Case Name: DeWayne Cassel v. Google LLC, et al.

Case No.: 17CV319202

This is an action under the Labor Code, the Private Attorneys General Act (“PAGA”), the Unfair Competition Law (“UCL”), and other statutes, arising from defendants Google LLC, Google Inc., and Alphabet, Inc.’s (collectively, “Google”) alleged practices of recruiting diverse candidates by misrepresenting the nature of the job they will perform if they are hired, imposing unlawful confidentiality agreements and other policies on employees, and retaliating against employees. Plaintiff DeWayne Cassel also brings a range of individual claims arising from his employment with Google.

Before the Court is plaintiff’s motion for an injunction under Labor Code sections 1102.61-62 and Google’s demurrer to the Second Amended Complaint (“SAC”), both of which are opposed.

I. Allegations of the Operative Complaint

According to the SAC, plaintiff had a successful career in Illinois as the former chief executive officer of a family business that served as the first minority supplier to Caterpillar, Inc., and then as a Catterpillar employee from the mid-2000s until he left to spend time with his ill sister in 2015. (SAC, ¶¶ 13-19.) He worked as a Business Relationship Manager for Caterpillar and is highly skilled and well-regarded in that field, which involves providing the strategic interface between a provider (e.g. IT Organization) and one or more business partners to shape business demand for the provider’s products and services and ensure that the potential business value from those products and services is realized. (Id. at ¶¶ 14-16.) After his sister passed away in 2016, plaintiff returned to the labor market and received interest from numerous employers other than Google, including an offer with a substantial salary and a relocation package. (Id. at ¶¶ 19-20, 40.)

A. Plaintiff Begins Working for Google

At the urging of a Google manager, plaintiff applied for a job at Google as a Partner Operations Manager (“POM”) in the gTech department during his job search. (SAC, ¶ 21.) The job description for the role reflected a traditional Business Relationship Manager role. (Id. at ¶ 22.) In response to plaintiff’s statements about his background, interviewers and a recruiter stated that the job duties of the Partner Operations Manager role would be consistent with plaintiff’s expertise as a Business Relationship Manager. (Id. at ¶¶ 28-38.) In reliance on these statements, as well as Google’s omissions about the actual nature of the Partner Operations Manager role, plaintiff accepted Google’s offer of employment, foregoing other opportunities and moving to California, leaving a second, disabled sister behind in Illinois. (Id. at ¶¶ 40-41.)

As a condition of employment with Google, plaintiff was required to sign an “At-will Employment, Confidential Information, Invention Assignment and Arbitration Agreement,” which contains several provisions that he contends are unlawful. (SAC, ¶¶ 43-61.) Furthermore, plaintiff learned during his orientation in early August of 2016 that his new duties would comprise providing technical support to Google customers. (Id. at ¶¶ 62-63, 65.) Contrary to his offer letter, he was assigned a job title of “Senior Solutions Consultant,” which is not equivalent to a Business Relationship Manager or even a Partner Operations Manager. (Id. at ¶ 64.) When he complained to his superior within days of being hired, his superior told him not to worry because Google was “newly committed” to hiring and retaining African-Americans and would therefore try to find him a different job that was a better fit. (Id. at ¶ 66.)

At the end of August 2016, plaintiff met with his superiors and a Human Resources professional, who explained that Google does not have a Business Relationship Manager role on the gTech team. (SAC, ¶ 67.) Instead, plaintiff was hired pursuant to a new pilot program called “Chameleon,” in which Google would hire individuals as Partner Operations Managers without knowing what they would actually do when they arrived or if there was even an open position available. (Ibid.) Once hired, Google would assign these individuals an available job—in plaintiff’s case, the Solutions Consultant role. (Ibid.) Plaintiff explained that he accepted Google’s offer of employment and moved to California to work in a Business Relationship Manager position, but was informed that if he did not find another role within Google within 30 days, he would have to remain on the gTech team as a Solutions Consultant. (Id. at ¶¶ 67-68.) While plaintiff attempted to find an appropriate role at Google, he was unsuccessful due to Google’s general practices of prohibiting a role change within the first year of employment and prohibiting a change in “grade level,” which was necessary for plaintiff to work in a job similar to a Business Relationship Manager role. (Id. at ¶ 69.)

B. Plaintiff Pursues Another Position with Google and Is Placed on a Performance Improvement Plan

In October 2016, plaintiff’s disabled sister suffered a setback and he was permitted to work out of Google’s Chicago office to care for her. (SAC, ¶ 71.) While in Chicago, he learned of another opportunity as a “strategic negotiator” for Google’s data center team and interviewed for the position. (Id. at ¶ 72.) Although it appeared he would be offered the position, he was advised in February 2017 that he was required to return to Mountain View, a requirement that was not imposed on a younger, white Solutions Consultant on his team. (Id. at ¶¶ 72-73.) Upon his return to Mountain View, plaintiff was placed on a “Performance Expectation Plan” and then a “Performance Improvement Plan,” with Google citing behavior that described a stereotypical “angry black man,” but for which non-blacks were not disciplined. (Id. at ¶¶ 74-79.)

As part of his Performance Improvement Plan, Google tasked plaintiff with creating a training program for Solutions Consultants, but when he sought information for the program from others on the gTech team, they refused to help him. (SAC, ¶ 80.) His mentor explained that others on the team were declining to help him because they did not think him “worthy of their help,” and the mentor had been told by his superiors that he could not help plaintiff on technical matters. (Id., ¶ 80.) The assignment was retaliatory and designed to set plaintiff up to fail because he had dared to complain about Google’s illegal conduct. (Id., ¶ 81.)

C. Plaintiff Goes on Medical Leave and Seeks Accommodations to Return to Work

In the spring of 2017, plaintiff (who had suffered a back injury in 2016) was injured while exiting one of Google’s buses and began to experience back pain as well as pain and numbness in other parts of his body. (SAC, ¶ 82.) Moreover, Google’s unlawful conduct towards him caused him considerable mental distress, and he was diagnosed with severe anxiety and major depression. (Id. at ¶ 83.) His doctor ordered him off work to complete a treatment plan including prescription medication and therapy. (Ibid.) On May 8, 2017, plaintiff went on leave. (Id. at ¶ 84.) Google initially denied his request for protected leave under the Family and Medical Leave Act (“FMLA”) and California Family Rights Act (“CFRA”) and only approved his leave after he signed a release allowing Google and others to access all of his medical information. (Id. at ¶ 84.) Plaintiff contends that this violates the FMLA, CFRA, the California constitution, and other laws. (Id. at ¶¶ 85-87.)

While on leave, plaintiff returned to Illinois and sought treatment from the medical group who had performed an earlier surgery on his back. (SAC, ¶ 88.) On July 21, 2017, his counsel sent a PAGA notice to the Labor Workforce and Development Agency (“LWDA”) and to Google’s counsel, alleging that Google had engage in illegal conduct under the California Labor Code and otherwise. (Id., ¶ 89.) In the summer of 2017, doctors discovered a large mass on the back of plaintiff’s leg and plaintiff was referred to an oncologist. (Id., ¶ 90.) However, plaintiff needed approval from Google’s medical benefits administrator to see the specialist, and the administrator refused to speak to him or provide the approval for the expressly stated reason that plaintiff had retained a lawyer. (Id. at ¶ 91.) This was also retaliatory. (Ibid.)

On August 21, 2017, plaintiff’s orthopedic doctor continued his medical leave and stated he should be seen and evaluated by specialists. (SAC, ¶ 92.) After plaintiff’s counsel contacted Google’s counsel, Google relented and plaintiff was permitted to see the specialists. (Id., ¶ 93.) He had surgery to remove the mass from his leg, which fortunately was not cancerous, but his pain and numbing were not resolved. (Id. at ¶ 94.) The Mayo clinic referred plaintiff to its spine clinic and continued his leave until November 20, 2017 (and then to December 2017), but Google’s medical benefits administrator refused to allow him to receive short term disability. (Id. at ¶¶ 94, 98.) Google’s attorneys contacted plaintiff’s health care providers, demanding all of his medical records. (Id. at ¶ 94.)

Plaintiff remained eager to return to work, and successfully engaged in the treatment plan for his mental disability with his mental healthcare provider, UnityPoint Health. (SAC, ¶ 95.) In early October 2017, UnityPoint wrote a letter to Google setting forth the reasonable accommodations that would facilitate plaintiff’s successful return to work, recommending that he be allowed to transfer to the Chicago office and explaining that it would be detrimental for him “to return to the same division in the California office.” (Ibid.) Accommodating this request would be “easy” for Google: its Chicago office has over 1,000 employees, Google is rapidly expanding its presence there, and plaintiff could easily work remotely, as other employees do, for teams not based in Chicago. (Id. at ¶ 97.) No one at Google responded to UnityPoint’s letter until plaintiff’s counsel sent two follow up emails on October 13 and 18, 2017. (Id. at ¶ 100.) Google’s administrator then contacted plaintiff, stating that the UnityPoint letter was unacceptable because it came from his therapists and not his doctors. (Id. at ¶ 101.) On October 19, 2017, plaintiff contacted Google’s Disability Coordinator directly, but she refused to engage in the interactive process until his doctors completed additional, unnecessary forms. (Id. at ¶ 103.)

D. Plaintiff Files This Action and Continues to Seek Accommodations

On November 15, 2017, plaintiff filed this action and submitted an additional PAGA notice to the LWDA. (SAC, ¶ 105.) On November 28, 2017, he provided forms signed by both his family doctor and his psychiatrist, which referred Google to the UnityPoint letter provided in early October. (Id., ¶ 107.) At Google’s request, he provided additional information and authorized Google to speak with his doctors in December of 2017. (Id., ¶¶ 108-109.) However, he suffered a setback with respect to his physical disability and the Mayo clinic continued his leave to April 2, 2018. (Id., ¶ 111.) Meanwhile, Google replaced its administrator because of the claims alleged by plaintiff, but took no steps to find him a job in Chicago. (Id., ¶¶ 110, 112.)

In March of 2018, Google agreed to accommodate plaintiff’s physical disability (including working from Chicago), but not his mental disability, and it settled his PAGA claims arising from its medical release form. (SAC, ¶ 113-115.) Google informed plaintiff that if he returned to work, he would be required to work on the same team and may be required to return to California in three months. (Id., ¶ 117.) Plaintiff protested, and Google informed him that he should remain on leave while it continued to work through the accommodation request. (Id., ¶ 119.) The parties continued to communicate, and plaintiff provided another letter on May 17, 2018, which stated that plaintiff “should not work with the GTech Partners business unit, but he can work in any other business unit (unless it interacts regularly with G Tech Partners)” and “should also be relocated to Chicago.” (Id., ¶¶ 120-124.)

Google then required plaintiff to use a spreadsheet to identify roles he thought he could perform, while the Disability Coordinator declared him unqualified for numerous roles for which he was clearly qualified and otherwise undermined his efforts. (SAC, ¶¶ 125-130, 137.) On January 7, 2019, plaintiff submitted another PAGA notice challenging, among other things, certain non-solicitation provisions included in Google’s standard employment agreement, to which Google responded by announcing that it would no longer enforce the provisions. (Id., ¶ 132.) On March 7, 2019, plaintiff submitted another PAGA notice challenging, among other things, Google’s standard employment agreements and other materials as violating a recently enacted California law, Government Code section 12964.5. (Id., ¶ 133.) Soon thereafter, Google (through its administrator) canceled plaintiff’s long-term disability. (Id., ¶ 134.) In April 2019, plaintiff identified an open job for which he was a perfect fit (a Diversity Supplier Program Manager), but Google informed him he could not have that job because it was especially created for someone else. (Id., ¶ 137.)

Plaintiff alleges that Google has a policy, pattern, and practice of retaliating against whistleblowers like himself, which it has perpetuated through new policies enacted in 2019. (Id., ¶¶ 139-159.)

E. Claims Asserted in the SAC

Based on these allegations, plaintiff asserts claims for (1)-(4) violation of Labor Code section 970, intentional misrepresentation, negligent misrepresentation, and concealment (by fraudulently inducing plaintiff to move to California for work), (5) retaliation in violation of Labor Code section 1102.5 et seq., (6) retaliation in violation of Labor Code section 98.6, (7) retaliation in violation of Government Code section 12940, subdivision (h), (8) race, age, and gender discrimination, (9) disability discrimination, (10) failure to accommodate, (11) failure to engage in the good faith interactive process, (12) failure to prevent discrimination and retaliation, (13) intentional infliction of emotional distress, (14) PAGA causes of action (which, as discussed below, have been stayed by the Court), (15)-(18) additional PAGA causes of action, (19) injunctive relief under Labor Code section 1102.61 et seq., (20) injunctive relief for violating Government Code section 12964.5, and (21) violation of Business & Professions Code section 17200 et seq.

II. Demurrer to the SAC

Google’s demurrer is addressed to the following portions of the SAC: (1) the eighteenth and twentieth causes of action, which Google contends should be stayed in favor of a related action; (2) the fifteenth and sixteenth causes of action, which Google contends are inherently unmanageable as PAGA claims; and (3) the fifth cause of action, which Google urges the Court to “make clear” is an individual claim by striking a reference to “others” impacted by the alleged practices.

A. The Eighteenth and Twentieth Causes of Action

Plaintiff’s eighteenth and twentieth causes of action allege violations of Government Code section 12964.5, which became effective in 2019 and prohibits employers from requiring employees to sign a “release of a claim or right” or a “nondisparagement agreement or other document that purports to deny the employee the right to disclose information about unlawful acts in the workplace, including, but not limited to, sexual harassment.” Google demurs to these claims pursuant to Code of Civil Procedure section 430.10, subdivision, (c) and also contends that the claims “should be stayed under the doctrine of exclusive concurrent jurisdiction.” (Notice of Motion, p. 2.)

1. Legal Standard

“The pendency of another earlier action growing out of the same transaction and between the same parties is a ground for abatement of the second action.” (Leadford v. Leadford (1992) 6 Cal.App.4th 571, 574.) A defendant may assert the pending action as a bar either by demurrer, or where fact issues must be resolved, by answer and subsequent motion pursuant to Code of Civil Procedure section 597. (Ibid.) In either case, if the court determines a pending action raises substantially the same issues between the same parties, it must enter the interlocutory judgment specified in Code of Civil Procedure section 597. (Ibid.) “In determining whether the causes of action are the same for purposes of pleas in abatement, the rule is that such a plea may be maintained only where a judgment in the first action would be a complete bar to the second action.” (Plant Insulation Co. v. Fibreboard Corp. (1990) 224 Cal.App.3d 781, 787-788.)

Related to the statutory plea in abatement is the rule of exclusive concurrent jurisdiction, which “has been interpreted and applied more expansively, and therefore may apply where the narrow grounds required for a statutory plea of abatement do not exist.” (Plant Insulation Co. v. Fibreboard Corp., supra, 224 Cal.App.3d at p. 788.) “Unlike the statutory plea of abatement, the rule of exclusive concurrent jurisdiction does not require absolute identity of parties, causes of action or remedies.” (Ibid.) “If the court exercising original jurisdiction has the power to bring before it all the necessary parties … [and] to litigate all the issues and grant all the relief to which any of the parties might be entitled under the pleadings,” the court should stay the second action pending resolution of the first. (Ibid.) Nevertheless, while complete identity between the parties and remedies sought is not required, “the issues in the two proceedings must be substantially the same and the individual suits must have the potential to result in conflicting judgments” for the rule to apply. (County of Siskiyou v. Superior Court (Environmental Law Foundation) (2013) 217 Cal.App.4th 83, 91.)

Under either doctrine, “[a]n order of abatement issues as a matter of right[,] not as a matter of discretion[,] where the conditions for its issuance exist.” (Lawyers Title Ins. Corp. v. Superior Court (Harrigfeld) (1984) 151 Cal.App.3d 455, 460.)

2. Analysis

In support of its demurrer to the eighteenth and twentieth causes of action, Google relies heavily on the Court’s prior order (filed on October 29, 2018) staying the claims now alleged in plaintiff’s fourteenth cause of action in favor of a related PAGA case filed by plaintiff’s counsel, Doe v. Google (Super. Ct. S.F. City and County, No. CGC-16-556034) (hereinafter, “Doe”). As summarized in the Court’s prior order,

[t]he plaintiffs in Doe are current and former employees of Google and Adecco, a staffing agency that employs contingent workers at Google. Like the plaintiff here, they allege that Google and Adecco use illegal confidentiality agreements and policies to restrict employees’ freedoms of speech and of the press and to restrain trade. In their Third Amended Complaint (“TAC”), the Doe plaintiffs asserted 18 causes of action under PAGA arising from violations of the Labor Code and other statutes. …

On June 27, 2017, the Doe court sustained Google’s demurrer to the TAC’s first 17 causes of action without leave to amend, on the ground that these claims were preempted by the National Labor Relations Act [(“NLRA”)]. …

Doe is now on appeal. In its prior order, the Court explained that its

review of the pleadings in Doe confirms that they encompass all of the claims asserted in [what were then] the third through tenth causes of action here, including the tenth cause of action arising from the Code of Conduct. In a notice of errata filed on September 10, 2018, plaintiff essentially concedes this point. The Doe demurrers were sustained on grounds of preemption that would be dispositive of plaintiff’s third through tenth causes of action here.

Google contends that plaintiff’s eighteenth and twentieth causes of action are similarly duplicative of both the stayed claims in this action and the claims at issue in Doe. Specifically, it points to what was formerly the ninth cause of action in plaintiff’s First Amended Complaint (“FAC”), in which plaintiff alleged a PAGA violation arising from Google’s adoption of rules, policies, and practices “that prevent employees from disclosing reasonably suspected violations of the law internally or to the government” in violation of Labor Code section 1102.5. As found by the Court, this former ninth cause of action was identical to the sixth and seventh causes of action in the Doe TAC, which alleged PAGA violations arising from the same Labor Code section. The Doe court specifically found that these same claims were preempted by the NLRA.

However, the Doe court did not address PAGA violations arising from Government Code section 12964.5, which did not exist at the time it entered its rulings. Google urges that, because the factual allegations supporting plaintiff’s eighteenth and twentieth causes of action are similar to those supporting his previous claim under Labor Code section 1102.5, the Doe court’s ruling regarding NLRA preemption would apply equally to those claims. However, Google does not explain this conclusion, which would appear to be incorrect from an issue or claim preclusion standpoint. Again, the Doe court did not address these claims, and it noted in its preemption analysis that the nature of the factual allegations at issue is not dispositive in that analysis. (Request for Judicial Notice ISO Defs.’ Mot. to Stay (filed July 27, 2018), Ex. 1, p. 9.)

Importantly, this Court’s prior ruling applying the doctrine of exclusive concurrent jurisdiction in the context of parallel PAGA actions was expressly limited to the “unique circumstances” before it at that time, where the issues in the two cases were identical and had been fully litigated in the earlier action. The Court explained that “ ‘separate but similar actions by different employees against the same employer’ are generally permissible under the PAGA statutory scheme” (quoting Julian v. Glenair, Inc. (2017) 17 Cal.App.5th 853, 866) and emphasized that the doctrine of collateral estoppel protected employers from “ ‘an abusive one-way intervention, that is, a series of PAGA actions by different employees that would continue until some employee prevailed’ ” (quoting id. at pp. 866-867). Because the collateral estoppel effect of the Doe court’s ruling had merely been delayed by “the imminent trial of a single claim against a different defendant” (which delayed the entry of judgment in Doe), the Court found it appropriate to apply the doctrine of exclusive concurrent jurisdiction in those narrow circumstances.

Here, Google does not contend that the Doe judgment will bar plaintiff’s eighteenth and twentieth causes of action under the doctrine of collateral estoppel. To the contrary, although it cites Code of Civil Procedure section 430.10, subdivision (c) in its notice of motion, Google disclaims any reliance on the statutory plea in abatement—which requires such a bar—in its reply papers. Under these circumstances, the Court’s reasoning in its prior order does not apply, and the Court will not apply the doctrine of exclusive concurrent jurisdiction to plaintiff’s claims arising from Government Code section 12964.5. The final judgment in Doe will simply not resolve the issue of whether the NLRA preempts those claims.

Google’s demurrer to the eighteenth and twentieth causes of action will accordingly be overruled.

B. The Fifteenth and Sixteenth Causes of Action

The fifteenth and sixteenth causes of action seek PAGA penalties for Labor Code violations alleged elsewhere in the SAC. In the fifteenth cause of action, plaintiff alleges that “Google violates Labor Code § 970 by hiring women, older workers, and under-represented minorities under false pretenses, causing them to change locations within or without of California, and then assigns them menial work different from the work that Google represented they would perform.” (SAC, ¶ 262.) In the sixteenth cause of action, plaintiff alleges that Google “retaliates against employees, including Cassel,” who report violations of the law internally or to government agencies, and who “engage in conduct protected by the Labor Code, including the exercise of their free speech rights pursuant to Labor Code § 96k.” (Id. at ¶ 264.) This violates Labor Code sections 1102.5 and 98.6, respectively. (Ibid.)

Google urges that the Court should dismiss these representative claims as unmanageable, due to difficulties it expects the parties will encounter in identifying the employees aggrieved by the alleged violations and considering the individualized inquiries that would be necessary to resolve the claims.

In support of its request, Google cites the Court’s inherent ability to manage its docket, which is not a ground for demurrer. Still, the Court notes that in the class action context, “if … defects in the class action allegations appear on the face of the complaint or by matters subject to judicial notice, the putative class action may be defeated by a demurrer or motion to strike.” (Tellez v. Rich Voss Trucking, Inc. (2015) 240 Cal.App.4th 1052, 1062, citing In re BCBG Overtime Cases (2008) 163 Cal.App.4th 1293, 1298-1299, internal citations and quotations omitted.) Google cites unpublished federal cases in which courts have similarly stricken PAGA claims as unmanageable, although typically at a later stage following the exchange of some discovery.

In response, plaintiff correctly urges that a PAGA representative action is not a class action and is not subject to the same manageability requirements as a class action. (See Arias v. Superior Court (Dairy) (2009) 46 Cal.4th 969 [an employee need not satisfy class action requirements to bring a representative action under PAGA]; Williams v. Superior Court (Marshalls of CA, LLC) (2017) 3 Cal.5th 531, 551 [“That the eventual proper scope of a putative representative action is as yet uncertain is no obstacle to discovery; a party may proceed with [discovery] precisely in order to ascertain that scope.”].) He notes that, even among federal courts, the majority view is that imposing a manageability requirement in PAGA actions is improper. (See Zackaria v. Wal-Mart Stores, Inc. (C.D. Cal. 2015) 142 F.Supp.3d 949, 958–960 [collecting cases].)

The Court concurs with this majority view, at least insofar as it finds Google’s request for an order dismissing or striking PAGA claims on manageability grounds on the pleadings and prior to the exchange of any discovery to be without merit. While it recognizes Google’s legitimate concerns regarding the manageability of the specific claims at issue, the Court notes that it is not without tools to address these concerns as the case proceeds. For example, discovery must be reasonable and proportional, and may be restricted upon a showing of undue burden or expense. (See, e.g., Code Civ. Proc., § 2019.030, subd. (a)(2) [court shall restrict discovery that is “unduly burdensome or expensive, taking into account the needs of the case, the amount in controversy, and the importance of the issues at stake in the litigation”].) The Court also has the ability to order plaintiff to submit a trial plan at the appropriate juncture. (See Zackaria v. Wal-Mart Stores, Inc., supra, 142 F.Supp.3d at p. 960.) However, the Court is not authorized to simply strike or dismiss claims that may be difficult to prove, be they PAGA claims or any other claims not subject to the unique requirements imposed in class actions.

Google’s demurrer to the fifteenth and sixteenth causes of action will accordingly be overruled.

C. The Fifth Cause of Action

Finally, in his fifth cause of action, Cassel asserts a claim for retaliation in violation of Labor Code section 1102.5. He alleges that Google retaliated against him as an individual and also alleges that Google has adopted and enforced policies “prohibiting employees, including Cassel, from disclosing information about violations of the law either internally or to government agencies.” (SAC, ¶ 207.) “Cassel and others and have been harmed as a result.” (Id., ¶ 208.)

Google moves to strike the reference to “others” that were harmed by its actions, urging that this is necessary in order “to make clear this claim is brought solely on behalf of Cassel in his individual capacity and not brought on behalf of any other unknown, unidentified parties or as a class claim.” Plaintiff responds that, while he does not seek damages on behalf of other persons through this cause of action, he does seek civil penalties through PAGA and injunctive relief based on the harm Google’s policies cause to other employees. Plaintiff is correct that the challenged language is therefore proper and relevant, and there is no basis to strike it from the complaint.

Google’s request to strike this language will therefore be denied.

D. Conclusion and Order

Google’s demurrer is OVERRULED in its entirety, and its request to strike the language “and others” from page 39, line 18 of the SAC is DENIED.

III. Motion for an Injunction Pursuant to Labor Code Sections 1102.61-62

Pursuant to Labor Code sections 1102.61-62, plaintiff seeks an injunction (1) “compelling Google to immediately return [him] to work in an open or newly-created role consistent with his qualifications and medical restrictions” and (2) “prohibiting Google from retaliating against [him] because he engaged in activity protected by Labor Code § l102.5, or because Google believes [he] may continue to engage in activity protected by Labor [Code] § 1102.5.” Google opposes plaintiff’s motion, arguing that it should be denied as moot and on the merits.

As an initial matter, plaintiff’s request for an injunction is not moot. As discussed further below, while Google maintains (and plaintiff does not dispute) that plaintiff may return to his prior role on the gTech team in Mountain View, plaintiff asserts that this role is not “consistent with his qualifications and medical restrictions,” and seeks to be placed in “an open or newly-created role” that is. The Court will address his request on the merits.

A. Legal Standard

Plaintiff’s fifth cause of action is for retaliation in violation of Labor Code section 1102.5, which, generally speaking, prohibits retaliation against employee “whistleblowers.” With regard to injunctive relief, Labor Code section 1102.61 provides:

In any civil action or administrative proceeding brought pursuant to Section 1102.5, an employee may petition the superior court in any county wherein the violation in question is alleged to have occurred, or wherein the person resides or transacts business, for appropriate temporary or preliminary injunctive relief as set forth in Section 1102.62.

Pursuant to Labor Code section 1102.62, upon the filing and service of a petition for injunctive relief, “the court shall have jurisdiction to grant such temporary injunctive relief as the court deems just and proper.” (Lab. Code, § 1102.62, subd. (a); see also subd. (d) [similarly, a preliminary injunction may issue “if it is shown to be just and proper”].) In determining “whether temporary relief is just and proper,” the court shall consider “any harm resulting directly from the violation of Section 1102.5” and “the chilling effect on other employees asserting their rights under that section.” (Id., subd. (b).) “Appropriate injunctive relief shall be issued on a showing that reasonable cause exists to believe a violation has occurred” (id., subd. (c)) and shall remain in effect “until an administrative or judicial determination or citation has been issued … or at a time certain set by the court,” at which point “a preliminary or permanent injunction may be issued if it is shown to be just and proper” (id., subd. (d)). “Any temporary injunctive relief shall not prohibit an employer from disciplining or terminating an employee for conduct that is unrelated to the claim of the retaliation.” (Id., subd. (d).) Injunctive relief pursuant to section 1102.62 “shall not be stayed pending appeal.” (Id., subd. (e).)

These provisions were added to the Labor Code effective 2018. Consequently, there are no published authorities to guide the Court in interpreting them. The parties dispute the extent of the Court’s discretion in awarding injunctive relief under this statute, and the Court finds that the statutory language “permits more than one reasonable interpretation” in this regard, such that it is appropriate to consider “the statute’s purpose, legislative history, and public policy” in interpreting it. (City of San Jose v. Superior Court (Smith) (2017) 2 Cal.5th 608, 616-617.) Specifically, subdivision (d) of section 1102.62 directs the Court to consider whether injunctive relief is “just and proper,” implying that the Court may determine that injunctive relief is not appropriate. However, subdivision (c) states that “[a]ppropriate injunctive relief shall be issued on a showing that reasonable cause exists to believe a violation has occurred,” implying that, where reasonable cause is shown, the Court’s discretion is limited to determining the scope of injunctive relief. Moreover, the standard for finding “reasonable cause” under the statute is undefined. The Court will thus consider relevant legislative history submitted by the parties and case law from analogous contexts in interpreting the statute.

B. Legislative History and Analogous Case Law

The purpose of a preliminary injunction is to preserve the status quo until a trial can be held. (Continental Baking Co. v. Katz (1968) 68 Cal.2d 512, 528.) A decision to grant or deny such relief is not a final decision on the merits of the case. (Cohen v. Board of Supervisors (1985) 40 Cal.3d 277, 286.) The court’s decision is based on the record before it at the time of the request. In general, decisions have emphasized that issuing an injunction “is an extraordinary power, and is to be exercised always with great caution and … rarely, if ever, should be exercised in a doubtful case.” (Dawson v. East Side Union High School Dist. (1994) 28 Cal.App.4th 998, 1040, internal quotations omitted.)

The court must evaluate two interrelated factors to decide whether to grant a requested injunction. (IT Corp. v. County of Imperial (1983) 35 Cal.3d 63, 69.) The first is the likelihood that the plaintiff will ultimately prevail at trial. (Ibid.) Typically, it must be shown that success is “reasonably probable” before the court can grant relief. (San Francisco Newspaper Co. v. Superior Court (Miller) (1985) 170 Cal.App.3d 438, 442.) The second factor is the relative harm that the parties face. (IT Corp. v. County of Imperial, supra, 35 Cal.3d at pp. 69-70.) The court must ask: Will the plaintiff suffer greater injury if the injunction is denied than the defendant will suffer if it is granted? The court’s final decision must be guided by a mix of these two factors, so that if a stronger showing is made on one factor, a lesser showing is required on the other. (Butt v. State of California (1992) 4 Cal.4th 668, 678.)

Here, the statutory language and legislative history suggest that a request for injunctive relief under section 1102.62 is governed by a somewhat different standard than the typical motion for a temporary or preliminary injunction. For example, Senate Judiciary Committee analysis includes the following discussion:

The forms of injunctive relief enabled by this bill are temporary or preliminary injunctions that would address the retaliation that provoked the complaint. So, for example, if an employee refused to work in hazardous conditions and was fired for it, the corresponding injunctive relief would be job reinstatement. Similarly, if a company put a worker onto the night shift as punishment for demanding overtime pay to which the worker was entitled, the injunctive relief would be to order the worker restored to her prior shift.

Ordinarily, when someone seeks a temporary or preliminary injunction from a court, the person seeking the injunction must make a series of showings to the court. Among other things, the person seeking the injunction needs to show: that she does not have an adequate remedy at law (in other words, receiving money later cannot make up adequately for what is happening now); that she faces the possibility of irreparable harm if the injunction is not granted; that she will probably win the case in the end; and that the balance of equities favors granting the injunction. [Citations.]

However, when a government entity seeks an injunction pursuant to a statute that expressly allows for injunctive relief, the government entity only needs to show that it is reasonably probable that it will prevail on the merits. The very existence of the statute creates a rebuttable presumption that irreparable harm will take place, since the Legislature has already decided that the activity prohibited by the statute is contrary to the public interest. (IT Corp. v. County of Imperial (1983) 35 C.3d 63, 72.)

Since this bill would expressly permit injunctive relief and the Labor Commissioner is a government entity, the Labor Commissioner would only have to show a reasonable probability of winning the retaliation suit in order to obtain injunctive relief to remedy retaliatory action. This bill would set the same standard for injunctive relief sought by an individual employee in a civil action for retaliation as well: the court shall issue an injunction on a showing of reasonable cause to believe unlawful retaliation occurred.

In sum, this bill would make it both faster and easier for an employee to obtain a court order for job reinstatement or other appropriate relief to provide redress for workplace retaliation, so long as the employee can show that she has reasonable cause to believe she will prevail in the underlying retaliation lawsuit.

(Sen. Com. on Judiciary, Analysis of Sen. Bill No. 306 (2017-2018 Reg. Sess.), Apr. 18, 2017.)

While this standard, which eliminates the need for the plaintiff to establish that the harm he suffered was irreparable and that he does not have an adequate remedy at law, is easier for the employee to satisfy than the typical burden to obtain a temporary or preliminary injunction, it does not otherwise alter the court’s usual discretion in issuing injunctive relief. (See IT Corp. v. County of Imperial, supra, 35 Cal.3d at p. 69 [confirming that, even where a presumption of irreparable harm applies, “the decision to grant a preliminary injunction rests in the sound discretion of the trial court”].) The legislative history confirms that the court will only issue a preliminary injunction where it finds injunctive relief to be “just and proper.” In response to opponents’ argument that courts might grant injunctive relief based on frivolous complaints, Assembly Committee on the Judiciary analysis stated that

… the language of the bill makes it clear that a court is only required to grant injunctive relief “as the court determines to be just and proper.” That the court retains discretion in whether or not to grant the injunction is demonstrated by the provision of the bill stating that the court shall “consider” the chilling effect of the adverse action on the willingness of other employees to exercise their rights. This bill, after all, only allows the Labor Commissioner to “seek” an injunction if there is “reasonable cause” to believe that an employer has committed a violation; the court, however, will only issue an injunction where it finds that injunctive relief is “just and proper.”

(Assem. Com. on Judiciary, Analysis of Sen. Bill No. 306 (2017-2018 Reg. Sess.), June 20, 2017.)

Moreover, the Court finds no basis to conclude that the Legislature intended to modify the showing of a reasonable probability of success on the merits that is typically required to support injunctive relief. (See IT Corp. v. County of Imperial, supra, 35 Cal.3d at p. 72 [applying this standard where the government seeks an injunction pursuant to an authorizing statute].) After all, the statute refers, not to reasonable cause to bring an action, but to “reasonable cause … to believe a violation has occurred” at the time a request for injunctive relief is made. In this context, the standard “ ‘describe[s] the conclusion that a particular outcome is more likely than not to occur.’ ” (Natural Resources Defense Council v. Fish & Game Com. (1994) 28 Cal.App.4th 1104, 1122, quoting Hung v. Wang (1992) 8 Cal.App.4th 908, 930.)

With these principles in mind, the Court will proceed to address the issues governing plaintiff’s entitlement to injunctive relief: whether there is reasonable cause to believe a violation of Labor Code section 1102.5 has occurred, and whether injunctive relief is “just and proper” and “appropriate” in this case.

C. Reasonable Cause

To establish a prima facie case of retaliation, plaintiff must show (1) he engaged in a protected activity, (2) his employer subjected him to an adverse employment action, and (3) there is a causal link between the two. (Mokler v. County of Orange (2007) 157 Cal.App.4th 121, 138.) “[A] plaintiff may prove retaliation by circumstantial evidence.” (Ibid.) Once a plaintiff establishes a prima facie case, “the defendant must counter with evidence of a legitimate, nonretaliatory explanation for its acts. If defendant meets this requirement, the plaintiff must then show the explanation is merely a pretext for retaliation.” (Ibid.) This “McDonnell Douglas” test is also applied in employment discrimination cases. (See Morgan v. Regents of University of Cal. (2000) 88 Cal.App.4th 52, 68.)

Google does not dispute that plaintiff has established reasonable cause with respect to the first element, engaging in a protected activity. However, it is important to note that plaintiff does not allege or offer any evidence that he engaged in a protected activity before he began work at Google’s Mountain View office and complained that the position he had been assigned was not the one he had agreed to accept. Therefore, Google’s initial assignment of plaintiff to the gTech team in Mountain View could not have been retaliatory, and it is this initial assignment that provides the context for evaluating the remaining two elements of plaintiff’s claim—(1) adverse employment action (2) with a causal link to the protected activity—and his request for injunctive relief.

“[T]he proper standard for defining an adverse employment action is the ‘materiality’ test, a standard that requires an employer’s adverse action to materially affect the terms and conditions of employment,” considering the totality of the circumstances. (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1036; see also Patten v. Grant Joint Union High School Dist. (2005) 134 Cal.App.4th 1378, 1381 [standard announced in Yanowitz (a discrimination case) applies to an employment retaliation lawsuit under Labor Code section 1102.5, subdivision (b)]; CACI Nos. 2509 and 2730 (2020).) “[T]he determination of whether a particular action or course of conduct rises to the level of actionable conduct should take into account the unique circumstances of the affected employee as well as the workplace context of the claim.” (Yanowitz v. L’Oreal USA, Inc., supra, 36 Cal.4th at p. 1052.) It is not only “so-called ‘ultimate employment actions’ such as termination or demotion” that qualify: “the entire spectrum of employment actions that are reasonably likely to adversely and materially affect an employee’s job performance or opportunity for advancement in his or her career” must be considered. (Id. at p. 1054.) Examples cited by Yanowitz include demotions, suspensions, disadvantageous transfers or assignments, refusals to promote, unwarranted negative job evaluations, and toleration of harassment by other employees, among other conduct. (Id. at pp. 1060-1061.) The plaintiff’s allegations must be considered collectively: even actions that do not rise to material adverse actions on their own may constitute adverse employment action when considered together. (See Patten v. Grant Joint Union High School Dist. (2005) 134 Cal.App.4th 1378, 1389-1390.)

Here, plaintiff urges that he “was threatened with discharge and then set up to fail after complaining of fraud, discrimination, and retaliation,” “has been on an involuntary leave of absence for almost two years,” and has been prevented from interviewing for jobs for which he is qualified or being assigned to an open or newly-created role consistent with his qualifications and restrictions. He introduces his own declaration, which describes the events he experienced consistent with the allegations of the SAC, as well as declarations attesting to his qualifications and character by three former colleagues (one of whom is the former Google employee who encouraged him to apply to work for Google and recommended that Google hire him). He also submits a declaration by the plaintiff in Doe, who describes experiencing a somewhat similar course of allegedly retaliatory conduct at Google.

As an initial matter, plaintiff’s own evidence reflects that he went on medical leave in May of 2017 after reinjuring his back, and his leave was extended through April of 2018 pursuant to his doctors’ advice. Consequently, plaintiff’s placement on leave and the extension of his leave through April of 2018 could not have been adverse employment actions. However, the other conduct that plaintiff identifies could certainly qualify.

Still, considering the evidence presented by both parties, the Court finds that plaintiff has not shown a reasonable probability of success on the merits regarding a causal link between the challenged actions and his protected activity. Google introduces substantial evidence that plaintiff was placed on a performance improvement plan due to legitimate issues with his performance and that it is attempting to place him in a position appropriate to his qualifications and legitimate requests for accommodation following his medical leave. The Court credits this evidence. Regardless of the ultimate merits of plaintiff’s distinct claims related to disability discrimination and failure to provide a reasonable accommodation, plaintiff has not established reasonable cause to believe Google’s actions in this regard were retaliatory.

D. Appropriate Relief

The Court must also consider whether a preliminary injunction is “just and proper.” (Lab. Code, § 1102.62, subd. (d).) The Court considers “any harm resulting directly from the violation of Section 1102.5” and “the chilling effect on other employees asserting their rights under that section.” (Lab. Code, § 1102.62, subd. (b).)

Plaintiff urges that, following the standard announced in IT Corp. v. County of Imperial, supra, 35 C.3d at p. 72, he is entitled to a presumption of irreparable harm outweighing any harm to the defendant, rebuttable only through a showing of “grave or irreparable harm” by the defendant. While the Court agrees with plaintiff that he need not prove that “any harm resulting directly from [a] violation of Section 1102.5” is irreparable, it is not clear that the statute fully adopts the IT Corp. standard by establishing a presumption as to the balance of hardships faced by the parties. While IT Corp. is discussed in its legislative history, the language of section 1102.62 makes no reference to a balancing of hardships or a need for an employer to establish “grave or irreparable harm.” Rather, the statute directs courts to consider “any harm resulting directly from the violation of Section 1102.5” and “the chilling effect on other employees asserting their rights under” Section 1102.5 in determining whether injunctive relief is “just and proper.” In the Court’s view, there are colorable arguments supporting a reading of the statute that would include a presumption that the harm faced by the employee outweighs the harm faced by the employer, as well as a reading that would preserve the typical balancing of hardships faced by the parties that a court performs on a request for a preliminary injunction. Here, the Court need not decide the issue because the specific relief requested by plaintiff would not be “just and proper” in this case.

To explain, Google’s refusal to place plaintiff in a position entirely different from the one he remains free to return to is not the type of harm contemplated by the Legislature, and plaintiff’s showing that this harm “result[ed] directly from the violation of Section 1102.5” is not persuasive. (Emphasis added.) As discussed above, it is undisputed that plaintiff was initially assigned to the gTech team in Mountain View, went on medical leave in May of 2017 after reinjuring his back, and remained on leave through April of 2018 pursuant to his doctors’ advice. It is also undisputed that, while he remains on leave, Google is paying him a salary to this day, and will allow him to return to his assignment on the gTech team in Mountain View if he chooses. Plaintiff maintains that he is being denied a reasonable accommodation for his mental disability pursuant to Government Code section 12940, subdivision (m), which is also an accommodation that Google has made for other employees without disabilities. However, the relief that he seeks—an injunction “compelling Google to immediately return [him] to work in an open or newly-created role consistent with his qualifications and medical restrictions”—would not preserve the status quo between the parties prior to any asserted retaliation by Google, but would require Google to promote and relocate plaintiff without a showing of reasonable cause to believe Google’s refusal to do so is retaliatory. In the Court’s view, such relief is not “just and proper” or “appropriate” under a statute intended to preserve the status quo between the parties while a claim of retaliation is litigated. As urged by Google, this relief is categorically different from the examples contemplated by the legislative history. (See Sen. Com. on Judiciary, Analysis of Sen. Bill No. 306 (2017-2018 Reg. Sess.), Apr. 18, 2017 [“So, for example, if an employee refused to work in hazardous conditions and was fired for it, the corresponding injunctive relief would be job reinstatement. Similarly, if a company put a worker onto the night shift as punishment for demanding overtime pay to which the worker was entitled, the injunctive relief would be to order the worker restored to her prior shift.”], emphases added.)

For the same reasons, the chilling effect on other employees does not weigh in favor of an injunction here. Other employees monitoring plaintiff’s case will have little reason to fear they would be fired or reassigned for engaging in conduct protected by Labor Code section 1102.5. Rather, they will observe that plaintiff remains on Google’s payroll, free to return to his former position, while the unique circumstances of his case are fully litigated. Similarly, while the plaintiff in Doe also claims to have experienced retaliation by Google, he is currently employed there in a new role that he “really like[s]” and is apparently succeeding in. In the Court’s view, any message that employees may receive from these plaintiffs’ complicated experiences with Google is less than “chilling.”

Finally, plaintiff also requests an injunction “prohibiting Google from retaliating against Cassel because he engaged in activity protected by Labor Code § l102.5, or because Google believes Cassel may continue to engage in activity protected by Labor [Code] § 1102.5.” However, it would be improper to incorporate such a vague command to follow the law in an injunction. (See Westside Sane/Freeze v. Ernest W. Hahn, Inc. (1990) 224 Cal.App.3d 546, 558 [“circular and indefinite” definition of action prohibited by injunction, which merely incorporates a wide field of law by reference, was impermissibly vague].)

The Court accordingly finds that the injunctive relief requested by plaintiff is not “just and proper” or “appropriate” under the circumstances.

E. Conclusion and Order

Plaintiff’s motion for an injunction is DENIED.

The Court will prepare the order.