Foshee v. Mastec Network Sols.
| Decision Date | 12 February 2022 |
| Docket Number | 1:20-cv-00890-AWI-SAB |
| Court | U.S. District Court — Eastern District of California |
| Parties | GREGG LEE FOSHEE JR., Plaintiff, v. MASTEC NETWORK SOLUTIONS, INC., and DOES 1 to 10, Defendants. |
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (DOC. NO. 18)
Plaintiff Gregg Lee Foshee, Jr. (“Foshee”) brings ten causes of action for disability discrimination, racial discrimination and other employment-related wrongdoing against Defendant MasTec Network Solutions, Inc. (“MasTec”) under the California Labor Code, the California Government Code and common law. Doc. No. 1 at 10. MasTec has brought a motion seeking summary judgment on all ten causes of action. Doc. No. 18. The motion has been fully briefed and deemed suitable for decision without oral argument pursuant to Local Rule 230(g). For the reasons set forth below, the motion will be granted in its entirety.
BACKGROUND[1]
MasTec is a telecommunications company that provides turnkey solutions for telecom operators and engages in other telecommunications projects, including work that involves telecommunications towers. Doc. No. 21 at 2:4-8.[2] Foshee is an African American male who worked for MasTec in Northern California during the period relevant to this lawsuit. Id. at 21:8-14. Foshee's organizational superiors during the period relevant to this lawsuit included Miguel Galvez, a project manager; Justin Barrie, an operations manager; and Joseph Ecklind, an operations manager. Doc. No. 23 at 40:2-25, 190.
In March 2019, Foshee, who had previously been a foreman, was promoted to construction manager. Doc. No. 30 ¶ 8.
On April 18, 2019, Foshee did not appear for his scheduled shift. Doc. No. 23 at 47:4-25. He returned to work on April 19, 2019 and gave Galvez a note from an urgent care clinic in Fresno stating: “Gregg was seen in the office on April 18, 2019 for medical reasons, and may return to work on 04/20/2019 with no limitations.” Id. at 50:20-51:15; Doc. No. 29 at 218. Foshee testified that he was diagnosed at the urgent care clinic with a dual ear infection. Doc. No. 23 at 49:3-10.
On June 17, 2019, Foshee stepped down as construction manager and returned to his position as foreman. Doc. No. 23 at 56:11-59:10. In doing so, he sent an email to Ecklind stating: Doc. No. 29 at 220.
On September 25, 2019, Foshee was working in his capacity as foreman on a job for the American Tower Corporation. Doc. No. 23 at 60:18-63:20. A client representative visited the job site in the morning and observed various forms of noncompliance with policy and other requirements. Id. at 191. He reviewed the noncompliance issues with the crew and gave them a warning. Id. He returned to the job site later in the day and saw Foshee in a manlift without a hardhat, at which point the decision was made to shut down the site. Id. In addition, he “observed all crew members without hard hats on or in the vicinity.” Id. The client representative sent MasTec an email setting forth what had happened, as well as photographs of Foshee in the manlift without a hardhat. Id. at 191-194.
Later that day, Ecklind sent Barrie and MasTec's human resources manager for the West Coast, Windy Cox, an email stating that he wanted to put Foshee “on a 60 day [Performance Improvement Plan] for failing to f[o]llow company safety policies.” Doc. No. 29 at 228; Doc. No 23 at 127:6-13, 145:23-146:19. Cox informed Ecklind and Barrie that the safety violations were grounds for termination, Doc. No. 23 at 148:25-155:20, and Ecklind terminated Foshee effective September 30, 2019. Id. at 192. The stated reasons for termination were as follows “As a competent Foreman you have failed to enforce and follow safety protocol by not utilizing proper PPE onsite (Hard Hat, and safety boots) and allowing your Tower team onsite without proper PPE (Hard Hat).” Doc. No. 23 at 192.
Foshee does not dispute the September 25, 2019 safety violations Doc. No. 23 at 60:18-64:13, but contends that he was terminated because of his race; because of disability resulting from his dual ear infection; and because he called attention to unlawful alcohol and drug use at MasTec. He also contends that MasTec failed to provide reasonable accommodations for and otherwise engaged in wrongdoing with respect to his ear infection disability. Based on these allegations, Foshee brings claims for: (i) whistleblower retaliation in violation of California Labor Code §§ 1102.5 and 1102.6; (ii) medical leave discrimination in violation of California Government Code § 12945.2; (iii) medical leave retaliation in violation of California Government Code § 12945.2; (iv) disability discrimination in violation of California Government Code § 12940(a); (v) retaliation for requesting and using accommodations for disabilities in violation of California Government Code § 12940(m); (vi) failure to engage in a timely, good faith interactive process in violation of California Government Code § 12940(n); (vii) failure to reasonably accommodate his disability in violation of California Government Code § 12940(m); (viii) discrimination on the basis of race in violation of California Government Code § 12940(a); (ix) retaliation for opposing violations of California's Fair Employment and Housing Act (“FEHA”) in violation of California Government Code § 12940(h); and (x) wrongful termination in violation of public policy. Doc. No. 1 at 16:1-23:12.
MasTec seeks summary judgment on each of Foshee's claims arguing, in essence, that Foshee was not a whistleblower; his dual ear infection did not rise to the level of disability; and his termination was based solely on the September 25, 2019 safety violations, without consideration of race, disability or other such factors. See Doc. No. 19.
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, [3] summary judgment is appropriate when it is demonstrated that there exists no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); see Fortyune v. Am. Multi-Cinema, Inc., 364 F.3d 1075, 1079-80 (9th Cir. 2004). The moving party bears the burden of establishing the absence of a genuine issue of material fact, generally by “citing to particular parts of materials in the record” such as depositions, interrogatory answers, declarations, and documents. Fed.R.Civ.P. 56(c); see also, Cline v. Indus. Maint. Eng'g & Contracting Co., 200 F.3d 1223, 1229 (9th Cir. 2000) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986)). If the moving party does not meet this burden, “[s]ummary judgment may be resisted and must be denied on no other grounds than that the movant has failed to meet its burden of demonstrating the absence of triable issues.” Henry v. Gill Indus., 983 F.2d 943, 950 (9th Cir. 1993).
If the moving party does meet this burden, the burden then shifts to the opposing party to show a genuine issue of material fact. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986); see also, Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Companies, 210 F.3d 1099, 1103 (9th Cir. 2000). “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
In response to a motion for summary judgment, the non-moving party “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 586; see Liberty Lobby, 477 U.S. at 247-48 (). “Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no ‘genuine issue for trial.' ” Matsushita, 475 U.S. at 587; Liberty Lobby, 477 U.S. at 248 ().
“[A] party opposing a properly supported motion for summary judgment may not rest upon the mere allegations or denials of his pleadings, but ... must set forth specific facts showing that there is a genuine issue for trial.” Liberty Lobby, 477 U.S. at 248 (1986) (quoting First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 288-89 (1968)) (internal quotation marks omitted). If the nonmoving party does not produce enough evidence to create a genuine issue of material fact after the burden has shifted, the moving party is entitled to summary judgment. Fed.R.Civ.P. 56(c); Fritz, 210 F.3d at 1103; Celotex, 477 U.S. at 322.
The Court will address each of Foshee's causes of action in turn.
I.Whistleblower Retaliation in Violation of California Labor Code §§ 1102.5 & 1102.6 (First Cause of Action)
Foshee alleges in the First Cause of Action that MasTec took “adverse employment actions” against him in retaliation for “protected activities” in violation of California Labor Code §§ 1102.5 and 1102.6. Doc. No. 1 at 16:13-16.
Section 1102.5 of the California Labor Code, which “provides whistleblower protections to employees who disclose wrongdoing to authorities, ” Lawson v. PPG Architectural Finishes, Inc., __ P.3d __, 2022 WL 244731, at *2 (Cal. Jan. 27, 2022), states as follows:
An employer, or any person acting on behalf of the employer, shall not retaliate against an employee...
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