Opinion
B186394
5-2-2007
AL ROMERO et al., Plaintiffs and Appellants, v. LA POWER JOINT VENTURE et al., Defendants and Respondents.
Seyfarth Shaw LLP, Ann Kotlarski, Catherine A. Evans and Timothy L. Hix for Defendants and Respondents. Law Office of A. Thomas Hunt and A. Thomas Hunt; Law Office of Jonathan W. Biddle and Jonathan W. Biddle for Plaintiffs and Appellants.
NOT TO BE PUBLISHED
INTRODUCTION
Plaintiff Al Romero and his company, Advanced Service Solutions, Inc., (together Romero) brought the instant action seeking damages for wrongful termination in violation of public policy. Romero alleges he was fired from his position with defendants, the Los Angeles Power Joint Venture et al. (defendants or LAP), in retaliation for making numerous complaints about the safety and effectiveness of a control and monitoring system for a power plant that defendants were renovating for the Los Angeles Department of Water and Power (DWP). Romero appeals from the dismissal of the action after the trial court granted defendants motion for summary judgment. We hold that Romero has demonstrated numerous triable issues of material fact precluding summary adjudication of his cause of action for wrongful termination against public policy based on Californias Occupational Safety and Health Act (Cal-OSHA), Labor Code section 6310. Accordingly, the judgment is reversed.
The other named defendants are Peter Kiewit & Sons, Inc., Bibb & Associates, Inc., and Cliff Heck, and Kiewit Industrial Co.
FACTUAL AND PROCEDURAL BACKGROUND
1. Romero discovers serious problems with the plants monitoring and control systems
Defendants are many of the companies and individuals who comprise a complex venture that contracted with the DWP to re-power the Valley Station power plant for the DWP, among other customers.
Romero, an electrical engineer of Hispanic descent, entered into a professional service contract in December 2002 with LAP. On instructions from defendants, Romero formed Advanced Service Solutions, Inc. Defendants accept for purposes of the summary judgment motion that Romero was an employee of LAP. We proceed based on that stipulation.
In early December 2002, Romero commenced work as a Distributed Control Systems Lead. The Distributed Control System (DCS) controls the entire power plant. It also controls a piece of electrical equipment known as the AS-i. The AS-i is a novel system that allows the plants operators to monitor and control the plants equipment. It also sends out alarms. It functions like a remote control that eliminates the need to hard-wire entire areas of the plant. The DCS was designed by defendant Bibb, who in turn was owned by defendant Kiewit, Inc. Those companies were responsible for implementing the AS-i system. Romeros job was to oversee the commissioning and start-up of the DCS system; his job was to make sure that the DCS was installed correctly by getting all of its equipment up and running. David Beard, the Start-up Manager on the project, and Roy Moyer, supervised Romero.
There was also evidence that an outfit called Emerson made part of the AS-i and that other components of AS-i came from other companies . Emerson and Bibb were responsible for testing the AS-i. At the end of the day, however, Roy Moyer, Romeros supervisor, should have rejected these systems, Romero felt.
Around January 2003, Romero began to have safety concerns and began expressing those concerns to "just about anybody that would listen to me about the AS-i situation." In particular, he concluded that the AS-i had a very "good potential to fail." Or, if a piece of the plants equipment failed, the operators would not be able to tell whether the AS-i failed as well. Another problem involved the lack of a redundant power supply to the AS-i, and a fourth concern involved the "bus" that sends signals to the AS-i. Romero referred to these problems as "failure modes," "no diagnostics," "no watchdog timer," and "power distribution." Romero also concluded that the AS-i had not been thoroughly tested. Rather, it was spot-checked and rubber-stamped. The DCS did not need the AS-i, he explained, so the latter system could have been pulled out and replaced with something safer. Romero also had problems with the DCS — apart from the AS-i — such as problems with the logic for opening and closing valves. The bottom line, according to Romero, was that the plant needed to be hard-wired instead of using the AS-i remote control.
These problems created a safety risk in that "someone could get in to energize the equipment" and "get killed." A problem like this could kill an employee if, for example, there were a rupture and the employee were in close proximity, Jerome Scherbenski at the DWP testified. The DWPs Steven Pruett testified that the AS-i was not commonly used in power plants. The DWP likes to use "relied-on" technology.
Not only did Romero list the problems he identified in his agenda for the start-up meetings, and send emails and memoranda, but he spoke to many people individually about the problems he saw with the AS-i and the DCS. He or others testified that Romero explained to his supervisor Moyer why the AS-i "was going to be a challenge" and told Clay Ardoin that the AS-i could fail. He spoke to David Beard at Kiewit, Will Sprague at Bibb, and many more at Bibb and Emerson.
Romero also spoke to people at the DWP. Romero told Scherbenski that the DCS had not been thoroughly tested before being brought to the Valley project and that it was not ready for roll-out as there was still a lot of work that needed to be done. " `Its not going to be a good situation, "Romero told Scherbenski. Romero warned Scherbenski, " `[y]oure going to have a situation in your station where youre going to think things are running, and theyre not. " He also spoke to Pruett at the DWP.
Romero made a long list of proposed changes to the AS-i and the DCS and wrote up change orders. However, despite his concerns, Romero encountered difficulty getting approval for these changes. He told Scherbenski that he was fixing Bibbs mistakes with the DCS as he wanted to give the DWP a good product, but that he was getting "stonewalled." Romero repeated the word "stonewalled" when he discussed Bibb and the DCS. Scherbenski had also experienced stonewalling from Kruger at Bibb. Romero also mentioned to Pruett that Bibb was not responding to Romeros concerns very quickly and that Pruett should be concerned about it.
After Romero talked about the large number of change orders and items on the punch-list at a May 2003 meeting, Kruger called the DWPs Robert Gentner sometime before May 14, 2003, to object to Romeros criticisms. Kruger reported that Bibb was aware of the problems and would handle them. Kruger assured Gentner that Bibb was supporting the DWP "100 percent in the project." Soon thereafter, Cliff Heck at Kiewit and project manager for LAP met with Gentner to discuss firing Romero. Gentner concluded that these events were related.
2. Romero is discharged from his job
At the end of that same month, Heck met with Romero. Romero discussed a complex change-order for the AS-i. Heck used a racial epithet and told Romero that Romero was going to " `fuck this up. " By "this" Romero understood Heck to mean the project. A few minutes after Heck left the office, David Beard fired Romero. Beard explained that Heck wanted Romero off the project. Beard knew Romero had been working very hard but explained that Romero had a bad attitude.
Six months after Romero was fired, and soon after the plant was up and operational, in November 2003, Romeros prediction came true. The power supply to the AS-i went down. As there was no redundancy in the AS-i system, a "significant" "issue" occurred in which communication with one of the AS-i segments was lost. When something goes wrong, the AS-i shuts off everything in that control segment. In this instance, it inadvertently shut off the boiler feed pump even though the pump was needed. The AS-i then identified the feed pump as functioning in its last known state, i.e., it indicated that the feed pump was still operating and replenishing water in the boiler when in fact it was not. The lack of water feeding into the boiler caused a disruption in the process. Meanwhile, the DWP mistakenly thought that the nonfunctioning boiler feed pumps were operating. The entire plant shut down. The AS-i has malfunctioned similarly since then and the DWP finally hard-wired the control system to avoid a recurrence.
3. Romero files this lawsuit and defendants move for summary judgment
Cast in eight causes of action, Romeros operative complaint alleged (1) breach of contract and (2) of the implied covenant of good faith and fair dealing, (3) race discrimination in violation of the California Fair Employment and Housing Act (Govt. Code, § 12940 et seq.), (4) violation of the Unruh Civil Rights Act (Civ. Code, §§ 51, 51.5, & 52.1 et seq.), (5) wrongful termination in violation of public policy, (6) defamation, (7) intentional interference with contractual relations, and (8) declaratory relief.
Specifically, Romero alleged that throughout his employment with defendants, Romero insisted on and told his superiors that all engineering system requirements as outlined in the specifications had to be strictly adhered to in order to ensure the safe operation of the plant. Romero "took notice of and documented a series of hardware and software problems that could seriously compromise the safe operation of the plant. Romeros efforts to correct such problems were ignored by Defendants even though he documented over 116 errors including 22 non-compliance issues. [¶] . . . Romero met with his superiors and outside contractors on numerous occasions and expressed the importance of resolving certain issues that would severely compromise the safety of the operation of the plant." In the fifth cause of action, Romero alleged "common law claims of tortious termination based upon Defendants having violated certain statutes and laws in the State of California including . . . [¶] . . . . [¶] (f) Labor Code Section 6310," a provision of Cal-OSHA that prohibits the discharge of an employee for making a complaint to his employer about unsafe working conditions or work practices.
Defendants moved for summary judgment in relevant part on the ground that none of the statutes identified by Romero were violated by the termination of Romeros services and there was no causal link between any of the statutes Romero identified and the termination of Romeros services. With particular reference to the safety-related public policy statutes that Romero cited in his fifth cause of action, defendants argued that (1) Romeros allegations about having identified and documented "hardware and software problems that could seriously compromise the safe operation of the plant," were insufficiently specific. (2) With respect to Labor Code section 6310, defendants argued that Romero made his complaints during the construction phase of the power plant and Romeros services were terminated months before the plant began operating, with the result that Romeros complaints had nothing to do with current working conditions or practices. (3) Romeros services were terminated because Romero was "not getting along with either the Project Manager or the Start-up Manager" and Romero offered nothing but unsupported assertions to bolster his claim that the termination was related to Romeros whistle-blowing with the result that there was no causal connection between the termination of Romeros services and a violation of public policy. Therefore, because no public policy was implicated, the fifth cause of action failed.
In support of their motion, defendants proffered 10 facts to demonstrate that Romero could not prove his fifth cause of action. Defendants asserted that the plant was still being constructed in May 2003 and did not become operational until after Romeros services were terminated. Defendants noted that no problem identified by Romero with either the DCS or the AS-i system played any role in the decision to terminate Romero. In support of this fact, defendants submitted the declaration of Randall Killingsworth of Kiewit and General Manager for Start-up and Commission on the project, who claimed to be the only one with authority to terminate Romero. Killingsworth declared that Heck told Killingsworth that "he could not get a straight answer out of Romero about what was going on with the DCS system and that Romero had been a jerk." (Italics added.) Killingsworth also found Romero difficult to work with. Killingsworth declared he made his decision to fire Romero with input from LAP employees Beard and Heck, and did not speak to anyone at Bibb, Kiewit, or the Ben Holt Company when he made that decision.
Romero opposed the summary judgment motion and disputed most of defendants facts. Among other things, Romero submitted the deposition of DWPs Pruett, who testified he believed that Romero was let go because "he wasnt getting along with Bibb Engineering at all, and because you cant really fire Bibb Engineering they had to let Al go because he was not effectively working with them . . . ." Likewise, DWPs Gentner explained that defendants wanted to terminate Romeros services because animosity had developed between Romero and certain Bibb engineers because of "finger-pointing . . . over issues associated with the DCS" and "this was going to negatively impact the work." Gentner actively opposed firing Romero because as late as May 2003, there was a long list of items remaining to be done. Scherbenski testified that Romero was fired because he wanted to fix the AS-i but Bibbs Kruger "didnt want to spend any more time and money on the project [than] was necessary. And to fix some of these things that [Romero] wanted I think would cost more money and would delay the project, and they were on a time line."
Romero also asserted 68 of his own facts. Defendants disputed most of Romeros facts related to the fifth cause of action.
The trial court granted defendants summary judgment motion, with the exception of Romeros defamation claim. The court stated: "[Romeros] positions regarding each of those purported causes of action are catastrophically undermined by the fact that — even on his own view of things — Mr. Romero was terminated not for actionable reasons such as discrimination or violation of public policy, but because he disagreed with Kruger and Bibb Engineering. See [Romeros] separate statement, item 58, which says as much." With respect to Romeros claim of wrongful termination in violation of public policy, the court stated, "Plaintiffs identify no public policy delineated in constitutional or statutory provisions that fits the facts as shown by the evidence and that could be construed to underlie purported cause of action 5."
Item 58 states: "Romero was terminated because he disagreed with Kruger and Bibb Engineering." Romero does not state what the disagreement was about. In determining that this fact supports the conclusion that he was not terminated for actionable reasons, the trial court read too much into item 58 in contravention of the rule that when reviewing the papers presented in the summary judgment posture, the court must liberally construe the opposing partys submission while strictly construing the moving partys papers. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768-769.)
The court also observed that defendants did not dispute that Bibb Engineering was a subsidiary of Kiewit and that the joint venture included each of the defendants. Defendants do not challenge this statement and so they appear to concede that the joint venturers are all responsible for the action of one in terminating Romero from employment.
Thereafter, Romero voluntarily dismissed the defamation claim with prejudice. There being no operative complaint extant, the trial court dismissed the complaint. Romeros timely appeal followed.
CONTENTION
Romero contends that the trial court erred in granting summary judgment.
DISCUSSION
1. Standard of review
"` "Summary judgment is granted when there is no triable issue as to any material fact and the moving party is entitled to judgment as a matter of law. [Citation.] We review the trial courts decision to grant [defendants] summary judgment de novo." [Citation.] [Citation.] An appellate court is not bound by the trial courts stated reasons, if any, supporting its ruling; we review the ruling, not the rationale. [Citation.]" (Prilliman v. United Air Lines, Inc. (1997) 53 Cal.App.4th 935, 951.)
In moving for summary judgment, "[a] defendant or cross-defendant has met his or her burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action." (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853.) Once the moving party defendant meets its burden, the burden shifts to the plaintiff to show a triable issue of material fact exists. (Code Civ. Proc., § 437c, subd. (p)(2).) To meet that burden, the plaintiff " ` "shall set forth the specific facts showing that a triable issue of material facts exists as to that cause of action . . . ." [Citations.] Where the plaintiff fails to satisfy this burden, judgment in favor of the defendant shall be granted as a matter of law. [Citation.]" (Lopez v. Baca (2002) 98 Cal.App.4th 1008, 1014.)
Our task is to "view the evidence in a light favorable to plaintiff as the losing party [citation], liberally construing [Romeros] evidentiary submission while strictly scrutinizing defendants own showing, and resolving any evidentiary doubts or ambiguities in [Romeros] favor. [Citations.]" (Saelzler v. Advanced Group 400, supra, 25 Cal.4th at pp. 768-769.) "Summary judgment will be upheld when, viewing the evidence in a light most favorable to the opponent, the evidentiary submissions conclusively negate a necessary element of plaintiffs cause of action, or show that under no hypothesis is there a material issue of fact requiring the process of a trial. [Citation.]" (Stockinger v. Feather River Community College (2003) 111 Cal.App.4th 1014, 1024.)
2. As a matter of law, Romero can recover for wrongful termination in violation of public policy based on the public policy protected by Labor Code section 6310
Defendants speciously asserted in their motion for summary adjudication of this cause of action and on appeal that Romero failed to identify clearly the public policy basis for their wrongful termination claim. To the contrary, Romero early and precisely identified Labor Code section 6310 as a public policy basis, as early as his first amended complaint. He also raised that statute in his responses to defendants interrogatories. Therefore, defendants had more than adequate notice of the allegations upon which this cause of action was based. (Grinzi v. San Diego Hospice Corp. (2004) 120 Cal.App.4th 72, 80.)
Cal-OSHAs Labor Code section 6310 prohibits the discharge or discrimination against an employee "because the employee has . . . [m]ade any oral or written complaint to . . . his or her employer . . . of unsafe working conditions, or work practices, in his or her employment or place of employment . . . ." (Italics added.)
Labor Code section 6310 reads: "(a) No person shall discharge or in any manner discriminate against any employee because the employee has done any of the following: [¶] (1) Made any oral or written complaint to . . . his or her employer, or his or her representative. [¶] . . . [¶] (b) Any employee who is discharged . . . or in any other manner discriminated against in the terms and conditions of employment by his or her employer because the employee has made a bona fide oral or written complaint to . . . his or her employer, or his or her representative, of unsafe working conditions, or work practices, in his or her employment or place of employment . . . shall be entitled to reinstatement and reimbursement for lost wages and work benefits caused by the acts of the employer. Any employer who willfully refuses to rehire, promote, or otherwise restore an employee or former employee who has been determined to be eligible for rehiring or promotion by a grievance procedure, arbitration, or hearing authorized by law, is guilty of a misdemeanor."
In California, "at-will employees may recover tort damages from their employers if they can show they were discharged in contravention of fundamental public policy. [Citation.]" (Green v. Ralee Engineering Co. (1998) 19 Cal.4th 66, 71.) To recover, an employee who asserts a claim for wrongful termination in violation of public policy must show "that the important public interests they seek to protect are `tethered to fundamental policies that are delineated in constitutional or statutory provisions. [Citation.]" (Ibid.) That is, "the employees actions must further a policy affecting the public interest, which must be fundamental or substantial when the company discharges the employee. [Citation.]" (Id. at p. 75.)
It has long been a strong public policy of our state to "prohibit[] retaliatory discharge for reporting safety and health considerations." (Skillsky v. Lucky Stores, Inc. (9th Cir. 1990) 893 F.2d 1088, 1093; see also Hentzel v. Singer Co. (1982) 138 Cal.App.3d 290, 296 ["California has long maintained a policy of protecting the right of employees to voice their dissatisfaction with working conditions."]) "The safety of employees in the work place has long been a matter of prime legislative concern." (Hentzel, supra, at p. 297, citing Labor Code, §§ 6400-6404.) "Achievement of the statutory objective — a safe and healthy working environment for all employees — requires that employees be free to call their employers attention to such conditions, so that the employer can be made aware of their existence, and given opportunity to correct them if correction is needed. The public policy thus implicated extends beyond the question of fairness to the particular employee; it concerns protection of employees against retaliatory dismissal for conduct which, in light of the statutes, deserves to be encouraged, rather than inhibited." (Hentzel, supra, at p. 298.)
Even before Cal-OSHA was enacted, there was a private right of action for employees who were terminated from employment for reporting health and safety conditions. (See, Skillsky v. Lucky Stores, Inc., supra, 893 F.2d at p. 1093.)
In Garibaldi v. Lucky Food Stores, Inc. (9th Cir. 1984) 726 F.2d 1367, cert. den. 471 U.S. 1099 (May 13, 1985, abrogated on another point in Allis-Chambers Corp. v. Lueck (1985) 471 U.S. 202), the plaintiff was fired for reporting the shipment of adulterated milk to health officials after his supervisors ordered him to deliver it. After noting that the sale or delivery of adulterated milk is prohibited by California law (Garibaldi, supra, at p. 1374, citing Food & Agric. Code, § 32906), the Ninth Circuit held that Garibaldis " `whistle blowing to protect the health and safety of the citizens of California is exactly the type of conduct that the California Supreme Court protected" when it created the tort of wrongful termination against public policy. (Garibaldi, supra, at p. 1374.)
Most analogous is Hentzel v. Singer Co., supra, 138 Cal.App.3d 290. There, the employee filed a complaint alleging common-law wrongful termination in violation of public policy in retaliation for his protests about hazardous working conditions caused by other employees smoking in the workplace. In reversing the order sustaining the employers demurrer, the appellate court observed the long-standing policy of protecting the safety of employees in the workplace as evidenced by Labor Code sections 6400 through 6404 that obligate the employer to provide a safe workplace. (Hentzel, supra, at pp. 297-298.) The Hentzel court held that under those Labor Code provisions an employee "is protected against discharge or discrimination for complaining in good faith about working conditions or practices which he reasonably believes to be unsafe . . . ." (Id. at p. 299.) For violation of this protection, the employee has a common law cause of action for wrongful termination in violation of public policy. (Id. at pp. 300-304.)
Recently, Lujan v. Minagar (2004) 124 Cal.App.4th 1040, held that Labor Code section 6310 applies to employers who retaliate against an employee whom they believed intend to file a workplace safety complaint, not just those who already had filed such a complaint. (Lujan, supra, at p. 1045.)
In Skillsky v. Lucky Stores, Inc., supra, 893 F.2d 1088, the plaintiff-employee was fired after the employer learned that the employee had once made a workplace safety complaint against a former employer who then corrected the problem. (Id. at p. 1090.) In predicting how the California Supreme Court would interpret Labor Code section 6310, the Ninth Circuit held that the employees Cal-OSHA complaint implicated the public policy of " `protecting the right of employees to voice their dissatisfaction with working conditions. [Citation.]" (Skillsky, supra, at p. 1093.) Hence, Skillsky held, section 6310 was not limited to claims made by employees against their current employers but included those who had made past complaints to former employers, who had corrected the problem. (Skillsky, supra, at p. 1094.)
Here, Romeros claim is exactly the sort protected by Labor Code section 6310. Romero repeatedly reported his concerns that malfunctions in the AS-i and DCS, if not corrected, would cause serious safety and operational problems at the plant. Many engineers both with defendants and with the DWP understood that the AS-i malfunctions were such that they could cause serious harm and even death to plant employees or others. Romero repeatedly related these very concerns to both his employer and to the DWP, a public agency. He was then terminated from his employment.
Defendants counter that Romero made his complaints during the power plants construction phase and was terminated months before the plant began operating with the result that his whistle-blowing "had nothing to do with current working conditions or practices." (Italics added.) We disagree with defendants tortured parsing of the statute and their conclusion.
"`"The mere literal construction of a section in a statute ought not to prevail if it is opposed to the intention of the legislature apparent by the statute; and if the words are sufficiently flexible to admit of some other construction it is to be adopted to effectuate that intention. The intent prevails over the letter, and the letter will, if possible, be so read as to conform to the spirit of the act." [Citation.]" (People v. Belton (1979) 23 Cal.3d 516, 526.)
As stated, the purpose of Cal-OSHA "is to ensure `safe and healthful working conditions for all California working men and women by authorizing the enforcement of effective standards, [and] assisting and encouraging employers to maintain safe and healthful working conditions . . . . " (Carmel Valley Fire Protection Dist. v. State of California (2001) 25 Cal.4th 287, 294, quoting from Lab. Code, § 6300; see also Lab. Code, § 6302, subd. (h).) Labor Code section 6310 is "designed to encourage employees to report workplace safety violations [citation] . . . ." (Lujan v. Minagar, supra, 124 Cal.App.4th at p. 1044), and to "punish employers who retaliate against employees as a result. [Citation.]" (Id. at p. 1045.)
Toward that end, Labor Code section 6310 requires nothing more than the existence of unsafe "working conditions, or work practices." (§ 6310, italics added.) Romeros showing in opposition to defendants motion reveals that he repeatedly complained of malfunctions in the AS-i that existed at the time that system was being installed at the plant. Those problems in the design of the AS-i, if not corrected, would cause it to fail and to mask the status of other equipment as well. The evidence showed that these problems posed serious and avoidable safety risks to plant employees. Defendants repeated refusal to address Romeros concerns and proposed change orders constitute the work practices that were unsafe for a large number of DWP employees. The argument that the public safety risk only existed in this case after the plant began functioning conveniently ignores the evidence that defendants flouted Romeros reports about existing problems with the AS-i and the DCS, the exact equipment he was hired to install. Defendants stonewalling and refusal to consider Romeros proposed changes created the unsafe working conditions and constituted the unsafe work practices. A focus on whether the harm could come to the public before or after the whistle-blower was fired is the same as arguing, as the defendant did unsuccessfully in Lujan v. Minagar, supra, 124 Cal.App.4th 1040, that section 6310 only protects employees who have already filed a workplace safety complaint to a government agency and not to those the employer fears might file such a complaint. (Lujan, supra, at p. 1045.) Where section 6310 has been held to protect employees who made past complaints to former employers who corrected the problem (Skillsky v. Lucky Stores, Inc., supra, 893 F.2d at p. 1094), then surely it protects an employee who complains about risks the employer is currently creating.
Defendants suggest that Romeros concerns were so vague as to include "any possible future safety issue in any location" of the plant. To the contrary, Romeros complaints were not vague. Romeros described malfunctions in the AS-i that would be hidden and would prevent employees from understanding that other equipment in the plant had also failed. In any event, by disputing these facts proffered by Romero, defendants created disputes of fact on this point.
Stated otherwise, the public policy being protected here is not whether a complaint was made about a current, past, or future work safety, so much as guarding and encouraging the right of employees to voice their dissatisfaction with working conditions and work practices which they reasonably believe constitute a hazard to their own health or safety, or the health or safety of others. (Skillsky v. Lucky Stores, Inc., supra, 893 F.2d at p. 1094; Hentzel v. Singer Co., supra, 138 Cal.App.3d at p. 299.) Romero has a common law cause of action for wrongful termination in violation of the longstanding public policy in California of allowing employees to protest working conditions which they reasonably believe constitute a hazard to their own or others health or safety. (Hentzel, supra.) "[T]he legislative purpose underlying these provisions [obligating workplace safety] would be substantially undermined if employers were permitted to discharge employees simply for protesting working conditions which they reasonably believe constitute a hazard to their own health or safety, or the health or safety of others. Achievement of the statutory objective — a safe and healthy working environment for all employees — requires that employees be free to call their employers attention to such conditions, so that the employer can be made aware of their existence, and given opportunity to correct them if correction is needed. The public policy thus implicated extends beyond the question of fairness to the particular employee; it concerns protection of employees against retaliatory dismissal for conduct which, in light of the statutes, deserves to be encouraged, rather than inhibited." (Id. at p. 298.)
Turning to defendants next contention on appeal, they argued in their motion for summary adjudication of this cause of action that Romero could not demonstrate a causal link between Romeros termination and his complaints about workplace safety conditions. Romero must demonstrate the required nexus between his reporting of unsafe work practices and his adverse treatment by defendants. (Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1258.)
In support of their position, defendants proffered Killingsworths declaration in which he insisted that he was the only person with authority to terminate Romeros services. Killingsworth declared he knew about problems that Romero identified but that the problems were being addressed and none was "significant." Killingsworth discharged Romero because he was difficult to work with. Defendants cite testimony of LAP employees who found Romero to be a difficult person to work with. They argue, because Romeros discharge was based on factors other than violation of public policy, no nexus was demonstrated.
A proper review of the filings for and against the summary judgment motion reveals a triable issue of fact about nexus. Against Killingsworths declaration is the evidence proffered by Romero that he was fired within weeks of the meeting with LAP and DWP employees where he reasserted his concerns about the AS-i. Further, Romero filed testimony from numerous employees to the effect that Romero got along well with everyone and had no personality conflicts at the job site. Personnel at the DWP thought highly of Romeros work and objected to his being fired. At the very least, this testimony creates a dispute about defendants excuse for the termination. This testimony is not speculation or conjecture, as defendants would have it, but is actual, admissible evidence which, if believed, provides strong inference from which the trier of fact could find the necessary link between Romeros whistle-blowing and his termination from employment. (See, Whiteley v. Philip Morris, Inc. (2004) 117 Cal.App.4th 635, 694-695.) Moreover, Romero submitted the testimony of many people who concluded that Romero was fired because of his complaints and concerns about the AS-is safety. Gentner explained that defendants wanted to let Romero go because of "finger-pointing . . . over issues associated with the DCS." Scherbenski also testified that the reason Romero was fired was because he wanted to fix the AS-i but to do so would delay the project and cost more money and Bibb "didnt want to spend any more time and money on the project [than] was necessary." Finally, Gentner testified about the connection he found between on the one hand, Krugers calls to him objecting to Romeros criticisms voiced at the start-up meeting, and assuring him that Bibb would handle the problems raised at that meeting, and on the other hand Hecks meeting with Gentner soon thereafter to discuss firing Romero. This evidence, if believed by the trier of fact, provides a strong inference of the required nexus between Romeros whistle-blowing and his termination from employment. Combined with the Killingsworth declaration, Romeros evidence constitutes triable issues of material fact precluding summary judgment.
Because we reverse based on this cause of action, we do not address Romeros other contentions concerning the remaining causes of action in the complaint.
DISPOSITION
The judgment is reversed. The fifth cause of action in the first amended complaint is reinstated. Respondents to pay costs on appeal.
We concur:
KLEIN, P. J.
CROSKEY, J.