Mario Perugini v. Univar USA, Inc

Northern District of California, cand-4:2015-cv-03723

ORDER by Judge Yvonne Gonzalez Rogers denying {{42}} Motion for Partial Summary Judgment.

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3 1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 6 MARIO PERUGINI, an individual, Case No. 15-cv-03723-YGR 7 Plaintiff, ORDER DENYING DEFENDANT UNIVAR USA, INC.'S MOTION FOR PARTIAL SUMMARY 8 v. JUDGMENT 9 UNIVAR USA INC., a corporation; & Does 1 RE: DKT. NO. 42 10 through 25, inclusive, 11 Defendants. Northern District of California 12 United States District Court Plaintiff Mario Perugini ("Perugini") brings this action against defendant Univar USA, Inc. 13 ("Univar" or "Company") alleging claims for wrongful termination and violations of California 14 Labor Code sections 1102.5(b), 6310, and 98.6. Univar has filed a Motion for Partial Summary 15 Judgment on Perugini's claim for punitive damages on the grounds that no managing agent acted 16 with malice on its behalf in the instant case. (Dkt. No. 42.) 17 Having carefully considered the papers submitted, the arguments of the parties at the 18 hearing, the admissible evidence, and the pleadings in this action, and for the reasons set forth 19 below, the motion is DENIED. 20 I. BACKGROUND 21 A. Statement of Issues 22 This motion raises two issues related to punitive damages. Under California law, Univar 23 may only face liability for punitive damages if one of its officers, directors, or managing agents 24 acted wrongfully in terminating Perugini. Cal. Civ. Code § 3294(b). The parties agree that the 25 three supervisors were neither officers nor directors, but dispute whether they were Univar's 26 managing agents. Thus, the first issue centers on whether a genuine issue of material fact exists as 27 to whether Univar employees Albert Burruss, Frank Murphy, and Aaron Adams were "managing 28 agents" under California Civil Code section 3294. Next, Univar may only be held liable for 3 1 punitive damages if its managing agent acted with "oppression, fraud, or malice." Id. Thus, Univar 2 claims that the evidence does not support such a finding as a matter of law. 3 B. Summary of Facts 4 The relevant facts given the stated issues are as follows. On April 8, 2015, Univar 5 terminated Mario Perugini's employment as a truck driver. (Declaration of Albert Burruss, Dkt. No 6 42-4, ("Burruss Decl.") ¶ 24.) Perugini had worked for Univar since September 2012 out of the 7 Company's facility in Pittsburg, California, one of two facilities making up Univar's "Redwood 8 City Branch." (Declaration of Aaron Adams, Dkt. No. 42-2 ("Adams Decl.") ¶ 4.) Univar 9 provides services related to chemical products and employs approximately 6,000 individuals in the 10 United States and 9,000 individuals worldwide. (Plaintiffs' Response to Univar's Separate 11 Statement and admissible evidence cited therein, Dkt. No. 43-1, Defendant's Undisputed Material 12 Fact ("DUF") 6.) The Redwood City Branch operates under one of Univar's three business groups, Northern District of California United States District Court 13 the Industrial Chemicals Business Group ("ICBG"). (DUF 5.) Univar's ICBG maintains 14 approximately 100 branches in the U.S, some of which have additional satellite offices. (DUF 7.) 15 Two main events preceded Perugini's termination: 16 1. Perugini and Others Complain to HR Regarding Unpaid Wages 17 First, in December 2014, Perugini and two other employees reported a payroll issue to 18 supervisor Brian Wills and requested unpaid wages. (Decl. of Jason Allen ("Allen Decl."), Dkt. 19 No. 42-5, ¶ 3 and Ex. A ("Perugini Depo.") at 73:15-23.) All three had been working the night 20 shift, which meant that they were supposed to receive their regular hourly base rate of pay plus an 21 additional $1.50 per hour shift-differential rate. (Adams Decl. ¶ 18; Declaration of Frank Murphy, 22 Dkt. No. 42-3 ("Murphy Decl.") ¶ 10; Perugini Depo. at 71:19-72:14.) Perugini reported the 23 unpaid wages to his supervisors in December 2014, January 2015, and February 2015. On 24 February 27, 2015 when Univar had still not paid him, he complained and told Wills that he would 25 go to the labor board if the matter was not resolved in a week. (Plaintiff's Response to Univar's 26 Separate Statement, Dkt. No. 43-1, Plaintiff's Additional Facts ("PAF") and evidence cited therein, 27 Fact 45.) Wills informed District Operations Manager Frank Murphy of the threat, and Murphy 28 informed Regional Human Resources ("HR") Director Aaron Adams. (PAF 46, 47.) 2 3 1 In early March 2015, Albert Burruss began to serve as Branch Operations Manager at the 2 Redwood City Branch, and Murphy instructed him to handle the payroll issue. (Burruss Decl. ¶ 3 10.) Burruss apparently understood the "sensitivity" of the issue, as he described in an email to 4 payroll specialist Yvonne Borg, copying Murphy and another supervisor. (Declaration of Joseph 5 Clapp in Opposition to Motion ("Clapp Decl."), Dkt. No. 43-2, Ex. "Murphy Depo." at 81:10-13 6 and Ex. 10.)1 On March 5, Burruss met with the three complaining employees to discuss the 7 payroll issue. (Id. ¶ 11.) Perugini testified that Burruss told Perugini in a "nasty" way that he 8 "would get his money." (Clapp Decl., Ex. "Perugini Depo." at 78:4-22.) On March 9, Univar paid 9 Perugini and the others their owed compensation. (Burruss Decl. ¶ 11.) 10 2. Elbowing Incident Triggering Termination 11 A month later, in early April 2015, employee Jason Buslett reported to Univar that Perugini 12 harassed and struck him. On April 2, Buslett first reported to the Univar HR hotline that Perugini Northern District of California United States District Court 13 had made a harassing comment to him that day. (DUF 34.) Specifically, Buslett stated that, while 14 sitting at a table with Perugini and two others, Perugini made a comment about a hypothetical 15 gunman at the DMV. Perugini then made a gesture toward Buslett, in an apparent reference to the 16 earlier November 2014 incident for which Buslett was disciplined as a result of Perugini's 17 reporting.2 (Perugini Depo. at 20:8-22:11; Allen Decl., ¶ 5 and Ex. C ("Buslett Depo.") at 89:1- 18 90:1). By the time Buslett arrived at work the following morning, April 3, Perugini was aware that 19 Buslett had reported his conduct. (DUF 35.) According to Buslett, Perugini then elbowed him 20 with enough force to cause a bruise. Buslett testified that branch manager Burruss was standing 21 four feet away from him when Perugini struck. (Clapp Decl. ¶ 5, Ex. "Buslett Depo." at 104:14- 22 15.) Buslett reported the incident to the HR department, which notified branch manager Burruss 23 1 Defendant's claim that Burruss did not know of Perugini's February 27, 2015 threat to 24 inform the labor board of the unpaid wages does not eliminate the possibility that he could have 25 acted with malice in terminating Perugini for making internal complaints about his unpaid wages. 26 2 In November 2014, Perugini and three other employees reported to HR that employee 27 Jason Buslett had threatened to bring a weapon to work if he was not given a work shift he desired. Following an investigation, Univar disciplined Buslett for making the comment. (Murphy Decl. ¶¶ 28 8-9; "Buslett Depo." at 72:4-73:16.) 3 3 1 and director Adams. (Buslett Depo. at 91:2-91:11; Adams Decl. ¶ 23 & Ex. B; Burruss Decl. ¶¶ 2 12-15.) When transportation supervisor Gary Lloyd asked Perugini about the incident that day, 3 Perugini denied striking Buslett, stating that he and Buslett only "brushed jackets" as they were 4 walking in the same direction. (DUF 37; Perugini Depo. at 51:15-52:22.) Burruss referred to this 5 as the "chicken wing" incident. (Burruss Depo. at 60:19-23; see also Plaintiff's Opposition, Dkt. 6 No. 43, at 4.) Lloyd informed Perugini that he was suspended. (Perugini Depo. at 64:16-21.) 7 Burruss proceeded to conduct an investigation that involved speaking to Buslett and asking 8 him to send a written report. (Burruss Depo. at 63:20-64:1, 68:2-3 and Ex. 12.) Buslett provided to 9 Burruss a photograph purporting to show his bruise marks. (Burruss Decl. ¶ 19 and Exs. B-C.)3 10 Perugini testified that Burruss did not interview him, though Burruss testified otherwise. (Perugini 11 Depo. at 64:16-23; Burruss Depo. at 59:15-60:4.) Burruss testified that he did not interview other 12 potential witnesses to the "chicken wing" incident or document any interviews. (Burruss Depo. at Northern District of California United States District Court 13 68:10-22.) Adams described at deposition that the Company's "policy" was to interview potential 14 witnesses and document such interviews. (Clapp Decl. Ex. "Adams Depo" at 123:5-12.) 15 3. Burruss Terminates Perugini 16 On April 6, Burruss decided to fire Perugini. (DUF 1; Burruss Decl. ¶ 20.) Burruss 17 consulted with both Murphy and Adams on this decision, but the decision was his. (Murphy Decl. 18 ¶¶ 14-16; Burruss Decl. ¶ 21.) On April 7, Burruss advised Murphy and Adams that he based the 19 termination on his belief that Perugini had struck Buslett given: (i) Buslett's allegations; (ii) the 20 existence of Perugini's motive to retaliate against Buslett; (iii) the photographic evidence of a 21 bruise provided by Buslett; and (iv) Perugini's admission of physical contact. (DUF 40, 41.) 22 Burruss testified that the Company had a "no tolerance" policy for violence. (Clapp Decl., Ex. 23 "Burruss Depo." at 68:10-22.)4 Murphy and Adams agreed with Burruss' decision to terminate 24 Perugini. (DUF 2, 3.) Burruss terminated Perugini on April 8. (Burruss Decl. ¶ 24.) 25 26 3 Perugini disputes that the photograph shows a bruise. (DUF 38 and Perugini's response.) 27 Given the pictures submitted, the Court finds a dispute exists as to whether the pictures show any bruise. 28 4 The record does not contain any written "no tolerance" policy. 4 3 1 II. APPLICABLE STANDARD 2 A. Legal Framework 3 Summary judgment is appropriate when no genuine dispute as to any material fact exists 4 and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). Any party 5 seeking summary judgment bears the initial burden of identifying those portions of the pleadings 6 and discovery responses that demonstrate the absence of a genuine issue of material fact. Celotex 7 Corp. v. Catrett, 477 U.S. 317, 323 (1986). Material facts are those that might affect the outcome 8 of the case. Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 248 (1986). A dispute as to a material 9 fact is "genuine" if sufficient evidence exists for a reasonable jury to return a verdict for the 10 nonmoving party. Id. 11 On an issue where the nonmoving party will bear the burden of proof at trial, as here, the 12 moving party can prevail merely by pointing out to the district court that there is an absence of Northern District of California United States District Court 13 evidence to support the nonmoving party's case. Celotex, 477 U.S. at 324-25. If the moving 14 party meets its initial burden, the opposing party must then set out specific facts showing a 15 genuine issue for trial in order to defeat the motion. Anderson, 477 U.S. 242, 250; Soremekun v. 16 Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007); see also Fed. R. Civ. P. 56(c), (e). 17 On summary judgment, the plaintiff need not prove his case, but the higher clear and 18 convincing evidentiary standard for punitive damages must still be taken into account because the 19 plaintiff ultimately must be able to meet that standard at trial. See Spinks v. Equity Residential 20 Briarwood Apartments, 171 Cal. App. 4th 1004, 1053 (2009). Still, "summary judgment 'on the 21 issue of punitive damages is proper' only 'when no reasonable jury could find the plaintiff's 22 evidence to be clear and convincing proof of malice, fraud or oppression.'" Id. (citation omitted). 23 When deciding a summary judgment motion, "the court does not make credibility 24 determinations or weigh conflicting evidence." Soremekun, 509 F.3d at 984. Instead, the court 25 must view the evidence in the light most favorable to the nonmoving party and draw all justifiable 26 inferences in its favor. Anderson, 477 U.S. at 255. 27 // 28 // 5 3 1 B. California Legal Framework on Punitive Damages 2 1. Law Regarding Managing Agents 3 Under California law, for a breach of a non-contractual duty, punitive damages are available 4 "where it is proven by clear and convincing evidence that the defendant has been guilty of 5 oppression, fraud, or malice." Cal. Civ. Code § 3294(a). An employer is not liable for punitive 6 damages based upon the conduct of an employee unless the employer: had advance knowledge of 7 the employee's unfitness "and acted with conscious disregard of the rights or safety of others"; 8 "authorized or ratified the wrongful conduct"; or was "personally guilty of oppression, fraud, or 9 malice." Id. § 3294(b). Furthermore, if the employer is a corporation, "the advance knowledge and 10 conscious disregard, authorization, ratification, or act of oppression, fraud, or malice must be on the 11 part of an officer, director, or managing agent of the corporation." Id. 12 In order to qualify as an "officer, director, or managing agent of the corporation," the Northern District of California United States District Court 13 California Supreme Court has held that the corporate decision-maker must have "substantial 14 discretionary authority over decisions that ultimately determine corporate policy." White v. 15 Ultramar, Inc., 21 Cal.4th 563, 577 (1999). These are "policies that affect a substantial portion of 16 the company and that are the type likely to come to the attention of corporate leadership. It is this 17 sort of broad authority that justifies punishing an entire company for an otherwise isolated act of 18 oppression, fraud, or malice." Roby v. McKesson Corp., 47 Cal.4th 686, 714 (2009). Merely 19 having the power to hire and fire is not sufficient to establish that an employee is a "managing 20 agent." White, 21 Cal.4th at 580. Moreover, whether "a supervisor is a managing agent within the 21 meaning of Civil Code section 3294 does not necessarily hinge on their level in the corporate 22 hierarchy." Myers v. Trendwest Resorts, Inc., 148 Cal. App. 4th 1403, 1437 (2007) (citation and 23 internal quotation marks omitted). "Rather, the critical inquiry is the degree of discretion the 24 employees possess in making decisions that will ultimately determine corporate policy." Id. 25 (citation and internal quotation marks omitted). Whether employees exercise sufficient authority is 26 determined on a case-by case basis. White, 21 Cal.4th at 567. 27 The California Court of Appeal's decision in Davis v. Kiewit Pac. Co., 220 Cal. App. 4th 28 358 (2013), a wrongful termination case, provides a useful framework for the managing agent 6 3 1 analysis. There, the appellate court reversed summary judgment on a request for punitive damages 2 because a question of fact existed as to whether a "project manager" who was the highest-ranking 3 employee on the construction site where the discrimination had allegedly occurred was a managing 4 agent. Davis, 220 Cal. App. 4th at 360-61, 365-74. The court found that evidence showing an 5 employee's "hierarchy and job duties, responsibilities, and authority may be sufficient, absent 6 conclusive proof to the contrary" to show that the employee is a managing agent. Id. at 370. 7 In Davis, the plaintiff, a construction site box grader operator, submitted evidence either 8 directly showing or supporting a reasonable inference that her supervisor, project manager Preedy: 9 1) was the company's top management employee in charge of $170 million project (including over 10 100 employees) and all other company managers on the project reported to him; 2) had broad 11 discretion relating to personnel issues and the allocation of resources to meet project goals; 3) had 12 discretion to allow the use and possession of alcohol by company employees despite its written Northern District of California United States District Court 13 corporate policy prohibiting it on the jobsite; 4) had authority and discretion not to initiate an 14 investigation into the plaintiff's harassment complaint despite the company's written policy 15 requiring an immediate investigation; and 5) had duties including interfacing with stakeholders, 16 contract administration, and making sure the project was completed according to the contract. 17 Based on this evidence, the court concluded that a trier of fact could reasonably infer that Preedy 18 "exercised substantial discretionary authority over [significant] aspects of [the company's] 19 business." Id. at 367-68, 370 (citation and internal punctuation omitted). 20 The Davis plaintiff also submitted sufficient evidence that another supervisor, Equal 21 Employment Opportunity Officer ("EEO") Lochner, was a managing agent, namely that: 1) 22 Lochner was responsible for administering the company's policies for prevention of discrimination, 23 retaliation, and harassment for its entire Northwest District, including California; 2) all onsite EEO 24 officers were trained to send all concerns about policy violations to Lochner; 3) Lochner conducted 25 training and conducted or oversaw the company's investigations relating to alleged discrimination, 26 retaliation, or harassment; and 4) he chose not to conduct an investigation into plaintiff's 27 harassment complaint. Id. The court held that a trier of fact could find that Lochner exercised his 28 authority and discretion not to enforce the company's policy against retaliation and/or to protect her 7 3 1 from retaliation, resulting in the ad hoc formulation of corporate policy. Id. at 373. Accordingly 2 summary judgment was not appropriate. 3 2. Law Regarding Malice 4 Under California law, "malice" is "conduct which is intended by the defendant to cause 5 injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and 6 conscious disregard of the rights or safety of others." Cal. Civ. Code § 3294(c)(1). "Oppression" is 7 "despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of 8 that person's rights." Id. § 3294(c) (2). Despicable conduct is "conduct that is…so vile, base, 9 contemptible, miserable, wretched or loathsome that it would be looked down upon and despised 10 by ordinary decent people…." Scott v. Phoenix Sch., Inc., 175 Cal. App. 4th 702, 715 (2009) 11 (internal punctuation omitted). 12 In the corporate context, terminating an individual for a wrongful reason and then offering a Northern District of California United States District Court 13 pretextual basis for the termination may support a finding of malice or oppression. See Cloud v. 14 Casey, 76 Cal. App. 4th 895, 912 (1999) (evidence that the defendant company passed over 15 plaintiff for a promotion because of her gender and then tried to use subsequently created criteria 16 for the job to cover up the illegal basis for its decision supported a finding of malice or oppression); 17 see also Brandon v. Rite Aid Corp., 408 F. Supp. 2d 964, 982 (E.D. Cal. 2006) (denying summary 18 judgment on punitive damages claim where plaintiff's version of the facts evidenced a post-hoc 19 effort by employer to justify termination and "willful and conscious disregard" of plaintiff's rights). 20 Failing to investigate an employee's complaint may be evidence of pretext. See Cornwell v. 21 Electra Cent. Credit Union, 439 F.3d 1018, 1033 (9th Cir. 2006) (summary judgment denied where 22 defendant corporation failed to investigate racial discrimination complaints and a jury could view 23 this failure as an attempt to conceal illegitimate motives). Temporal proximity may also support a 24 finding of pretext. Thus, when "adverse employment decisions are taken within a reasonable 25 period of time after complaints of discrimination have been made, retaliatory intent may be 26 inferred." See Passantino v. Johnson & Johnson Consumer Products Inc., 212 F.3d 493, 507 (9th 27 Cir. 2000); see also Yartzoff v. Thomas, 809 F.2d 1371, 1376 (9th Cir. 1987) (time lapse of three 28 months between protected activity and adverse action allowed an inference of causation). 8 3 1 III. ANALYSIS 2 Univar argues that Perugini cannot show that the three individuals involved in his 3 termination—Burruss, Murphy, and Adams—were officers, directors, or managing agents of 4 Univar or acted with malice or oppression. Perugini concedes that none of the three were officers 5 or directors. (DUF 4 and response thereto.) Thus, the Court examines the evidence regarding each 6 individual's status as a managing agent under Civil Code section 3294(b) and then turns to the topic 7 of malice. 8 A. Managing Agent Role 9 1. Branch Manager Albert Burruss 10 With regard to Burruss, defendant's undisputed evidence shows that Burruss worked at 11 Univar from October 2010 through June 8, 2016, as a Branch Operations Manager within Univar's 12 ICBG. (DUF 9.)5 From May 2011 through April 2015, Burruss managed operations at the San Northern District of California United States District Court 13 Jose Branch. In early March 2015, he also began managing the Redwood City Branch. He 14 managed both branches for three months until Univar hired another employee to handle the San 15 Jose Branch in May 2015. (Allen Decl. ¶ 7, Ex. E ("Burruss Depo."), at 16:23-17:16; Burruss 16 Decl. ¶¶ 2-3.) During that time, Perugini argues that Burruss supervised approximately 80-100 17 employees. (Burruss Decl. ¶¶ 2-5).6 Furthermore, Burruss testified that he was "in charge of the 18 entire branch. So loaders, drivers, support staff." (Burruss Depo. at 14:1-4.) As in Davis, Burruss 19 was the top supervisor at the two branches he oversaw (three locations total) and, accepting 20 Perugini's evidence as true, was responsible for up to 100 employees. Davis, 220 Cal. App. 4th at 21 370; see also White, 21 Cal.4th at 577 ("zone manager" responsible for managing eight retail stores 22 and 65 employees was a managing agent).7 23 5 DUF 9 describes Burruss as a "Branch Operations Director ("BOM"). The Court notes the 24 discrepancy, as the parties refer to Burruss' title elsewhere as "Branch Operations Manager." 25 6 This fact is disputed as Univar contends that Burruss only supervised 60 employees. 26 (DUF 15 and Plaintiff's response therein.) The discrepancy is immaterial to the Court's analysis. 27 7 As Univar argues, the fact that Burruss only operated one to two of Univar's 100 branches 28 certainly evidences Burruss' limited geographic domain, but that fact is not dispositive. Neither is the fact that Burruss was three steps below the Vice President of Operations on the operations 9 3 1 More importantly, however, there exists evidence that Burruss exercised some authority 2 and discretion in carrying out Company policy. After Univar transferred him to the Redwood City 3 Branch, Burruss was responsible for resolving the payroll issue that Perugini and others had 4 previously raised for months. (Burruss Decl. ¶ 10.) When Perugini informed Burruss around 5 March 5 that Univar owed him $1,200, which was more than Burruss had expected, Burruss had the 6 discretion and authority to have Perugini paid within four days. (Murphy Decl. ¶ 13; Perugini 7 Depo. at 78:15-24.) 8 Furthermore, upon learning of Buslett's complaint regarding the "chicken wing" incident, 9 Burruss had the authority to conduct an investigation into the incident and the discretion to decide 10 how he would do it. At least in this one instance, viewing the evidence in favor of Perugini, 11 Burruss failed to comply with Company "policy"8 to investigate such incidents by interviewing all 12 individuals and witnesses involved and drafting reports of interviews. (Adams Depo. at 59:12- Northern District of California United States District Court 13 60:18, 61:10-62:2.)9 A dispute of fact also exists as to whether Burruss followed the Company's 14 written policy requiring that managers "prepare a written summary of the termination meeting and 15 have both managers initial and date it." (Burruss Depo. at 89:6-25.) With respect to this 16 investigation, a jury could find that Burruss deviated from corporate policy and, in turn, created ad 17 hoc policy. See Davis, 220 Cal. App. 4th at 373 (supervisor Lochner's decision not to enforce anti- 18 retaliation policy evidenced managing agent status). Though not determinative, Burruss' authority 19 to terminate Perugini is another factor supporting managing agent status. (DUF 1.) See White, 21 20 Cal.4th at 580. 21 22 hierarchy. (DUF 12.) See Myers, 148 Cal. App. 4th at 1437 ("[T]he critical inquiry is the degree of discretion the employees possess in making decisions that will ultimately determine corporate 23 policy.") 24 8 It is unclear whether a written "policy" exists, as it is not in the record. 25 9 The record suggests that Burruss knew there were potential witnesses to the incident. 26 (Adams Depo. at 119:8-18, 123:5-12; Burruss Depo. at 68:10-22.) Nevertheless, Burruss exercised 27 his apparent discretion in deciding not to interview Perugini, the accused, or other potential witnesses or to document such interviews. (Adams Depo. at 63:6-13, 119:8-18, 123:5-12; Burruss 28 Depo. at 68:10-22; Perugini Depo. at 64:16-23.) 10 3 1 Viewing the facts as a whole and in the light most favorable to Perugini, a material dispute 2 of fact exists as to the level of authority and discretion Burruss enjoyed. See White, 21 Cal. 4th 563 3 at 577; Davis, 220 Cal. App. 4th at 360-61, 365-74. 4 2. District Operations Manager Frank Murphy 5 The evidence regarding Frank Murphy's responsibilities is more limited.10 Murphy testified 6 that he oversaw "everything from safety, quality, cost, and performance" at those branches 7 (Murphy Depo. at 14:21-24.) Murphy followed Univar's corporate policies and worked to ensure 8 that the employees working within the geographic region he supervised also followed Univar's 9 corporate policies. (DUF 17.) Unlike the Davis plaintiff, Perugini has offered no evidence that 10 Murphy had broad discretion or authority relating to, among other things, personnel issues, 11 following or ignoring corporate policy, initiating investigations into employee complaints, or 12 compliance with anti-retaliation policies. Northern District of California United States District Court 13 Nevertheless, evidence exists that Burruss was required to obtain the Murphy's approval to 14 terminate Perugini. (Adams Depo. at 56:19-24.) Accordingly, by extension,11 a dispute exists as to 15 whether Murphy, like Burruss, satisfies a "managing agent" designation. 16 3. Regional Human Resources Director Aaron Adams 17 Finally, regarding Aaron Adams, defendant's undisputed evidence shows that he was 18 Univar's Regional Human Resources Director - Industrial Chemical for the Western United States 19 since September 2012. (DUF 24). This included branches within Northern California, Southern 20 21 10 The parties do not dispute the following facts. Univar employed Murphy from 22 approximately June 2014 through March 2016 as a District Operations Manager. (DUF 16.) He supervised up to seven branches (all in California) and approximately 350 employees, all of which 23 were within the "operations" portion of the ICBG. (DUF 23.) He oversaw the Company's four Northern California locations, including their satellite offices. These include San Jose, Redwood 24 City, Fresno, Visalia, Stockton, and the K2 facility in Pittsburg. (Murphy Depo. at 13:16-25.) 25 While with Univar, Murphy never supervised more than 7 branches (all in California) and approximately 350 employees, all of which were within the "operations" portion of the Industrial 26 Chemicals Business Group. (DUF 23.) 27 11 The Court acknowledges that the parties did not provide, nor has the Court found, 28 authority for the contrary position, i.e. that a manager could be deemed a "managing agent" while his direct supervisors were not. 11 3 1 California, the Pacific Northwest, the Inner Mountains, St. Louis, Dallas, and Houston. (Adams 2 Decl. ¶ 5.) Adams also supervised HR Managers within the ICBG within his geographic region. 3 (DUF 26.) He testified that his role was to support employee relations (including some personnel 4 decisions), work design, compensation issues, and implementing Univar policies. (Adams Decl. ¶ 5 7.) Adams administered Univar's corporate policies and worked to ensure that the ICBG personnel 6 within the geographic region he supported followed these policies. (DUF 27 and 28.) 7 As with Murphy, there exists limited evidence of what Adams' duties entailed. However, 8 the record contains evidence that Burruss was required to obtain Adams' approval to terminate 9 Perugini. (Adams Depo. at 56:19-24.) Therefore, by extension, a dispute exists as to whether 10 Adams was a managing agent. 11 B. Malice or Oppression 12 Having determined that genuine issues of material fact exist as to whether Burruss, Murphy Northern District of California United States District Court 13 and Adams were managing agents, the Court turns to the question of whether the same exists with 14 respect to malice. 15 Viewing the evidence in the light most favorable to Perugini, a jury could reasonably infer 16 the following: that Burruss knew that Perugini had complained about the payroll issue (Murphy 17 Depo. at 78:17-25 and Ex. 8), later told him in a nasty way that he would get his money (Perugini 18 Depo. at 78:4-22), and then within a month, terminated him on the pretext of an alleged assault 19 (Burruss Decl. ¶ 24), given the lack of any real injury or a full investigation (Burruss Depo. at 68:2- 20 3).12 See Cloud, 76 Cal. App. 4th at 912; Cornwell, 439 F.3d at 1033. This timing supports an 21 inference of retaliation. See Passantino, 212 F.3d at 507; Yartzoff, 809 F.2d at 1376. 22 Furthermore, Murphy and Adams' approval of Burruss' decision with actual knowledge that 23 Burruss did not conduct a full investigation in compliance with Company "policy," coupled with 24 the disputed evidence that Burruss' decision required their approval, gives rise to a genuine issue of 25 26 12 The Court understands Univar's position to the contrary, that is, that it took no 27 disciplinary action against Perugini or the other two employees for reporting the payroll issue and that Perugini's theory is faulty given that the other two employees still work at Univar. (Adams 28 Decl. ¶ 21; Murphy Decl. ¶ 13; Burruss Decl. ¶ 11). However, that does not address the apparent defects in the investigation and the inferences that a jury can draw therefrom. 12 3 1 material fact as to whether they ratified the conduct. See College Hosp. Inc. v. Sup. Ct., 8 Cal.4th 2 704, 726 (1994). Therefore, the Court finds that a triable issue of fact exists as to whether Univar 3 acted with malice or oppression and leaves this issue in the jury's province for decision. 4 IV. CONCLUSION 5 Accordingly, Univar's Motion for Partial Summary Judgment is DENIED. 6 This terminates Docket No. 42. 7 IT IS SO ORDERED. 8 Date: August 15, 2016 _______________________________________ YVONNE GONZALEZ ROGERS 9 UNITED STATES DISTRICT COURT JUDGE 10 11 12 Northern District of California United States District Court 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13