Case Number: VC063290 Hearing Date: July 03, 2014 Dept: SEC

SAATJIAN v. THE AMERICAN BOTTLING CO.
CASE NO.: VC063290
HEARING: 07/03/14

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TENTATIVE ORDER

Defendant DR PEPPER SNAPPLE GROUP, INC.’s motion for summary judgment is GRANTED; defendant THE AMERICAN BOTTLING COMPANY’s motion for summary judgment or, in the alternative, summary adjudication is
GRANTED as to cause of action for retaliation; otherwise DENIED. C.C.P. § 437c.

The following facts are undisputed. Plaintiff JACK SAATJIAN began his employment with defendant in February 2005 at the age of 66 years. In 2007, his title was Human Resources Manager, Southern California.

In 2008, plaintiff received his first annual performance evaluation, completed by then-supervisor Doreen Thomas, and was given a rating of “achieved expectations.” Declaration of Stuart Tochner, Esq., Exh. 1. In 2009, plaintiff’s performance review resulted in a rating indicating that he “missed certain goals.” Exh. 2. He received the same rating from Ms. Thomas in 2010. Exh. 3. Plaintiff also acknowledges that in November 2009, he received a written reprimand regarding his “confrontational and unprofessional” communication style. Exh. 4.

In May 2011, Robert Harrelson took over as the Human Resources Director, and became plaintiff’s supervisor. Plaintiff’s 2011 performance review had an interim rating of “missed certain goals” and a final rating of “unsatisfactory.” Tochner decl, Exh. 6.

In November 2011, plaintiff was placed on a Performance Improvement Plan (“PIP”) by Harrelson. Exh. 5. The PIP identified several areas of concern with plaintiff’s performance, including failing to be on time, failing to perform or complete assigned tasks, making careless mistakes and missing clear deadlines. Exh. 5. The PIP also outlined specific performance expectations.

Admittedly, plaintiff was unhappy with the PIP and on November 20, 2011, he submitted a letter in response. Exh. 7. Therein, he complained that Harrelson belittled him and was discriminating against him by issuing the PIP.

On January 25, 2012, Terri Harrell, Vice President of Human Resources, and Harrelson met with plaintiff regarding is progress under the PIP. Plaintiff again voiced concerns regarding discrimination, harassment and retaliation. Plaintiff declined Harrell’s offer to speak with her outside the presence of Harrelson. Plaintiff acknowledges that Harrell met with her supervisor, Larry Solomon with respect to his complaints, but contends a full investigation was not commenced until February 13, 2012. At that time, Harrell and Leslie Mensching, Director of Human Resources, met with several individuals to investigate plaintiff’s complaints.

On February 7, 2012, plaintiff declined to meet with Harrell to discuss the findings or to provide additional information. On February 22, 2012, Harrell and Mensching met with plaintiff to inform him that his allegations were not supported by evidence. Plaintiff left the meeting and when given the option of returning or being suspended (with pay), plaintiff chose the latter.

The next day, plaintiff returned to work to discuss his 2011 performance review. It noted that his performance was slightly improving, and the supervisors raised the issue of a 90-day extension of the PIP. Plaintiff left work after the meeting and, later that day, Harrelson telephonically informed him that his employment was terminated. The follow-up letter explained the termination was due to performance and his subsequent behavior. Tocher decl., Exh. 10.

Plaintiff subsequently sued, alleging age discrimination, harassment and retaliation. Defendant The American Bottling Company (“TABC”) seeks summary judgment or, in the alternative, summary adjudication of each of the causes of action and the claim for punitive damages. Defendant Dr. Pepper seeks relief on the same ground but also argues that it is merely a holding company and not plaintiff’s employer.

Defendant Dr. Pepper Snapple’s (“DPSG”) request for summary judgment
Defendant DPSG seeks summary judgment on the ground that it is not liable on the complaint because it is not plaintiff’s employer. Under both FEHA and a common law claim for wrongful termination, an employer/employee relationship is required. Villanazul v. City of Los Angeles (1951) 37 Cal.2d 718; Weinbaum v. Goldfarb, Whitman & Cohen (1996) 46 Cal.App.4th 1310.

Defendant proffers evidence that DPSG is a holding company with no employees and that co-defendant ABC is its wholly-owned subsidiary. Harrell decl., ¶¶2-3.

In opposition, plaintiff contends that the evidence creates a triable issue as to whether DPSG was the employer under the “integrated enterprise” test. See Laird v. Capital Cities/ABC, Inc. (1998) 68 Cal.App.4th 727. Plaintiff also suggests liability under the “totality of working relationship” test or the joint employer test. See Vernon v. State of Calif. (2004) 116 Cal.App.4th 114; Jones v. County of Los Angeles (2002) 99 Cal.App.4th 1039. There is no argument with respect to which of the tests may be applicable, or what the required elements are.

Plaintiff cites to evidence that his application for employment listed “Seven-Up/RC Bottling Company, Inc.” as did some payroll documents, the use of DPSG letterhead on various correspondences and the PIP, and other earnings statements and employment documents listing DPSG. Saatjian decl., Exh. 10-17.

In her declaration, Harrell notes that Seven-UP/RC Bottling changed its name in 2006 and merged into defendant TABC. ¶4. It no longer exists as a separate entity. She also notes that TABC, as well as other DPSG operating companies, often use its letterhead and forms for convenience.

A parent corporation’s maintenance of certain benefits for the subsidiary employees is insufficient to create a triable issue as to the interrelation of the two companies. Laird, supra; see also Maddock v. KB Homes, Inc. (C.D. Cal. 2007) 631 F.Supp.2d 1226. Plaintiff’s evidence does not tend to prove that defendant DPSG was his employer, and is thus insufficient to raise a triable issue of fact. Defendant DPSG’s motion for summary judgment is granted on the ground that it has established there is no employer/employee relationship.

1st—age discrimination
A plaintiff alleging discrimination must establish (1) that he was a member of a protected class, (2) that he was competently performing his job, (3) an adverse employment action and (4) circumstances suggesting a discriminatory motive. Guz v. Bechtel Nat’l, Inc. (2000) 24 Cal.4th 317.

Defendant argues that plaintiff cannot establish that he was performing competently or that defendant had a discriminatory motive. With respect to the 2nd element, defendant cites plaintiff’s placement on the PIP shows that he was not competently performing. Plaintiff’s performance evaluations also suggest that there were problems with his performance. Plaintiff argues that those evaluations are not entitled to significant weight, insofar as they were authored by Harrelson, who is the person allegedly guilty of the discrimination. See Oest v. Illinois Dept. of Corrections (7th Cir. 2001) 240 F3d 605 (finding plaintiff need not meet the second element where the people judging plaintiff’s performance are those accused of unlawful conduct). On that issue, the Court also notes that plaintiff’s performance was deemed to be improving just prior to his termination.
Plaintiff also proffered several declarations of co-workers attesting to his competence. See Decl. of Priscilla Anderson, Kathy Olbright, Ceasar Vargas, Rosemary Martinez.

On the issue of motive, defendant argues that plaintiff was terminated due to his performance, but also due to his insubordination during the meetings related to the investigation. See Harrell, Harrelson decl. That evidence is sufficient to meet its burden on the motion. Defendant argues that plaintiff’s evidence that his termination was due to age-related factors is insufficient to defeat summary judgment. See McRae v. Dept. of Corrections (2006) 142 Cal.App.4th 377.

As set forth in plaintiff’s declaration, once Harrelson was hired (in May 2011), “things changed.” He states that Harrelson made comments in the workplace that were hostile towards older employees. Specifically, he pronounced he intended to “get rid of the dead weight” in the department. While that comment could be interpreted a number of ways, on a summary judgment motion, the opposing part is entitled to a liberal interpretation of the evidence and inferences to be drawn therefrom. See e.g. Reid v. Google, Inc. (2010) 50 Cal.4th 512. Plaintiff also testifies that younger employees were held to a lesser standard. Saatjian decl., ¶27.

Employee Anderson also states that she heard Harrelson make comments (that he wanted “fresh legs” or “young legs”) which could reasonably construed to be hostile toward older employees. Mr. Vargas stated that he believed he was unfairly criticized because of his age, and that Harrelson unfairly targeted older employees for criticism. He also states that Harrelson personally ridiculed plaintiff in front of others and without justification. Vargas states that he was terminated, and he believes it was related to his age. Ms. Martinez also stated that she felt she was unfairly criticized because of her age and that she believed Harrelson terminated her position because he wanted to eliminate older employees from the department. The evidence is sufficient to create a triable issue as to whether defendant has a discriminatory animus. McCaskey v. Cal. State Auto Ass’n (2010) 189 Cal.App.4th 947.

In consideration of the evidence, the Court finds a triable issue as to whether plaintiff’s termination was the result of discrimination. The motion for summary adjudication is denied.

2nd—age harassment
In order to maintain a cause of action for harassment, a plaintiff must establish that he was subject to abusive conduct that was sufficiently “severe” or “pervasive” so as to alter the conditions of his employment. See Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121. The determination of whether a hostile work environment exists requires consideration of the totality of the circumstances. Fisher v. San Pedro Peninsula Hosp. (1988) 214 Cal.App.3d 590.

Here, given that plaintiff contends that his direct supervisor was the wrongdoer, and the evidence of various comments and disparate treatment as noted above, the Court finds a factual dispute with respect to whether defendant’s conduct constitutes harassment. See Dee v. Vintage Petroleum, Inc. (2003) 106 Cal.App.4th 30. Summary adjudication is denied.

3rd—wrongful termination in violation of public policy
Plaintiff’s third cause of action does not identify a public policy other than those articulated with respect to his FEHA claims. Therefore the cause of action survives only if there exists a triable issue on the FEHA causes of action. See Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215. Conversely, FEHA’s provisions prohibiting discrimination provide the policy basis for a claim of wrongful discharge in violation of public policy. Phillips v. St. Mary Regional Medical Ctr. (2002) 96 Cal.App.4th 218.

Because there exists a triable issue as to the discrimination and harassment claims, the motion is also denied as to the 3rd cause of action.

4th—failure to prevent harassment/discrimination/retaliation
Logically, the failure to prevent claim can only stand if there was actual harassment, discrimination or retaliation. See Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4th 280, 289.

Plaintiff contends that defendant failed to investigate after he complained of the alleged discriminatory treatment. In opposition to the motion, he states that he complained to Harrelson in August 2011. Saatjian decl., ¶24. Defendant notes that there was no prior mention of an August 2011 complaint by plaintiff in his deposition, in his EEOC letter or his complaint. See Comp.; Touchner decl., Exh. 8; Saatjian depo., p.114. Previously, plaintiff represented that his first complaint was after the November 2011 PIP. He cannot submit a contradictory declaration to defeat summary judgment. See Kennedy v. Allied Mutual Ins. Co. (9th Cir. 1991) 952 F.2d 262.

After plaintiff submitted his November 2011 complaint, he contends that defendant failed to take timely steps to investigate his grievance. Tochner decl., Exh. 7. In January 2012, Terri Harrell called a meeting to discuss plaintiff’s performance evaluation. Saatjian depo., p. 115-16 Harrell states in her declaration that was the first time she was made aware of plaintiff’s complaints. Harrell decl., ¶8. It is undisputed that she conducted an investigation in February 2012, after which plaintiff was not cooperative.

While defendant submitted evidence that it maintained policies against discrimination, it did not met its burden of establishing that its investigation into plaintiff’s complaints was timely. See Northrop Grumman Corp. v. Workers’ Comp. Appeals Bd. (2002) 103 Cal.App.4th 1021. Harrell was not made aware of plaintiff’s letter until two months after it was submitted, and it took an additional two months until the investigation occurred. Summary adjudication is denied.

5th—retaliation
In order to prove retaliation, a plaintiff must show (1) he engaged in a protected activity, (2) he suffered an adverse employment action, and (3) a causal connection between the two. Akers v. County of San Diego (2002) 95 Cal.App.4th 1441. Once the employee establishes a prima facie case, the employer must show a legitimate, nondiscriminatory reason for the adverse action. If such reason is produced by the employer, the burden shifts back to the employee to prove an intentional retaliation. Id. Both direct and circumstantial evidence may be used to show intent to retaliate.

Plaintiff contends he was terminated because of his complaints of discrimination.
Temporal proximity between the protected activity and the employer’s adverse action is not enough to establish causation. Nadaf-Rahrov v. Neiman Marcus Group, Inc. (2008) 166 Cal.App.4th 952. Aside from the proximity, plaintiff has not proffered evidence indicating that he was terminated for his complaints.

Although defendant’s investigation may not have been “prompt, it is undisputed that defendant interviewed several witnesses and thereafter attempted to speak to plaintiff regarding the findings. That evidence tends to show that his complaint was taken seriously. Plaintiff does not contend that management treated him differently after his November 2011 letter. In fact, the letter came after he as placed on the PIP.

While plaintiff has created a triable issue with respect to whether defendant took adverse employment action as a result of his age, there is no evidence that such action was due to his complaints. Therefore, the motion for summary adjudication on the retaliation cause of action is granted.

6th—IIED
Defendants argue that the alleged wrongful acts are not “outrageous” so as to satisfy the elements of an IIED claim. See Ross v. Creel Printing & Publishing Co. (2002) 100 Cal.App.4th 736. Insults and indignities are not actionable. See, e.g. Cole v. Fair Oaks Fire Protection Dist. (1987) 43 Cal.3d 148.

Plaintiff, on the other hand, argues that the question of whether defendants’ actions were “extreme and outrageous” is one for the trier of fact. Alcorn v. Ambro Engineering, Inc. (1970) 2 Cal.3d 493. The Court agrees. Reasonable minds may differ, and the determination is one not properly made on summary judgment. The motion is denied.

Punitive damages
A claim for punitive damages may be summarily adjudicated. Catalano v. Superior Court (2000) 82 Cal.App.4th 91.

Defendants argue that, where an employer maintains written policies against retaliation and discrimination, and those policies are implemented in good faith, the employer is not liable for punitive damages. See White v. Ultramar (1999) 21 Cal.4th 563, 568. The White Court, in its statement to that effect, recognized that the issue was not before it, and thus that comment is dicta.

Where a defendant engages in oppression or malice, punitive damages may be recovered under FEHA. Commodore Home Sys., Inc. v. Superior Court (1982) 32 Cal.3d 211. Defendant did not meet its burden of establishing that it is not liable for punitive damages; the motion merely states that the evidence “that plaintiff heard one comment” is insufficient. C.C.P. § 437c(p)(2). In any event, judgment as to the degree of defendant’s misconduct is best left for the trier of fact. Summary adjudication is denied.

Evidentiary objections
Neither party submitted an extra copy of the proposed orders on the evidentiary objections. The copies submitted may be available for viewing at the time of the hearing, and will thereafter be placed in the court file.

Defendant’s objections were largely overruled. The witness statements regarding comments made by Mr. Harrell are admissible over defendant’s hearsay objections. “If an utterance, regardless of its truth or falsity, justifies an inference concerning the declarant’s mental state (e.g., belief, intent, motive), it may be admissible as circumstantial evidence of that mental state. [Citations.]” Colarossi v. Coty US Inc. (2002) 97 Cal.App.4th 1142, 1150.

Defendant also objected to the declaration of Priscilla Anderson, a current employee, on the ground that plaintiff’s counsel contacted her without informing defendant’s counsel. Plaintiff’s counsel represented Anderson in a separate lawsuit. Whatever may be said about counsel’s ethical obligations, defendant has not persuaded the Court that the declaration is inadmissible on that ground.

Plaintiff’s objections to the Harrell declaration were also largely overruled, as she has sufficient personal knowledge to testify to the matters therein.

Judicial Notice
Plaintiff’s request for judicial notice is DENIED in its entirety. The District Court judgment against defendants in a different employment matter is entirely irrelevant, as are documents related to Harrelson’s criminal history.