Joseph Sebastian vs. Christ The King Retreat Center

2011-00115447-CU-OE

Nature of Proceeding: Motion for Summary Judgment and/or Adjudication

Filed By: Acero, George A.

Defendant Christ the King Retreat Center’s (“Defendant”) Motion for Summary
Judgment/Summary Adjudication is granted/denied as follows:

Plaintiff’s Evidentiary Objections are sustained.

Defendant’s Evidentiary Objections: Overruled as to entire Sebastian Declaration
based on failure to comply with CCP 2015.5 Plaintiff submitted an amended
declaration on June 17, 2014 that cures the defect.
Sebastian Declaration: Overruled as to Objections Nos. 1, 2, 3, and 5.
Sustained as to No. 4.

Plaintiff alleges claims against his employer Christ the King Retreat Center
(“Defendant”) arising out of his six year employment as the Administrator. Plaintiff
alleges that there was an implied in fact agreement not to terminate him but for good
cause, that he was terminated in violation of public policy when he complained about
another employee’s conduct that affected workplace safety, and that he was not paid
all of his accrued vacation and compensation time at the time of his termination.
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Plaintiff’s second amended complaint alleges the following causes of action: 1 cause
of action Breach of Implied Contract, 2nd cause of action Wrongful Termination in
Violation of Public Policy, 3rd cause of action Failure to Compensate for all hours

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worked under Labor Code etc., 4 cause of action Waiting Time Penalties Labor Code,
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5 cause of action Violation of Business & Professions Code section 17200.

Plaintiff alleges that when he was hired in January of 2004 he was given the 1986 employee handbook that set forth a progressive discipline policy. Plaintiff alleges that
he was told that after he finished the 90 day probationary period that “The job is yours,
kid. You have tenure. It’s as long -you have the job as long as you want it; “You do not
have to worry. As long as I’m the director, you’re not going anywhere;” and “Joe, you
are one of the family. You never have to worry about your job security here.”

Plaintiff also alleges that there was an unwritten policy whereby if an exempt employee
worked more than 40 hours they would receive paid comp-time off instead of overtime
pay. Plaintiff does not allege that there was any policy requiring a cash payout of any
unused comp time at the time the employment ended. When Plaintiff was terminated
he received a check for $13,378 representing unused vacation time. Plaintiff alleges
that he was not paid all of his accrued vacation time, and that he is still owed 23
regular vacation days. (Plaintiff’s deposition , Vol II, p 270:01-273:03 UMF 83)

Plaintiff alleges that he was wrongfully terminated after he complained about an
incident that occurred in November 2009 after a co-employee Loretta Pehanich
engaged in the following behavior:

“On November 22, 2009, the Development Director began dumping garbage onto the
carpeted floor of the Conference Room. Plaintiff advised the Development Director that
it was not appropriate to dump garbage on the carpeted floor. The Development
Director began behaving extremely irrationally, took a plastic tray, and began shaking
it angrily in Plaintiff’s face. Several employees witnessed this behavior. “ The plaintiff
prepared an Incident Report, Ex. 33 to his deposition, in which he refers to the plate
shaking incident among numerous other complaints about Pehanich’s treatement of co
-workers, none of which raise the issue of patient safety.

Plaintiff’s 2AC refers to other incidents of alleged aggressive behavior, and contends
that his complaint was based on more than one incident, however the Incident Report
concerned only the November 22, 2009 incident. (See depo of plaintiff Vol 1, Ex. 33)
The other incidents are not relevant to the issue of whether plaintiff complained of a
workplace condition because plaintiff did not make those complaints. Plaintiff testified
at his deposition that he was not threatened by this incident and did not contact the
police because “I’m a fellow. I’m not–like I said I’m not going to feel threatened by
somebody like this.” (Plaintiff’s Depo 168-175) Plaintiff did not complaint that any other
employee was threatened on the date of the plate shaking incident.

Brother Kurt Wernert states that he believed that this Incident Report was disrespectful
and insubordinate and that neither it nor any other statements made by plaintiff were
understood by him to be complaints of threats to plaintiff’s or anyone else’s safety.
Wernert states that he terminated plaintiff because he was insubordinate and because
he was acting in a manner that was not in keeping with the religious nature of the
retreat center. (Werner Decl. para 8,9)

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1 cause of action Breach of Implied Contract not to terminate but for good
cause: Summary Adjudication is denied. Defendant contends that there is no
evidence to refute the presumption under the Labor Code that employment is “at will.”
Defendant points to the 2004 employment handbook that specifies that employment is
“at will” and applies to plaintiff’s employment and that such handbook contains no
progressive discipline policy. Defendant also points to language of a letter plaintiff
wrote to his attorney in which he referred to “at will” status. In opposition, plaintiff has
submitted evidence from which a trier of fact could infer that there was an implied
contract. Plaintiff presents evidence that the 1986 employee manual was the effective document, and that the assurances of continued employment, along with the 6 year
employment with no prior record of discipline, support his claim of implied contract. .

To determine whether an implied contract exists, the Court evaluates the parties’ acts
and conduct “interpreted in the light of the subject matter and the surrounding
circumstances” to determine the existence of an agreement. (Foley v. Interactive Data
Corp. (1988) 47 Cal.3d 654, 681; Guz v. Bechtel Nat’l, Inc. (2000) 24 Cal. 4th 317, 341
-342; Pugh v. See’s Candies, Inc.(Pugh I) (1981) 116 Cal. App.3d 311, 329.) Courts
consider a variety of factors in the analysis:(1) The employer’s personnel policies and
practices; (2) the employee’s length of service; (3)actions or communications by the
employer reflecting assurances of continued employment; (4)practices in the industry
in which the employee is engaged; and (5) whether the employee gave independent
consideration for the employer’s promise (e.g., a covenant not to compete or a promise
not to disclose confidential information obtained during employment). (See Pugh 1,
116 Cal.App.3d at p. 327; Foley, 47 Cal.3d at pp. 680-81.) No single factor, or
particular combination of the factors, necessarily establishes that an employee had a
right to be discharged only for good cause. Rather, each case turns on its own facts,
and the court must seek to enforce the actual understanding of the parties. (Guz, 24
Cal.4th at 337; Stillwell v. Salvation Army (2008) 167 Cal.App.4th 360, 380 [the “totality
of the circumstances” must be examined]. The Court finds that there is a triable issue
of material fact as to whether the parties had an implied contract not to terminate but
for good cause.

The Court also finds triable issues of material fact as to whether defendant violated the
implied contract by terminating plaintiff without good cause.

Good cause, when not defined by the employer, is: “fair and honest reasons, regulated
by good faith on the part of the employer, that are not trivial, arbitrary, or capricious,
unrelated to business needs or goals, or pretextual; in short, a reasoned conclusion
supported by substantial evidence gather through an adequate investigation that
includes notice of the claimed misconduct and a chance for the employee to
respond.” (Cotran v. Rollins Hudig Hall International, Inc. (1998) 17 Cal. 4th 93, 107-
108.) Importantly, in deciding what constitutes good cause for dismissal, courts have
stated that care must be taken not to interfere with the legitimate exercise of
managerial discretion, particularly with regard to an employee in a sensitive
managerial or confidential position. (Id. at p. 100-101.) (add plaintiff’s evidence raising
a triable issue of material fact.

Brother Kurt states that he terminated plaintiff because he fled that he was
insubordinate because “he was acting in a manner that was not in keeping with the
religious nature of the retreat center” and that he felt that plaintiff was disrespectful in
the manner in which he wrote the Incident Report, and that he was trying to force
Brother Kurt’s hand to discipline Loretta Pehanich. Brother Kurt states he felt that the
report was in a condescending tone and that he felt that plaintiff was stating that “I was
stupid if I did not agree with his viewpoint.” He states that plaintiff conducted a peer
investigation without first consulting him. Brother Kurt refers to other incidents of
improper conduct that are conclusionary and to which the evidentiary objection has
been sustained. (Declaration of Wernert) Plaintiff’s declaration raises in issue of fact
as to whether the proferred reason is pretext and therefore there is an issue of fact as
to whether there was good cause to terminate plaintiff. Plaintiff states that at no time
as Administrator was he ever told that it was improper to investigate or document any
personnel incident. (Plaintiff’s UMF 4), nor was he ever criticized or reprimanded for

document, and that the assurances of continued employment, along with the 6 year
employment with no prior record of discipline, support his claim of implied contract. .

The Court also finds triable issues of material fact as to whether defendant violated the
implied contract by terminating plaintiff without good cause.

2nd cause of action Wrongful Termination in Violation of Public Policy : Summary
Adjudication is granted. Claims for termination in violation of public policy generally
involve employees taking one of the following four categories of actions: (1) refusing to
violate a statute; (2) performing a statutory obligation; (3) exercising a statutory right or
privilege; (4) reporting an alleged violation of a statute of public importance. (Gantt v.
Sentry Insurance (1992) 1 Cal.4th 1083, 1090-1091, overruled on other grounds in
Green v. Ralee Engineering Co. (1998) 19 Cal.4th 66.)

To establish a wrongful termination claim, a plaintiff must prove: (1) an employer-
employee relationship; (2) termination or other adverse employment action; (3)
termination of plaintiffs employment was a violation of public policy; (4) a “nexus”
between the termination and the employee’s protected activity; and (5) damages.
Holmes v. General Dynamics Corp. (1993) 17 Cal.App.4th 1418, 1426).

The basis of his wrongful termination cause of action is that he purportedly complained
about matters relating to “laws allowing employees to work in an environment free from
threatening, intimidating, assaultive behavior.” (SAC ¶ 17.)
“Labor Code section 6400 et seq. and Code of Civil Procedure section 527.8, when
read together, establish an explicit public policy requiring employers to provide a safe
and secure workplace, including a requirement that an employer take reasonable
steps to address credible threats of violence in the
workplace.” (Franklin v. The Monadnock Co. (2007) 151 Cal. App. 4th 252, 259,
emphasis added.) “A credible threat is one that the employee reasonably believes will
be carried out, so as to cause the employee to fear for his or her safety or that of her
family.” (Id. at 259.)

However, Plaintiff’s own testimony and the description of the context of the tray
shaking incident in the November 2009 incident report do not reflect a credible threat.
In reviewing the Incident Report, Ex 33 to plaintiff’s deposition, the Court finds no
language implicating threats, intimidation or assaults.. Plaintiff stated at his deposition
that he did not feel threatened by Loretta’s act of shaking a plastic tray at his face
level. The Court has considered all of the evidence proferred by plaintiff in the light
most favorable to him and finds that no inference can be drawn that this 2009 Incident
Report was a complaint implicating work-place safety. The gist of the November 2009
incident report was a request asking Brother Kurt to take a personnel action against
Loretta Pehanich. (UMF 24) The aggressive behavior detailed in that report was
Pehanich holding a tray at plaintiff’s face level, which he grabbed and moved down
from his face, after which Pehanich pulled the tray away and plaintiff let go. (See Ex.
33 to plaintiff’s deposition) Plaintiff did not express any concern for his or other’s
safety, and later admitted at his deposition that he did not feel threatened even though
he thought her behavior was inappropriate and “very aggressive.” Shaking a plastic
food tray in another person’s face, even if done “angrily” is, in itself, legally insufficient
to give rise to a reasonable belief that the a threat of violence had occurred.

The Court rejects plaintiff’s attempts to piggy-back on to other employees’ complaints.
Thus, any alleged “aggressive” incidents with others are not “protected activity” on the
part of Plaintiff since the fact that others complained about the same person does
nothing to show that Plaintiff complained about threats of violence.

Even if Plaintiff “reasonably believed” he was reporting a threat of violence, he has not shown that the reported facts would put a reasonable supervisor on notice that Plaintiff
had reported a legitimate threat of violence. “Standing alone, an employee’s
unarticulated belief that an employer is engaging in discrimination will not suffice to
establish protected conduct for the purposes of establishing a
prima facie case of retaliation, where there is no evidence the employer knew that the
employee’s opposition was based upon a reasonable belief that the employer was
engaging in discrimination.” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal. 4th 1028,
1046.) Plaintiff fails to demonstrate he did anything else but report the “garbage
dumping” incident and the incidental tray shaking when Pehanich became upset that
her plastic trays had been put in the garbage. Indeed, Brother Kurt did not understand
any of Mr. Sebastian’s reports or communications to him to be threats to his or anyone
else’s safety during his employment with the Retreat Center. (UMF 92; Decl Wernert)
Therefore, there is no public policy violation implicated in the Incident Report and
subsequent termination of plaintiff.

3rd cause of action Failure to Compensate for all hours worked under Labor
Code etc. and 4th cause of action Waiting Time Penalties Labor Code : Summary
Adjudication is denied. California Labor Code Section 227.3 requires the payment to
every employee separating from employment of “all vested vacation…as wages at his
final rate.” Plaintiff alleges that he is entitled to 23 hours of vacation pay. Defendant
has not met its initial burden in the separate statement to present facts negating
plaintiff’s right to any additional vacation pay. Although plaintiff has the burden at trial
to initially offer proof that such pay is owed, defendant must negate this allegation with
admissible evidence as part of its burden on a motion for summary adjudication.
UMFs 81-86 do not meet the burden. The Court need not reach the issue of alleged
unused comp time pay owed since defendant has not met its initial burden of proof
regarding vacation pay owed.

5th cause of action Violation of Business & Professions Code section 17200:
Summary Adjudication is denied on the ground that some of the predicate causes of
action have survived the motion for summary adjudication.

The motion for summary judgment is denied.

The prevailing party is directed to prepare a formal order complying with C.C.P. §437c
(g) and C.R.C. Rule 3.1312.