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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

KAREN KEIFER,

NO. CIV. S-04-2077 LKK/DAD

Plaintiff,

v. O R D E R

HAMILTON ENGINE SALES, INC.;

DOUG ANDERSON; CRAIG LOWART;

and JOHN McGREW,

Defendants.

 /

Plaintiff, Karen Keifer, brings suit against her former

employer, Hamilton Engine Sales, Inc. and former supervisor, Doug

Anderson (“defendants”) for employment discrimination. Plaintiff

asserts claims for (1) sexual harassment; (2) retaliation in

violation of the California Fair Employment and Housing Act

(“FEHA”); (3) age discrimination; and (4) wrongful termination in

violation of public policy. On October 1, 2004, defendants removed

the action to this Court on the basis of diversity jurisdiction.

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On September 15, 2004, plaintiff dismissed defendants 1

Craig Lowart and John McGrew from the case with prejudice. 

 Undisputed unless otherwise noted. 2

2

Pending before the court is defendants’ motion for summary

judgment. Defendants move for summary judgment on all claims

raised in plaintiff’s complaint. Plaintiff does not oppose 1

summary judgment on the sexual harassment claims, the age

discrimination claim, or the wrongful termination claim against

defendant Anderson. Pl.’s Opp’n at 1:2-8. The court therefor limits

its review to the claims for retaliation and wrongful termination

as to defendant Hamilton Engine Services, and the claim for

retaliation against defendant Anderson. 

I.

FACTS2

A. Hamilton Engine & Plaintiff’s Employment

Hamilton Engine sells and services a wide variety of engine

parts for the agricultural, construction, marine, timber, and

industrial markets. Defs.’ SUF 1. The Company is headquartered

in Portland, Oregon, and employs approximately 16 workers. Defs.’

SUF 2. Hamilton Engine owned and operated a branch office with

approximately seven employees in West Sacramento, California, where

plaintiff worked. Defs.’ SUF 3. Doug Anderson is the Vice

President of Hamilton, and is based in the Portland office. Defs.’

SUF 4. 

Plaintiff was hired as an administrative assistant to work in

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Hamilton's West Sacramento branch on July 17, 1995. Defs.’ SUF 10.

At the times at issue, Craig Lowart was the General Manager of the

West Sacramento Branch. Defs.’ SUF 11. Plaintiff was a clerk and

not a manager or a supervisor. Defs.’ SUF 12. Plaintiff’s

employment with defendants terminated on June 10, 2003. 

B. Plaintiff’s Job Duties 

The parties have different understandings of plaintiff’s job

duties. Plaintiff maintains that her job duties included “release

orders, handled customer credits, handled warranties, did branch

expenses, answered the telephones, handled customer complaints,

kept filed on customers, accurately recorded time cards and sent

time sheets to the Portland office.” Karen Keifer Declaration ¶

5 (“Keifer Decl.”). Plaintiff stated in her declaration that, 

In fulfilling my duties in reference to time cards, my

responsibility was to make sure the time cards were

accurately filled out by employees, and, if not, I would make

corrections to those time cards. For example, if an employee

failed to clock out for lunch, I would determine whether or

not lunch was in fact taken and, if so, change the time card

to reflect that. I would enter the corrected time cards into

the spreadsheet, which I then sent to the corporate office in

Portland.

 Id. ¶ 8. 

Defendants, however, dispute plaintiff’s job responsibilities

with respect to the time sheets. According to defendants,

plaintiff was responsible for entering information from time sheets

into a spreadsheet which was submitted to the corporate office in

Portland. Plaintiff did not have the authority to alter the time

records of employees under any circumstances. If plaintiff noticed

any inaccuracies on a time card, she was to bring it to the

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attention of the manager, Craig Lowart. Defs.’ SUF 14-17. 

C. Plaintiff’s August 28, 2003 Letter to Anderson 

On August 28, 2003 plaintiff wrote defendant Anderson. She

claimed that a male employee, Bo Blakely, sexually harassed her.

Plaintiff stated that Blakely had said he wanted to "spank her butt

to feel how really hard it was", that he wanted "to do" her

daughter. The letter went on to state that each time plaintiff

approached Lowart about the problem, she was told by Lowart to not

call Anderson and that “out [sic] problems will be handled down

here.” She went on to state that problems are never handled and

“I am always made out to look like a troublemaker.” Keifer Decl.,

Ex. 3. 

The allegations contained in the August 28 letter were

investigated and Anderson found that Blakely had acted

inappropriately. Blakely was subsequently terminated. Anderson

Decl. ¶ 7. 

D. Plaintiff’s Relationship with Craig Lowart

In her declaration, plaintiff indicates that she felt that

Craig Lowart, the manager, was not responding to the needs of

employees. He failed to handle problems and stated on several

occasions that plaintiff should not “call corporate about

problems.” Keifer Decl. ¶ 35. Plaintiff also stated that Lowart

had approached her two or three months after the August 28 letter

to Anderson and “informed me, with a smirk on his face, that Doug

Anderson was not happy with me and was probably going to fire me.”

Id. ¶ 38.

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E. The Jinks Time Card & The Events Leading to Plaintiff’s

Termination 

As discussed previously, plaintiff believed that one of her

job responsibilities was to “make sure that the time cards were

accurately filled out by employees, and if not, I would make

corrections to those time cards.” Keifer Decl. ¶ 8. Plaintiff

believed that “intentionally claiming hours not worked or failing

to properly record lunches taken was a violation of the company’s

policy and California labor law.” Id. ¶ 11. Plaintiff believed

that California Labor Code Section 512 required employees to take

lunch periods on a daily basis. 

About one year prior to plaintiff’s departure from the

company, she became aware that Corky Jinks, a fellow employee, was

regularly taking lunch breaks without punching out on his time

card. Plaintiff “regularly informed” her manager, Lowart, “of the

false time cards submitted by Jinks. Lowart would either make the

correction to the time card to correctly reflect hours worked or

would instruct me to make the changes.” Keifer Decl. ¶ 14. Lowart

specifically “instructed me that if I knew for a fact that Jinks

had taken a lunch but had not recorded it on his time card, I was

to make that change to the time card.” Id. ¶ 15; see, also, Keifer

Depo. 151:12-25; 154:5-15.

Plaintiff asserts that Lowart failed to take any action and

continually ignored her concerns. Plaintiff thereafter contacted

Hamilton’s Controller, Philip DiFabio, about the “false time cards

being submitted by Jinks.” Keifer Decl. ¶ 18. DiFabio, who was

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located in the Portland office, told plaintiff that if she “knew

for a fact that Corky refused to clock out for lunch and that he

was taking a lunch, that I was to write it in.” Keifer Depo. at

152:16-21. DiFabio then checked with Anderson and Anderson told

plaintiff that “it was being handled.” Id. at 153:1-2.

In May of 2003, Lowart told plaintiff that “company employees

had never clocked out for lunch.” Plaintiff told Lowart that she

thought he was wrong and showed him records from previous years

when every employee clocked out for lunch. Lowart did not sign

Jinks’ May 2003 time card which plaintiff had altered to reflect

when Jinks took lunch. Plaintiff submitted the time card anyway.

Id. at 155:8-23.

Plaintiff maintains that although defendants “claim that I was

being fired for altering Jinks’ time card for the May 31, 2003

period, I had altered Jinks’ time cards on numerous occasions prior

to that date... these changes were not objected to by anyone.”

Kiefer Decl. ¶ 19. Attached to plaintiff’s declaration are time

sheets from pay periods prior to May 2003 which plaintiff had

altered.

Defendants present a different version of the facts.

Defendants maintain that the plaintiff’s job responsibilities did

not include altering time sheets and that plaintiff knew that

Lowart had the final say on approving time sheets. Defs.’s SUF 47-

48. Lowart had authorized Jinks’ “on-duty meal period because the

branch was short staffed at that time and Jinks was therefor needed

to remain in the office to take sales calls during the lunch

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period.” Defs.’ SUF 49. Defendants also point out that plaintiff

knew the company policy which forbid employees from alerting the

time sheets of other employees. In May of 2003, plaintiff

approached Lowart again about Jinks’ time sheet and Lowart told her

to leave Jinks’ time card “as it is.” Defs.’ SUF 53. Nonetheless,

plaintiff “changed Jinks time card by subtracting about 5.5 hours

of overtime worked during the last pay period in May 2003.” Defs.’

SUF 54. 

On June 5, 2003, Jinks received his paycheck for the last two

weeks of May and complained to Lowart that he was short about 5.5

hours of overtime. When questioned about it, plaintiff told Lowart

that she had in fact made the changes to Jinks’ card but believed

she had been given permission by DiFabio to fill in the correct

times. Keifer Dep. At 156:14-20. 

Anderson, having been appraised of the situation, paid Jinks

for his time and apologized. Anderson Decl. ¶ 10. Anderson

concluded that plaintiff violated company policy by “altering

Jinks’ time card.” Moreover, “by reducing the number of hours for

which Jinks was paid to be below the number of hours Jinks claims

to have worked, [plaintiff] exposed the company to liability for

failure to pay Jinks the wages to which he was entitled.” Id. ¶

11. 

On June 10, 2003, Anderson wrote to plaintiff. He informed

plaintiff that she had violated company policy. He also explained

that her job performance was “well below expectations” and that she

continued to make “the same mistakes day after day, causing delays

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and costing our company significant sums of money.” The letter

concluded by informing plaintiff that her employment with

Hamilton’s was terminated and that the termination was effective

immediately. Kiefer Decl., Ex. 9. 

III.

SUMMARY JUDGMENT STANDARD UNDER FED. R. CIV. P. 56

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(c); See also Adickes v. S.H. Kress & Co., 398 U.S. 144,

157 (1970); Secor Limited v. Cetus Corp., 51 F.3d 848, 853 (9th

Cir. 1995).

Under summary judgment practice, the moving party

[A]lways bears the initial responsibility of

informing the district court of the basis for

its motion, and identifying those portions of

"the pleadings, depositions, answers to

interrogatories, and admissions on file,

together with the affidavits, if any," which

it believes demonstrate the absence of a

genuine issue of material fact.

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). "[W]here the

nonmoving party will bear the burden of proof at trial on a

dispositive issue, a summary judgment motion may properly be made

in reliance solely on the 'pleadings, depositions, answers to

interrogatories, and admissions on file.'" Id. Indeed, summary

judgment should be entered, after adequate time for discovery and

upon motion, against a party who fails to make a showing sufficient

to establish the existence of an element essential to that party's

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case, and on which that party will bear the burden of proof at

trial. See id. at 322. "[A] complete failure of proof concerning

an essential element of the nonmoving party's case necessarily

renders all other facts immaterial." Id. In such a circumstance,

summary judgment should be granted, "so long as whatever is before

the district court demonstrates that the standard for entry of

summary judgment, as set forth in Rule 56(c), is satisfied." Id.

at 323.

If the moving party meets its initial responsibility, the

burden then shifts to the opposing party to establish that a

genuine issue as to any material fact actually does exist.

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

586 (1986); See also First Nat'l Bank of Ariz. v. Cities Serv. Co.,

391 U.S. 253, 288-89 (1968); Secor Limited, 51 F.3d at 853. 

In attempting to establish the existence of this factual

dispute, the opposing party may not rely upon the denials of its

pleadings, but is required to tender evidence of specific facts in

the form of affidavits, and/or admissible discovery material, in

support of its contention that the dispute exists. Fed. R. Civ.

P. 56(e); Matsushita, 475 U.S. at 586 n.11; See also First Nat'l

Bank, 391 U.S. at 289; Rand v. Rowland, 154 F.3d 952, 954 (9th Cir.

1998). The opposing party must demonstrate that the fact in

contention is material, i.e., a fact that might affect the outcome

of the suit under the governing law, Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986); Owens v. Local No. 169, Assoc. of

Western Pulp and Paper Workers, 971 F.2d 347, 355 (9th Cir. 1992)

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(quoting T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n,

809 F.2d 626, 630 (9th Cir. 1987), and that the dispute is genuine,

i.e., the evidence is such that a reasonable jury could return a

verdict for the nonmoving party, Anderson, 477 U.S. 248-49; see

also Cline v. Industrial Maintenance Engineering & Contracting Co.,

200 F.3d 1223, 1228 (9th Cir. 1999).

In the endeavor to establish the existence of a factual

dispute, the opposing party need not establish a material issue of

fact conclusively in its favor. It is sufficient that "the claimed

factual dispute be shown to require a jury or judge to resolve the

parties' differing versions of the truth at trial." First Nat'l

Bank, 391 U.S. at 290; See also T.W. Elec. Serv., 809 F.2d at 631.

Thus, the "purpose of summary judgment is to 'pierce the pleadings

and to assess the proof in order to see whether there is a genuine

need for trial.'" Matsushita, 475 U.S. at 587 (quoting Fed. R.

Civ. P. 56(e) advisory committee's note on 1963 amendments); see

also International Union of Bricklayers & Allied Craftsman Local

Union No. 20 v. Martin Jaska, Inc., 752 F.2d 1401, 1405 (9th Cir.

1985).

In resolving the summary judgment motion, the court examines

the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any. Rule

56(c); See also In re Citric Acid Litigation, 191 F.3d 1090, 1093

(9th Cir. 1999). The evidence of the opposing party is to be

believed, see Anderson, 477 U.S. at 255, and all reasonable

inferences that may be drawn from the facts placed before the court

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must be drawn in favor of the opposing party, see Matsushita, 475

U.S. at 587 (citing United States v. Diebold, Inc., 369 U.S. 654,

655 (1962) (per curiam)); See also Headwaters Forest Defense v.

County of Humboldt, 211 F.3d 1121, 1132 (9th Cir. 2000).

Nevertheless, inferences are not drawn out of the air, and it is

the opposing party's obligation to produce a factual predicate from

which the inference may be drawn. See Richards v. Nielsen Freight

Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff'd, 810 F.2d

898, 902 (9th Cir. 1987).

Finally, to demonstrate a genuine issue, the opposing party

"must do more than simply show that there is some metaphysical

doubt as to the material facts. . . . Where the record taken as a

whole could not lead a rational trier of fact to find for the

nonmoving party, there is no 'genuine issue for trial.'"

Matsushita, 475 U.S. at 587 (citation omitted).

IV.

ANALYSIS

A. Retaliation Claim against Defendant Hamilton and Defendant

Anderson 

Plaintiff claims that defendants’ actions towards her

constituted unlawful retaliation in violation of the provisions of

the California Fair Employment and Housing Act (“FEHA”), section

12940(h), which forbids employers from retaliating against

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Section 12940(h) makes it an unlawful employment practice 3

for an employer “to discharge, expel, or otherwise discriminate

against any person because the person has opposed any practices

forbidden under this part or because the person has filed a

complaint, testified, or assisted in any proceeding under this

part.” 

12

employees who have acted to protect the rights afforded by FEHA.3

Specifically, plaintiff claims she was retaliated against for her

August 28, 2002 letter in which she alleged that she had been the

victim of sexual harassment. 

Lawsuits claiming retaliatory employment termination in

violation of FEHA are analogous to federal Title VII claims, and

are evaluated under federal law interpreting Title VII cases. Flait

v. North American Watch Corp., 3 Cal. App. 4th 467, 475-476 (Cal.

App. 2 Dist. 1992).

The elements of Title VII and FEHA claims require that (1)

plaintiff establish a prima facie case of retaliation, (2)

defendant articulate a legitimate nonretaliatory explanation for

its acts, and (3) plaintiff show that the defendant's proffered

explanation is merely a pretext for the illegal termination.

Yanowitz v. L'Oreal USA, Inc., 36 Cal. 4th 1028, 1042 (2005)

(citations omitted).

For the reasons discussed herein, plaintiff fails to establish

one of the key elements required for the showing of a prima facie

case. 

1. Prima Facie Case

To establish a prima facie case of retaliation under FEHA, a

plaintiff must show that (1) he or she engaged in a "protected

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activity," (2) the employer subjected the employee to an adverse

employment action, and (3) a causal link existed between the

protected activity and the employer's action. Yanowitz, 36 Cal.

4th at 1042. “[T]he requisite degree of proof necessary to

establish a prima facie case for Title VII on summary judgment is

minimal and does not even need to rise to the level of a

preponderance of the evidence.'” Villiarimo v. Aloha Island Air,

Inc., 281 F.3d 1054, 1061-62 (9th Cir. 2002) (citations omitted).

Plaintiff asserts that she engaged in protected activity when

she wrote to Anderson in August 2002. In that letter, plaintiff

complained of being sexually harassed by a co-worker. Plaintiff

further maintains that she suffered an adverse employment action,

i.e., she was fired, and that there is a casual link between her

complaint in August of 2002 and her termination of employment in

June of 2003. 

Neither party takes issue with the two of the three elements

of the prima facie case, namely, that plaintiff engaged in a

protected activity and that she suffered an adverse employment

action. The issue the court must resolve is whether there is a

sufficient causal link between the protected activity and the

adverse employment action.

a. Causation 

Causation sufficient to establish the third element of the

prima facie case may be inferred from circumstantial evidence, such

as the employer's knowledge that the plaintiff engaged in protected

activities and the proximity in time between the protected action

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and the allegedly retaliatory employment decision. Yartzoff v.

Thomas, 809 F.2d 1371, 1376 (9th Cir. 1987).

Recently, this Circuit has reiterated that a plaintiff must

show “by a preponderance of the evidence that engaging in the

protected activity was one of the reasons for [her] firing and that

but for such activity [she] would not have been fired.” Villiarimo,

281 F.3d at 1065.

In the case at bar, plaintiff wrote to Anderson in August

2002. She was fired ten months later, in June of 2003. Defendants

assert that the time laps is so great that there is insufficient

temporal proximity between the protected activity and the adverse

employment action. For the reasons discussed herein, the court

agrees.

Causation can be inferred from timing alone where an adverse

employment action follows on the heels of protected activity.

Villiarimo, 281 F.3d 1054, 1065 (9th Cir. 2002). In Villiarimo,

the Circuit held that a six month time laps between the protected

activity and an adverse employment action is simply too long to

give rise to an inference of causation. The Villiarimo court cited

other decisions in which the temporal proximity was insufficient:

Filipovic v. K & R Express Sys., Inc., 176 F.3d 390, 398-99 (7th

Cir. 1999) (four months too long); Adusumilli v. City of Chicago,

164 F.3d 353, 363 (7th Cir. 1998) (eight months too long); Davidson

v. Midelfort Clinic, Ltd., 133 F.3d 499, 511 (7th Cir. 1998) (five

months too long); Conner v. Schnuck Markets, Inc., 121 F.3d 1390,

1395 (10th Cir. 1997) (four months too long)). See, also, Manett

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v. Bank of America, 339 F.3d 792, 802 (9th Cir. 2003) (“While

courts may infer causation based on the ‘proximity in time between

the protected action and the allegedly retaliatory employment

decision,’ such an inference is not possible in this case because

approximately nine months lapsed between the date of Manatt's

complaint and the Bank's alleged adverse decisions.”). 

There is no bright line rule as to the amount of time required

to show temporal proximity in these types of situations. The Ninth

Circuit has cautioned that a “specified time period cannot be a

mechanically applied criterion. A rule that any period over a

certain time is per se too long (or, conversely, a rule that any

period under a certain time is per se short enough) would be

unrealistically simplistic.” Coszalter v. City of Salem, 320 F.3d

968, 977-78 (9th Cir. 2003). That said, as the Villiarimo court

points out, a review of decisions by other courts reveals that as

a general matter, an elapse of ten months is simply too attenuated.

Villiarimo, 281 F.3d at 1065.

Although the requisite degree of proof to establish a prima

facie case is minimal, Villiarimo, 281 F.3d at 1061-62, plaintiff

simply fails to set forth facts that show the necessary causation

between the August 2002 letter and the termination of her

employment in June 2003. Plaintiff engaged in protected activity

in August 2003 and was terminated ten months later. She does not

claim to have engaged in any other protected activity in between

August of 2002 and June of 2003.

Plaintiff, in her opposition, urges the court to consider the

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fact that two to three months after she wrote to Anderson, Craig

Lowart informed plaintiff that Doug Anderson was not happy with her

and was probably going to fire her. Pl.’s Opp’n at 8. In drawing

all reasonable inferences in favor of plaintiff, which the court

must do, this statement does not compensate for the fact that ten

months transpired between the protected activity and the adverse

inference. In other words, even when the court draws all

reasonable inferences in favor of plaintiff and construes the

Lowart comment as an extension of plaintiff’s protected activity,

this comment was made at the very least seven months prior to the

time plaintiff was fired. 

In short, the temporal proximity present in this case is

insufficient to establish the causation element of plaintiff’s

prima facie case. “[T]iming alone will not show causation in all

cases; rather, ‘in order to support an inference of retaliatory

motive, the termination must have occurred fairly soon after the

employee's protected expression.” ’ Villiarimo, 281 F.3d at 1065.

Here, even when drawing all reasonable inferences in favor of

plaintiff, the termination did not occur “fairly soon” after the

protected expression. 

The court concludes, therefor, that plaintiff has failed to

establish one of the three elements necessary to put forth a 

a prima facie case of retaliation. As such, summary judgment is

GRANTED to defendants on the retaliation claim. 

B. Wrongful Termination in Violation of Public Policy 

Defendants also seek summary judgment on plaintiff’s claim of

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wrongful termination in violation of public policy against

defendant Hamilton Engine Services. Plaintiff maintains that her

claim of wrongful discharge in violation of public policy “lie

under two different scenarios: (1) retaliation based on her

complaints of discrimination pursuant to government code section

20940 [FEHA]; and (2) [plaintiff’s] complaint of illegal conduct

in violation of the Labor Code.” Pl.’s Opp’n at 12.

Under California law an employer may be held liable for

wrongful termination if it discharges an employee in contravention

of fundamental public policy. Tameny v. Atlantic Richfield Co., 27

Cal. 3d 167, 177 (1980); Green v. Ralee Engineering Company, 19

Cal. 4th 66 (1998). 

In order to sustain a claim of wrongful discharge in violation

of fundamental public policy, plaintiff must prove several

elements. First, the public policy must be supported by either

constitutional or statutory provisions. Second, it must be

“public” in the sense that it “inures to the benefit of the public”

rather than serving merely the interests of the individual. Third,

the policy must be articulated at the time of discharge. Fourth,

the policy must be “fundamental” and “substantial.” Stevenson v.

Superior Court, 16 Cal. 4th 880, 889, (1997); see also Green, 19

Cal. 4th at 76. 

A policy is "fundamental" when it is "carefully tethered" to

and "delineated in constitutional or statutory provisions," which

involves a duty affecting the public at large, rather than one owed

to or imposed solely upon the parties to a dispute and is "'well

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established' " and "sufficiently clear" to the employer at the time

of the discharge. Gantt v. Sentry Insurance, 1 Cal. 4th 1083, 1090

(1992) (overruled on other grounds) (citations omitted). 

Tort claims for wrongful discharge typically arise when an

employer retaliates against an employee for “(1) refusing to

violate a statute, (2) performing a statutory obligation, (3)

exercising a statutory right or privilege , or (4) reporting an

alleged violation of a statute of public importance.” Turner v.

Anheuser-Busch, Inc., 7 Cal. 4th 1238, 1256 (1994) (citations

omitted).

Plaintiff asserts two grounds for the wrongful discharge. The

court addresses each in turn.

1. Wrongful Discharge Premised on FEHA Violation 

Plaintiff’s argument here appears to be that she was

retaliated against for “exercising a statutory right or privilege”

that being, reporting sexual discrimination, a violation under

FEHA. As defendants properly point out in their reply brief,

“while a violation of FEHA can support a claim of wrongful

termination in violation of public policy, the public policy claim

is only as valid as the claim brought directly under FEHA.” Defs.’

reply at 9. The court agrees that the public policy claim is

derivative of the FEHA claim. 

For the reasons discussed infra, plaintiff cannot establish

a prime facie case of retaliation in violation of FEHA. Therefor,

she cannot similarly establish a violation of a public policy as

articulated through FEHA. In other words, to the extent that

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plaintiff cannot show a prima facie case under FEHA, she cannot

show that she was wrongly terminated on the grounds of a violation

of public policy premised on FEHA. See e.g., Sanders v. Arneson

Products, Inc., 91 F.3d 1351 (9th Cir. 1996) (Under California law,

former employee's state law claim for tortious discharge in

violation of public policy could not be maintained, where employee

failed to show that employer violated ADA); Jennings v. Marralle,

8 Cal. 4th 121, 135-136 (1994) (no public policy claim against

employers who have not violated the law). 

2. Wrongful Discharge Premised on Reporting Time Card

Discrepancies 

Plaintiff’s alternative theory is that she was wrongfully

discharged in violation of public policy for having complained of

illegal conduct in violation of the Labor Code. Specifically,

plaintiff bases her allegations on Labor Code Section 512, 

which provides pertinent part that: 

An employer may not employ an employee for a work period of

more than five hours per day without providing the employee

with a meal period of not less than 30 minutes, except that

if the total work period per day of the employee is no more

than six hours, the meal period may be waived by mutual

consent of both the employer and employee.

Cal. Labor Code, § 512.

Plaintiff appears to argue that she was fired for reporting

violations of the Labor Code to her supervisors and that reporting

these violations is important because “the Labor Code provisions

regarding wage and hours involves a strong public policy.” Pl.’s

Opp’n at 12. Defendants maintain that plaintiff’s claim cannot

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be sustained. For the following reasons, the court agrees. 

In her declaration submitted in support of her opposition to

the motion for summary judgment, plaintiff explains that she

believed that “claiming hours not worked or failing to properly

record lunches taken was a violation of the company’s policy and

California labor law.” Keifer Decl. ¶ 11. Plaintiff observed Corky

Jinks “falsify his time sheet by claiming that he worked during

lunch, even when I was personally aware that he had not worked

during his lunch break.” Id. ¶ 12. She thereafter reported what

she believed to be violations of the Labor Code Section 512 to her

supervisors. Under this theory, plaintiff has not established a

triable issue of fact that defendants terminated her in

contravention of public policy.

As noted above, to maintain a cause of action for wrongful

termination on this basis, plaintiff is required to establish that

her report (of an alleged statutory violation) involved a

significant public interest. A claim of wrongful discharge in

violation of public policy cannot be based on private interests

that do not directly impact the public. See Turner v.

Anheuser-Busch, Inc., 7 Cal. 4th 1238, 1256-57 (1994) (discharge

for exposing violations of internal operating practices and a

collective bargaining agreement did not contravene public policy).

In order to prevail on this claim, plaintiff must establish that

the basis of her termination contravened a fundamental public

policy that “inures to the public at large rather than to a

particular employer or employee.” Rojo v. Kliger, 52 Cal. 3d 65,

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91 (1990). 

In the case at bar, plaintiff’s complaints to management about

the violation of the labor code serves the private interests of

defendants but not the interests of the public at large. By

plaintiff’s own statements, she reported the Jinks time card issue

to management not because her reporting of it furthered the purpose

of the labor code, but because she was concerned that defendants

were overpaying Jinks. See Keifer Decl. ¶ 11-14.

This case presents facts similar to those at issue in American

Computer v. Superior Court. There, an employee who reported

suspicions of embezzlement to his employer and was subsequently

discharged did not have a cause of action for wrongful termination.

213 Cal. App. 3d 664 (Cal. App. 4 Dist. 1989). The court determined

that while plaintiff's report might benefit the public by

preventing or uncovering the commission of a felony and “thereby

serve the laudable goal of preventing crime,” this public benefit

was not “weighty enough to give rise to a claim for wrongful

discharge.” Id. at 668. 

Similarly, in Foley v. Interactive Data Corp., the California

Supreme Court held that an employer's discharge of an employee,

after he reported to his employer that his new supervisor was under

suspicion for embezzlement at another company, was insufficient to

support a claim for wrongful termination. 47 Cal. 3d 654, 662

(1988). The court explained that, “when the duty of an employee to

disclose information to his employer serves only the private

interest of the employer, the rationale underlying the Tameny cause

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 Interestingly, defendants dispute the extent it was even in 4

their interest to have plaintiff report these alleged Labor Code

violations. Yet, this dispute is, for the purposes of this

motion, immaterial. Under the facts alleged by the parties, at the

very least, plaintiff’s reporting of the Jinks time card benefitted

no one (defendants’ contention). At most, plaintiff’s reporting of

the Jinks time card violations benefitted her employer (plaintiff’s

contention). Under none of the versions of facts presented, can

it be argued that plaintiff’s reporting of the time card issue

benefitted the public at large. 

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of action is not implicated.” Foley, 47 Cal. 3d at 671; see also

Turner, 7 Cal. 4th at 1256-57 (1994) (discharge for exposing

violations of internal operating practices and a collective

bargaining agreement did not contravene public policy). 

The case law is clear that the report of alleged rule breaking

by an employee to an employer must be of the type that goes beyond

merely protecting the employer's interest; the report must also

implicate some broader public interest. Here, plaintiff has

failed to tender any evidence to suggest that her reporting of the

labor code violations implicated a broader public interest.4

Plaintiff reporting to her supervisor that Jinks was not recording

the time he took for lunch on his time sheet was, at most,

benefitting her employer and certainly did not rise to the level

of serving the interests of the public. In this case, as in

Foley, American Computer, and Turner, plaintiff’s reports may have

uncovered wrongful conduct. However, the benefit that might inure

to the public as a result of reporting that Jinks did not account

for his lunch breaks is simply too attenuated to support

plaintiff’s claim for wrongful termination in violation of public

policy. 

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In short, plaintiff fails to establish the existence of a

factual dispute which would preclude summary judgment as to this

claim. Therefor, the court finds that defendants are entitled to

summary judgment as to plaintiff’s claim for wrongful discharge in

violation of public policy. 

V.

CONCLUSION 

Defendant’s motion for summary judgment is GRANTED. 

IT IS SO ORDERED. 

DATED: September 13, 2006.

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