Preview
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 08/06/2021
Clerk of the Court
5 Telephone: 415.872.3200 BY: EDNALEEN ALEGRE
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’ REPLY MOTION IN
SUPPORT OF SUMMARY
14 v. ADJUDICATION
15 PAYWARD, INC., a California Corporation Filed Concurrently with: Reply Declaration of
d/b/a KRAKEN; and Kaiser NG, an Christopher N. LaVigne in Support of
16 individual; and DOES 1 through 10, inclusive, Defendants’ Motion for Summary
Adjudication; Defendants’ Response to
17 Defendants. Plaintiff’s Separate Statement of Additional
Material Facts in Support of Opposition to
18 Defendants’ Motion for Summary
Adjudication; and Evidentiary Objections to
19 the Declaration of Nathan Peter Runyon In
Support of Opposition to Defendants’ Motion
20 for Summary Adjudication
21 Date: August 12, 2021
Time: 9:30 a.m.
22 Dept.: 302
23 The Hon. Ethan P. Schulman
24 Action Filed: November 26, 2019
Trial Date: September 13, 2021
25
26
27
28
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DEFENDANTS’ REPLY MOTION IN SUPPORT OF SUMMARY ADJUDICATION
1 I. INTRODUCTION
2 In opposition, plaintiff Nathan Peter Runyon attempts to weave a “tale” of Payward, Inc.’s
3 disability discrimination. A brief review of his arguments reveals what a tall tale this case is. Payward
4 provided extensive evidence that it fired Runyon for legitimate and lawful reasons, including documentary
evidence that Runyon was given multiple written reprimands and specific areas to improve. Faced with
5
this evidence – which Runyon completely ignores in his opposition – Runyon now explicitly abandons his
6
veteran and disability harassment claims. Runyon continues to advance his claims that Payward failed to
7
accommodate his purported leave request and terminated him for taking leave. But Runyon fails to satisfy
8
his evidentiary obligation to advance “specific” and “substantial” evidence demonstrating that Payward’s
9
motives were pretextual. He also halfheartedly maintains his purported whistleblower claims, but presents
10 no evidence that he possessed any reasonable belief that the specific issues he purportedly raised were
11 unlawful or that his termination was actually linked to his alleged whistleblowing activity.
12 Because Payward has provided evidence demonstrating that Runyon was fired for legitimate and
13 lawful reasons, Runyon now must come forward with direct evidence or “specific” and “substantial”
14 circumstantial evidence to demonstrate that Payward’s proffered reasons for firing him were pretextual.
15 He offers no direct evidence. He offers only one piece of disputed circumstantial evidence: his supervisor
Kaiser Ng’s purported statement that Runyon “does not look disabled.” He offers nothing more. No
16
statements by other employees. No documents. And even if we believe Runyon that Ng said this, there is
17
nothing to link this statement to Runyon’s termination. This is not the “specific” and “substantial” evidence
18
necessary to demonstrate that Payward’s proffered reasons for firing him were pretextual.
19
Moreover, Runyon all but abandons his whistleblower claims. He provides no evidence – whether
20
direct or circumstantial – that Payward fired him for his alleged whistleblowing activities. He does not
21 even attempt to do so, and instead simply refers to his arguments that he was purportedly terminated for
22 taking medical leave. Runyon’s failure to establish a causal connection between his whistleblower
23 activities and his termination is fatal to his whistleblower claims. Even if the record supported any causal
24 link (it does not), Runyon’s claims fail because he lacked a reasonable belief that any reported conduct
25 was actually illegal. Runyon no longer argues that he had a reasonable belief he was reporting illegal
26 activity. Runyon ignores Payward’s arguments that Runyon unreasonably assumed Ng was engaged in
fraud regarding employee vesting schedules in the face of significant contemporaneous evidence to the
27
contrary and that Runyon conceded he possessed no belief (reasonably or otherwise) that he was reporting
28
any illegal activity regarding OFAC and bank balances. Instead he argues that it does not matter whether
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1 he actually held a reasonably based suspicion of illegality so long as it is possible in hindsight and in the
2 abstract that he “could have” held such a suspicion. This is not the law. The law requires that Runyon
3 possessed a belief he was reporting illegal activity and that belief must be objectively reasonable. Runyon’s
arguments are a tacit admission that his whistleblower claims are meritless.
4
II. DISCUSSION
5
A. Runyon Has Abandoned His Claims for Veteran Status Harassment, Disability
6 Discrimination, and Breach of the Covenant of Good Faith and Fair Dealing
7 Runyon has abandoned his claims that he was unlawfully harassed based on his veteran status
8 (First Cause of Action), that he was unlawfully harassed based on his disability (Second Cause of Action),
9 and that Payward violated the covenant of good faith and faith dealing inherent in his employment
10 agreement (Eighth Cause of Action). (Runyon Opp. Br. at 1.) Therefore, and because those claims have
11 no basis in law or fact, Payward is entitled to judgment on each claim.
12 B. Payward is Entitled to Summary Judgment on Runyon’s Remaining Disability Claims
Because He Has Failed to Raise a Triable Issue of Fact Regarding Payward’s Reasons for
13 Terminating Him
1. Payward Met Its Burden to Demonstrate That Runyon Was Terminated For Lawful,
14 Legitimate Reasons
15 Runyon’s remaining claims at issue in this pending motion 1 are all based upon his termination,
16 which he claims was unlawful, based on discriminatory or retaliatory reasons. (See Runyon Opp. Br. at 8-
17 20.) As set forth in Payward’s moving papers, Payward has offered legitimate, lawful reasons for Runyon’s
18 termination. Payward has supported these reasons with testimony and undisputed documentary evidence.
19 Payward has therefore met its burden under the second part of the McDonnell Douglas three-part burden-
20 shifting test. See McDonnell Douglas Corp. v. Green, (1973) 411 U.S. 792, 802-07. (See Defendants’
Motion for Summary Adjudication, filed May 28, 2021 (“Mov. Br.”) at 11-12, 15-16; Defendants’
21
Separate Statement of Undisputed Facts (“SUF”) ¶¶14-50; May 27, 2021 Declaration of Kaiser Ng (“Ng
22
Decl.”) ¶¶52-63.)
23
Payward’s legitimate, lawful reasons for terminating Runyon included his poor work performance,
24
interpersonal conflicts with other Payward employees, and, ultimately, his explicit refusal to continue
25
working. (SUF ¶¶14-50.) Payward’s evidence includes: (1) a declaration from Runyon’s direct supervisor,
26 Kaiser Ng, explaining the reasons for Runyon’s termination, including his poor work performance and
27
1
Plaintiff’s Third, Fourth, Fifth, Sixth, Seventh, Ninth, and Tenth Causes of Action are all based on his termination. (See FAC
28 ¶¶55-98, 104-114.) Plaintiff’s Eleventh Cause of Action has already been dismissed (March 11, 2020 Order Re: Defendants’
Notice of Demurrer to Plaintiff’s First Amended Complaint), and his Twelfth Cause of Action is not at issue in this motion.
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1 other misconduct (Ng Decl. ¶¶52-63); (2) an April 2019 email from Ng to Runyon containing critical
2 feedback regarding Runyon’s job performance (Ng. Decl., Ex. R); (3) June 2019 Slack communications
3 between Ng and Runyon regarding Runyon’s conflicts with other Payward employees (Ng. Decl., Ex. S);
(4) July 2019 Slack communications between Ng and other members of Payward’s executive team
4
addressing Ng’s concerns with Runyon’s problematic attitude to his work (Ng. Decl., Ex. T); and (5) Ng’s
5
deposition testimony, which corroborates his declaration (LaVigne Reply Decl., Ex. 1 (Deposition
6
Transcript of Kaiser Ng dated July 20, 2021 (“Ng Tr.”) 181:5-14).) This evidence more than satisfies
7
Payward’s McDonnell Douglas burden regarding Runyon’s termination. See, e.g., Morgan v. Regents of
8
Univ. of Cal. (2000) 88 Cal.App.4th 52, 68 (hereafter Morgan) (“The employer’s burden at this stage is to
9 go forward with additional evidence; it does not take on a burden of persuasion.”).
10 2. Runyon Has Failed to Offer Specific and Substantial Evidence That Payward’s
Proffered Reasons for Terminating Him Were Pretextual
11
For Runyon’s termination claims to survive summary judgment, Runyon must offer either (1)
12
direct evidence, or (2) “specific” and “substantial” circumstantial evidence that Payward’s reasons for
13
terminating him were simply pretexts to hide Payward’s actual, unlawful intent. See Morgan, 88
14
Cal.App.4th at 67-69. Runyon has provided no direct evidence that he was terminated due to his disability,
15
and fails to do so in his current opposition. (See Runyon Opp. Br. at 2-6; SUF ¶49; Response to Defendants’
16 Statement of Undisputed Material Facts (“RSUMF”)2 ¶49 (admitting Runyon testified that Payward did
17 not provide any additional reasons for firing him other than “the company decided to sever the
18 relationship”).)
19 Absent direct evidence, Runyon must offer “specific and substantial” circumstantial evidence of
20 pretext. Morgan, 88 Cal.App.4th at 69 (internal quotations omitted). Runyon’s opposition is devoid of
21 specific and substantial evidence. Instead, Runyon’s opposition restates allegations lacking any basis in
fact, treats unsupported lawyer arguments as undisputed facts, and offers Runyon’s conjecture as evidence
22
of pretext.3
23
24 2
In order to avoid confusion, this reply refers to the acronyms used in Runyon’s opposition to refer Runyon’s responses to
Payward’s separate statement and Runyon’s additional separate statement.
25 3
For example, Runyon’s Opposition states that “Ng was openly antagonistic to Runyon’s repeated requests for time off from
work as a reasonable accommodation for his disability/medical condition.” (Runyon Opp. Br. at 2.) Runyon provides no record
26 cite for this purported “fact.” Indeed, this statement is contradicted by his prior testimony. (See Payward’s Objections to the
Declaration of Nathan Peter Runyon.) Ng testified that he never denied Runyon’s requests for time off, and Runyon never alleges
27 or testifies otherwise. (FAC ¶¶21, 39; Ng Tr. at 231:15-21.) Runyon’s attempts to broaden his disability termination claims
through his declaration (Runyon Opp. Br. at 20, n.7.) and to create a dispute of material fact through lawyer argument is improper
and should be disregarded. Richard Strick, M.D., Inc. v. United Ret. Plan Consultants, Inc., No. 2:16-cv-08206-AFM, 2018 WL
28 6004529, at *4 (C.D. Cal. July 13, 2018) (“[I]t is insufficient for Plaintiffs merely to present a lawyer’s argument without
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1 (a) Runyon’s Termination One Day Into His Requested Leave, Without
Additional Specific and Substantial Evidence of Pretext, Is Insufficient to
2 Withstand Summary Judgment
3 Runyon acknowledges that the temporal proximity between his alleged requested leave and his
4 termination, without additional evidence, is insufficient to show pretext under McDonnell Douglas.
5 Loggins v. Kaiser Permanente Int’l (2007) 151 Cal.App.4th 1102, at 1112; (Runyon Opp. Br. at 16). The
additional purported evidence that Runyon offers in support of his pretext argument is not “specific and
6
substantial” enough to establish that a triable issue of material fact exists to rebut Payward’s proffered
7
reasons for terminating Runyon. Guz v. Bechtel Nat. Inc., 24 Cal.4th 317, 362 (2000) (“summary judgment
8
for the employer may thus be appropriate where, given the strength of the employer’s showing of innocent
9
reasons, any countervailing circumstantial evidence of discriminatory motive, even if it may technically
10
constitute a prima facie case, is too weak to raise a rational inference that discrimination occurred”).
11 (b) Runyon Fails to Raise Specific and Substantial Evidence That Payward’s
Proffered Reasons For Terminating Him Were Pretext For a Discriminatory
12 Motive
13 i. Runyon’s Attempts to Dispute Payward’s Reasons for Firing Him Are
Unsupported by Law or Fact
14
Runyon disputes Payward’s proffered reasons for his termination because he was “consistently a
15
major asset to the company and performed [his] work well.” (Runyon Decl. ¶25; Plaintiff’s Statement of
16
Additional Material Facts (“SAMF”) ¶52.) Runyon’s high opinion of his own performance do not create
17
a triable issue of material fact regarding Payward’s reasons for his termination. Horn v. Cushman &
18
Wakefield W., Inc., 72 Cal.App.4th 798, 816 (1999) (cited in Runyon’s Opposition) (“an employee’s
19
subjective personal judgments of his or her competence alone do not raise a genuine issue of material
20 fact”).
21 Runyon also argues that “Ng never actually evaluated Runyon’s work” (Runyon Opp. Br. at 5, 16)
22 and that “there is no documentation that reflects the existence of any of these purported [work performance
23 and interpersonal conflict] issues.” (Runyon Opp. Br. at 4.) This is demonstrably false. Runyon chooses to
24 ignore the April 12, 2019, email from Ng to Runyon in which Ng provides critical feedback to Runyon
25 and emphasizes the importance of communication by stating, among other things: “I should not have to
ask you for the same reports every month. You should do whatever it takes to deliver your work in high
26
27
evidence. Plaintiffs must ‘do more than simply show that there is some metaphysical doubt as to the material facts.’”) (quoting
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)). Similarly, Runyon’s reliance on uncorroborated
28 allegations (see, e.g., Runyon Opp. Br. at 8:5-7, 8:24-27; compare FAC ¶¶22-29 with Runyon Decl. ¶¶33-41) are not sufficient
to withstand summary judgment on his termination claims. Lyle v. Warner Bros. Television Prods., 38 Cal.4th 264, 274 (2006).
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1 quality. If you can’t meet deadline, let me know instead of going silent. Any update is better than no
2 update.” (SUF ¶22; Ng Decl. ¶54, Ex. R.) Runyon testified that he and Ng had follow-up conversations
3 about this feedback. (LaVigne Decl., Ex. 3 (Runyon May Tr. 546:6-549:19.).) Runyon also conveniently
ignores the June 2019 Slack conversation in which Ng told Runyon: “[Y]ou could have taken a different
4
and a better approach to deal with these situations. Your people skill[s] and your EQ are your biggest
5
weaknesses. I have never seen as many people conflicts as you have caused in my 20 years career.” (SUF
6
¶30; Ng Decl. ¶58, Ex. S.)
7
In addition, Ng provided a sworn declaration that he frequently monitored Runyon’s work because
8
Runyon failed to timely accomplish assigned tasks and would not take ownership over assignments. Ng
9 frequently provided critical feedback to Runyon regarding these performance-related issues. (SUF ¶¶17-
10 24; Ng Decl. ¶¶53-55.) Ng also testified in support of his assessment of Runyon’s ongoing work
11 performance issues. (LaVigne Decl. Ex. 1 (Ng. Tr. at 225:11-21 (“[H]e couldn’t produce work at our high
12 quality. I’d constantly have to remind him, follow up, and get myself more involved in the detail to make
13 sure that we’re able to produce high quality work out of finance.”).). A July 2020 Slack conversation with
14 other Payward executives corroborates this testimony. There Ng said: “I’m planning to let [Runyon] go
this week . . . [Runyon] unfortunately cannot perform at a high level and and (sic) was unable to step up
15
his game after receiving feedback from me.” (Ng Decl. ¶ 62, Ex. T.)
16
Runyon suggests that these motives are vague or “shifting.” (Runyon Opp. Br. at 3-4.) But taken
17
together, they present a consistent narrative. Runyon had persistent problems with his work quality and
18
interpersonal interactions, as documented in written reprimands from April 2019 and June 2019. Runyon’s
19
ultimate refusal to continue working was the “straw that broke the camel’s back[.]” (See Ng Tr. 181:5-14
20 (“So it’s your testimony that the straw that broke the camel’s back was Pete’s refusal to do work on
21 anything that you asked him to work on going forward; is that correct? A. Yeah. It was the way he just
22 was very determined he wasn’t going to do any more work. He didn’t want to sitor work with the
23 accounting team, thought they were a distraction to him. And then all the interpersonal conflicts that he’s
24 had. Yeah, lot of work.”).)
25 ii. Even if Runyon Were to Cast Doubt on Payward’s Reasons For Firing
Him, Runyon Fails to Provide Sufficient and Substantial Evidence
26 that Payward Terminated Him Due to His Disability
27 Assuming Runyon’s strained attacks on Payward’s reasons for terminating him are “accepted as
true,” (Runyon Opp. Br. at 8:5-7) they fail to raise any triable issue of fact regarding pretext. See Horn, 72
28
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1 Cal.App.4th at 817 (“The decisionmaker’s motive and state of mind will almost always be in dispute in
2 [unlawful termination] cases . . . plaintiff must do more than establish a prima facie case and deny the
3 credibility of the [defendant’s] witnesses”) (citations and internal quotations omitted). For example,
Runyon disputes Ng’s account of the July 2020 conversation in which Ng detailed the reasons supporting
4
Runyon’s termination of employment to Payward’s executive leadership. (See RSUMF ¶¶39-44.) But
5
undermining Payward’s evidence is not sufficient. Guz, 24 Cal.4th at 360 (“an inference of intentional
6
discrimination cannot be drawn solely from evidence, if any, that the company lied about its reasons”).
7
The burden remains on Runyon. He must provide “evidence supporting a rational inference that intentional
8
discrimination, on grounds prohibited by the statute, was the true cause of the employer’s actions.” Id.;
9 Hersant v. Dep’t of Soc. Servs., 57 Cal.App.4th 997, 1005 (1997) (“It is not enough for the employee
10 simply to raise triable issues of fact concerning whether the employer’s reasons for taking the adverse
11 action were sound. What the employee has brought is not an action for general unfairness but for age
12 discrimination”).
13 Runyon offers no document suggesting such discrimination, even circumstantially. He offers no
14 testimony from other employees. His only evidence is his own uncorroborated recollection and opinion,
originally offered in support of his harassment claim. Runyon claims that Payward had a “negative
15
attitude” about his disability based upon two purported comments made to him, one by Ng, and the other
16
by Payward’s Director of Recruiting. (Runyon Opp. Br. at 2; SAMF ¶6-7.) In the first, Runyon claims that
17
Ng said “You don’t look disabled.” (Runyon Opp. Br. at 2; SAMF ¶6.) Runyon himself admits this was
18
merely an “offhand,” isolated, comment that Runyon simply “[left] at that.” (SAMF ¶6; LaVigne Decl.,
19
Ex. 3 (Runyon May Tr. 315:1-317:3).) Runyon does not allege that Ng ever raised it again, nor does he
20 provide any evidence to link it to his termination. This is insufficient to establish discriminatory motives.
21 See Horn, 72 Cal.App.4th at 809 (“‘stray’ ageist remark . . . is entitled to virtually no weight in considering
22 whether the firing was pretextual or whether the decisionmaker harbored discriminatory animus”) (citing
23 Smith v. Firestone Tire and Rubber Co. (7th Cir.1989) 875 F.2d 1325, 1330 [stray “remarks, . . when
24 unrelated to the decisional process, are insufficient to demonstrate that the employer relied on illegitimate
25 criteria, even when such statements are made by the decision-maker in issue”].) In the second, Runyon
claims Payward’s Director of Recruiting asked Runyon if he had killed anyone during his time in the
26
Marines. (Runyon Opp. Br. at 2; SAMF ¶7.) This comment does not mention Runyon’s disability and only
27
purportedly referred to his veteran status, which is no longer at issue, given Runyon’s abandonment of his
28
claim for veteran discrimination. (SAMF ¶7, Runyon Decl. ¶5, FAC ¶ 37; LaVigne Decl. Ex. 3 (Runyon
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1 May Tr. 322:23-324:7).) Even if this comment were relevant to his disability retaliation and termination
2 claims, Runyon provides no evidence to suggest that the Director of Recruiting had any supervisory
3 authority over Runyon, let alone a role in his termination.
Similarly, Runyon’s allegations regarding his general treatment by Ng are uncorroborated, and
4
Runyon’s speculation that such purported treatment was motivated by discriminatory animus (SAMF ¶¶8-
5
10) relate only to his veteran status, not his disability status. Given that Runyon abandoned his veteran
6
discrimination claims, they are irrelevant. Moreover, they are neither specific nor substantial enough to
7
establish the required discriminatory animus to survive summary judgment. See Loveall v. City and County
8
of San Francisco, No. CGC-19-573186, 2020 WL 8262312 at *2 (“That Plaintiff’s supervisor may have
9 taken a dislike to him or been disrespectful to him, that he was dissatisfied with the training he received,
10 or that others had a different evaluation of his work, does not establish that he was terminated [for a
11 discriminatory reason]”) (internal record citation omitted).
12 Runyon has failed to provide substantial and specific evidence that his termination was for
13 unlawful reasons. Therefore, his termination-based claims4 must be dismissed.
14 3. Payward Is Entitled to Summary Judgment on Runyon’s Interactive Process and
Failure to Accommodate Claims Because He Was Terminated for Lawful and
15 Legitimate Reasons
16 Runyon argues that his termination a day after he began his requested “leave”5 represents a
breakdown of the interactive process and Payward’s failure to accommodate his disability. (Runyon Opp.
17
Br. at 10; SAMF ¶¶25-26.) These claims fail because Runyon has not rebutted Payward’s non-
18
discriminatory reasons for termination, and has failed to establish that his termination was motivated by
19
discriminatory animus. In Simpson v. Computer Scis. Corp., the Ninth Circuit affirmed the District Court’s
20
order granting summary judgment to an employer on a disabled employee’s interactive process and failure
21
to accommodate claims. 735 F. App’x 339, 340 (9th Cir. 2018). The Ninth Circuit held:
22 Because [the employer] laid [the employee] off for a legitimate, non-discriminatory, and
non-pretextual reason, it had no obligation to accommodate [the employee’s] condition or
23 undertake an interactive process to identify a potential accommodation.
24 Id. In its decision below, the District Court held:
25 In this case, [the employer] did approve [the employee’s] time-off requests, but the mere
fact that it did so does not mean it could not also terminate his position for a
26 nondiscriminatory reason. And, as discussed above, [the employee] has failed to establish
27 4
Because Runyon has abandoned his discrimination and harassment claims, his “failure to prevent” claim (Sixth Cause of Action)
is limited only to his termination, and must fail along with his other termination claims. (Mov. Br. at 18.)
28 5
Both Runyon and Ng’s testimony indicates Runyon was simply taking a vacation, not medical leave. (RSUMF ¶11; LaVigne
Reply Decl., Ex. 1 (Ng Tr., 223:13-224:1 and 231:6-8); Ex. 3 (Runyon May Tr., at 502:4-503:14).)
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1 that he was terminated for a discriminatory reason . . . . termination following the provision
of an accommodation is not the same as a failure to accommodate, or here, a failure to
2 engage in the interactive process.
3 Simpson v. Computer Scis. Corp. (C.D. Cal. Mar. 16, 2017, No. 2:15-CV-09997-ODW-AS), 2017 WL
4 1029117, at **3-4), aff’d, (9th Cir. 2018) 735 Fed.Appx. 339.
5 Simpson is squarely on point with the allegations here.6 Runyon argues that failure to
accommodate claims are not subject to the McDonnell Douglas burden-shifting framework. (Runyon Opp.
6
Br. at 10, n.4 (citing Cornell v. Berkeley Tennis Club (2017) 18 Cal.App.5th 908, 925-27).) Payward does
7
not challenge this authority, as it is inapplicable when, as is the case here and was in Simpson, an employee
8
was fired for legitimate, lawful reasons. Runyon’s argument would lead to the absurd conclusion that once
9
an employee had requested an accommodation and begun the interactive process, an employer could no
10
longer terminate that employee, even for a legitimate reason. This is not the law. Wong v. Pape Mach.,
11 Inc., 370 F. App’x 871, 873 (9th Cir. 2010) (“No authority appears to support [an employee’s] contention
12 that [her employer] should have continued to accommodate her after its non-discriminatory decision to
13 terminate her.”).
14 Accordingly, Runyon’s failure to accommodate and interactive process claims must fail with his
15 termination-based claims.
16 C. Payward is Entitled to Summary Judgment on Runyon’s Whistleblower Retaliation Claims
Because He Was Fired For a Legitimate Reason, and In Any Event Did Not Engage in
17 Protected Activity
18 1. Runyon’s Failure to Meet His Pretext Burden Applies Equally, If Not More So, to
His Whistleblower Retaliation Claims
19
Runyon all but abandons his whistleblower claims.7 As set forth in Plaintiff’s Moving Brief at 18-
20 19 and in Section II.B supra, Payward’s lawful reasons for terminating Runyon easily meet its McDonnell-
21 Douglas burden. Runyon offers no facts in rebuttal indicating he was fired instead for raising concerns of
22 unlawful financial activity, and instead simply refers to his arguments that he was fired because of his
23 alleged disability. (Runyon Opp. Br. at 20, Section V.B.) On their face, Runyon’s arguments do not create
24 a triable issue of fact as to whether his termination was pretextual retaliation for his purported
25
6
Runyon attempts to distinguish Simpson by noting that the decision in that case to fire an employee was made before he requested
26 his accommodation (Runyon Opp. Br. at 10), but the Ninth Circuit and District Court holdings in the Simpson case specifically
disclaim such a temporal limitation. Simpson, (C.D. Cal. Mar. 16, 2017, No. 2:15-CV-09997-ODW-AS), 2017 WL 1029117, at
*4 (“termination following the provision of an accommodation is not the same as a failure to accommodate”). Likewise, Runyon’s
27 claim that a lower court has “criticized” the Ninth Circuit’s holding (Runyon Opp. Br. at 10) does not lessen the persuasive value
of Simpson, nor its applicability to the present facts.
28 7
For the reasons set forth Plaintiff’s Moving Brief, Section III.G.3, Runyon’s public policy termination claim is based entirely
on his retaliation claim, and must rise and fall with that claim.
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1 whistleblowing activities.
2 Runyon also fails to offer any admissible evidence that might be relevant to establish his
3 whistleblower termination claims. Instead, without citation to the record, Runyon baselessly asserts that
“evidence of hostility on the part of Ng toward Runyon’s expressed concerns about the alteration of
4
employees’ vesting schedules is sufficient to create a dispute of material fact as to whether Payward’s
5
proffered reason for terminating Runyon was pretextual.” (Runyon Opp. Br. at 13.) Runyon merely
6
regurgitates his Complaint, again discussing what he characterizes as “unethical” or “unlawful” activity
7
that he observed and sometimes discussed with other Payward employees. (See Runyon Decl. ¶¶40-51.)
8
He offers no documents supporting these allegations. He offers no testimony from other employees or
9 third parties. And even Runyon’s own creative recollections offer not a single fact linking Runyon’s
10 purported whistleblowing with his termination. There is no evidence to “create a triable issue of material
11 fact that [Plaintiff] engaged in a protected activity and that there is a causal link between the protected
12 activity and Plaintiff’s termination,” so these claims must be dismissed. Loveall, 2020 WL 8262312 at *3.
13 2. Runyon’s Opposition and the Factual Record Demonstrate That He Did Not Engage
in Protected Whistleblower Activity
14
Even if the record contained any causal link between Runyon’s alleged reports of “unethical” or
15
“unlawful” conduct regarding his termination (which it does not), Runyon’s claims would still fail because
16 the record shows that he did not have a reasonable belief that any such conduct was actually illegal. Under
17 oath, Runyon (1) admitted that he never attempted to determine whether the CFO’s handling of, e.g.,
18 Employee 5’s and Employee 7’s vesting schedules and options grants was proper and deliberately ignored
19 evidence that it was (Mov. Br. at 20-22); (2) conceded that he did not believe he was reporting anything
20 illegal when he purportedly raised OFAC and bank balance issues with Mr. Christie and Ng (Mov. Br. at
21 22-23; LaVigne Decl., Ex. 3 (Runyon May Tr. 434:12-435:15; 455:7-456:1); and (3) admitted his other
vague allegations regarding Ng’s purported “unethical” conduct were not true (e.g., LaVigne Decl., Ex. 2
22
(Runyon March Tr. 172:12-174:25 (admitting he was not asked to and did not prepare inaccurate
23
information for an audit). Faced with such damaging admissions, Runyon now shifts his legal argument.
24
He now argues that he did not have to believe (reasonably or not) that Payward’s conduct was illegal when
25
he allegedly disclosed it, as long as it is hypothetically possible that he “could have held a reasonably based
26
suspicion” that Payward was engaged in illegal conduct. (Runyon Opp. Br. at 19). The case Runyon cites
27 to for this proposition says the opposite: the whistleblower statute requires “that an employee disclose
28 information and that the employee reasonably believe the information discloses unlawful activity.” Ross
W ITHERS NY28571/0001-US-9717543/11
B ERGMAN LLP 9
DEFENDANTS’ REPLY MOTION IN SUPPORT OF SUMMARY ADJUDICATION
1 v. Cty. of Riverside (2019) 36 Cal.App.5th 580, 593, review denied (Sept. 25, 2019). Ross reiterates what
2 is obvious from the statutory language: a purported whistleblower must actually believe that unlawful
3 activity is taking place, and that belief must be reasonable. See Cal. Lab. Code § 1102.5(b).
As set forth in Plaintiff’s Moving Brief at 14-18, Runyon did not and could not have had a
4
reasonable belief that Payward’s alleged conduct was illegal. Runyon fails to meaningfully rebut his
5
previous testimony that he did not believe he was disclosing any illegal activity regarding the OFAC and
6
bank balance issues alleged in his complaint. (SUF and RSUMF ¶¶111, 120.) There is no genuine dispute
7
over this. (Christie Decl. at 105:1-7.) Runyon also offers no additional facts or explanation regarding why,
8
without further investigation, he assumed the vesting schedule discrepancy was evidence of fraud, or why
9 such an assumption was justified. (SUF and RSUMF ¶¶77, 84-89, 97, 98-110; Mov. Br. at 20-23.)
10 Runyon’s attorneys’ hindsight discussion of laws that might potentially have been implicated by
11 Payward’s alleged conduct is irrelevant to Runyon’s beliefs at the times he alleges he made protected
12 disclosures regarding the OFAC, bank balance, and vesting schedule issues. (See Runyon Opp. Br. at 19-
13 20). It is also a tacit admission that Runyon’s whistleblower claims are meritless.
14 Because Runyon has failed to create a triable issue of fact regarding his reasonable belief that he
was engaged in protected whistleblower activity, his whistleblower claims must be dismissed.
15
III. CONCLUSION
16
For the reasons set forth herein, Defendant respectfully requests that its motion for summary
17
adjudication be granted with respect to Plaintiff’s Third, Fourth, Fifth, Sixth, Seventh, Ninth, and Tenth
18
causes of action.
19
20
DATED: August 6, 2021 WITHERS BERGMAN LLP
21
22
By:
23
Kimberly A. Pallen
24 Christopher N. LaVigne
Attorneys for Defendants Payward, Inc., a
25 California Corporation d/b/a Kraken; and Kaiser
NG, an individual
26
Preview
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 08/06/2021 Clerk of the Court 5 Telephone: 415.872.3200 BY: EDNALEEN ALEGRE 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’ REPLY MOTION IN SUPPORT OF SUMMARY 14 v. ADJUDICATION 15 PAYWARD, INC., a California Corporation Filed Concurrently with: Reply Declaration of d/b/a KRAKEN; and Kaiser NG, an Christopher N. LaVigne in Support of 16 individual; and DOES 1 through 10, inclusive, Defendants’ Motion for Summary Adjudication; Defendants’ Response to 17 Defendants. Plaintiff’s Separate Statement of Additional Material Facts in Support of Opposition to 18 Defendants’ Motion for Summary Adjudication; and Evidentiary Objections to 19 the Declaration of Nathan Peter Runyon In Support of Opposition to Defendants’ Motion 20 for Summary Adjudication 21 Date: August 12, 2021 Time: 9:30 a.m. 22 Dept.: 302 23 The Hon. Ethan P. Schulman 24 Action Filed: November 26, 2019 Trial Date: September 13, 2021 25 26 27 28 W ITHERS NY28571/0001-US-9717543/11 B ERGMAN LLP DEFENDANTS’ REPLY MOTION IN SUPPORT OF SUMMARY ADJUDICATION 1 I. INTRODUCTION 2 In opposition, plaintiff Nathan Peter Runyon attempts to weave a “tale” of Payward, Inc.’s 3 disability discrimination. A brief review of his arguments reveals what a tall tale this case is. Payward 4 provided extensive evidence that it fired Runyon for legitimate and lawful reasons, including documentary evidence that Runyon was given multiple written reprimands and specific areas to improve. Faced with 5 this evidence – which Runyon completely ignores in his opposition – Runyon now explicitly abandons his 6 veteran and disability harassment claims. Runyon continues to advance his claims that Payward failed to 7 accommodate his purported leave request and terminated him for taking leave. But Runyon fails to satisfy 8 his evidentiary obligation to advance “specific” and “substantial” evidence demonstrating that Payward’s 9 motives were pretextual. He also halfheartedly maintains his purported whistleblower claims, but presents 10 no evidence that he possessed any reasonable belief that the specific issues he purportedly raised were 11 unlawful or that his termination was actually linked to his alleged whistleblowing activity. 12 Because Payward has provided evidence demonstrating that Runyon was fired for legitimate and 13 lawful reasons, Runyon now must come forward with direct evidence or “specific” and “substantial” 14 circumstantial evidence to demonstrate that Payward’s proffered reasons for firing him were pretextual. 15 He offers no direct evidence. He offers only one piece of disputed circumstantial evidence: his supervisor Kaiser Ng’s purported statement that Runyon “does not look disabled.” He offers nothing more. No 16 statements by other employees. No documents. And even if we believe Runyon that Ng said this, there is 17 nothing to link this statement to Runyon’s termination. This is not the “specific” and “substantial” evidence 18 necessary to demonstrate that Payward’s proffered reasons for firing him were pretextual. 19 Moreover, Runyon all but abandons his whistleblower claims. He provides no evidence – whether 20 direct or circumstantial – that Payward fired him for his alleged whistleblowing activities. He does not 21 even attempt to do so, and instead simply refers to his arguments that he was purportedly terminated for 22 taking medical leave. Runyon’s failure to establish a causal connection between his whistleblower 23 activities and his termination is fatal to his whistleblower claims. Even if the record supported any causal 24 link (it does not), Runyon’s claims fail because he lacked a reasonable belief that any reported conduct 25 was actually illegal. Runyon no longer argues that he had a reasonable belief he was reporting illegal 26 activity. Runyon ignores Payward’s arguments that Runyon unreasonably assumed Ng was engaged in fraud regarding employee vesting schedules in the face of significant contemporaneous evidence to the 27 contrary and that Runyon conceded he possessed no belief (reasonably or otherwise) that he was reporting 28 any illegal activity regarding OFAC and bank balances. Instead he argues that it does not matter whether W ITHERS NY28571/0001-US-9717543/11 B ERGMAN LLP 1 DEFENDANTS’ REPLY MOTION IN SUPPORT OF SUMMARY ADJUDICATION 1 he actually held a reasonably based suspicion of illegality so long as it is possible in hindsight and in the 2 abstract that he “could have” held such a suspicion. This is not the law. The law requires that Runyon 3 possessed a belief he was reporting illegal activity and that belief must be objectively reasonable. Runyon’s arguments are a tacit admission that his whistleblower claims are meritless. 4 II. DISCUSSION 5 A. Runyon Has Abandoned His Claims for Veteran Status Harassment, Disability 6 Discrimination, and Breach of the Covenant of Good Faith and Fair Dealing 7 Runyon has abandoned his claims that he was unlawfully harassed based on his veteran status 8 (First Cause of Action), that he was unlawfully harassed based on his disability (Second Cause of Action), 9 and that Payward violated the covenant of good faith and faith dealing inherent in his employment 10 agreement (Eighth Cause of Action). (Runyon Opp. Br. at 1.) Therefore, and because those claims have 11 no basis in law or fact, Payward is entitled to judgment on each claim. 12 B. Payward is Entitled to Summary Judgment on Runyon’s Remaining Disability Claims Because He Has Failed to Raise a Triable Issue of Fact Regarding Payward’s Reasons for 13 Terminating Him 1. Payward Met Its Burden to Demonstrate That Runyon Was Terminated For Lawful, 14 Legitimate Reasons 15 Runyon’s remaining claims at issue in this pending motion 1 are all based upon his termination, 16 which he claims was unlawful, based on discriminatory or retaliatory reasons. (See Runyon Opp. Br. at 8- 17 20.) As set forth in Payward’s moving papers, Payward has offered legitimate, lawful reasons for Runyon’s 18 termination. Payward has supported these reasons with testimony and undisputed documentary evidence. 19 Payward has therefore met its burden under the second part of the McDonnell Douglas three-part burden- 20 shifting test. See McDonnell Douglas Corp. v. Green, (1973) 411 U.S. 792, 802-07. (See Defendants’ Motion for Summary Adjudication, filed May 28, 2021 (“Mov. Br.”) at 11-12, 15-16; Defendants’ 21 Separate Statement of Undisputed Facts (“SUF”) ¶¶14-50; May 27, 2021 Declaration of Kaiser Ng (“Ng 22 Decl.”) ¶¶52-63.) 23 Payward’s legitimate, lawful reasons for terminating Runyon included his poor work performance, 24 interpersonal conflicts with other Payward employees, and, ultimately, his explicit refusal to continue 25 working. (SUF ¶¶14-50.) Payward’s evidence includes: (1) a declaration from Runyon’s direct supervisor, 26 Kaiser Ng, explaining the reasons for Runyon’s termination, including his poor work performance and 27 1 Plaintiff’s Third, Fourth, Fifth, Sixth, Seventh, Ninth, and Tenth Causes of Action are all based on his termination. (See FAC 28 ¶¶55-98, 104-114.) Plaintiff’s Eleventh Cause of Action has already been dismissed (March 11, 2020 Order Re: Defendants’ Notice of Demurrer to Plaintiff’s First Amended Complaint), and his Twelfth Cause of Action is not at issue in this motion. W ITHERS NY28571/0001-US-9717543/11 B ERGMAN LLP 2 DEFENDANTS’ REPLY MOTION IN SUPPORT OF SUMMARY ADJUDICATION 1 other misconduct (Ng Decl. ¶¶52-63); (2) an April 2019 email from Ng to Runyon containing critical 2 feedback regarding Runyon’s job performance (Ng. Decl., Ex. R); (3) June 2019 Slack communications 3 between Ng and Runyon regarding Runyon’s conflicts with other Payward employees (Ng. Decl., Ex. S); (4) July 2019 Slack communications between Ng and other members of Payward’s executive team 4 addressing Ng’s concerns with Runyon’s problematic attitude to his work (Ng. Decl., Ex. T); and (5) Ng’s 5 deposition testimony, which corroborates his declaration (LaVigne Reply Decl., Ex. 1 (Deposition 6 Transcript of Kaiser Ng dated July 20, 2021 (“Ng Tr.”) 181:5-14).) This evidence more than satisfies 7 Payward’s McDonnell Douglas burden regarding Runyon’s termination. See, e.g., Morgan v. Regents of 8 Univ. of Cal. (2000) 88 Cal.App.4th 52, 68 (hereafter Morgan) (“The employer’s burden at this stage is to 9 go forward with additional evidence; it does not take on a burden of persuasion.”). 10 2. Runyon Has Failed to Offer Specific and Substantial Evidence That Payward’s Proffered Reasons for Terminating Him Were Pretextual 11 For Runyon’s termination claims to survive summary judgment, Runyon must offer either (1) 12 direct evidence, or (2) “specific” and “substantial” circumstantial evidence that Payward’s reasons for 13 terminating him were simply pretexts to hide Payward’s actual, unlawful intent. See Morgan, 88 14 Cal.App.4th at 67-69. Runyon has provided no direct evidence that he was terminated due to his disability, 15 and fails to do so in his current opposition. (See Runyon Opp. Br. at 2-6; SUF ¶49; Response to Defendants’ 16 Statement of Undisputed Material Facts (“RSUMF”)2 ¶49 (admitting Runyon testified that Payward did 17 not provide any additional reasons for firing him other than “the company decided to sever the 18 relationship”).) 19 Absent direct evidence, Runyon must offer “specific and substantial” circumstantial evidence of 20 pretext. Morgan, 88 Cal.App.4th at 69 (internal quotations omitted). Runyon’s opposition is devoid of 21 specific and substantial evidence. Instead, Runyon’s opposition restates allegations lacking any basis in fact, treats unsupported lawyer arguments as undisputed facts, and offers Runyon’s conjecture as evidence 22 of pretext.3 23 24 2 In order to avoid confusion, this reply refers to the acronyms used in Runyon’s opposition to refer Runyon’s responses to Payward’s separate statement and Runyon’s additional separate statement. 25 3 For example, Runyon’s Opposition states that “Ng was openly antagonistic to Runyon’s repeated requests for time off from work as a reasonable accommodation for his disability/medical condition.” (Runyon Opp. Br. at 2.) Runyon provides no record 26 cite for this purported “fact.” Indeed, this statement is contradicted by his prior testimony. (See Payward’s Objections to the Declaration of Nathan Peter Runyon.) Ng testified that he never denied Runyon’s requests for time off, and Runyon never alleges 27 or testifies otherwise. (FAC ¶¶21, 39; Ng Tr. at 231:15-21.) Runyon’s attempts to broaden his disability termination claims through his declaration (Runyon Opp. Br. at 20, n.7.) and to create a dispute of material fact through lawyer argument is improper and should be disregarded. Richard Strick, M.D., Inc. v. United Ret. Plan Consultants, Inc., No. 2:16-cv-08206-AFM, 2018 WL 28 6004529, at *4 (C.D. Cal. July 13, 2018) (“[I]t is insufficient for Plaintiffs merely to present a lawyer’s argument without W ITHERS NY28571/0001-US-9717543/11 B ERGMAN LLP 3 DEFENDANTS’ REPLY MOTION IN SUPPORT OF SUMMARY ADJUDICATION 1 (a) Runyon’s Termination One Day Into His Requested Leave, Without Additional Specific and Substantial Evidence of Pretext, Is Insufficient to 2 Withstand Summary Judgment 3 Runyon acknowledges that the temporal proximity between his alleged requested leave and his 4 termination, without additional evidence, is insufficient to show pretext under McDonnell Douglas. 5 Loggins v. Kaiser Permanente Int’l (2007) 151 Cal.App.4th 1102, at 1112; (Runyon Opp. Br. at 16). The additional purported evidence that Runyon offers in support of his pretext argument is not “specific and 6 substantial” enough to establish that a triable issue of material fact exists to rebut Payward’s proffered 7 reasons for terminating Runyon. Guz v. Bechtel Nat. Inc., 24 Cal.4th 317, 362 (2000) (“summary judgment 8 for the employer may thus be appropriate where, given the strength of the employer’s showing of innocent 9 reasons, any countervailing circumstantial evidence of discriminatory motive, even if it may technically 10 constitute a prima facie case, is too weak to raise a rational inference that discrimination occurred”). 11 (b) Runyon Fails to Raise Specific and Substantial Evidence That Payward’s Proffered Reasons For Terminating Him Were Pretext For a Discriminatory 12 Motive 13 i. Runyon’s Attempts to Dispute Payward’s Reasons for Firing Him Are Unsupported by Law or Fact 14 Runyon disputes Payward’s proffered reasons for his termination because he was “consistently a 15 major asset to the company and performed [his] work well.” (Runyon Decl. ¶25; Plaintiff’s Statement of 16 Additional Material Facts (“SAMF”) ¶52.) Runyon’s high opinion of his own performance do not create 17 a triable issue of material fact regarding Payward’s reasons for his termination. Horn v. Cushman & 18 Wakefield W., Inc., 72 Cal.App.4th 798, 816 (1999) (cited in Runyon’s Opposition) (“an employee’s 19 subjective personal judgments of his or her competence alone do not raise a genuine issue of material 20 fact”). 21 Runyon also argues that “Ng never actually evaluated Runyon’s work” (Runyon Opp. Br. at 5, 16) 22 and that “there is no documentation that reflects the existence of any of these purported [work performance 23 and interpersonal conflict] issues.” (Runyon Opp. Br. at 4.) This is demonstrably false. Runyon chooses to 24 ignore the April 12, 2019, email from Ng to Runyon in which Ng provides critical feedback to Runyon 25 and emphasizes the importance of communication by stating, among other things: “I should not have to ask you for the same reports every month. You should do whatever it takes to deliver your work in high 26 27 evidence. Plaintiffs must ‘do more than simply show that there is some metaphysical doubt as to the material facts.’”) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)). Similarly, Runyon’s reliance on uncorroborated 28 allegations (see, e.g., Runyon Opp. Br. at 8:5-7, 8:24-27; compare FAC ¶¶22-29 with Runyon Decl. ¶¶33-41) are not sufficient to withstand summary judgment on his termination claims. Lyle v. Warner Bros. Television Prods., 38 Cal.4th 264, 274 (2006). W ITHERS NY28571/0001-US-9717543/11 B ERGMAN LLP 4 DEFENDANTS’ REPLY MOTION IN SUPPORT OF SUMMARY ADJUDICATION 1 quality. If you can’t meet deadline, let me know instead of going silent. Any update is better than no 2 update.” (SUF ¶22; Ng Decl. ¶54, Ex. R.) Runyon testified that he and Ng had follow-up conversations 3 about this feedback. (LaVigne Decl., Ex. 3 (Runyon May Tr. 546:6-549:19.).) Runyon also conveniently ignores the June 2019 Slack conversation in which Ng told Runyon: “[Y]ou could have taken a different 4 and a better approach to deal with these situations. Your people skill[s] and your EQ are your biggest 5 weaknesses. I have never seen as many people conflicts as you have caused in my 20 years career.” (SUF 6 ¶30; Ng Decl. ¶58, Ex. S.) 7 In addition, Ng provided a sworn declaration that he frequently monitored Runyon’s work because 8 Runyon failed to timely accomplish assigned tasks and would not take ownership over assignments. Ng 9 frequently provided critical feedback to Runyon regarding these performance-related issues. (SUF ¶¶17- 10 24; Ng Decl. ¶¶53-55.) Ng also testified in support of his assessment of Runyon’s ongoing work 11 performance issues. (LaVigne Decl. Ex. 1 (Ng. Tr. at 225:11-21 (“[H]e couldn’t produce work at our high 12 quality. I’d constantly have to remind him, follow up, and get myself more involved in the detail to make 13 sure that we’re able to produce high quality work out of finance.”).). A July 2020 Slack conversation with 14 other Payward executives corroborates this testimony. There Ng said: “I’m planning to let [Runyon] go this week . . . [Runyon] unfortunately cannot perform at a high level and and (sic) was unable to step up 15 his game after receiving feedback from me.” (Ng Decl. ¶ 62, Ex. T.) 16 Runyon suggests that these motives are vague or “shifting.” (Runyon Opp. Br. at 3-4.) But taken 17 together, they present a consistent narrative. Runyon had persistent problems with his work quality and 18 interpersonal interactions, as documented in written reprimands from April 2019 and June 2019. Runyon’s 19 ultimate refusal to continue working was the “straw that broke the camel’s back[.]” (See Ng Tr. 181:5-14 20 (“So it’s your testimony that the straw that broke the camel’s back was Pete’s refusal to do work on 21 anything that you asked him to work on going forward; is that correct? A. Yeah. It was the way he just 22 was very determined he wasn’t going to do any more work. He didn’t want to sitor work with the 23 accounting team, thought they were a distraction to him. And then all the interpersonal conflicts that he’s 24 had. Yeah, lot of work.”).) 25 ii. Even if Runyon Were to Cast Doubt on Payward’s Reasons For Firing Him, Runyon Fails to Provide Sufficient and Substantial Evidence 26 that Payward Terminated Him Due to His Disability 27 Assuming Runyon’s strained attacks on Payward’s reasons for terminating him are “accepted as true,” (Runyon Opp. Br. at 8:5-7) they fail to raise any triable issue of fact regarding pretext. See Horn, 72 28 W ITHERS NY28571/0001-US-9717543/11 B ERGMAN LLP 5 DEFENDANTS’ REPLY MOTION IN SUPPORT OF SUMMARY ADJUDICATION 1 Cal.App.4th at 817 (“The decisionmaker’s motive and state of mind will almost always be in dispute in 2 [unlawful termination] cases . . . plaintiff must do more than establish a prima facie case and deny the 3 credibility of the [defendant’s] witnesses”) (citations and internal quotations omitted). For example, Runyon disputes Ng’s account of the July 2020 conversation in which Ng detailed the reasons supporting 4 Runyon’s termination of employment to Payward’s executive leadership. (See RSUMF ¶¶39-44.) But 5 undermining Payward’s evidence is not sufficient. Guz, 24 Cal.4th at 360 (“an inference of intentional 6 discrimination cannot be drawn solely from evidence, if any, that the company lied about its reasons”). 7 The burden remains on Runyon. He must provide “evidence supporting a rational inference that intentional 8 discrimination, on grounds prohibited by the statute, was the true cause of the employer’s actions.” Id.; 9 Hersant v. Dep’t of Soc. Servs., 57 Cal.App.4th 997, 1005 (1997) (“It is not enough for the employee 10 simply to raise triable issues of fact concerning whether the employer’s reasons for taking the adverse 11 action were sound. What the employee has brought is not an action for general unfairness but for age 12 discrimination”). 13 Runyon offers no document suggesting such discrimination, even circumstantially. He offers no 14 testimony from other employees. His only evidence is his own uncorroborated recollection and opinion, originally offered in support of his harassment claim. Runyon claims that Payward had a “negative 15 attitude” about his disability based upon two purported comments made to him, one by Ng, and the other 16 by Payward’s Director of Recruiting. (Runyon Opp. Br. at 2; SAMF ¶6-7.) In the first, Runyon claims that 17 Ng said “You don’t look disabled.” (Runyon Opp. Br. at 2; SAMF ¶6.) Runyon himself admits this was 18 merely an “offhand,” isolated, comment that Runyon simply “[left] at that.” (SAMF ¶6; LaVigne Decl., 19 Ex. 3 (Runyon May Tr. 315:1-317:3).) Runyon does not allege that Ng ever raised it again, nor does he 20 provide any evidence to link it to his termination. This is insufficient to establish discriminatory motives. 21 See Horn, 72 Cal.App.4th at 809 (“‘stray’ ageist remark . . . is entitled to virtually no weight in considering 22 whether the firing was pretextual or whether the decisionmaker harbored discriminatory animus”) (citing 23 Smith v. Firestone Tire and Rubber Co. (7th Cir.1989) 875 F.2d 1325, 1330 [stray “remarks, . . when 24 unrelated to the decisional process, are insufficient to demonstrate that the employer relied on illegitimate 25 criteria, even when such statements are made by the decision-maker in issue”].) In the second, Runyon claims Payward’s Director of Recruiting asked Runyon if he had killed anyone during his time in the 26 Marines. (Runyon Opp. Br. at 2; SAMF ¶7.) This comment does not mention Runyon’s disability and only 27 purportedly referred to his veteran status, which is no longer at issue, given Runyon’s abandonment of his 28 claim for veteran discrimination. (SAMF ¶7, Runyon Decl. ¶5, FAC ¶ 37; LaVigne Decl. Ex. 3 (Runyon W ITHERS NY28571/0001-US-9717543/11 B ERGMAN LLP 6 DEFENDANTS’ REPLY MOTION IN SUPPORT OF SUMMARY ADJUDICATION 1 May Tr. 322:23-324:7).) Even if this comment were relevant to his disability retaliation and termination 2 claims, Runyon provides no evidence to suggest that the Director of Recruiting had any supervisory 3 authority over Runyon, let alone a role in his termination. Similarly, Runyon’s allegations regarding his general treatment by Ng are uncorroborated, and 4 Runyon’s speculation that such purported treatment was motivated by discriminatory animus (SAMF ¶¶8- 5 10) relate only to his veteran status, not his disability status. Given that Runyon abandoned his veteran 6 discrimination claims, they are irrelevant. Moreover, they are neither specific nor substantial enough to 7 establish the required discriminatory animus to survive summary judgment. See Loveall v. City and County 8 of San Francisco, No. CGC-19-573186, 2020 WL 8262312 at *2 (“That Plaintiff’s supervisor may have 9 taken a dislike to him or been disrespectful to him, that he was dissatisfied with the training he received, 10 or that others had a different evaluation of his work, does not establish that he was terminated [for a 11 discriminatory reason]”) (internal record citation omitted). 12 Runyon has failed to provide substantial and specific evidence that his termination was for 13 unlawful reasons. Therefore, his termination-based claims4 must be dismissed. 14 3. Payward Is Entitled to Summary Judgment on Runyon’s Interactive Process and Failure to Accommodate Claims Because He Was Terminated for Lawful and 15 Legitimate Reasons 16 Runyon argues that his termination a day after he began his requested “leave”5 represents a breakdown of the interactive process and Payward’s failure to accommodate his disability. (Runyon Opp. 17 Br. at 10; SAMF ¶¶25-26.) These claims fail because Runyon has not rebutted Payward’s non- 18 discriminatory reasons for termination, and has failed to establish that his termination was motivated by 19 discriminatory animus. In Simpson v. Computer Scis. Corp., the Ninth Circuit affirmed the District Court’s 20 order granting summary judgment to an employer on a disabled employee’s interactive process and failure 21 to accommodate claims. 735 F. App’x 339, 340 (9th Cir. 2018). The Ninth Circuit held: 22 Because [the employer] laid [the employee] off for a legitimate, non-discriminatory, and non-pretextual reason, it had no obligation to accommodate [the employee’s] condition or 23 undertake an interactive process to identify a potential accommodation. 24 Id. In its decision below, the District Court held: 25 In this case, [the employer] did approve [the employee’s] time-off requests, but the mere fact that it did so does not mean it could not also terminate his position for a 26 nondiscriminatory reason. And, as discussed above, [the employee] has failed to establish 27 4 Because Runyon has abandoned his discrimination and harassment claims, his “failure to prevent” claim (Sixth Cause of Action) is limited only to his termination, and must fail along with his other termination claims. (Mov. Br. at 18.) 28 5 Both Runyon and Ng’s testimony indicates Runyon was simply taking a vacation, not medical leave. (RSUMF ¶11; LaVigne Reply Decl., Ex. 1 (Ng Tr., 223:13-224:1 and 231:6-8); Ex. 3 (Runyon May Tr., at 502:4-503:14).) W ITHERS NY28571/0001-US-9717543/11 B ERGMAN LLP 7 DEFENDANTS’ REPLY MOTION IN SUPPORT OF SUMMARY ADJUDICATION 1 that he was terminated for a discriminatory reason . . . . termination following the provision of an accommodation is not the same as a failure to accommodate, or here, a failure to 2 engage in the interactive process. 3 Simpson v. Computer Scis. Corp. (C.D. Cal. Mar. 16, 2017, No. 2:15-CV-09997-ODW-AS), 2017 WL 4 1029117, at **3-4), aff’d, (9th Cir. 2018) 735 Fed.Appx. 339. 5 Simpson is squarely on point with the allegations here.6 Runyon argues that failure to accommodate claims are not subject to the McDonnell Douglas burden-shifting framework. (Runyon Opp. 6 Br. at 10, n.4 (citing Cornell v. Berkeley Tennis Club (2017) 18 Cal.App.5th 908, 925-27).) Payward does 7 not challenge this authority, as it is inapplicable when, as is the case here and was in Simpson, an employee 8 was fired for legitimate, lawful reasons. Runyon’s argument would lead to the absurd conclusion that once 9 an employee had requested an accommodation and begun the interactive process, an employer could no 10 longer terminate that employee, even for a legitimate reason. This is not the law. Wong v. Pape Mach., 11 Inc., 370 F. App’x 871, 873 (9th Cir. 2010) (“No authority appears to support [an employee’s] contention 12 that [her employer] should have continued to accommodate her after its non-discriminatory decision to 13 terminate her.”). 14 Accordingly, Runyon’s failure to accommodate and interactive process claims must fail with his 15 termination-based claims. 16 C. Payward is Entitled to Summary Judgment on Runyon’s Whistleblower Retaliation Claims Because He Was Fired For a Legitimate Reason, and In Any Event Did Not Engage in 17 Protected Activity 18 1. Runyon’s Failure to Meet His Pretext Burden Applies Equally, If Not More So, to His Whistleblower Retaliation Claims 19 Runyon all but abandons his whistleblower claims.7 As set forth in Plaintiff’s Moving Brief at 18- 20 19 and in Section II.B supra, Payward’s lawful reasons for terminating Runyon easily meet its McDonnell- 21 Douglas burden. Runyon offers no facts in rebuttal indicating he was fired instead for raising concerns of 22 unlawful financial activity, and instead simply refers to his arguments that he was fired because of his 23 alleged disability. (Runyon Opp. Br. at 20, Section V.B.) On their face, Runyon’s arguments do not create 24 a triable issue of fact as to whether his termination was pretextual retaliation for his purported 25 6 Runyon attempts to distinguish Simpson by noting that the decision in that case to fire an employee was made before he requested 26 his accommodation (Runyon Opp. Br. at 10), but the Ninth Circuit and District Court holdings in the Simpson case specifically disclaim such a temporal limitation. Simpson, (C.D. Cal. Mar. 16, 2017, No. 2:15-CV-09997-ODW-AS), 2017 WL 1029117, at *4 (“termination following the provision of an accommodation is not the same as a failure to accommodate”). Likewise, Runyon’s 27 claim that a lower court has “criticized” the Ninth Circuit’s holding (Runyon Opp. Br. at 10) does not lessen the persuasive value of Simpson, nor its applicability to the present facts. 28 7 For the reasons set forth Plaintiff’s Moving Brief, Section III.G.3, Runyon’s public policy termination claim is based entirely on his retaliation claim, and must rise and fall with that claim. W ITHERS NY28571/0001-US-9717543/11 B ERGMAN LLP 8 DEFENDANTS’ REPLY MOTION IN SUPPORT OF SUMMARY ADJUDICATION 1 whistleblowing activities. 2 Runyon also fails to offer any admissible evidence that might be relevant to establish his 3 whistleblower termination claims. Instead, without citation to the record, Runyon baselessly asserts that “evidence of hostility on the part of Ng toward Runyon’s expressed concerns about the alteration of 4 employees’ vesting schedules is sufficient to create a dispute of material fact as to whether Payward’s 5 proffered reason for terminating Runyon was pretextual.” (Runyon Opp. Br. at 13.) Runyon merely 6 regurgitates his Complaint, again discussing what he characterizes as “unethical” or “unlawful” activity 7 that he observed and sometimes discussed with other Payward employees. (See Runyon Decl. ¶¶40-51.) 8 He offers no documents supporting these allegations. He offers no testimony from other employees or 9 third parties. And even Runyon’s own creative recollections offer not a single fact linking Runyon’s 10 purported whistleblowing with his termination. There is no evidence to “create a triable issue of material 11 fact that [Plaintiff] engaged in a protected activity and that there is a causal link between the protected 12 activity and Plaintiff’s termination,” so these claims must be dismissed. Loveall, 2020 WL 8262312 at *3. 13 2. Runyon’s Opposition and the Factual Record Demonstrate That He Did Not Engage in Protected Whistleblower Activity 14 Even if the record contained any causal link between Runyon’s alleged reports of “unethical” or 15 “unlawful” conduct regarding his termination (which it does not), Runyon’s claims would still fail because 16 the record shows that he did not have a reasonable belief that any such conduct was actually illegal. Under 17 oath, Runyon (1) admitted that he never attempted to determine whether the CFO’s handling of, e.g., 18 Employee 5’s and Employee 7’s vesting schedules and options grants was proper and deliberately ignored 19 evidence that it was (Mov. Br. at 20-22); (2) conceded that he did not believe he was reporting anything 20 illegal when he purportedly raised OFAC and bank balance issues with Mr. Christie and Ng (Mov. Br. at 21 22-23; LaVigne Decl., Ex. 3 (Runyon May Tr. 434:12-435:15; 455:7-456:1); and (3) admitted his other vague allegations regarding Ng’s purported “unethical” conduct were not true (e.g., LaVigne Decl., Ex. 2 22 (Runyon March Tr. 172:12-174:25 (admitting he was not asked to and did not prepare inaccurate 23 information for an audit). Faced with such damaging admissions, Runyon now shifts his legal argument. 24 He now argues that he did not have to believe (reasonably or not) that Payward’s conduct was illegal when 25 he allegedly disclosed it, as long as it is hypothetically possible that he “could have held a reasonably based 26 suspicion” that Payward was engaged in illegal conduct. (Runyon Opp. Br. at 19). The case Runyon cites 27 to for this proposition says the opposite: the whistleblower statute requires “that an employee disclose 28 information and that the employee reasonably believe the information discloses unlawful activity.” Ross W ITHERS NY28571/0001-US-9717543/11 B ERGMAN LLP 9 DEFENDANTS’ REPLY MOTION IN SUPPORT OF SUMMARY ADJUDICATION 1 v. Cty. of Riverside (2019) 36 Cal.App.5th 580, 593, review denied (Sept. 25, 2019). Ross reiterates what 2 is obvious from the statutory language: a purported whistleblower must actually believe that unlawful 3 activity is taking place, and that belief must be reasonable. See Cal. Lab. Code § 1102.5(b). As set forth in Plaintiff’s Moving Brief at 14-18, Runyon did not and could not have had a 4 reasonable belief that Payward’s alleged conduct was illegal. Runyon fails to meaningfully rebut his 5 previous testimony that he did not believe he was disclosing any illegal activity regarding the OFAC and 6 bank balance issues alleged in his complaint. (SUF and RSUMF ¶¶111, 120.) There is no genuine dispute 7 over this. (Christie Decl. at 105:1-7.) Runyon also offers no additional facts or explanation regarding why, 8 without further investigation, he assumed the vesting schedule discrepancy was evidence of fraud, or why 9 such an assumption was justified. (SUF and RSUMF ¶¶77, 84-89, 97, 98-110; Mov. Br. at 20-23.) 10 Runyon’s attorneys’ hindsight discussion of laws that might potentially have been implicated by 11 Payward’s alleged conduct is irrelevant to Runyon’s beliefs at the times he alleges he made protected 12 disclosures regarding the OFAC, bank balance, and vesting schedule issues. (See Runyon Opp. Br. at 19- 13 20). It is also a tacit admission that Runyon’s whistleblower claims are meritless. 14 Because Runyon has failed to create a triable issue of fact regarding his reasonable belief that he was engaged in protected whistleblower activity, his whistleblower claims must be dismissed. 15 III. CONCLUSION 16 For the reasons set forth herein, Defendant respectfully requests that its motion for summary 17 adjudication be granted with respect to Plaintiff’s Third, Fourth, Fifth, Sixth, Seventh, Ninth, and Tenth 18 causes of action. 19 20 DATED: August 6, 2021 WITHERS BERGMAN LLP 21 22 By: 23 Kimberly A. Pallen 24 Christopher N. LaVigne Attorneys for Defendants Payward, Inc., a 25 California Corporation d/b/a Kraken; and Kaiser NG, an individual 26