41 [Starry’s Responses to RFPs, No. 1], Exh. 42 [2/5/20 Slack communication].) However, it is not clear how this evidence qualifies as direct evidence of animus.

    Based on the foregoing Defendants’ motion for summary judgment is denied. Defendants’ motion for summary adjudication is denied as to Issues Nos. 2, 4, and 6. Accordingly, Defendants’ motion for summary adjudication of the 1st, 2nd, and 3rd causes of action is denied.

Violation of Labor Code - 6400 et seq. (4th COA) [Issues Nos. 7 & 8]

Labor Code 6400 requires every employer to, “furnish… a place of employment that is safe and healthful for the employees therein.” Section 6401 requires every employer to, “furnish and use safety devices and safeguards, and shall adopt and use practices, means, methods, operations, and processes which are reasonably adequate to render such employment and place of employment safe and healthful… [and] every other thing reasonably necessary to protect the life, safety, and health of employees.” Section 6402 prohibits an employer from requiring or permitting, “any employee to go or be in any employment or place of employment which is not safe and healthful.” Section 6403 requires employers to: (a) provide and use safety devices and safeguards reasonably adequate to render the employment and place of employment safe; (b) adopt and use methods and processes reasonably adequate to render the employment and place of employment safe; and (c) do every other thing reasonably necessary to protect the life, safety, and health of employees.

Plaintiff’s 4th cause of action is based on allegations that during his employment, Plaintiff reported to Starry that he witnessed unsafe working conditions and complained he did not want to work in hazardous conditions; however, Starry did not provide Plaintiff or other employees with a safe working environment and repeatedly exposed them to safety hazards until terminating Plaintiff on February 7, 2020. (Complaint 83-85.)

Defendant has not met its burden in moving for summary adjudication of the 4th cause of action. Defendant relies on arguments and evidence relating to the retaliation causes of action, without addressing whether Plaintiff can establish the necessary elements of the Section 6400 cause of action, namely, whether Defendant did not provide Plaintiff with safe working environment in violation of the statute. Issues Nos. 7 and 8 are nonresponsive to a cause of action for violation of Labor Code 6400, and Defendants’ motion fails to address how adjudication of those issues in Starry’s favor would result in an adjudication of the cause of action in Starry’s favor as well.

Based on the foregoing, Defendants’ motion for summary adjudication of the 4th cause of action and Issues Nos. 7 and 8 is denied.

Disability Discrimination (5th COA) [Issues Nos. 9-10]

A prima facie case for disability discrimination requires the following elements: (1) plaintiff suffered from a disability or was regarded as suffering from a disability; (2) plaintiff could perform the essential duties of the job with or without reasonable accommodations; and (3) plaintiff was subjected to an adverse employment action because of the disability or perceived disability. (Sandell v. Taylor-Listug, Inc. (2010) 188 Cal.App.4th 297, 310.)

Plaintiff alleges Starry discriminated against him based on the basis of his disability when Starry terminated Plaintiff’s employment on the basis of his disability. (Complaint 91-99.)

Defendants argue: (1) Plaintiff cannot establish a prima facie case for disability discrimination since he cannot show he was performing competently in his position, and/or his termination occurred under circumstances suggesting a discriminatory motive given the decision to terminate was made prior to Plaintiff’s injury [Issue No. 9]; and (2) Defendants had a legitimate, non-discriminatory reason for its actions and Plaintiff cannot establish Defendants’ actions were pretext for unlawful discrimination based on his injury [Issue No. 10]. (Motion, pgs. 23-25.)

  1. Whether Plaintiff can Establish a Prima Facie Case of Discrimination Based on Disability

    Defendants submitted evidence suggesting Plaintiff cannot establish a prima facie case of discrimination on the basis of Plaintiff’s disability. Defendants submitted evidence that Zuniga and Sandborg made the decision to terminate Plaintiff on February 6, 2020. ([D-SSF No. 46] Zuniga Depo 69:6-8 [testimony that the decision to terminate Plaintiff was made on February 6], Decl. of Sandborg, Exh. K [2/6/20 Slack communication between Zuniga and Sandborg] Decl. of Zuniga 9.) Defendants submitted evidence that at the time the decision was made, Starry was not aware of Plaintiff’s alleged shoulder injury. ([D-SSF o. 47] Decl. of Zuniga 9-12; Decl. of Sandborg 8-11.) Defendants submitted evidence that Plaintiff did not report his alleged right shoulder injury to Defendants until after he had been informed of his termination and that news of his injury was the last thing Plaintiff told Defendants at the end of the termination meeting. ([D-SSF Nos. 48-49] Zuniga Depo 26:1-3.) Defendants submitted evidence neither Zuniga nor Sandborg knew of Plaintiff’s injury at the time they decided to terminate Plaintiff or at the time they advised Plaintiff of this decision. ([D-SSF No. 50] Zuniga Depo 26:1-3; Decl. of Sandborg 10.)

    Based on the foregoing, Defendants met their burden on summary adjudication. Therefore, the burden shifts to Plaintiff to create a triable issue of material fact. As discussed below, Plaintiff did not meet his burden.

    Plaintiff failed to submit evidence creating a triable issue of fact as to whether Plaintiff can establish the decision to terminate Plaintiff was motivated by Plaintiff’s disability. Plaintiff’s submitted evidence does not create a triable issue of fact as to whether either Zuniga and/or Sandborg had knowledge of Plaintiff’s shoulder injury at the time they made the decision to terminate Plaintiff on February 6, 2020. Indeed, as of February 6, 2020, Plaintiff was not yet injured since he sustained the injury the morning of February 7, 2020. Defendants’ evidence establishes that the decision to terminate Plaintiff was made as of February 6, and on February 7, a meeting was called with Plaintiff to inform him of the decision. Evidence Plaintiff informed other employees of his injury prior to the termination meeting does not create a triable issue of fact as to whether the decision-makers had knowledge of the injury at the time they made the decision to terminate.

    Based on the foregoing, Defendants’ motion for summary adjudication is granted as to Issue No. 9 and as to the 5th cause of action.

  2. Whether Plaintiff Can Establish Defendants’ Stated Reason(s) for Terminating Plaintiff were Pretextual for Unlawful Discrimination [Issue No. 10]

    Defendants assert Plaintiff cannot establish their stated reasons for terminating Plaintiff were pretextual for unlawful discrimination. However, the Court does not reach this issue in light of the ruling granting summary adjudication as to Issue No. 9. Accordingly, the Court does not reach Issue No. 10.

    Failure to Accommodate (6th COA) [Issue No. 11]

    “The essential elements of a failure to accommodate claim are: (1) the plaintiff has a disability covered by the FEHA; (2) the plaintiff is a qualified individual (i.e., he or she can perform the essential functions of the position); and (3) the employer failed to reasonably accommodate the plaintiff’s disability.” (Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 256; see also CACI 2541.)

    Plaintiff’s failure to accommodate claim is based on the following allegations: (1) Plaintiff had a disability that limited at least one major life activity; (2) Starry knew Plaintiff required reasonable accommodation for his disabilities to perform the essential functions of the job; (3) Starry failed to provide Plaintiff with reasonable accommodations and instead terminated Plaintiff’s employment. (Complaint 107-111.)

    Defendants argue Plaintiff cannot establish her failure to accommodate cause of action because Starry was not aware of any alleged injury sustained by Plaintiff, and accordingly Plaintiff’s disability, until after his termination. (Motion, pg. 26; citing D-SSFs Nos. 46, 47, 48, 49, 50, 52.) Defendants submitted evidence suggesting Plaintiff cannot establish the cause of action. Specifically, Defendants’ evidence, discussed above, suggests Defendants learned of Plaintiff’s disability contemporaneously with their informing him of their decision to terminate him, a decision that had been made the day prior. As such, Plaintiff cannot establish that he had a disability while employed by Starry. Moreover, Plaintiff cannot establish Starry failed to accommodate that disability.

    Based on the foregoing, Defendants met their burden on summary judgment/adjudication. Therefore, the burden shifts to Plaintiff to create a triable issue of material fact. As discussed below, Plaintiff did not meet his burden.

    In opposition, Plaintiff argues a triable issue of fact exists as to when Plaintiff reported his work-related injury and Plaintiff asserts he reported his injury to Starry before he was terminated, and as such, Starry was required to offer Plaintiff reasonable accommodations. (Opposition, pg. 18, citing AMF Nos. 55-59.) Plaintiff submitted evidence of the following occurring on February 7, 2020: (1) at 8:00 a.m., installation technician Gabriel Cendejas observed Plaintiff grabbing his shoulder and Plaintiff told him he hurt his shoulder accessing phone lines; (2) between 8:30 and 9:00 a.m., Plaintiff informed installation technician Ivan Chapman he had injured his shoulder at a job site; (3) at 10:25: a.m., Plaintiff informed dispatcher Robert Zeegers of his injury; and (4) at an unspecified time, Plaintiff participated in a telephone call with Sandborg and Zuniga during which he reported his injury from that morning and was at the Facey Medical Center, after which Sandborg terminated Plaintiff’s employment. (AMF Nos. 56, 57, 58, 59.) However, Plaintiff’s evidence only establishes, at most, that he informed Sandborg and Zuniga of his workplace injury during the call that had been planned to notify Plaintiff of his termination. To the extent he informed them before he was officially terminated, this does not create a triable issue of fact as to whether Starry should have accommodated Plaintiff’s disability given the decision to terminate had already been made. Plaintiff’s evidence does not refute Defendants’ evidence that Zuniga and Sandborg had planned the termination call and already exchanged termination documents relating to Plaintiff the day before, on February 6, 2020.

    Based on the foregoing, Defendant’s motion for summary adjudication of Issue No. 11 and the 6th cause of action is granted.

    Failure to Engage in the Interactive Process (7th COA) [Issue No. 12]

    A cause of action for failure to engage in the interactive process requires the following elements: (1) defendant was a covered employer; (2) plaintiff was an employee of defendant; (3) plaintiff had a physical condition/limitation that was known to defendant; (4) plaintiff requested defendant make reasonable accommodation for his physical condition so that he would be able to perform the essential job requirements; (5) plaintiff was willing to participate in the interactive process; (6) defendant failed to participate in a timely good-faith interactive process with plaintiff to determine whether reasonable accommodation could be made; (7) plaintiff was harmed; and (8) defendant’s failure to engage in a good-faith interactive process was a substantial factor in causing plaintiff’s harm. (CACI 2546.)

    Plaintiff’s interactive process claim is based on the following allegations: (1) Starry knew Plaintiff suffered from a disability; (2) Starry failed to engage in a timely, good-faith interactive process with Plaintiff to accommodate his known disabilities and instead terminated Plaintiff because of his disability. (Complaint 119-125.)

    Defendants argue Plaintiff cannot establish his failure to engage in the interactive process cause of action because Starry terminated Plaintiff’s employment prior to Plaintiff advising Starry of his disability [Issue No. 12]. Defendants submitted evidence suggesting Plaintiff cannot establish the cause of action. Specifically, Defendants’ evidence, discussed above, suggests Plaintiff cannot establish Defendants had knowledge of Plaintiff’s disability at the time they made the decision to terminate him or even when they terminated him.

    Based on the foregoing, Defendants met their burden on summary adjudication. Therefore, the burden shifts to Plaintiff to create a triable issue of material fact. As discussed below, Plaintiff did not meet his burden.

    Plaintiff did not submit evidence creating a triable issue of fact as to whether he had a known disability for the purposes of establishing the requisite elements of the interactive process cause of action. Plaintiff’s evidence at most establishes that Defendants knew of Plaintiff’s disability at the outset of the telephone conference scheduled for the purpose of informing Plaintiff of the decision to terminate his employment. As such, there is no evidence suggesting Defendants had an opportunity to engage in the interactive process with Plaintiff regarding this disability which occurred on the date of termination, and news of which was transmitted during the termination meeting.

    Based on the foregoing, Defendants’ motion for summary adjudication is granted as to Issue No. 12 and the 7th cause of action.

    FEHA Retaliation – Gov. Code 12940(h) (8th COA) [Issue No. 13]

    “[I]n order to establish a prima facie case of retaliation under the FEHA, a

    plaintiff must show (1) he or she engaged in a ‘protected activity,’ (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer’s action. [Citations]” (Yanowitz v. L’Or al USA, Inc. (2005) 36 Cal.4th 1028, 1042.) Gov. Code 12490(h) provides that it is an unlawful employment practice for any employer to discharge 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.

    Plaintiff’s 8th cause of action is based on allegations that Plaintiff suffered from a disability and was able to perform essential job junctions with reasonable accommodations, that Plaintiff requested reasonable accommodations for his disabilities, and, because of Plaintiff’s perceived or actual disability, Starry retaliated and discriminated against him by terminating his employment. (Complaint 133-137.) [The Court notes Plaintiff’s FEHA retaliation claim differs from his other retaliation claims as it is based on Starry’s alleged retaliation against Plaintiff for requesting disability accommodations, not for Plaintiff’s workplace safety complaints.]

    Defendants argue Plaintiff’s FEHA retaliation cause of action fails as a matter of law because Plaintiff cannot establish a prima facie case for retaliation since he cannot establish a causal nexus between any protected activity and any adverse employment action. [Issue No. 13]

    Defendants submitted evidence suggesting Plaintiff cannot establish his FEHA retaliation cause of action. Namely, Defendants’ evidence suggests Plaintiff cannot establish that Defendants’ decision to terminate Plaintiff was motivated by Plaintiff’s protected activity of requesting accommodations for his disabilities. As discussed above, Defendants submitted evidence that the decision to terminate Plaintiff was made on February 6, 2020, the day before Plaintiff sustained his shoulder injury. As such, the decision could not have been made in retaliation for Plaintiff requesting an accommodation in connection with that injury.

    Based on the foregoing, Defendants met their burden on summary adjudication. Therefore, the burden shifts to Plaintiff to create a triable issue of material fact. As discussed below, Plaintiff did not meet his burden.

    Plaintiff failed to submit evidence creating a triable issue of fact as to whether Defendants’ decision to terminate Plaintiff was motivated by retaliatory animus based on Plaintiff’s request for a disability accommodation. As discussed above, Plaintiff’s evidence relating to his informing Defendants of his disability only establishes that he informed Defendants on February 7, 2020, during the termination meeting. There is no evidence he requested an accommodation, and there is no evidence Defendants had knowledge of the disability at the time the decision to terminate Plaintiff was made such that it could have contributed to a retaliatory animus underlying the decision.

    Based on the foregoing, Defendants’ motion for summary adjudication is granted as to Issue No. 13 and the 8th cause of action.

    Wrongful Termination (9th COA) [Issue No. 14]

    “The elements of a claim for wrongful discharge in violation of public policy are (1) an employer-employee relationship, (2) the employer terminated the plaintiff's employment, (3) the termination was substantially motivated by a violation of public policy, and (4) the discharge caused the plaintiff harm. [Citation]” (Yau v. Allen (2014) 229 Cal.App.4th 144, 154.)

    Plaintiff’s wrongful termination cause of action is based on the following allegations: (1) Plaintiff’s employment was terminated in violation of public policies prohibiting discharging employees based on their health and safety complaints, refusal to work in an unsafe/unhealthy work environment, protected status (as disabled), and/or protected activities (e.g., request for accommodation in connection with a disability) in violation of the FEHA, the California Constitution, Labor Code 1102.5, and Government Code 12900 et seq.; and (2) as a proximate result of Starry’s wrongful termination of Plaintiff in violation of public policy, Plaintiff has suffered and continues to suffer damages. (Complaint 144-156.)

    Defendants argues Plaintiff cannot establish his wrongful termination claim because it is derivative of his retaliation and discrimination claims and fails for the same reasons. (Motion, pg. 27.) However, as discussed above, Plaintiff met his burden on summary adjudication of the retaliation causes of action based on workplace safety complaints. As such, a triable issue of fact remains as to whether Plaintiff can establish his wrongful termination cause of action based thereon.

    Based on the foregoing, Defendants’ motion for summary adjudication is denied as to Issue No. 14 and the 9th cause of action.

IIED (10th COA) [Issue No. 15]

“‘[T]o state a cause of action for intentional infliction of emotional distress a

plaintiff must show: (1) outrageous conduct by the defendant; (2) the defendant's intention of causing or reckless disregard of the probability of causing emotional distress; (3) the plaintiff's suffering severe or extreme emotional distress; and (4) actual and proximate causation of the emotional distress by the defendant's outrageous conduct.’ ‘Conduct, to be ‘outrageous’ must be so extreme as to exceed all bounds of that usually tolerated in a civilized society.’” (Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2005) 129 Cal.App.4th 1228, 1259 (Citations Omitted).)

Plaintiff’s IIED claim is based on the following allegations: (1) Starry and Zuniga caused Plaintiff severe and extreme emotional distress that exceeded the normal risks of the employment relationship, by conspiring against him to deny him a retaliation-free work environment and terminating his employment; (2) Zuniga repeatedly showed an indifference to Plaintiff’s complaints of unsafe and hazardous working conditions that jeopardized the health, safety and physical well-being of Plaintiff and Starry employees, and threatened Plaintiff for his repeated complaints by imposing increased and mandated duties on Plaintiff as a way to set him up for failure; (3) Starry ratified Zuniga's conduct by engaging in a pattern and practice of refusing to investigate and address the reported hazards, instead allowing the reported hazards to linger on and worsen; (4) Plaintiff and other employees were continuously exposed to serious health and safety hazards, as well as the stress of working in extremely dangerous working conditions; (5) Starry retaliated and discriminated against Plaintiff on account of his disability and need for accommodation, and intentionally engaged in retaliation against Plaintiff because he repeatedly disclosed information about what he reasonably believed to be violation of or noncompliance of federal, state or local laws, statutes or regulations relating to workplace safety. (Complaint 159-162.)

Defendants argue Plaintiff cannot establish his IIED cause of action because he cannot establish Defendants engaged in any outrageous conduct for the purposes of IIED, and the claim is impermissibly based on personnel activity [Issue No. 15]. (Motion, pgs. 22-24.)

A. Whether Defendants’ Actions Qualify as “Extreme and Outrageous” [Issue No. 15]

Defendants argue the allegations of mistreatment by Zuniga are not extreme or outrageous to support a claim for IIED. (Motion, pgs. 27-29.) Specifically, Defendants assert that even assuming, arguendo, all of Plaintiff’s allegations are true, the conduct alleged does not amount to conduct that is “so extreme as to exceed all bounds of that usually tolerated in a civilized society” since there is nothing extreme or outrageous with respect to a decision to terminate employment and/or not sufficiently respond to workplace safety complaints. (Motion, pgs. 27-29; Reply, pg. 7.) Moreover, the Court notes personnel management decisions as a matter of law cannot form the basis of an IIED cause of action. (See Janken v. GM Hughes Electronics (1996) 46 Cal. App. 4th 55, 80 [“[m]anaging personnel [such as transfers, work assignments, demotions, and termination] is not outrageous conduct beyond the bounds of human decency, but rather conduct essential to the welfare and prosperity of society[, and] is insufficient to support a claim of intentional infliction of emotional distress, even if improper motivation is alleged”].)

Based on the foregoing, Defendants met their burden on summary adjudication. Therefore, the burden shifts to Plaintiff to create a triable issue of material fact. As discussed below, Plaintiff did not meet his burden.

Plaintiff fails to submit evidence creating a triable issue of fact as to whether Zuniga’s conduct was “extreme and outrageous” for the purposes of asserting a cause of action for IIED based thereon. In opposition, Plaintiff argues Zuniga resisted Plaintiff’s efforts to make conditions for Starry employees and customers safe. (Opposition, pg. 19.) Plaintiff also argues that in response to his notification to HR of Zuniga’s indifference to reports of hazardous working conditions, Starry decided to terminate Plaintiff instead of extricating its employees and customers from dangerous conditions. (Opposition, pg. 19.) However, Plaintiff does not address how this makes Zuniga’s conduct extreme and outrageous for the purposes of the cause of action. The evidence does not suggest any Zuniga’s actions, even his indifference to safety complaints, are so extreme and outrageous to support the cause of action.

Based on the foregoing, Defendants’ motion for summary adjudication as to Issue No. 15 and the 10th cause of action is granted.

Prayer for Punitive Damages [Issue No. 16]

A plaintiff may seek punitive damages “[i]n an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice….” (Civil Code 3294(a).) “[A]lthough the “clear and convincing” evidentiary standard is a stringent one, it does not impose on a plaintiff the obligation to ‘prove’ a case for punitive damages at summary judgment. However, where the plaintiff’s ultimate burden of proof will be by clear and convincing evidence, the higher standard of proof must be taken into account in ruling on a motion for summary judgment or summary adjudication, since if a plaintiff is to prevail on a claim for punitive damages, it will be necessary that the evidence presented meet the higher evidentiary standard.” (American Airlines v. Sheppard, Mullin, Richter & Hampton (2002) 96 Cal. App. 4th 1017, 1049 [internal citations omitted].) For instance, in American Airlines, the Court of Appeal concluded that “there existed no triable issues of material fact which would support a finding by clear and convincing evidence that defendants should be held liable for punitive damages.” (Id. at 1023.) “Summary judgment or summary adjudication on the issue of punitive damages is proper only when no reasonable jury could find the plaintiff’s evidence to be clear and convincing proof of malice, fraud or oppression.” (Pacific Gas and Electric Company v. Superior Court (2018) 24 Cal.App.5th 1150, 1159 [internal citations omitted; emphasis added].)

“‘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. ‘Oppression’ means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights. ‘Fraud’ means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.” (Civil Code 3294(c)(1)-(3).)

The California Supreme Court addressed the issue of who may be considered a “managing agent” in White v. Ultramar, Inc. (1999) 21 Cal.4th 563. The Supreme Court concluded that the legislative purpose behind Civil Code 3294(b) was to limit a corporation’s responsibility for punitive damages to those individuals who fit within the statutory criteria based on the facts of a given case, stating as follows:

The drafters’ goals were to avoid imposing punitive damages on employers who were merely negligent or reckless and to distinguish ordinary respondeat superior liability from corporate liability for punitive damages. [Citations.] Section 3294 is no longer silent on who may be responsible for imputing punitive damages to a corporate employer. For corporate punitive damages liability, section 3294, subdivision (b), requires that the wrongful act giving rise to the exemplary damages be committed by an “officer, director, or managing agent.”

(Id. at pp. 571-572.)

Noting that the issue is factual in nature and to be determined on a case-by-case basis, the Court held that “the Legislature intended the term ‘managing agent’ to include only those corporate employees who exercise substantial independent authority and judgment in their corporate decision-making so that their decisions ultimately determine corporate policy.” (White, supra, 21 Cal.4th at pp. 566-567.) Based on the facts of the case, the Court distinguished the critical factor in the analysis—the employee’s discretionary authority—from the employee’s position within the corporate hierarchy. Liability does not depend on the employee’s “managerial level.” (Id. at pp. 576-577.) Instead, whether a supervisor is a “managing agent” turns on whether he or she “exercise[s] substantial discretionary authority over significant aspects of a corporation’s business.” (Id. at p. 577.)

Plaintiff seeks punitive damages in connection with the 1st, 5th, and 10th causes of action. (Complaint 59, 101, 163, Prayer 7.) In light of the Court’s ruling granting summary adjudication as to the 5th and 10th causes of action, only the request for punitive damages in connection with the 1st cause of action remains at issue.

Defendants argue Plaintiff’s request for punitive damages fails as a matter of law because she cannot establish by clear and convincing evidence that any officer, director, or managing agent committed, authorized, or ratified any acts of fraud, oppression, or malice. [Issue No. 16.]

Defendants argue Plaintiff cannot establish any wrongful act was performed by an officer, director, or managing agent because the alleged misconduct was not performed by Starry’s CEO. (Motion, pgs. 29-30.) However, this misstates the applicable standard, given punitive damages are recoverable for alleged misconduct performed by an officer, director, or managing agent, and Defendants submit no evidence addressing whether Zuniga is not a managing agent.

Defendants also argue none of Zuniga’s underlying actions amounted to malice, fraud, or oppression since Plaintiff is seeking punitive damages based on his termination. (Motion, pg. 30.) However, Defendants did not meet their burden of submitting evidence suggesting Plaintiff cannot establish that Zuniga’s actions of disregarding Plaintiff’s workplace safety complaints, “amounted to despicable conduct carried on with a willful and conscious disregard of the rights or safety of others,” so as to amount to malice in the context of the 1st cause of action. Rather, Defendants only argue that because Starry had a valid reason for terminating Plaintiff’s employment, his retaliation causes of action based on workplace safety complaints are without merit.

Based on the foregoing, Defendants’ motion for summary adjudication of the prayer for punitive damages [Issue No. 16] is denied.

Conclusion

Defendants’ motion for summary judgment is denied. Defendants’ motion for summary adjudication denied as to Issues Nos. 1, 2, 3, 4, 5, 6, 7, 8, 14, and 16 and as to the 1st, 2nd, 3rd, 4th, and 9th causes of action, as well as the prayer for punitive damages. Defendant’s motion for summary adjudication is granted as to Issues Nos. 9, 11, 12, 13, and 15 and as to the 5th, 6th, 7th, 8th and 10th causes of action. The Court does not reach Issue No. 10.

Dated: February , 2022

Hon. Monica Bachner

Judge of the Superior Court