Crespin v. Crimson Pipeline, LP

• Court: California Court of Appeals
• Writing for the Court: EDMON, P. J.
• Decision Date: 19 August 2019
• Docket Number: B290187
• Citation: Crespin v. Crimson Pipeline, LP, B290187 (Cal. App. Aug 19, 2019)
• Parties: ROBERT CRESPIN, Plaintiff and Appellant, v. CRIMSON PIPELINE, LP, et al., Defendants and Respondents.

ROBERT CRESPIN, Plaintiff and Appellant, v. CRIMSON PIPELINE, LP, et al., Defendants and Respondents.

B290187

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION THREE

August 19, 2019

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County Super. Ct. No. BC638079)

APPEAL from a judgment of the Superior Court of Los Angeles County, Michael L. Stern, Judge. Affirmed.

The Novak Law Firm and Sean M. Novak for Plaintiff and Appellant.

Cox, Castle & Nicholson, Dwayne P. McKenzie, and Stacy L. Freeman for Defendants and Respondents.

____________________ Plaintiff Robert Crespin (plaintiff) brought the present disability discrimination and defamation action against Crimson Pipeline LP (Crimson) and Tracy Moore. The trial court sustained demurrers to plaintiff's causes of action for retaliation (Gov. Code, § 12940, subd. (h)¹; Labor Code, § 1102.5) and defamation, and it granted summary adjudication of plaintiff's causes of action for unlawful discrimination (§ 12940, subd. (a)), failure to prevent unlawful discrimination (§ 12940, subd. (k)), wrongful termination in violation of public policy, and unfair competition (Bus. & Prof. Code, § 17200 et seq.). We conclude that plaintiff failed to establish error, and thus we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

I.Background²

Plaintiff was born in 1970. When he was 15 years old, he was diagnosed with cancer, for which he was treated with chemotherapy. The chemotherapy successfully treated his cancer, but it caused him to develop a blood disorder called thrombocytopenia, for which he has been under the care of a hematologist.

In October 2014, plaintiff applied through TRS Staffing Solutions, Inc. (TRS), an employment agency, for an operations and maintenance manager (O&M manager) position with Delta Trading, L.P. (Delta), a Crimson affiliate.³ Robert McElroy, the general manager of Delta's Bakersfield facility, interviewed plaintiff by telephone on October 27, 2014, and in-person on October 29. Delta's Bakersfield facility handles a range of products including asphalt, crude oil, emulsions, aviation gasoline, jet fuel, butane, and natural gas liquids. Tracy Moore, the human resources manager for Crimson Midstream LLC (Midstream), a Crimson affiliate, interviewed plaintiff on November 6, 2014.

What transpired at the conclusion of Moore's interview with plaintiff is the subject of dispute. Plaintiff claims Moore offered him a position with Crimson, which he immediately accepted. Moore says she did not offer plaintiff a position; she also contends the position for which plaintiff was being considered was with Delta, not Crimson.

Following the November 6, 2014 interview, Moore and McElroy spoke to two of plaintiff's former coworkers, Jim Hosler and Ron Morones. In those conversations, Hosler and Morones disclosed that plaintiff had been terminated by a former employer, Kinder Morgan Energy Partners (Kinder Morgan), for falsifying his time records, and that plaintiff had not been Kinder Morgan's "Safety Director," as he had claimed on his resume.

On November 7, 2014, Moore told Randy Nodalo at TRS that Delta would not employ plaintiff.

II.The Present Action

Plaintiff filed the present action against Crimson on October 19, 2016. The initial complaint alleged that Crimson offered plaintiff a position on November 6, 2014, and rescinded the offer the following day "solely due to defendants learning from a former employer of Plaintiff that Plaintiff has a physical disability." The complaint alleged five causes of action: (1) disability discrimination; (2) retaliation; (3) failure to prevent discrimination; (4) wrongful termination in violation of public policy; and (5) unfair competition.

In August 2017, plaintiff filed an amended complaint that added a cause of action for defamation against Crimson and Moore. The defamation cause of action alleged that Moore contacted a third party, Jim Hosler, about plaintiff's past work performance and employment history. Hosler communicated false information to Moore, and Moore repeated this false information to TRS. As a result, plaintiff suffered severe damage to his professional reputation.

III.Demurrers

Crimson demurred to the retaliation claim in January 2017, and to the defamation claim in August 2017. The trial court sustained the demurrer to the retaliation claim without leave to amend in February 2017, and it sustained the demurrer to the defamation claim with leave to amend in November 2017.

In December 2017, plaintiff filed a second amended complaint that alleged a restated defamation claim, to whichCrimson again demurred. The trial court sustained the demurrer without leave to amend in February 2018.

IV.Summary Judgment/Adjudication

A. Crimson's Motion for Summary Judgment or Summary Adjudication

In July 2017, Crimson filed a motion for summary adjudication of plaintiff's claims for disability discrimination, failure to prevent discrimination, wrongful termination, and unfair competition. Crimson offered the following evidence in support.

In 2014 and 2015, Moore was the human resources manager of Midstream, an affiliate of Crimson and Delta. In that capacity, Moore helped McElroy, then the general manager of Delta's Bakersfield facility, fill the O&M manager position. This was a senior management position with significant supervisory authority.

In October 2014, TRS provided Moore with plaintiff's resume. McElroy was interested in plaintiff because his resume stated he had been the safety director at Kinder Morgan from 2004-2014. McElroy interviewed plaintiff by telephone on October 27, 2014; subsequently, McElroy and Moore separately interviewed plaintiff in-person on October 29 and November 6, 2014.

During his interview with McElroy, plaintiff said he would not relocate his family to Bakersfield, but instead would rent a room in Bakersfield and commute to Los Angeles on the weekends. This concerned McElroy because the O&M manager had emergency response responsibilities. McElroy also learned during the interview that plaintiff did not have experience withthe production of emulsions and road oils. Finally, McElroy had reservations about whether plaintiff had enough rail and crude oil experience to undertake a significant supervisory position at Delta. Despite these concerns, McElroy thought that plaintiff might be a good candidate for the O&M manager position, and he asked Moore to conduct a follow-up interview.

Moore interviewed plaintiff on November 6, 2014. She perceived plaintiff to be "desperate" for employment, which caused her to question whether he was the right candidate for the position. Moore did not discuss plaintiff's medical condition, and she did not offer plaintiff a job. Her practice was to make job offers in writing, to simultaneously seek written authorization to conduct background checks, and to make clear that any offer of employment was contingent on satisfactory conclusion of the background check and of a pre-employment drug and alcohol test. In plaintiff's case, Moore did not provide plaintiff with a written offer letter or a form authorizing a background check.

Following their interviews with plaintiff, McElroy contacted Morones, and Moore contacted Hosler. Morones and Hosler were Kinder Morgan employees with whom McElroy and Moore were acquainted. Morones told McElroy that Kinder Morgan's policy was not to provide employee references, but he stated that Kinder Morgan did not have a "Safety Director" position. Hosler told Moore that he believed plaintiff had been terminated for falsifying his time records. Hosler did not reveal to Moore that plaintiff had any medical conditions or had brought any claims against Kinder Morgan.

After speaking with Hosler, Moore told McElroy she had learned that plaintiff had been terminated from Kinder Morganfor falsifying time records.⁴ She also communicated her concerns about plaintiff's demeanor. A decision was made not to hire plaintiff. McElroy said he made this decision based on several factors, including concerns that plaintiff had not accurately represented his work experience, had been terminated from Kinder Morgan for falsifying time records, did not plan to relocate to Bakersfield, did not have sufficient supervisory experience, and did not have experience in the production of emulsions and road oils.

On November 7, 2014, Moore sent an email to Randy Nodalo at TRS letting him know that Delta had decided not to hire plaintiff. Minutes later, Moore received a voicemail message from plaintiff offering to provide her with a reference. Moore did not respond. The next day, plaintiff sent Moore an email explaining his view of his termination by Kinder Morgan and disclosing that he was a cancer survivor and had been involved in litigation with Kinder Morgan.

Delta ultimately did not fill the O&M manager position. Instead, it eliminated the position and hired an operations manager in April 2015. The person Delta hired as an operations manager had 40 years of experience in the oil and energy industry, had substantial supervisory experience, and resided in Bakersfield.

During their interviews with plaintiff, neither McElroy nor Moore discussed plaintiff's medical condition or claims against Kinder Morgan. They learned about plaintiff's medical condition and claims against Kinder Morgan only after Moore informed TRS that Delta would not be offering plaintiff a job. Thus, the decision not to hire plaintiff for the position with Delta was not made with knowledge of plaintiff's alleged disability.

B. Plaintiff's Opposition to Summary Judgment/Summary Adjudication Motion

Plaintiff opposed the motion for summary judgment/summary adjudication. In support, he...