CODRINGTON, J.
Plaintiff Ernesto Alvarez (plaintiff) appeals from summary judgment entered in favor of his employer, defendant S2 Engineering, Inc. (S2), in a wrongful termination action. Plaintiff contends triable issues of material fact exist as to the first cause of action alleging wrongful termination in violation of public policy. Specifically, plaintiff argues he presented evidence raising triable issues as to the elements of causation and pretext.
We agree. There was sufficient evidence raising material issues of fact as to whether S2 retaliated against plaintiff for refusing to conduct a materials compaction test because of missing documentation required for lawfully transporting a nuclear gauge needed for testing. Summary judgment is reversed as to the first cause of action.
"Because this case comes before us after the trial court granted a motion for summary judgment, we take the facts from the record that was before the trial court when it ruled on that motion. [Citation.] `"We review the trial court's decision de novo, considering all the evidence set forth in the moving and opposing papers except that to which objections were made and sustained."' [Citation.] We liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party. [Citation.]" (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037 (Yanowitz).)
The following is a summary of the evidence included in the moving and opposing papers, as to the first cause of action alleging wrongful termination in violation of public policy.
S2 is a small engineering company that provides engineering services to governmental entities, including California Department of Transportation (Caltrans). S2's employees are primarily field staff who work on an on-call basis for S2's clients.
In April 2007, S2 entered into a contract with Caltrans to provide materials testing and other engineering services to the Caltrans District 8 laboratory in Barstow (the Barstow lab). The contract term was from May 2007 through June 2010. S2 also had four other contracts, in which S2 was a subcontractor on the projects, but none of those projects required materials testers (also referred to as consultants).
Plaintiff started working at S2 in May 2007, as a materials tester for the Caltrans project, with the title of senior lead technician. Plaintiff has worked for various engineering companies for over 20 years. He primarily provided materials testing services to Caltrans.
Plaintiff applied for work at S2 in 2007, because the contract for the project he was working on for his previous employer, Caltrop, was about to expire. David Quiroz (Quiroz) was also working at Caltrop at that time. S2's owner, Sagar Pandey, hired Quiroz, plaintiff, and two others as materials testers. Of the three, plaintiff was Pandey's first choice.
Plaintiff testified at his deposition that Kevin Oluoha (Oluoha) at Caltrans assigned the S2 consultants work, not Paul Shrestha (Shrestha), plaintiff's supervisor at S2. Around January 28, 2008, Oluoha assigned plaintiff and Quiroz to perform a compaction test on January 29, 2008. During the morning of January 29, 2008, plaintiff met Quiroz at S2's Rancho Cucamonga office to pick up a company truck. They then drove to the Barstow lab to pick up a nuclear gauge needed to perform the compaction test. When they got to the Barstow lab, Quiroz noticed the paperwork required for transporting the gauge was missing.
Quiroz called Shrestha and told him there was no documentation for the gauge. Shrestha told Quiroz to do the test anyway. Quiroz told plaintiff he told Shrestha they would not do the test. Plaintiff told Oluoha about the problem. Oluoha wanted plaintiff and Quiroz to do the test without the paperwork. They refused.
During plaintiff's deposition, he explained that legally he had to have a company license to transport the nuclear gauge, along with documentation of the type of radiation the gauge emits, the names of the individuals licensed to operate the gauge under the S2 license, and the calibration used to perform the test. All of these documents were missing. Plaintiff believed Shrestha had the documentation, since he was the radiation officer responsible for the gauges. This was the first time plaintiff had ever experienced such a situation where there was no paperwork.
Oluoha was upset that plaintiff and Quiroz refused to do the compaction test. Oluoha went into his office, where the nuclear gauges were, and said he was going to do the test himself.
Shrestha never told plaintiff to do the compaction test without the required paperwork. Plaintiff, however, felt Shrestha was not doing his job because the paperwork was not there. As a consequence, plaintiff could not do the testing and Shrestha sent plaintiff and Quiroz home. Plaintiff was paid for four hours of work.
When plaintiff was notified in March 2008 that he was laid off because of a reduction in force, he initially did not question the notice. On another previous occasion, Oluoha had verbally laid off the entire S2 group, except Shrestha and Zahed Kabir (Kabir
On July 7, 2008, when plaintiff reapplied for work at S2, he still believed he was terminated because of a reduction in force. He found out about the July 1, 2008, project from Quiroz, who had called Pandey to ask about upcoming work. Quiroz told plaintiff that Pandey had told him that everyone who previously worked at the Barstow lab for S2 needed to reapply for work at S2. Plaintiff waited one or two weeks before applying. Plaintiff acknowledged during his deposition that, "if the company [S2] has no work for me, he's [Pandey] not going to hire me or anybody else."
It was normal for work to slow down significantly during the winter months of November, December and January. When work slowed down, between September and December 2007, Oluoha decided who would work by making a work schedule. Oluoha did not consult Pandey or Shrestha when making the work schedule for that period. With the exception of two workers (Shrestha and Kabir), Oluoha split the S2 consultants into an A group and B group, with each worker scheduled to work alternate weeks. Oluoha did this because he was going on vacation during part of this time and he anticipated there would not be enough work for everyone. Oluoha wanted to distribute the work equally among the workers in the two groups. Oluoha said he did not select the workers during this period. Assignments were based on the work schedule. This was the only time he created a work schedule.
When Oluoha was asked during his deposition who assigned the work to the S2 materials testers during the winter of 2008, Oluoha said, "I did." He did not first call Shrestha or consult with S2 when assigning the work. Oluoha said he had the authority to assign a materials tester to a particular test. He did not have to call anyone at S2 to request a particular person. The decision to assign a test to a particular materials tester was Oluoha's.
When Oluoha selected the workers, he did so based on each worker's ability. Oluoha had no say in whom S2 laid off. His business was to deal with the people S2 gave him. Oluoha did not know who determined which S2 workers would remain employed at S2 when work slowed down and fewer S2 consultants were needed. He was not involved in determining which S2 consultants were assigned to the Barstow office. Caltrans would determine how many consultants it needed for a particular job, and Oluoha would tell S2 the number of qualified people Caltrans needed for testing. When there were more qualified S2 workers available than needed for tests, Oluoha would decide which S2 workers would do the tests.
This procedure changed when Shrestha became lead worker. He did not say when this occurred. Pandey, however, testified that Shrestha's job responsibilities increased after S2 secured the Caltrans contract in May 2007. At the time of Oluoha's deposition in October 2009, Oluoha said he had to first call Shrestha, who would then call the S2 consultant to do testing. Oluoha could no longer directly call and assign work to an S2 consultant.
Once Oluoha determined Caltrans needed an S2 tester, he would ask Shrestha for a worker and tell him what qualifications were required. Shrestha would give Oluoha a name and Oluoha would confirm the worker's certificate of proficiency had not expired and the worker was qualified to do the job. If that person met the job requirements, that person would get the job, conditional upon Oluoha's supervisor, Sal Ahmed (Ahmed), authorizing the test. Oluoha would then tell Shrestha, "go ahead and bring him in."
On January 29, 2008, plaintiff refused to do a compaction test because of missing paperwork. He told Oluoha Shrestha had the required chart. Oluoha told plaintiff he could do the test anyway. Oluoha said to plaintiff, "[O]f all of you, you are one of the people I love here most, you are supposed to go for this test." Oluoha went into his office, where the nuclear gauges were, and told plaintiff he was going to do the test himself. Oluoha believed Quiroz did not refuse to do the test but, since Quiroz was assisting plaintiff, Quiroz followed plaintiff's lead and also refused because he could not do the test without plaintiff.
Plaintiff remained on the work schedule in February 2008, but was not assigned any work. Quiroz, however, received additional work. No one at S2 ever told Oluoha not to assign plaintiff work.
Oluoha was not aware of S2 laying off workers in January, February, and March 2008, but he was told in early 2008, by his supervisor, Ahmed, that Caltrans could only keep four materials testers. At that time, there were pay cuts and less work at Caltrans.
Oluoha did not call the materials testers to notify them of the project beginning on July 1, 2008, but consultants would continually call, asking about work.
Pandey testified that S2 did not need to take any specific action to reduce its work force during a work shortage or slow-down because Caltrans simply reduced the number of hours given to S2 consultants, and the S2 consultants worked on an hourly basis. They were called back to work whenever Caltrans needed workers. Caltrans decided the number of consultants needed and hours worked. "[T]he reduction in force in the winter of `07/'08 did not lead to a letter to any of its employees stating there was a reduction in force. It just led to fewer calls to its employees to appear and show up for work at the Barstow office." After that winter, Pandey did not have any further conversations with Caltrans about reductions of the work force.
In March or April 2008, Pandey knew there would be no more work until the beginning of the fiscal year, July 1, 2008. In March, Pandey decided to notify S2 consultants formally of a reduction in force by sending them a reduction in force letter. This was the first time he had ever prepared such a letter. Pandey sent the reduction in force letters to six of S2's materials testers, including Dan Alldredge (Alldredge), Kennedy Eubany (Eubany), Kabir, Augustine Okeke (Okeke), Quiroz, and plaintiff. The letters were all sent out at about the same time, on March 27 and 28, 2008. Each reduction in force letter stated the employee's effective date of termination as the last day Caltrans had assigned the employee work.
Three consultants did not get letters and/or remained on-call. The three employees were Shrestha, who had worked for Pandey for a long time and, as manager, did more than materials testing; Roy Schroeder (Schroeder), who worked part-time and was specifically requested by Caltrans because Caltrans liked his work; and Chuck Deveau (Deveau), who had been there since 2006 and Caltrans liked him. Pandey sent Deveau a reduction in force letter in March, but made Deveau an independent contractor because Pandey wanted to keep Deveau in case there was a day or two of work.
Caltrans did not request any S2 materials testers until late June 2008. Pandey could not recall when he was informed of the need for six materials testers to begin working on July 1, 2008, or who he spoke to at Caltrans. It was either Oluoha or Ahmed.
Deveau, Shrestha, and Schroeder were already available to work. In addition, at the end of June 2008, Pandey rehired Eubany, Kabir, Alldredge, and Okeke. They all applied for the job on or about June 30, 2008. Most likely, Eubanks, Kabir, Alldredge, and Okeke found out about the July 2008 work after contacting Caltrans. Testers who wanted work normally would stay in touch with Caltrans. S2 did not contact the testers and request that they reapply. By July 1, 2008, all six available positions as testers for the project were filled. Plaintiff did not submit his application until July 7, 2008. No one else was hired at S2 as a tester after July 1, 2008, until May 2009.
Ahmed testified that, when Caltrans needed a field test, Caltrans made a request to S2's lead worker, Shrestha, "and it [was] for him to decide" who worked. Ahmed only stated the number of materials testers needed. He had never requested a specific person and never told Oluoha to request a specific person. It was S2's responsibility to provide Caltrans with qualified, certified testers when Caltrans requested them. Ahmed did not recall ever contacting S2. He only authorized the number of testers needed and would tell Oluoha to tell S2 if consultants were needed.
On September 22, 2008, plaintiff filed a wrongful termination complaint against S2, alleging the following causes of action: (1) wrongful termination in violation of public policy; (2) violation of public policy as it relates to discrimination based on race; (3) discrimination and unlawful employment practices on the basis of race; and (4) intentional infliction of emotional distress.
Plaintiff alleges in his first cause of action, which is the subject of this appeal, that on March 28, 2008, he was terminated from his employment with S2, effective January 29, 2008, based on an alleged reduction of force. In addition to discriminating against plaintiff because of his race, S2 retaliated against him in violation of public policy because he refused to perform an assigned materials test on January 29, 2008. State and federal regulations prohibited him from doing the test because the paperwork for legally transporting the nuclear gauge, required for the test, was not available. Because of plaintiff's refusal to perform the materials test, S2 retaliated against plaintiff by terminating his employment on March 28, 2008, effective January 29, 2008.
On June 18, 2008, plaintiff filed with the Department of Fair Employment and Housing a wrongful termination complaint, alleging race discrimination. Thereafter, plaintiff applied to be rehired by S2, but S2 refused to rehire him.
On March 25, 2010, S2 moved for summary judgment or, alternatively, summary adjudication. Plaintiff opposed the motion. After hearing oral argument, the trial court granted summary judgment as to the entire action. As to the first cause of action, the trial court found that, "As to [plaintiff's] claim that he was terminated in violation of public policy because he refused to perform the testing in January 2008 without the required transportation documentation, S2 Engineering has demonstrated that [plaintiff] has not met his burden of causation as to [plaintiff's] alleged termination in violation of public policy claim based on federal transportation regulations" or that "his termination was a pretext for such discrimination." Plaintiff appeals summary judgment only as to the first cause of action.
The purpose of summary judgment "is to provide courts with a mechanism to cut through the parties' pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute. [Citations.]" (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 844 (Aguilar).) Our de novo review is governed by Code of Civil Procedure section 437c, which provides in subdivision (c) that a motion for summary judgment may only be granted when, considering all of the evidence set forth in the papers and all inferences reasonably deducible therefrom, it has been demonstrated that there is no triable issue as to any material fact and the cause of action has no merit. The pleadings govern the issues to be addressed. (City of Morgan Hill v. Brown (1999) 71 Cal.App.4th 1114, 1121.) A defendant moving for summary judgment bears the burden of persuasion that there is no triable issue. This burden is met by producing evidence that demonstrates that a cause of action has no merit because one or more of its elements cannot be established to the degree of proof that would be required at trial, or that there is a complete defense to it. Once that has been accomplished, the burden shifts to the plaintiff to show, by producing evidence of specific facts, that a triable issue of material fact exists as to the cause of action or the defense. (Aguilar, at pp. 849- 851, 854-855.)
The courts engage in a three-step process when determining whether a claim for retaliation in employment has merit. First, the employee must establish a prima facie case by demonstrating three elements: (1) that the employee engaged in protected activity; (2) that the employee was thereafter subjected to adverse employment action; and (3) that there was a causal link between the protected activity and the adverse action. (Flait v. North American Watch Corp. (1992) 3 Cal.App.4th 467, 476.) Second, if this burden is met, the employer must then articulate a legitimate nonretaliatory reason for the adverse employment action. (Sada v. Robert F. Kennedy Medical Center (1997) 56 Cal.App.4th 138, 155.) Third, after the employer produces a legitimate business justification, the employee must produce substantial responsive evidence demonstrating that the employer's reason for the adverse employment action was untrue or pretextual, or evidence that the employer acted with a retaliatory animus, or a combination of the two, such that a reasonable trier of fact could conclude the employer engaged in unlawful retaliation. (Horn v. Cushman & Wakefield Western, Inc. (1999) 72 Cal.App.4th 798, 806-807 (Horn); Trop v. Sony Pictures Entertainment, Inc. (2005) 129 Cal.App.4th 1133, 1144.)
The trial court granted summary judgment as to the first cause of action on the ground there was no evidence of causation or pretext. We conclude, to the contrary, there is evidence that S2 retaliated against plaintiff by terminating his employment because plaintiff refused to perform the materials compaction test on January 29, 2008, and not because of a lack of work.
In establishing the element of causation, "`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."' [Citation.]" (Fisher v. San Pedro Peninsula Hosp. (1989) 214 Cal.App.3d 590, 615.)
Here, there is evidence that Pandey, the owner of S2, terminated plaintiff's employment March 28, 2008, two months after plaintiff refused to perform the compaction test because he could not lawfully transport the nuclear gauge without the required documentation. Plaintiff's termination was effective January 29, 2008, the date of plaintiff's refusal to perform the compaction test. There is ample evidence that Pandey was aware of plaintiff's refusal to perform the test because of the missing documentation. A week after the incident, Pandey went to Oluoha's office and apologized for plaintiff's refusal to perform the test. In addition, Quiroz told Shrestha, S2's lead worker, about the incident when it occurred, and Shrestha also apologized to Oluoha for S2's workers rejecting the assignment. It can be reasonably inferred Shrestha informed Pandey of the incident.
There is also evidence S2 did not assign plaintiff any additional work in February, even though he was ready and willing to work. Although work was slow, other S2 consultants received Caltrans assignments in February. In addition, S2 did not rehire plaintiff or Quiroz when work was available in July 2008, whereas it rehired all of the other consultants S2 laid off.
This evidence was sufficient to establish a causal link between the protected activity and the adverse action, consisting of S2's refusal to give plaintiff subsequent work, termination of plaintiff's employment, and refusal to rehire him. (Flait v. North American Watch Corp., supra, 3 Cal.App.4th at p. 476.)
Since there was sufficient evidence establishing the three elements of a prima facie case of retaliation, including the element of causation, S2 was required to provide evidence of a legitimate nonretaliatory reason for the adverse employment action. (Sada v. Robert F. Kennedy Medical Center, supra, 56 Cal.App.4th at p. 155.) S2 did so by citing evidence that Caltrans, rather than S2, was responsible for assigning S2 consultants work, and there was no work for S2's testers when S2 terminated plaintiff, along with five other S2 materials testers. S2 also provided evidence that, by the time plaintiff and Quiroz submitted their applications to be rehired in July 2008, there were no positions available.
S2 met its initial burden of producing evidence of a legitimate, nondiscriminatory reason for plaintiff's termination — the lack of work. Consequently, the burden shifted to plaintiff to "`produce "substantial responsive evidence" that the employer's showing was untrue or pretextual. [Citation.]' [Citations.] `To avoid summary judgment, [appellant] "must do more than establish a prima facie case and deny the credibility of the [defendant's] witnesses." [Citation.] [He] must produce "specific, substantial evidence of pretext." [Citation.]' [Citation.] We emphasize that an issue of fact can only be created by a conflict of evidence. It is not created by speculation or conjecture. [Citation.] We review the evidence presented to the trial court and independently adjudicate its effect as a matter of law. [Citation.]" (Horn, supra, 72 Cal.App.4th at p. 807.)
Such evidence of pretext must demonstrate that the employer's reason for the adverse employment action was untrue or pretextual, or that the employer acted with a retaliatory animus, or a combination of the two, such that a reasonable trier of fact could conclude the employer engaged in unlawful retaliation. (Horn, supra, 72 Cal.App.4th at pp. 806-807.) It is not sufficient for an employee to "simply show the employer's decision was wrong, mistaken, or unwise. Rather, the employee `"must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reason able factfinder could rationally find them `unworthy of credence,' [citation], and hence infer `that the employer did not act for the [. . . asserted] non-discriminatory reasons.' [Citations.]" [Citations.]' [Citation.]" (Horn, at p. 807.)
In establishing pretext, "Proof that the employer's proffered reasons are unworthy of credence may `considerably assist' a circumstantial case of discrimination, because it suggests the employer had cause to hide its true reasons. [Citation.] Still, there must be evidence supporting a rational inference that intentional discrimination, on grounds prohibited by the statute, was the true cause of the employer's actions. [Citation.]" (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 361.)
Here, there is evidence refuting S2's proffered reasons for terminating plaintiff and not rehiring him in July. There is evidence that, when there was a seasonal slow-down in work during the winter, from around November through January, S2 verbally told its consultants there was no work and, in effect, laid them off until S2 received additional assignments from Caltrans. Since the consultants were paid only for the hours they worked, there was no need formally to terminate their employment when there was a temporary shortage of work. When Caltrans provided more work, S2 normally called up those S2 consultants assigned work and requested them to do the testing.
Contrary to these typical procedures, in March Pandey decided to send all of S2's materials testers, with the exception of two workers, formal letters notifying them they were laid off due to a shortage of work. This reduction in force letter was sent on March 28 or 29, 2008, about a week after plaintiff's attorney sent Pandey a letter, stating that plaintiff had retained an attorney to represent him regarding his employment at S2. It was also shortly after plaintiff had requested Pandey to allow him to review his personnel file. In addition, plaintiff's termination notice was sent two months after the January 29, 2008, incident, with termination effective January 29, 2008.
Although Pandey also laid off five other materials testers, claiming a shortage of work and using each worker's last assignment date as the effective date of termination, a reasonable inference can be made this was done as a subterfuge for terminating plaintiff. S2 retained three materials testers in the event Caltrans needed testing done, and in June, rehired all but two of the six consultants laid off in March. Plaintiff and Quiroz were not rehired, allegedly because they failed to apply before all the positions were filled.
In the past, S2 never formally laid off its employees before the end of a project contract when there was a shortage of work. In addition, S2 would normally call its consultants to let them know there was work, rather than requiring them to reapply for work.
Also, after the January 29, 2008, incident, plaintiff did not receive any more work, whereas four other S2 consultants received assignments in February. S2 argues that it had no control over the work assignments. Caltrans's lead worker Oluoha selected the workers and S2 had no say in the matter. But there is evidence that S2 was involved in assigning work to particular consultants, as well as determining who it employed and made available to Caltrans as testers. Even if Oluoha assigned the work, his selection was limited by the consultants S2 made available to Caltrans. If Caltrans did not provide Oluoha with the name of a particular tester or laid off the tester, Oluoha could not assign work to that individual.
There is also testimony that, after Shesthra became supervisor of the materials testers in 2007, the procedures for assigning work changed, from Oluoha calling the S2 workers directly and assigning them work, to Shrestha calling the workers to assign them work. Although it is unclear as to the extent of S2's involvement and control over the assignment of work to S2 testers, a reasonable inference can be made that S2 had some degree of control over the work assignments and procedures implemented in assigning its employees work. S2 determined the number of testers it hired and made available to Caltrans, even if Caltrans determined the number of testers it needed to perform a particular test or series of tests.
There is also evidence that plaintiff was a highly experienced materials tester, who had provided testing on numerous Caltrans projects throughout the years and was considered one of the best in the industry. Pandey testified that when he hired plaintiff and several other materials testers in 2007, plaintiff was his first choice. A reasonable inference can be made that there was no reason, other than retaliatory animus, not to assign him work in February 2008 or formally terminate his employment at S2 before the Caltrans project ended in 2010, even with a shortage of work at the end of the 2008 fiscal year. It can be inferred that S2 used the temporary slow-down in work and S2's dissembling a portion of its work force as a subterfuge or pretext for terminating plaintiff in retaliation for plaintiff refusing to perform the compaction test on January 29, 2008.
S2 argues that the fact that Quiroz, not plaintiff, called Shrestha and told him plaintiff would not perform the compaction test because the required documentation was missing, defeats plaintiff's retaliation claim. But there is also evidence that plaintiff was the lead worker on the assignment and Quiroz was his assistant. According to Oluoha, Quiroz was merely following plaintiff's lead and could not do the test without plaintiff. In other words, plaintiff, not Quiroz, was the one responsible for not performing the test. This might explain why Quiroz was given another assignment after the January 29 incident, whereas plaintiff was not given any more work. We note that, ultimately, both plaintiff and Quiroz were the only ones of the S2 testers laid off, who were not rehired, allegedly because they did not get their applications in before all the other testers reapplied and were rehired.
S2 contends, with regard to plaintiff's argument that S2 had never before formally laid off materials testers, this court should disregard the argument because it was not raised or supported by evidence in the separate statement of facts or plaintiff's opposing separate statement of facts. But the argument and supporting evidence was mentioned in plaintiff's opposing points and authorities. Furthermore, this court has the discretion to consider evidence provided in support of a summary judgment motion or opposition, even if it is not specifically cited in the statement of facts or opposing separate statement. (San Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A. (2002) 102 Cal.App.4th 308, 315-316.)
We conclude that, viewing the evidence in the light most favorable to plaintiff, a reasonable trier of fact could conclude that S2's articulated reasons for terminating plaintiff's employment are not worthy of credence and that S2 retaliated against plaintiff because, in compliance with the law, he refused to perform a compaction test on January 29, 2008. (Flait v. North American Watch Corp., supra, 3 Cal.App.4th at p. 480.)
The judgment is reversed. Plaintiff is awarded his costs on appeal.
We concur.
McKinster, Acting P.J.
Miller, J.
