Motion for Summary Adjudication in NATHAN PETER RUNYON VS. PAYWARD, INC., A CALIFORNIA CORPORATION ET AL| Trellis.Law

On November 26, 2019 a Hearing was filed involving a dispute between Runyon, Nathan Peter, and Does 1-50, Inclusive, Ng, Kaiser, Payward, Inc., A California Corporation, for civil in the District Court of San Francisco County.

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1 Kimberly Pallen (SBN 288605)
kimberly.pallen@withersworldwide.com
2 Christopher N. LaVigne (NYBN 4811121) ELECTRONICALLY
(admitted Pro Hac Vice)
3 christopher.lavigne@withersworldwide.com F I L E D
Superior Court of California,
Withers Bergman LLP County of San Francisco
4 505 Sansome Street, 2nd Floor
San Francisco, California 94111 05/28/2021
Clerk of the Court
5 Telephone: 415.872.3200 BY: ERNALYN BURA
Facsimile: 415.549 2480 Deputy Clerk
6
Attorneys for Defendants Payward, Inc., a
7 California Corporation d/b/a Kraken; and Kaiser
NG, an individual
8

9 SUPERIOR COURT OF THE STATE OF CALIFORNIA
10 COUNTY OF SAN FRANCISCO
11

12 NATHAN PETER RUNYON, an individual, Case No. CGC-19-581099
13 Plaintiff, DEFENDANTS’ MOTION FOR
SUMMARY ADJUDICATION
14 v.
REDACTED
15 PAYWARD, INC., a California Corporation
d/b/a KRAKEN; and Kaiser NG, an Filed Concurrently with: Separate Statement
16 individual; and DOES 1 through 10, inclusive, of Undisputed Material Facts; Declaration of
Chris LaVigne; Declaration of Kaiser Ng
17 Defendants.
Date: August 12, 2021
18 Time: 9:30 a.m.
Dept.: 302
19
The Hon. Ethan P. Schulman, Dept. 302
20
Action Filed: November 26, 2019
21 Trial Date: September 13, 2021
22

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DEFENDANTS’ MOTION FOR SUMMARY ADJUDICATION
1 TABLE OF CONTENTS
Page
2
I. INTRODUCTION ..................................................................................................................6
3
II. STATEMENT OF FACTS.....................................................................................................7
4
A. Undisputed Facts ........................................................................................................7
5
1. Runyon’s Term of Employment .....................................................................7
6
2. Runyon’s Harassment Allegations .................................................................7
7
3. Runyon’s Good Faith and Fair Dealing Allegations ......................................8
8
4. Runyon’s Whistleblower Allegations ............................................................8
9
(a) Employee 5’s Vesting Schedule .........................................................8
10
(b) Employee 7’s Vesting Schedule .......................................................10
11
(c) The OFAC List .................................................................................11
12
(d) The Bank Balance Discrepancies .....................................................11
13
B. Facts Regarding Runyon’s Employment and The Reasons for His
14 Termination ..............................................................................................................11
15 III. DISCUSSION ......................................................................................................................12
16 A. Standard of Review ..................................................................................................12
17 B. Payward is Entitled to Summary Judgment on Runyon’s Veteran Status
Harassment Claim (First Cause of Action) Because Runyon Was Not
18 Subject to Pervasive Harassment That Altered The Conditions of His
Employment .............................................................................................................13
19
C. Payward is Entitled to Summary Judgment on Runyon’s Disability
20 Discrimination, Wrongful Termination, and Retaliation Claims (Second,
Fifth, and Seventh Causes of Action).......................................................................15
21
1. Runyon’s Disability Based Claims are Subject to the McDonnell
22 Douglas Burden-Shifting Test .....................................................................15

23 2. Payward Has Met Its Burden of Demonstrating That Runyon Was
Terminated For Non-Discriminatory Reasons .............................................15
24
3. Runyon Cannot Meet His Burden of Demonstrating that Payward’s
25 Non-Discriminatory Reasons for Firing Him Were Simply Pretexts ..........16

26 D. Payward is Entitled to Summary Judgment on Runyon’s Interactive Process
and Accommodation Claims (Third and Fourth Causes of Action) Because
27 He Was Not Terminated Because of His Claimed Disability or Medical
Leave ........................................................................................................................17
28

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DEFENDANTS’ MOTION FOR SUMMARY ADJUDICATION
1 E. Payward is Entitled to Summary Judgment on Runyon’s Failure to Prevent
Discrimination, Harassment, and Retaliation Claim (Sixth Cause of Action)
2 Because There Is No Actionable Discrimination, Harassment, or Retaliation ........18

3 F. Payward is Entitled to Summary Judgment on Runyon’s Good Faith and
Fair Dealing Claim (Eighth Cause of Action) Because Payward Did Not
4 Unfairly Frustrate Runyon’s Right to Receive the Benefits of His At-Will
Employment Agreement ..........................................................................................18
5
1. Runyon’s Good Faith and Fair Dealing Claim Cannot Be Based on
6 His Termination............................................................................................18

7 2. Runyon’s Fails to Raise a Triable Issue of Fact Regarding His Claim
That Payward Unfairly Increased His Employment Duties .........................18
8
G. Payward is Entitled to Summary Judgment on Runyon’s Whistleblower
9 Termination and Retaliation Claims (Fifth, Ninth, and Tenth Causes of
Action) Because Runyon Did Not Engage in Protected Whistleblower
10 Activity, and Was Not Fired in Retaliation for Any Such Activity .........................19

11 1. Runyon Did Not Engage in Protected Whistleblower Activity ...................19
12 (a) To Be a Protected Whistleblower, Runyon Must Provide
Sufficient Evidence That He Had Reasonable Cause to
13 Believe He Disclosed Illegal Conduct .............................................19
14 (b) The Facts Demonstrate That Runyon Could Not Have
Reasonably Believed That Payward’s Conduct Regarding the
15 Vesting Schedules Was Illegal .........................................................20
16 (i) Employee 5 ...........................................................................20
17 (ii) Employee 7 ...........................................................................21
18 (c) Runyon Admits, and the Facts Support, That His Allegations
Regarding the OFAC Issues Are Not Grounds for a
19 Whistleblower Retaliation Claim .....................................................22

20 (d) Runyon Admits His Allegations Regarding Bank Balance
Discrepancies Are Not Grounds for a Whistleblower
21 Retaliation Claim..............................................................................23

22 2. Runyon Cannot Meet His Burden of Demonstrating That Payward’s
Stated Non-Retaliatory Reasons For Firing Him Were a Pretext to
23 Conceal an Improper Motive........................................................................23

24 3. Runyon’s Public Policy Claim Fails Because It Is Based Entirely on
His Whistleblower Claims ...........................................................................24
25
IV. CONCLUSION ....................................................................................................................24
26

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DEFENDANTS’ MOTION FOR SUMMARY ADJUDICATION
1 TABLE OF AUTHORITIES

2 Page(s)
3 Cases
4 Arnold v. Dignity Health
5 (2020) 53 Cal.App.5th 412 .........................................................................................................17

6 Celotex Corp. v. Catrett
(1986) 477 U.S. 317 ...................................................................................................................13
7
Fitzgerald v. El Dorado County
8 (E.D. Cal 2015) 94 F.Supp.3d 1155 ...............................................................................19, 22, 23
9 Foley v. Interactive Data Corp.
(1988) 47 Cal.3d 654 ..................................................................................................................18
10

11 Guz v. Bechtel Nat. Inc.
(2009) 24 Cal.4th 317...........................................................................................................18, 19
12
Khan v. SAP Labs, LLC
13 (N.D. Cal. Nov. 4, 2019, No. 18-CV-07490-BLF), 2019 WL 5697928 ..............................22, 23
14 Loggins v. Kaiser Permanente Internat
(2007) 151 Cal.App.4th 1102 ...................................................................................15, 16, 17, 23
15

16 Love v. Motion Industries, Inc.
(N.D. Cal. 2004) 309 F.Supp.2d 1128 .......................................................................................20
17
Loveall v. City and County of San Francisco,
18 No. CGC-19-573186, 2020 WL 8262312 (2020) ..........................................................14, 18, 24

19 Lyle v. Warner Bros. Television Prods.
(2006) 38 Cal.4th 264...........................................................................................................13, 14
20
McDonnell Douglas Corp. v. Green
21
(1973) 411 U.S. 792 ........................................................................................................... passim
22
Mixon v. Fair Emp. & Hous. Com.
23 (Ct. App. 1987) 192 Cal.App.3d 1306 .......................................................................................16

24 Morgan v. Regents of Univ. of Cal.
(2000) 88 Cal.App.4th 52 .........................................................................................12, 15, 16, 23
25
Ross v. County of Riverside
26 (2019) 36 Cal.App.5th 580, 592 .................................................................................................19
27
Schulthies v. Nat’l Passenger R.R. Corp.
28 (N.D. Cal. 2009) 650 F.Supp.2d 994 .........................................................................................24

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DEFENDANTS’ MOTION FOR SUMMARY ADJUDICATION
1 Siazon v. Hertz Corp.
(9th Cir. Mar. 11, 2021, No. 19-15757), 2021 WL 930283 .......................................................23
2
Simpson v. Computer Scis. Corp.
3 (C.D. Cal. Mar. 16, 2017, No. 2:15-CV-09997-ODW-AS), 2017 WL 1029117 .......................17
4
Singh v. IKEA Distribution Servs., Inc.
5 (E.D. Cal. May 12, 2021, No. 120CV0975NONEJLT), 2021 WL 1907608 .............................24

6 Wood v. Valentine Surfacing
(E.D. Ca. Sept. 21, 2007, No. 2:03-CV-2514-RRB-EFB), 2007 WL 2753182,
7 aff’d (9th Cir. March 20, 2009) 320 Fed.Appx. 542 ..................................................................14
8 Statutes
9 California Labor Code § 1102.5(b) ................................................................................19, 20, 22, 24
10
Code of Civil Procedure § 437c(f) ...................................................................................................12
11

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DEFENDANTS’ MOTION FOR SUMMARY ADJUDICATION
1 I. INTRODUCTION
2 Plaintiff Nathan Peter Runyon worked as a financial analyst for Defendant Payward, Inc.

3 (“Payward” or the “Company”) for 18 months, and was fired in August 2019. In response, he concocted

4 an elaborate story that he was harassed as a veteran and that he was fired for uncovering financial fraud

5 and because he is disabled. After extensive discovery, including two separate depositions of Plaintiff,

6 the undisputed facts do not support this story.

7 First, the record does not support his allegations that he was harassed because of his military

8 background. Runyon alleges three instances of this harassment. The first he admits did not occur. The

9 second was by definition an isolated comment made by a non-supervisor that, even if said, was

10 immediately dropped and never discussed again. The third—that his boss yelled at him because he had

11 served in the military—is admittedly unsupported by any specifics facts and is reliant solely on Runyon’s

12 unsworn allegation.

13 Second, Runyon’s disability and whistleblower related claims are subject to the McDonnell

14 Douglas burden shifting standard. Pursuant to this standard, Payward has put forth ample evidence that

15 Runyon was terminated for non-discriminatory reasons, including his habitually substandard work,

16 numerous personal conflicts with coworkers, and, ultimately, his refusal to continue performing his job

17 duties. Having done so, Runyon bears the burden of demonstrating these reasons were pretextual. Even

18 though Payward disputes that Runyon made Defendants aware of his disabilities or requested medical

19 leave to accommodate those disabilities, and even though Payward disputes that Runyon engaged in any

20 protected whistleblower activities, these disputes do not raise a triable issue of fact, because the record

21 is devoid of the “specific” and “substantial” evidence that Runyon needs to meet his pretext burden.

22 Runyon only points to the temporal proximity between his alleged request for medical leave and his

23 termination, which is insufficient at this stage.

24 Third, the record shows there was no fraud. The facts, and Runyon’s own testimony,

25 demonstrate that he is not a whistleblower because he either (1) did not believe the issues he purportedly

26 disclosed were illegal or (2) simply assumed some fraud was afoot despite being confronted with direct

27 and substantial evidence, including documentary evidence, to the contrary.

28 Runyon cannot raise a triable issue of fact with respect to one or more necessary elements of

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DEFENDANTS’ MOTION FOR SUMMARY ADJUDICATION
1 each of his employment claims against Defendants. Accordingly, these claims fail as a matter of law and

2 should be dismissed.1

3 II. STATEMENT OF FACTS
4 A. Undisputed Facts
5 1. Runyon’s Term of Employment

6 Runyon was hired by Payward as a financial analyst on a temporary basis on March 13, 2018,

7 and subsequently became a full-time employee. (Defendants’ Separate Statement of Undisputed Facts2

8 (“SUF”) ¶¶2-3; May 27, 2021 Declaration of Kaiser Ng (“Ng Decl.”) ¶4.) Mr. Ng hired Runyon, and

9 Runyon reported directly to Mr. Ng during his employment. (SUF ¶4; Ng Decl. ¶4.) Runyon was

10 terminated on August 1, 2019. (SUF ¶48; Ng Decl. ¶63.)

11 2. Runyon’s Harassment Allegations

12 Runyon alleges that during a conversation in March 2019, Mr. Ng made an “offhand comment”
13 to Runyon: “You don’t look disabled.” (FAC ¶36.) Runyon alleges he “was offended by the mocking
14 tone and statement as to both his status as a veteran and his disability.” (Id.) However, Runyon testified
15 that during this conversation, Mr. Ng did not mention Runyon’s veteran status or the military. (SUF ¶7;
16 Deposition Transcript of Nathan Peter Runyon dated May 13, 2021 (“Runyon May Tr.”) 312:14-316:1;
17 318:15-319:13.) Runyon alleges he attended a meeting during which a Payward employee asked if
18 Runyon had killed anyone. (FAC ¶37.) Mr. Ng was not present at that meeting. (SUF ¶8; Runyon May
19 Tr. 319:14-321:9.) Runyon does not recall telling anyone, including Mr. Ng, about this comment, and

20 admits nothing else was said regarding Runyon’s veteran status during this meeting. (SUF ¶¶9-10;

21 Runyon May Tr. 322:23-324:7.) Runyon claims Mr. Ng yelled at him because he could handle it based

22 on his military background, but Runyon does not remember the specifics of any conversation during

23 which Ng said something regarding Runyon’s military status, and he never reported any such

24 conversation to anyone. (SUF ¶11; Runyon May Tr. 333:9-337:11.) Instead, Runyon relies solely on his

25
1
In his First Amended Complaint (“FAC”), Plaintiff’s First, Sixth, and Eleventh, and Twelfth Causes of
26 Action are against Payward and Ng; the remaining causes of action are asserted against Payward only.
Plaintiff’s Eleventh Cause of Action has already been dismissed (March 11, 2020 Order Re: Defendants’
27 Notice of Demurrer to Plaintiff’s First Amended Complaint), and his Twelfth Cause of Action is not at issue
in this motion.
28 2
In accordance with the burden-shifting test set forth in McDonnell Douglas Corp. v. Green, (1973) 411 U.S.
792, the SUF contains facts regarding Payward’s reasons for terminating Runyon.
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DEFENDANTS’ MOTION FOR SUMMARY ADJUDICATION
1 allegation of this harassment and admits he has no other facts to support this allegation. (SUF ¶12;

2 Runyon May Tr. 337:6-11.)

3 3. Runyon’s Good Faith and Fair Dealing Allegations

4 Runyon was an at-will employee. (SUF ¶4; Ng Decl. ¶4, Ex. A.) Runyon’s offer letter and

5 agreement with Payward broadly states that Runyon “will perform the duties and have the

6 responsibilities and authority customarily performed and held by an employee in your position or as

7 otherwise may be assigned or delegated to you by the Company’s Chief Financial [Officer].” (SUF ¶5;

8 Ng Decl. ¶4, Ex. A.) Runyon attended a data analytics “boot camp” class from February 2019 until July

9 2019, which was paid for by Payward. (SUF ¶55; Deposition Transcript of Nathan Peter Runyon dated

10 March 4, 2021 (“Runyon March Tr.”) 21:2-31:22.) Runyon testified Mr. Ng said he “wanted” Runyon

11 to take the boot camp class, and Runyon believes it was “implied” that he would be fired if he did not

12 attend the class. (SUF ¶57; Runyon March Tr. 24:10-14.) Runyon provides no testimony or evidence

13 that he was coerced to attend this class. (SUF ¶58; Runyon March Tr. 21:2-31:22.) Ng did not condition

14 Runyon’s continued employment, compensation, or any other benefits on Runyon’s attendance at the

15 class. (SUF ¶56; Runyon March Tr. 29:17-30:5.) Runyon completed the class and lists it on his resume.

16 (SUF ¶60; Runyon March Tr. 24:2-6; May 27, 2021 Declaration of Christopher LaVigne (“LaVigne

17 Decl.”) Ex. 5.)

18 4. Runyon’s Whistleblower Allegations

19 (a) Employee 5’s Vesting Schedule

20 “Employee 5” in the FAC is former Payward employee Empl. 5 .3 (SUF ¶16; Ng Decl.

21 ¶12.) Ng drafted Employee 5’s employment agreements. (SUF ¶¶63-64; Ng Decl. ¶12.) Those

22 agreements granted her equity options based on a 6-year vesting schedule. (SUF ¶¶67-68; Ng Decl.

23 ¶¶14-15, Exs. C, D.) Employee 5 testified that she and Payward agreed she would receive options based

24 on a 6-year vesting schedule. (SUF ¶67; Ng Decl. ¶14, Ex. C; Deposition Transcript of Employee 5

25 dated May 21, 2021 (“Empl. 5 Tr.”) 27:3-7.) On November 27, 2017, Payward’s Board issued a written

26
3
In connection with Defendants’ Motion to Seal Exhibit I to the Declaration of Kaiser Ng In Support of
27 Motion for Summary Adjudication, filed herewith, and pursuant to the Stipulated Protective Order executed
by the parties and entered by this Court on March 4, 2021, Defendants redact any reference to names of or
28 information regarding third-party employees whose confidential financial information is contained on and/or
derived from Exhibit I.
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DEFENDANTS’ MOTION FOR SUMMARY ADJUDICATION
1 board consent (the “Board Consent”), which, among other items, contains the details of a large number

2 of equity grants, including for Employee 5. (SUF ¶¶69-71; Ng Decl. ¶¶20-21, Ex. I.) The Board Consent

3 incorrectly reflects a 4-year vesting schedule for Employee 5 and several other employees that all also

4 agreed in writing to 6-year vesting schedules. (SUF ¶¶70, 92-93; Ng Decl. ¶¶20, 27, Ex. I.) Throughout

5 her employment, Employee 5 believed and signed additional documents agreeing she was entitled to a

6 6-year vesting schedule (SUF ¶¶72-75, 90; Empl. 5 Tr. 30:16-35:22; 56:18-59:11; 61:1-7; Ng Decl.

7 Exs. E, F, G, H.)

8 Ng asked Runyon to manage the day-to-day transition of all of Payward’s equity grants and

9 capitalization table (“cap table”) from an Excel spreadsheet to (defined as the “Program” in FAC

10 ¶31), a third-party cap table management software. (SUF ¶15; Ng Decl. ¶6.) Mr. Ng retained control

11 over this transition and would make changes in the Program through Runyon’s account. (SUF ¶¶16, 76;

12 Ng Decl. ¶¶6-8.) Runyon was aware of this and would grant Ng 2FA security permission to use his

13 account. (SUF ¶77; Ng Decl. ¶11, Ex. B; Runyon May Tr. 428:7-16.) Before June 7, 2019, Ng

14 discovered Employee 5 was listed as having a 4-year vesting schedule in the Program and changed that

15 schedule to reflect the 6-year vesting schedule she and the Company agreed to. (SUF ¶78; Ng Decl.

16 ¶23.) On June 7, 2019, Runyon asked Ng in a Slack message about this this change: “[Employee 5’s]

17 [vesting schedule] was changed from 1/48 [4-years] to 1/72 [6-years] as well. Is the Board changing

18 that?” Ng replied and explained that the 4-year vesting schedule was incorrect: “Yes. Not really

19 changing. 72 was on her contract and was the intention. She has no expectation of 48.” (SUF ¶81; Ng

20 Decl. ¶22, Ex. J.)

21 Runyon claims that Ng attempted to defraud Employee 5 by making this change in the Program,

22 but admits this belief is based on pure speculation. Runyon testified that Mr. Ng altered Employee 5’s

23 vesting schedule in the Program because Ng considered himself “more powerful than the whole board.”

24 (SUF ¶82; Runyon March Tr. 225:14-226:20.) When asked why he thought that, Runyon testified that

25 he “can only speculate on why.” (SUF ¶83; Runyon March Tr. 225:25-226:6.) Runyon never reviewed

26 Employee 5’s employment agreements. (SUF ¶84; Runyon March Tr. 212:2-213:13.) Runyon admits

27 he does not know why the Board Consent lists a 4-year vesting schedule for Employee 5. He was not

28 present during the time the Board signed this consent, or privy to the discussions surrounding it, and

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1 never discussed this issue with any Board member or with the legal team. (SUF ¶¶85, 86, 87; Runyon

2 March Tr. 221:22-222:13; 228:24-229:8; Runyon May Tr. 470:16-22.) Runyon simply assumed that

3 because the Board Consent listed 4-year vesting schedules for other employees, the Board must have

4 intended that Employee 5 receive that same schedule. (SUF ¶86; Runyon March Tr. 221:22-222:13.)

5 Runyon only discussed Employee 5’s vesting schedule with one other colleague, who “didn’t

6 seem worried about it at all.” (SUF ¶88; Runyon March Tr. 226:21-227:12; 229:2-19.) Contrary to his

7 allegations, Runyon did not tell Employee 5 about the 4-year vesting schedule in the Board Consent

8 prior to his termination. (SUF ¶¶89, 90, 91; Empl. 5 Tr. 56:18-59:11; 61:1-7.) Runyon claims that

9 another reason he believes Ng attempted to defraud Employee 5 is that the incorrect 4-year vesting

10 schedule listed for Employee 5 and other employees in the Board Consent were not addressed in

11 Payward’s June 30, 2019, Board consent. (FAC ¶34.) However, this is undisputed (SUF ¶96; Ng. Decl.

12 ¶29; Runyon May Tr. 377:9-378:13.), and Runyon admits Mr. Ng may have raised this error with the

13 Board without his knowledge, including after the June 30 Board consent or after Runyon’s termination.

14 (SUF ¶97; Runyon May Tr. 373:1-376:20.)

15 (b) Employee 7’s Vesting Schedule

16 “Employee 7” in Runyon’s FAC is Payward employee Empl. 7 . (SUF ¶98; Ng Decl. ¶33.)

17 Employee 7 was granted two separate option grants, one of which is performance-based and required

18 approval by Payward’s CEO before it began vesting. (SUF ¶¶99-100; Ng Decl. ¶¶35, Exs. M, O.) Ng

19 informed the Program of this because he did not want Employee 7 to receive his performance-based

20 options before those options were approved by the CEO. (SUF ¶¶101-02; Ng Decl. ¶¶36-37, Ex. N.)

21 Payward’s Program contact stated that he would change Employee 7’s email address associated with

22 the performance-based option grant to a placeholder email address to avoid this issue until the options

23 were properly approved. (SUF ¶103; Ng Decl. ¶37, Ex. N.) Runyon was aware of all of this because he

24 was copied on, and participated, in the email exchange between Ng and Program discussing this issue.

25 (SUF ¶104; Ng Decl. ¶¶36-37; Ex. N.) Ignoring this, and without reviewing Employee 7’s employment

26 agreement, Runyon unilaterally changed the placeholder email address to Employee 7’s email address.

27 (SUF ¶¶105-07; Ng Decl. ¶¶37, 38; Runyon May Tr. 490:11-492:8.) This caused the exact confusion

28 that Mr. Ng and the Program were hoping to avoid. (Runyon May Tr. 474:23-477:18.)

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1 (c) The OFAC List

2 Mr. Ng’s responsibilities do not include compliance with the United States Department of the

3 Treasury’s Office of Foreign Assets Control (“OFAC”) rules. (SUF ¶112; Ng Decl. ¶42; Runyon May

4 Tr. 444:12-14.) Mr. Ng asked Runyon to help align revenue from certain countries to the regions

5 encompassing those countries for purposes of revenue recognition for Payward’s international

6 companies and affiliates. (SUF ¶113; Ng Decl. ¶39.) As part of this, Ng put Runyon in contact with the

7 Head of Compliance, seeking his input regarding the spreadsheet of Payward’s regional revenue. (SUF

8 ¶¶114; Ng Decl. ¶39; Runyon May Tr. 416:6-422:10.) Runyon admits he did not think Payward was

9 doing anything illegal at the time he discussed this spreadsheet with Mr. Ng and the Head of Compliance.

10 (SUF ¶¶111; Runyon May Tr. 435:16-21.)

11 (d) The Bank Balance Discrepancies

12 Runyon reported a $400 million discrepancy between Payward’s bank balances and its customer

13 balances. (SUF ¶118.) This discrepancy was ultimately much smaller and later properly reconciled. (Id.)

14 Runyon admits he does not think Payward was doing anything illegal at the time he discussed the issue

15 with his superiors. (SUF ¶120; Runyon May Tr. 455:7-456:1.)

16 B. Facts Regarding Runyon’s Employment and The Reasons for His Termination
17 Runyon was fired due to his poor work performance, numerous interpersonal conflicts he caused
18 with other Payward employees, and, ultimately, his explicit refusal to continue working. (SUF ¶¶14-50;
19 Ng Decl. ¶¶52-63.) Mr. Ng frequently monitored Runyon’s work, because Runyon consistently failed

20 to timely accomplish his assigned tasks and would not take ownership over his assignments. (SUF ¶¶17-

21 24; Ng Decl. ¶¶53-55.) Mr. Ng also frequently provided critical feedback to Runyon regarding these

22 performance-related issues. (SUF ¶¶19-24; Ng Decl. ¶¶53-55, Ex. R.)

23 Plaintiff was also involved in numerous personal conflicts with other Payward employees.

24 Mr. Ng received numerous complaints from other Payward employees about Runyon’s behavior. (SUF

25 ¶¶25-34; Ng Decl. ¶¶56-59.) Mr. Ng frequently discussed these interpersonal conflicts with Runyon, at

26 one point telling him in a July 2019 Slack message: “I have never seen as many people conflicts as you

27 have caused in my 20 years career.” (SUF ¶¶25-34; Ng Decl. ¶¶56-59, Ex. S.) Runyon was consistently

28 unapologetic and blamed others when asked about these conflicts, and stated in July that he could “be

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DEFENDANTS’ MOTION FOR SUMMARY ADJUDICATION
1 diplomatic, have patience and play nice,” but he believed his “approach was the quickest way to get

2 results.” (SUF ¶34; Ng Decl. ¶¶56, 57, Ex. S.)

3 /////

4 In late July 2019, Runyon and Mr. Ng held their weekly 1-on-1 meeting. (SUF ¶35; Ng Decl.

5 ¶60.) In that meeting, Runyon criticized Payward’s accounting team, and complained the accounting

6 team was demotivating him. (SUF ¶¶35-37; Ng Decl. ¶60.) In that same meeting, Mr. Ng asked Runyon

7 for a status update on various tasks, including a particular task that Runyon had said he had been working

8 on for weeks. (SUF ¶¶38, 39; Ng Decl. ¶61.) When Mr. Ng asked Runyon to show him what Runyon

9 had done so far on that task, Runyon revealed he had not worked on it. (SUF ¶¶39, 40; Ng Decl. ¶61.)

10 In response, Mr. Ng asked Runyon something like “what’s going on?” (SUF ¶41; Ng Decl. ¶61.) Runyon

11 responded that he cannot work around the accounting team. (SUF ¶42; Ng Decl. ¶61.) Mr. Ng then twice

12 asked Runyon if he was going to do the work Mr. Ng asked him to do, and Runyon twice said no. (SUF

13 ¶¶41-43; Ng Decl. ¶61.)

14 After this incident, Mr. Ng decided to fire Runyon. (SUF ¶46; Ng Decl. ¶62.) Ng informed

15 Payward’s executive team about this decision. (SUF ¶47; Ng Decl. ¶¶62, Ex. T.) Then Mr. Ng set up a

16 Zoom meeting with Runyon and fired him. (SUF ¶48; Ng Decl. ¶¶62.) In that conversation, Mr. Ng did

17 not provide a reason for Runyon’s termination. (Runyon May Tr. 523:21-525:13.)

18 III. DISCUSSION
19 A. Standard of Review
20 “Summary judgment is properly granted when there is no triable issue as to any material fact

21 and the moving party is entitled to judgment as a matter of law. A defendant seeking summary judgment

22 bears the initial burden of proving the cause of action has no merit by showing that one or more elements

23 of plaintiff’s cause of action cannot be established or there is a complete defense. Once the defendant’s

24 burden is met, the burden shifts to the plaintiff to show that a triable issue of fact exists as to that cause

25 of action.” Morgan v. Regents of Univ. of Cal. (2000) 88 Cal.App.4th 52, 67 (hereafter Morgan)

26 (citations omitted). Because the record demonstrates that there is no triable issue of fact as to at least one

27 of the necessary elements of Plaintiff’s discrimination and whistleblower causes of action, Payward is

28 entitled to summary adjudication in its favor on each of those claims. See Code Civ. Proc., § 437c(f).

W ITHERS NY28571/0001-US-9419106/23
B ERGMAN LLP 12
DEFENDANTS’ MOTION FOR SUMMARY ADJUDICATION
1 B. Payward is Entitled to Summary Judgment on Runyon’s Veteran Status Harassment
Claim (First Cause of Action) Because Runyon Was Not Subject to Pervasive
2 Harassment That Altered The Conditions of His Employment
3 Runyon alleges that “Defendants committed unlawful employment practices by harassing

4 plaintiff and/or creating a hostile work environment.” (FAC ¶44.) The time for allegations is over.

5 Runyon must now come forward with evidence. According to the California Supreme Court actionable

6 harassment requires either a single incident of extreme seriousness or a long “concerted” and “pervasive”

7 pattern of directed harassment: “[W]hen the harassing conduct is not severe in the extreme, more than a

8 few isolated incidents must have occurred to prove a claim based on working conditions.” Lyle v. Warner

9 Bros. Television Prods. (2006) 38 Cal.4th 264, 295 (hereafter Lyle) (directing lower court to affirm

10 summary judgment order in favor of employer) (emphasis added). The Court further held that this must

11 show a “concerted pattern” or “an employee generally cannot recover.” Id.

12 Runyon’s Complaint alleges three instances of veteran harassment. He claims that (1) Mr. Ng

13 commented on his veteran status during a brief conversation while both parties were working late at the

14 office, (2) another employee asked him if he had killed anyone, and (3) Mr. Ng yelled at him because of

15 his military background. (FAC ¶¶36-38.) Even assuming California law would consider these equivocal

16 statements as either “severe in the extreme” or a “concerted pattern,” Runyon has failed to come forward

17 with evidence that these instances occurred as he described them. Indeed, his sworn testimony differs

18 notably from his allegations. Nor has Runyon come forward with any documents or other witness

19 testimony supporting these allegations. Thus, Runyon’s testimony stands as the only affirmative

20 evidence he can use to prove this claim. Celotex Corp. v. Catrett (1986) 477 U.S. 317, 322–23, 325

21 (summary judgment is warranted “against a party who fails to make a showing sufficient to establish the

22 existence of an element essential to that party's case” and “the burden on the moving party may be

23 discharged by ... pointing out to the district court [t]hat there is an absence of evidence to support the

24 nonmoving party’s case”).

25 Regarding the first incident, Runyon alleges that Mr. Ng made a “mocking” comment to Runyon

26 based on “his status as a veteran” while working late one night. (FAC ¶36.) However, Runyon admitted

27 under oath that during this alleged conversation Mr. Ng never mentioned his veteran status at all. (SUF

28 ¶7; Runyon May Tr. 318:15-319:13.)

W ITHERS NY28571/0001-US-9419106/23
B ERGMAN LLP 13
DEFENDANTS’ MOTION FOR SUMMARY ADJUDICATION
1 Regarding the second incident, Runyon alleges that during a separate meeting the “Director of

2 Recruiting” asked if Runyon had killed anyone. (FAC ¶37.) Runyon admitted that Mr. Ng was not

3 present at this meeting, and Runyon does not recall telling anyone about this purported comment. (SUF

Case Info

Judge

Samuel K. Feng Track Judge’s New Case

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Document Filed Date

May 28, 2021

Case Filing Date

November 26, 2019

County

Parties

CALDERON, ANDREW E. Attorney for the Defendant
COCHRAN, CLAIRE E. Attorney for the Plaintiff
DOES 1-50, INCLUSIVE Defendant
EMPLOYEE 5 Other
FORD, BRENDAN M. Attorney
LAVIGNE, CHRISTOPHER N. Attorney for the Defendant
NG, KAISER Defendant
PAYWARD, INC., A CALIFORNIA CORPORATION Defendant
RUNYON, NATHAN PETER Plaintiff
STEVENS, GREGORY W. Attorney for the Plaintiff
Natalie Xifo Attorneys for Plaintiffs
Kimberly Pallen Attorneys for Defendants
Claire Eberhard Attorney
Howard Strong Attorneys for Plaintiffs
Eduardo Dominguez Attorney
Aaron Minnis Attorney
Christopher Layne Attorney

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Hearing: NATHAN PETER RUNYON VS. PAYWARD, INC., A CALIFORNIA CORPORATION ET AL

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