2010-00092489-CU-WT

Lisa Holderman vs. Bloodsource, Inc.

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

Filed By: Wohl, Christopher F.

Defendant Bloodsource, Inc.’s Motion for Summary Judgment, or in the Alternative for
Summary Adjudication of Issues is GRANTED.

The Court rules on Defendant’s evidentiary objections as follows: objections nos. 1-3,
5-10, 13-14, 18, 20; Objection to Errata, Exh. H and I are SUSTAINED, the remainder
are OVERRULED. The Court does not rule on evidentiary objections to Plaintiff’s
Additional Material Facts which lack a citation to evidence in support, as they are not
evidence. Similarly, the court has not considered material facts which fail to include a
page and line citation to an entire deposition.

Defendant must submit a separate, formal Order on evidentiary objections in
compliance with California Rules of Court, Rule 3.1354(c) for the Court’s signature at
the time the proposed order on the motion is submitted.

Plaintiff’s evidentiary objections are OVERRULED. Plaintiff must submit a separate,
formal Order on evidentiary objections in compliance with California Rules of Court,
Rule 3.1354(c) for the Court’s signature at the time the proposed order on the motion
is submitted.

Plaintiff’s Verified Complaint sets forth two causes of action against defendant: the 1st
for Violation of Labor Code §§1102.5 and 6310 and the 2nd for Wrongful Termination in
Violation of Public Policy.

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Summary adjudication of the 1 for Violation of Labor Code § 6310 is GRANTED. Labor Code § 6310 provides: “(a) No person shall discharge or in any manner
discriminate against any employee because the employee has done any of the
following: (1) Made any oral or written complaint to the division, other governmental
agencies having statutory responsibility for or assisting the division with reference to
employee safety or health, his or her employer, or his or her representative.”

In opposition, plaintiff concedes that Labor Code, sec. 6310 is inapplicable, as she did
not complain about employee safety or health. (Oppo., 10:26-11:2.) The Court
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therefore grants summary adjudication as to this portion of the 1 cause of action.
Lilienthal & Fowler v. Superior Court (1993) 12 Cal.App.4th 1848, 1854-1855.

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Summary adjudication of the 1 for Violation of Labor Code §§1102.5 is GRANTED.

The elements of a Labor Code sec. 1102.5(b) retaliation cause of action require that
(1) the plaintiff establish a prima facie case of retaliation, (2) the defendant provide a
legitimate, nonretaliatory explanation for its acts, and (3) the plaintiff show this
explanation is merely a pretext for the retaliation. Patten v. Grant Joint Union High
School Dist. (2005) 134 Cal. App. 4th 1378, 1384 .

To establish a prima facie case of retaliation, a plaintiff must show (1) she engaged in
a protected activity, (2) her employer subjected her to an adverse employment action,
and (3) there is a causal link between the two. Patten v. Grant Joint Union High
School Dist. (2005) 134 Cal. App. 4th 1378, 1384.

Here plaintiff has alleged that her employer retaliated against her for disclosing
information to a government agency, the US Food and Drug Administration, regarding
a computer program utilized by her employer, which endangered blood donors by
allowing them to give too much blood.

Moving party Bloodsource submits evidence that plaintiff had been employed from
2002 until her termination in 2009. She was considered a “difficult employee” as
complaints were made about her by coworkers and supervisors. She was terminated
for cause after failing, and in some cases refusing, to comply with Bloodsource’s
Standard Operating Procedures (“SOP”).

In 2007, plaintiff was given a written reprimand for failure to follow SOP. In her annual
performance evaluation in August 2008, she was again reprimanded for her poor
attendance, tardiness, failure to follow SOP and complaints from donors and co-
workers about her negative attitude.

In March 2009, she again received a written reprimand for violating SOP. In June
2009, plaintiff met with Eldridge to complain about work related issues, including the
Vista (electronic chart) software, and the Trima blood collection machine. Plaintiff was
told that Bloodsource knew of the minor software problem with Vista, but it presented
no safety issue to the blood donor, and was being corrected by a software update from
the manufacturer. (MF 14)

In July 2009, plaintiff was given a written six-month corrective action notice because of
SOP violations and counseled that it was a “final warning”, and further violations could
result in immediate termination. On Dec. 9, 2009, Plaintiff was terminated by her supervisors Eldridge and Judson,
after review of her computerized time records and plaintiff’s oral misrepresentation as
to her hours worked, which reflected false statements by plaintiff, a failure to follow
SOP and additional complaints by employees based upon plaintiff’s negative attitude
towards donors and staff during the blood drive in Nov. 2009, when plaintiff was in a
six-month corrective action period.

Defendant asserts that plaintiff cannot establish a prima facie case of retaliation.
Defendant concedes that plaintiff’s termination satisfies the factor of “an adverse
employment action”, but asserts that plaintiff cannot show either that she was engaged
in a protected activity, or that there was a causal link between the protected activity
and the adverse employment action.

Protected Activity

The protected activity alleged, is plaintiff’s complaint to the FDA. Defendant asserts
that complaint to the FDA was not a “protected activity” under the Labor Code, sec.
1102.5.

Critical to this analysis, the Vista software did not lead to any violation of state or
federal statute or regulation by Bloodsource. The FDA set recommended guidelines,
which are neither statutes nor regulations. Bloodsource presents evidence that its
Compliance Officer, Patricia Grace, who was responsible for ensuring that the
company operations were in compliance with the FDA and other laws and regulations,
declares that at all times, Bloodsource ensured that Vita and Trima are set well within
the manufacturer’s recommendations and also within the FDA guidelines. (MF 28.)

Plaintiff is correct that an employee need not prove an actual violation of law; it suffices
if the employer fired him for reporting his “reasonably based suspicions” of illegal
activity. Green v. Ralee Engineering Co. (1998) 19 Cal. 4th 66, 87. Here, however, no
violation of statute or regulation has been identified.

Causal Link

Additionally, moving party asserts that plaintiff cannot show any causal link between
her complaint to the FDA and her termination.

‘The causal link may be established by an inference derived from circumstantial
evidence, “such as the employer’s knowledge that the [employee] engaged in
protected activities and the proximity in time between the protected action and
allegedly retaliatory employment decision. Morgan v. Regents of University of
California (2001) 88 Cal. App. 4th 52, 69; Dowell v. Contra Costa County (N.D. Cal.
2013) 928 F. Supp. 2d 1137, 1156.

Here, the individuals who terminated plaintiff, Eldridge and Judson, did not know that
she had complained to the FDA at the time they terminated her. Holderman admits
that she did not disclose her complaint to the FDA to her employer, and the FDA kept
the name of the complainant confidential.

Plaintiff’s dispute with the moving party’s evidence is only speculation that defendant
“must have known” she was the complainant, and is insufficient to create a disputed
issue of material fact. Morgan v. Regents, supra, 88 Cal. App. 4th 52, 73. Plaintiff has
failed to provide any admissible evidence to reflect that defendant knew that she had
reported any violation by Bloodsource to the FDA, and that this led to her termination.

Although plaintiff attempts to add her other complaints about meal and rest breaks in
opposition to this motion, her complaint fails to allege any complaints to governmental
authorities regarding any violation of state or federal statute or regulation regarding
meal and rest period breaks. The function of the pleadings in a motion for summary
judgment is to delimit the scope of the issues. Whelihan v. Espinoza (2003) 110 Cal.
App. 4th 1566, 1572. The Court therefore need not address these additional facts.

Proximity in time is lacking, as plaintiff complained to the FDA in July 2009, and
plaintiff was not terminated until five months later in Dec. 2009.

Pretext

Even if the Court were to find that plaintiff had established a prima facie case of
retaliation, where the defendant provides a legitimate, nonretaliatory explanation for its
acts, the burden shifts to plaintiff show this explanation is merely a pretext for the
retaliation. Patten v. Grant Joint Union High School Dist., supra, 134 Cal. App. 4th
1378, 1384.

Here, defendant has provided evidence to support a legitimate, nonretaliatory
explanation for plaintiff’s termination, thus plaintiff must show that this explanation is
pretextual.

The Court finds that the moving party has met its initial burden of proof, and plaintiff
has failed to either identify a genuine issue of disputed material fact or to show that the
reasons for termination were pretextual.

Summary adjudication of the 2nd cause of action for wrongful termination in violation of
public policy is GRANTED.

Plaintiff must provide evidence of a public policy that is (1) embodied in a statute or
constitutional provision; (2) beneficial to the public; (3) articulated at the time of
discharge; and (4) fundamental. ( Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d
167, 170). A public policy exception must be tethered to fundamental policies that are
delineated in constitutional or statutory provisions. Gantt v. Sentry Insurance (1992)
1 Cal. 4th 1083, 1095.

Here, the plaintiff relies upon the underlying statutory claim of violation of Labor Code,
sec. 1102.5 to support the wrongful discharge cause of action. As summary
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adjudication of the 1 cause of action has been granted, this cause of action must fall
with it.

As summary adjudication of each cause of action has been granted, the motion for
summary judgment is also GRANTED.

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