Manner v. Intevac, Inc.No. H038979 (January 2, 2015): The California Court of Appeal recently upheld a trial court’s granting of summary judgment of a former employee’s claims of retaliation in violation of the Fair Employment and Housing Act (FEHA), retaliation in violation of public policy, wrongful termination in violation of public policy, failure to investigate, intentional infliction of emotional distress, violation of California Labor Code section 1174(d), and unfair competition.

David Manner began working at Intevac in July 2009. Several months later, he began reporting to Bill Maffucci. Manner alleges that on February 26, 2010, Maffucci issued him an undeserved negative review. Maffucci also allegedly told Manner, who was then 59 years old, that a “younger, more junior employee was more suited for the position” held by Manner. He complained about the performance review and discriminatory remark. Intevac’s Vice President of Human Resources, Kimberly Burk, told Manner that she would conduct an investigation. Manner alleged that after he complained, Maffucci became more hostile. He thereafter lodged another complaint with Burk and informed her that Maffucci was interfering with his ability to perform his job functions and was increasingly hostile towards him. Manner alleged that Maffucci demanded that he falsify his time records and commit fraud against the federal government. He reported to Burk that Maffucci was demanding that he falsify his time records and Burk again told him that she would conduct an investigation. The following day, Intevac terminated Manner’s employment.

Manner alleged that he was terminated “because of his age, retaliation because he complained about age discrimination, retaliation for complaining about retaliation for reporting the age discrimination and harassment, and retaliation for refusing to falsify his time records and for reporting the falsification of time records.” Manner alleged retaliation after he opposed and reported unlawful employment practices, discrimination, fraud, and illegal activity. He also alleged that the company failed to investigate the alleged discrimination and harassment in violation of Government Code section 12940(k). He further alleged intentional infliction of emotional distress as a result of his termination. Finally, he alleged that the company violated Labor Code section 226 by failing to issue properly itemized wage statements, and as a result, he brought a claim under the Labor Code Private Attorneys General Act of 2004 (PAGA).

Intevac and Maffucci filed a motion for summary judgment, or alternatively, summary adjudication. The company asserted that the evidence was undisputed: it terminated Manner’s employment for a legitimate, nondiscriminatory reason and he could not establish that its stated reason was pretextual; the decision to terminate his employment was based on nonretaliatory factors; it investigated Manner’s complaints of discrimination and retaliation; its conduct was not extreme and outrageous; Manner failed to exhaust his administrative remedies for the Labor Code violations; and Manner could not prove that he suffered damage as a result of a violation of the Labor Code by Intevac.

The trial court agreed with the defendants, finding that they met their burden to show a legitimate, nondiscriminatory reason for the termination of Manner’s employment and Manner failed to produce sufficient evidence to show that the defendants’ showing was untrue or pretextual. Thus, the court granted the defendants’ motion for summary adjudication of the causes of action for retaliation in violation of FEHA, retaliation in violation of public policy, and wrongful termination in violation of public policy. The trial court granted the defendants’ motion for summary judgment as to the cause of action for failure to investigate in light of its ruling on the cause of action for discrimination that Manner did not suffer unlawful discrimination. The court also found that the defendants did not engage in extreme and outrageous conduct and granted their motion for summary adjudication as to the cause of action for intentional infliction of emotional distress. The court granted the defendants’ motion for summary adjudication on the cause of action for violation of the Labor Code on the ground that Manner failed to exhaust his administrative remedies. The court granted summary adjudication to the cause of action for unfair competition because Manner failed to show that the defendants had violated any law.

The Court of Appeal upheld the trial court’s granting of summary judgment. On appeal, Manner’s argument that “the inconclusiveness of who made the decision to terminate [Manner] and for what reason” did not satisfy his burden to raise a triable issue of fact as to the retaliatory motives of the individuals who decided to terminate his employment. The appellate court also found that Manner’s claim that the timing of his termination established that the defendants’ reason for termination was pretextual also has no merit. The court found that Manner could not rely solely on temporal proximity to create a triable issue as to pretext. As such, the defendants met their burden to show that their actions were motivated by legitimate reasons, and that Manner failed to show that the actions were untrue or a pretext for retaliatory animus.

The Court of Appeal upheld dismissal of Manner’s retaliation claim on the grounds that to the extent it was based on the termination of his employment, it was duplicative of his wrongful termination in violation of public policy claim. To the extent his claim was based on alleged retaliation for complaints that did not result in termination, Manner failed to cite any authority recognizing the viability of a cause of action for retaliation in violation of public policy when the alleged retaliation did not include termination of employment. To the extent the cause of action is based on alleged retaliation for his complaint of illegal activity regarding time records, Manner does not identify any alleged acts of retaliation other than termination, which is duplicative of his wrongful termination in violation of public policy claim.

The court upheld the dismissal of Manner’s wrongful termination claim on the grounds that it was duplicative of his claim of retaliation as it was based on the same operative set of facts and remedies.

The court upheld the dismissal of his failure to investigate claim because there is no private right of action for a violation of Government Code section 12940, subdivision (k). Even assuming a private right of action existed, Manner concedes that his employer cannot be liable for failure to prevent discrimination or retaliation without unlawful discrimination or retaliation in fact having occurred. Since no violation of FEHA occurred, Manner’s claim for failure to investigate is properly dismissed.

The court also upheld the dismissal of Manner’s claim for intentional infliction of emotional distress on the grounds that he did not establish that the defendants’ evaluation and criticism of his job performance and termination of his employment constituted extreme and outrageous conduct as a matter of law.

Note; This article was published in the February 2015 issue of the California eAuthority.