Faley v. Ferrellgas, Inc.

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TOM FALEY, Plaintiff and Appellant, v. FERRELLGAS, INC., Defendant and Respondent.

D081184

California Court of Appeals, Fourth District, First Division

April 15, 2024

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of San Diego County Super. Ct. No. 37-2020-00005068-CU-WT-CTL, Eddie C. Sturgeon Judge.

Singleton Schreiber, Benjamin I. Siminou, Harini P Raghupathi, Jonna D. Lothyan; Lurtz Legal, and Marshall R. Lurtz for Plaintiff and Appellant.

Jackson Lewis, Nicky Jatana, Amanda G. Papac and Dylan B. Carp for Defendant and Respondent Ferrellgas, Inc.

McCONNELL, P. J.

Tom Faley was fired from his position as a district manager at Ferrellgas, Inc., a propane gas company that services residential and institutional customers. Faley brought suit against Ferrellgas for retaliation under the Fair Employment and Housing Act (FEHA; Gov. Code, § 12900 et seq.), failure to prevent retaliation under FEHA, retaliation under Labor Code section 1102.5, wrongful termination against public policy, and intentional and negligent infliction of emotional distress.

Faley based his claims on Ferrellgas's proposed firing of another employee Faley supervised, Jesse Lamkin. Based on Faley's involvement, Ferrellgas decided not to terminate Lamkin. Two months after the proposed firing of Lamkin, however, Faley was terminated from the company. Faley contends his termination was retaliation for vouching for Lamkin. Ferrellgas asserts Faley's firing was not related to Lamkin and that he was fired as a result of longstanding performance issues.

After discovery, Ferrellgas brought a successful motion for summary judgment against Faley. The trial court found that Faley failed to show that Ferrellgas's "legitimate, documented non-retaliatory reasons" for terminating his employment were mere pretext and that no triable issue of fact was raised as to Faley's claims for retaliation. The trial court also found Faley's claims for intentional and negligent infliction of emotional distress were not actionable because nothing in the record gave "rise to the sort of 'outrageous, or 'despicable' conduct" necessary to support those causes of action and that they were barred by the exclusivity provisions of the Workers' Compensation Act. After its order granting summary judgment, the court entered judgment in favor of Ferrellgas on all of Faley's claims.

On appeal, Faley asserts the court erred because triable issues of fact remain as to whether Ferrellgas had a retaliatory motive for his termination. He also contends the court used the wrong legal standard for his retaliation claim under Labor Code section 1102.5, requiring reinstatement of that cause of action. Finally, with respect to his emotional distress claims, Faley asserts they are not barred by workers' compensation exclusivity, and that triable issues of fact remain with respect to the claims.^[1] For reasons we explain, we reject Faley's arguments and affirm the judgment in favor of Ferrellgas.

FACTUAL AND PROCEDURAL BACKGROUND^[2]

Ferrellgas's business is the transportation and installation of propane gas, a hazardous material regulated by the United States Department of Transportation (DOT). Faley was hired by Ferrellgas as a driver on November 3, 2016. Ferrellgas contends that at all times, Faley's employment was at-will. The parties do not dispute that he could be dismissed for failing to follow the company's safety rules. The following year, Ferrellgas promoted Faley to the job of service technician, and increased his responsibility to include propane tank installation.

A. Faley's Performance As District Manager

During Faley's employment, Denise Whisman was the general manager of Ferrellgas's service center in San Diego (where Faley worked), and oversaw the center's operations and employees. Two district managers reported to Whisman. On March 11, 2018, Faley was promoted to one of the district manager positions and in this role was directly supervised by Whisman. In his deposition, Faley testified that after this promotion his duties remained mostly the same through April 2019 because of staffing shortages, so he was unable to complete his new management duties. The documents submitted in support of Ferrellgas's motion for summary judgment show that Whisman communicated frequently with Faley about his poor performance as a manager from the time he entered the role until his termination in July 2019.

In June 2018, e-mails between Faley and Whisman document Faley's deficiencies (primarily with customer and employee communication) and their back and forth to provide Faley with adequate training for his new role and to manage the work effectively. Additional e-mails between Whisman and Faley in July and August identified a communication problem with a customer and Faley missing an interview for a potential new hire and failing to communicate his absence to the candidate.

In August 2018, Faley underwent his first performance review as district manager with Whisman. Whisman reported that Faley was deficient in two areas, customer retention and business growth, and was meeting expectations in three others. With respect to growing the business, Whisman stated that Faley was doing fine given the short length of time in the role but that Faley needed to improve his use of personal business tools, like e-mail and calendar reminders, to improve safety documentation and to make the job easier. In her overall summary, Whisman indicated that the next winter would be challenging for Faley, with a "steep learning curve," but she would support him through it.

In October 2018, Whisman sent Faley a lengthy e-mail chastising him for contacting his employees after hours. She indicated she had received several complaints from his subordinates, and warned him he needed to limit communications to employees who were on-call. The following month, Whisman sent Faley another lengthy e-mail, that followed a discussion, identifying safety concerns with propane tanks and other problems with Faley's management. The e-mail proposed the implementation of various procedures to ensure compliance with the company's standards.

In December, an e-mail from Whisman to Faley questioned him about another employee's work hours, and Faley acknowledged his failure to communicate with Whisman. The same month, Whisman counseled Faley about the appearance of the building he managed and criticized Faley for not adequately training his team to deal with these issues. The following month, e-mails between Whisman and Faley detailed a personnel problem and Faley's inability to manage his team and his administrative responsibilities. In March 2019, Whisman counseled Faley on his failure to reconcile his company credit card charges; Whisman warned Faley that this was the last reminder before the card would be revoked. Whisman sent Faley another warning about credit card reconciliation on April 1, 2019.

The same day, Whisman sent Faley an e-mail stating she was "following up on things to make sure you develop good work habits and that your job ends up smoother and less chaotic." The e-mail expressed clear frustration with Faley's performance as manager and with his communication about problems. Whisman also expressed her desire to train Faley to improve as a manger. Faley asserts that Whisman assured him that her involvement was not meant as a criticism, but only assistance to help him "get a handle on the new position." To support this assertion, he points to a statement made by Whisman in a meeting in March or April 2019 with another employee who worked under Faley, who expressed frustration with the turnover in the district manager position. According to Faley, Whisman told the employee that Faley had "done a pretty good job" and she thought she found "the right guy to fill the position."

B. Lamkin's Performance and Proposed Termination

Ferrellgas hired Lamkin as a driver on July 1, 2016. On April 29, 2019, Lamkin sent a message to Robert Haynes, a senior employee relations generalist, alleging he was being harassed by the officer's logistics supervisor, Rebecca Ortega, and that Whisman was protecting Ortega because of their personal relationship, which had created a negative and hostile work environment. Lamkin wrote that Ortega was providing him and other drivers with inefficient and difficult routes for deliveries that wasted hours of time. Lamkin also alleged that Whisman displayed preferential treatment to women in hiring for positions in the office. Lamkin's letter noted that he had brought these issues to Haynes's attention in February 2019, and that Haynes had responded that Lamkin was not a member of protected class and that Ortega could not harass him because she was not his manager. Lamkin testified in his deposition that Haynes contacted him the day after he sent the message and that Haynes brushed aside his concerns with respect to Ortega. Lamkin said that instead of dealing with the issue, Haynes referred him to Ray Galan, Ferrellgas's west region vice president and Whisman's direct supervisor, to deal with his concerns about Ortega and Whisman.

Lamkin met with Galan in the following days. Galan told Lamkin that he believed Ortega would not be with the company much longer and that he would ensure Ortega improved. After Lamkin's e-mail, Haynes spoke with Whisman around May 2, 2019, and asked her to gather statements from two other employees in the office, Vanessa Stepho and Rhonda Sparks, about their interactions with Lamkin. The following day, Galan, Haynes, Whisman, and Ferrellgas's corporate counsel, Jordan Burns, decided to terminate Lamkin.

On May 6, 2019, Sparks submitted a statement to Whisman, stating that Lamkin had been "quizzing her on [Ortega's] whereabouts" and...