Javier Lozano v. Neovia Logistics Distribution, LP, et al Case No. ED CV 20-1683-JFW(SHKx) United States District Court, C.D. California Filed August 04, 2021 Counsel Shannon Reilly, Courtroom Deputy, ATTORNEYS PRESENT FOR PLAINTIFFS: None None Present, Court Reporter, ATTORNEYS PRESENT FOR DEFENDANTS: None Walter, John F., United States District Judge PROCEEDINGS (IN CHAMBERS): ORDER GRANTING DEFENDANT NEOVIA LOGISTIC DISTRIBUTION, LP'S MOTION FOR PARTIAL SUMMARY JUDGMENT [filed 6/11/21; Docket No. 22] *1 On June 11, 2021, Defendant Neovia Logistic Distribution, LP (“Defendant”) filed a Motion for Partial Summary Judgment (“Motion”). On July 12, 2021, Plaintiff Javier Lozano (“Plaintiff”) filed his Opposition. On July 19, 2021, Defendant filed a Reply. Pursuant to Rule 78 of the Federal Rules of Civil Procedure and Local Rule 7-15, the Court found the matter appropriate for submission on the papers without oral argument. The matter was, therefore, removed from the Court's August 2, 2021 hearing calendar and the parties were given advance notice. After considering the moving, opposing, and reply papers, and the arguments therein, the Court rules as follows: I. Factual and Procedural Background[1] A. Factual Background 1. The Parties Defendant is a third party logistics provider that assists its customers manage their supply chain operations. Defendant's Francis Street Ontario facility is an 800,000 square foot shipping and distribution facility, which employs approximately forty-two individuals. The Francis Street Ontario facility is dedicated to customer and retail distribution center shipments for Defendant's customer Samsung. The Francis Street Ontario site is the largest facility in Samsung's distribution network, and distributes a wide range of Samsung products, from $30.00 microwave ovens to $7,000.00 refrigerators. Defendant employed Plaintiff as a Logistics Site Manager III (“LSM III”), which is the most senior field management position, at the Francis Street Ontario facility from April 30, 2018 through June 5, 2019. The LSM III position is generally responsible for particularly large sites, several sites in a broad geographical area, or supervision of Level I Logistics Site Managers. LSM IIIs are trusted to “[o]versee all aspects of the assigned site(s) for operations, administration, financial, and compliance with customer expectations.” LSM IIIs also “[l]ead, plan, monitor and manage the operation of the assigned facilities in order to meet the operational, health and safety, sustainability and financial (revenue, cost) targets of these contracts.” 2. Samsung Complains to Defendant About the Francis Street Ontario Facility In early November 2018, Samsung's Director, Brian Locasto (“Locasto”), began to raise concerns about the Francis Street Ontario facility's management and operations with Plaintiff's then-supervisor John Prevost (“Prevost”). Specifically, on November 7, 2018, Locasto sent an email to Prevost that stated in part that Plaintiff needed to be “integral in the resolution of the current [unsatisfactory] state of operations at Francis Street.” On November 16, 2018, Locasto again emailed Prevost stating in part that “I was at the [Francis Street Ontario] site today and wanted to provide you information based upon my observations and discussions with” Plaintiff. Locasto also stated that “I was disappointed in the current conditions at that site during this visit and equally disappointed in the reasons provided as root cause.” On November 19, 2018, Locasto sent yet another email to Prevost, which was also sent to Plaintiff, that identified various failures, asked Plaintiff “[w]hat caused the failures,” and concluded “[t]his is an unacceptable level of service which must be remedied” *2 Operations at the Francis Street Ontario facility continued to fall well below Samsung's requirements and expectations. On December 6, 2018, Locasto sent an email to Prevost that stated in part that “[t]he management of this facility continues to be a significant challenge and we are out of runway ... I see no leadership exhibited in the messaging returned. We need urgency, engagement, and results, all of which are lacking from the local management staff.” When Plaintiff attempted to respond to Locasto's concerns, Locasto found his responses unsatisfactory. For example, after one email exchange between Plaintiff and Locasto, Prevost received an email from Locasto stating in part “I am taken aback by this response from the site manager, and candidly, it is routine as I have shown both of you in weeks, and days past.” 3. Plaintiff Complains About Prevost's “Unprofessionalism” Despite three months of Locasto's specific complaints, Plaintiff failed to implement effective, systemic solutions at the Francis Street Ontario facility. Following an email from Samsung Logistics CSR Manager Matthew Franklin (“Franklin”) to Plaintiff that stated in part that there were “[c]ontinued issues on labeling out of ONT2,” Prevost received an email from Locasto on February 13, 2019, noting that “[t]his is something I have identified since November, with little resolution.” A week later, Locasto sent an email to Prevost and Plaintiff's incoming supervisor Steven Librenjak (“Librenjak”), which complained that “[y]our staff has done little to assess and understand our business.” Locasto added that: I have a distinct expectation that you are constantly assessing our business, understand it at a granular level, and in fact are telling us what the trends are in our business. This is directly linked to a value proposition which a 3PL should exhibit on a daily basis, something which is not in evidence at this site, and hasn't been in several months ... I can't emphasize enough the urgency required by [Defendant] to get this corrected. I look forward to the immediate impacts for the betterment of services and active engagement from the local staff. From November 2018 through February 2019, Prevost attempted to determine why the Francis Street Ontario facility was underperforming, including soliciting feedback directly from employees at the facility. Prevost began to suspect that Outbound (“OB”) Operations Manager Arturo Yanez (“Yanez”) was responsible for the facility's dysfunction based on Locasto's criticisms of OB errors and comments Prevost received from individuals in the OB department during his site visits. Prevost told Plaintiff that, based on his investigation, Prevost was considering removing Yanez from the Francis Street Ontario facility based on his lack of performance and feedback Prevost had received from those that worked with Yanez. However, Prevost wanted to hear Plaintiff's views, both because Plaintiff was Yanez's supervisor and because Plaintiff had recommended Yanez for the position. When Plaintiff responded that Yanez's performance did not warrant removal and that Yanez had only received verbal, and not written, coaching for his performance issues, Prevost ultimately yielded to Plaintiff and Plaintiff instead delivered a written coaching to Yanez.[2] During their discussions regarding Yanez's performance, Prevost remarked that “Yanez is your boy,” which Plaintiff now believes was a disguised racial slur. However, Plaintiff testified at his deposition that he does not remember ever telling anyone that he believed Prevost's statement about Yanez was a disguised racial slur. In late February 2019, Prevost completed a performance review for Plaintiff. In the review, Prevost stated in part that: *3 [Plaintiff] did not plan well enough for Samsung Peak season. Need to be prepared for all aspects of the business and be able to adapt to changes in the business. The poor planning resulting in a EBITDA loss of $180k and loss of confidence from the customer. [Plaintiff] needs to use the action plan that has been built from the stabilization project to fix the issues and be prepared for future projects. [Plaintiff] needs to be a leader and earn the trust of the customer back. Do not hesitate to ask for help earlier in the process and use that support to meet goals and expectations. In his response to his performance review, Plaintiff only challenged Prevost's comment that “poor planning resulted in a[n] EBITDA loss of $180K.” Plaintiff did not challenge Prevost's statement that his “poor planning” also resulted in a “loss of confidence from the customer” and that he “need[ed] to be a leader and earn the trust of the customer back.” However, despite his poor performance review, Plaintiff pushed back against efforts to change the operations at the Francis Street Ontario facility. On March 3, 2019, Plaintiff sent an email to Human Resources Manager Eric Almaraz (“Almaraz”) “to formally document the conversations I have had with Prevost and with you regarding [Prevost's] unprofessionalism.” Plaintiff's email also summarized his February 21, 2019 review by Prevost, which Plaintiff described as follows: “In my 24 years of logistics, I have never experienced a review delivered so unprofessional.” Other than recounting in great detail several instances of what Plaintiff believed was unprofessional behavior on the part of Prevost, Plaintiff did not request any action on the part of Human Resources or Almaraz. Almaraz reviewed Plaintiff's email carefully but believed no further action was necessary because Prevost had just been transferred from the Francis Street Ontario facility to another facility in Atlanta, Georgia and, thus, Prevost would no longer be Plaintiff's supervisor. In order to give Plaintiff a fresh start with his new supervisor Librenjak, Librenjak was never informed by Almaraz or anyone else that Plaintiff had accused Prevost of behaving inappropriately. 4. Librenjak Replaces Prevost as Plaintiff's Supervisor When Librenjak replaced Prevost as Plaintiff's supervisor at the end of February 2019, he assured Plaintiff that they would start over with a blank slate. When Librenjak became aware of communication issues between Plaintiff and Samsung personnel and missing safety programming at the Francis Street Ontario facility, Librenjak informally counseled Plaintiff about these issues. For example, on February 21, 2019, in an email exchange between various individuals at Samsung and Defendant, someone at Samsung noted that several loads had been picked up late. In response, Plaintiff flatly denied that the loads had been picked up late. After Locasto explained in an email to Plaintiff why the loads had, in fact, been picked up late, Plaintiff simply ignored Locasto's explanatory email until both Locasto and Librenjak solicited a response from Plaintiff. Once Plaintiff did respond, he merely acknowledged that the loads had been picked up late, but failed to offer any apology for the late pick ups. On March 1, 2019, Librenjak again emailed Plaintiff to remind Plaintiff that “[e]very time we respond to the customer, we need to recognize that we are responding on behalf of [Defendant] to a potential executive audience. One liners & responses without clear corrective action plans will not get the job done.” In addition, when Librenjak realized that the Francis Street Ontario facility lacked a trailer safety program – intended to minimize the danger from a truck accidentally pulling away from the dock while workers were still loading it – he alerted Plaintiff to the problem and outlined his expectations for improvement. On April 29, 2019, Librenjak again emailed Plaintiff to remind him that “[r]egardless of the size and scale of the escalation, we need to combat and respond with the uttermost sense of urgency, importance and care for quality, and finally clear, in-depth plans for corrective action,” identifying specific problems with Plaintiff's earlier communications with Samsung personnel, and instructing Plaintiff to “elevate his communication internally with [his] team and outwardly to the customer.” *4 By early May 2019, the identical problems that existed previously between Plaintiff and Samsung had not been resolved. On May 1, 2019, Locasto sent an email to Librenjak that stated “I again want to bring to your attention the ongoing operational performance issues which are being generated at your Ontario operation,” and that “[t]he Ontario site generates 4X the damage of the next comparable site in [Samsung's] logistics network.” On May 14, 2019, Librenjak emailed Plaintiff, noting that the Francis Street Ontario facility still lacked a trailer safety program that met his expectations, even after two additional trailer safety inspections. Librenjak also received an email from Prevost on May 14, 2019, notifying him of another instance of communication issues with Samsung by Plaintiff.[3] After Librenjak's observation, investigation, and evaluation of Plaintiff from February through early May 2019, Librenjak concluded that Plaintiff consistently failed across multiple key primary job responsibilities within his role and that Plaintiff should be placed on a Performance Improvement Plan (“PIP”), effective May 16, 2019. On May 17, 2019, Librenjak provided detailed answers to Plaintiff's questions about specific deliverables listed in the PIP. Despite the PIP, Plaintiff still failed to meet Samsung's expectations. A week after administering the PIP, Librenjak wrote to Defendant's Human Resources department to inform Human Resources of a call he had received from Locasto with new complaints about Plaintiff: I received a call on Wednesday 5/22 from Brian Locasto on Wednesday who was frustrated about feedback he received from a recent interaction between [Plaintiff] and a senior Samsung leader, Mike Gratzki (unsure of spelling). Brian's feedback described the interaction between Mike and [Plaintiff] as “pretty contentious” and he had an “abrupt manner”. [Plaintiff] was “discourteous, dismissive, and did not consult with them”. I was also informed from Brian that associates from Samsung are receiving emails from folks on the Neovia team about the “poor culture that [Plaintiff] has built”. The customer is extremely frustrated with [Plaintiff's] lack of urgency for problems that they continue to escalate ... Declaration of Steven Librenjak in Support of Defendant Neovia Logistics Distribution, LP's Motion for Partial Summary Judgment, Exh. 23 (Docket No. 64-24). Two weeks after the PIP was implemented, Librenjak received a call from Locasto questioning why OB deliveries were behind at the Francis Street Ontario facility, why the facility had a $45,000 inventory adjustment, the status of inventory preparation, and why the facility was not adequately staffed to run his business. Plaintiff acknowledged the $45,000 inventory adjustment on a subsequent conference call but reassured Locasto that the facility was caught up and it was an isolated incident. Hours later, Librenjak received another call from Locasto that the facility was once again running three to four hours behind on OB orders. When Locasto asked Plaintiff about his “leadership coverage” on a subsequent conference call, Plaintiff admitted that two of his managers had called in sick and he had allowed two additional managers to go on vacation. When Locasto discovered Plaintiff's staffing decisions during a critical time for Samsung's business, he was extremely upset and requested a separate call with Librenjak and Michael Loridas (“Loridas”). When Locasto spoke with Librenjak and Loridas, he told them he did not want Plaintiff running his business as of Monday morning. Locasto complained that Plaintiff was damaging Samsung's business, that Plaintiff was the most incapable leader Locasto had worked with in twenty years, that Plaintiff cost Samsung thousands of dollars every month in damages, missed deliveries, and detention charges, and that Plaintiff had put Samsung's total supply chain in jeopardy. It was clear to Librenjak that allowing Plaintiff to remain in position beyond that Monday would jeopardize Defendant's business relationship with Samsung. As a result, Librenjak made the decision to terminate Plaintiff's employment on May 31, 2019. Plaintiff was suspended with pay the following Monday and notified of his termination effective June 5, 2019. B. Procedural Background *5 On June 16, 2020, Plaintiff filed a Complaint in San Bernardino Superior Court (“SBSC”). In his Complaint, Plaintiff alleges causes of action for: (1) retaliation in violation of the California Fair Employment and Housing Act (“FEHA”), California Government Code § 12940; (2) failure to prevent discrimination, harassment, and retaliation in violation of FEHA, California Government Code § 12940(k); (3) failure to pay wages upon separation of employment in violation of California Labor Code § 203; (4) unfair competition in violation of California Business & Professions Code §§ 17200, et seq.; and (5) wrongful termination in violation of public policy. On August 19, 2020, Defendant filed an Answer to the Complaint in SBSC. On August 19, 2020, Defendant removed this action, alleging this Court has subject matter jurisdiction based on diversity, 28 U.S.C. § 1332(a). II. Legal Standard Summary judgment is proper where “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The moving party has the burden of demonstrating the absence of a genuine issue of fact for trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). Once the moving party meets its burden, a party opposing a properly made and supported motion for summary judgment may not rest upon mere denials but must set out specific facts showing a genuine issue for trial. Id. at 250; Fed. R. Civ. P. 56(c), (e); see also Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (“A summary judgment motion cannot be defeated by relying solely on conclusory allegations unsupported by factual data.”). In particular, when the non-moving party bears the burden of proving an element essential to its case, that party must make a showing sufficient to establish a genuine issue of material fact with respect to the existence of that element or be subject to summary judgment. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). “An issue of fact is not enough to defeat summary judgment; there must be a genuine issue of material fact, a dispute capable of affecting the outcome of the case.” American International Group, Inc. v. American International Bank, 926 F.2d 829, 833 (9th Cir. 1991) (Kozinski, dissenting). An issue is genuine if evidence is produced that would allow a rational trier of fact to reach a verdict in favor of the non-moving party. Anderson, 477 U.S. at 248. “This requires evidence, not speculation.” Meade v. Cedarapids, Inc., 164 F.3d 1218, 1225 (9th Cir. 1999). The Court must assume the truth of direct evidence set forth by the opposing party. See Hanon v. Dataproducts Corp., 976 F.2d 497, 507 (9th Cir. 1992). However, where circumstantial evidence is presented, the Court may consider the plausibility and reasonableness of inferences arising therefrom. See Anderson, 477 U.S. at 249-50; TW Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 631-32 (9th Cir. 1987). Although the party opposing summary judgment is entitled to the benefit of all reasonable inferences, “inferences cannot be drawn from thin air; they must be based on evidence which, if believed, would be sufficient to support a judgment for the nonmoving party.” American International Group, 926 F.2d at 836-37. In that regard, “a mere ‘scintilla’ of evidence will not be sufficient to defeat a properly supported motion for summary judgment; rather, the nonmoving party must introduce some ‘significant probative evidence tending to support the complaint.’ ” Summers v. Teichert & Son, Inc., 127 F.3d 1150, 1152 (9th Cir. 1997). III. Discussion *6 In its Motion, Defendant argues that Plaintiff's first cause of action for retaliation fails because Plaintiff did not engage in any protected activity, Plaintiff cannot establish a causal connection between any alleged protected activity and any adverse employment action, and Defendant had a legitimate, non-retaliatory reason for its decision to place Plaintiff on a PIP and to terminate Plaintiff's employment and Plaintiff cannot demonstrate that reason was pretextual. Defendant also argues that Plaintiff's second cause of action for failure to prevent discrimination, harassment, and retaliation and fifth cause of action for wrongful termination in violation of public policy fail because his predicate statutory claim of retaliation fails. In his Opposition, Plaintiff argues that the Court should deny Defendant's Motion because discovery in this case is not complete and because triable issues of fact exist as to whether Plaintiff suffered retaliation. A. Plaintiff's Rule 56(d) Request is Denied. In his Opposition, Plaintiff requests that the Court deny or defer a decision on Defendant's Motion pursuant to Federal Rule of Civil Procedure 56(d) so that he can conduct additional discovery. “Unless a different time is set by local rule or the court orders otherwise, a party may file a motion for summary judgment at any time until 30 days after the close of all discovery.” Fed. R. Civ. P. 56(b). However, “[i]f a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may ... defer considering the motion or deny it; [ ] allow time to obtain affidavits or declarations or to take discovery; or [ ] issue any other appropriate order.” Fed. R. Civ. P. 56(d) (emphasis added). A party invoking Rule 56(d) “bears the burden of showing ‘what facts [it] hopes to discover to raise a material issue of fact.’ ” Terrell v. Brewer, 935 F.2d 1015, 1018 (9th Cir. 1991) (quoting Hancock v. Montgomery Ward Long Term Disability Trust, 787 F.2d 1302, 1306, n.1 (9th Cir. 1986)). “Compliance with [Rule 56(d)] requires more than a perfunctory assertion that the party cannot respond because it needs to conduct discovery. In that regard, references in memoranda and declarations positing a need for discovery do not constitute a proper motion under [Rule 56(d)]. Rather, that rule requires affidavits setting forth with particularity: (1) why the party opposing summary judgment cannot respond; (2) the particular facts that the party reasonably expects to obtain in further discovery; and (3) how the information reasonably expected from its proposed discovery requests could be expected to create a genuine issue of material fact that would defeat the summary judgment motion.” Adams v. Allstate Insurance Co., 187 F. Supp. 2d 1207, 1213 (C.D. Cal. 2002); see also Tatum v. City and County of San Francisco, 441 F.3d 1090, 1100 (9th Cir. 2006) (“A party requesting a continuance pursuant to [Rule 56(d)] must identify by affidavit the specific facts that further discovery would reveal, and explain why those facts would preclude summary judgment.”). “The party seeking additional discovery also bears the burden of showing that the evidence sought exists.” Terrell, 935 F.2d at 1018. “Failure to comply with the requirements of [Rule 56(d)] is a proper ground for denying discovery and proceeding to summary judgment.” Brae Transportation, Inc. v. Coopers & Lybrand, 790 F.2d 1439, 1443 (9th Cir. 1986). Denial of relief pursuant to Rule 56(d) is proper if the movant fails to comply with the requirements of Rule 56(d) or if the movant has failed to conduct discovery diligently. See, e.g., United States v. Kitsap Physicians Service, 314 F.3d 995, 1000 (9th Cir. 2002) (“Failure to comply with [the requirements of Rule 56(d)] is a proper ground for denying relief”); Pfingston v. Ronan Engineering Co., 284 F.3d 999, 1005 (9th Cir. 2002) (“The failure to conduct discovery diligently is grounds for the denial of a Rule 56(f) motion”); Mackey v. Pioneer Nat'l Bank, 867 F.2d 520, 524 (9th Cir. 1989) (“A movant cannot complain if it fails diligently to pursue discovery before summary judgment”); Landmark Dev. Corp. v. Chambers Corp., 752 F.2d 369, 372 (9th Cir. 1985) (ruling that district court properly denied the plaintiffs' Rule 56(d) motion because the “[f]ailure to take further depositions apparently resulted largely from plaintiffs' own delay”); Adams, 187 F. Supp. 2d at 1213 (citing Stitt v. Williams, 919 F.2d 516, 526 (9th Cir. 1990)) (“Moreover, even where these prerequisites are met, a court may refuse to continue hearing a summary judgment motion where a party has had the opportunity to conduct discovery in a diligent fashion, but failed to do so”). *7 In this case, Plaintiff has failed to demonstrate that he is entitled to relief pursuant to Rule 56(d). Plaintiff has failed to demonstrate that he has been diligent in conducting discovery. The Court's Standing Order specifically instructs parties to “actively conduct discovery before the Fed.R.Civ.P. 26(f) conference because at the Scheduling Conference the Court will impose tight deadlines to complete discovery.” Standing Order (filed August 21, 2020; Docket No. 6), ¶ 4(b). Indeed, in the Scheduling and Case Management Order (“CMO”) filed on September 17, 2020, the Court set June 14, 2021 as the discovery cut-off date. However, despite the Court's very clear warning, Plaintiff served his Request for Production of Documents to Defendant, Set Two on May 14, 2021. As a result, Defendant's response deadline was June 14, 2021, which was also the discovery cut off date. Plaintiff then subsequently agreed, without Court approval, to allow Defendant more time to respond to the discovery requests.[4] On July 6, 2021, Defendant produced documents in response to Plaintiff's discovery requests and, on July 8, 2021, Defendant produced additional documents. Plaintiff argues that Defendant's responses were “inadequate” and “eleventh-hour” and, as a result, Defendant's Motion should be denied because “there is still discovery to be conducted in the case.” Opposition, 9:13-10-5. However, the discovery period in this action has been closed for seven weeks. In addition, it was Plaintiff's decision to serve discovery requests that had a June 14, 2021 return date, which obviously meant that Plaintiff would not have the opportunity to meet and confer with Defendant and bring a motion to compel if Defendant's responses were inadequate. It was also Plaintiff's decision to allow Defendant to serve its responses to Plaintiff's discovery request after the discovery cut-off date without Court approval. There is a critical distinction between cases where a party opposing a motion for summary judgment requests a continuance of that motion to conduct additional discovery in one discreet area that is relevant to the disposition of the motion and cases such as this where Plaintiff opposes Defendant's Motion on the grounds that, despite the fact that the discovery period has closed, Plaintiff is entitled to more time in which to conduct discovery because Plaintiff decided to wait until the last possible moment to propound discovery that Plaintiff considers essential to his case. In this case, the Court finds that Plaintiff had ample opportunity to conduct discovery but for some unexplained reason, Plaintiff decided to wait to conduct critical discovery until the end of the discovery phase of this action. Accordingly, for all of these reasons, Plaintiff's Rule 56(d) Request is denied. B. Plaintiff's First Cause of Action for Retaliation Fails. In his first cause of action, Plaintiff alleges a claim of retaliation in violation of FEHA. “[T]o establish a prima facie case of retaliation under the FEHA, a plaintiff must show (1) he or she engaged in a ‘protected activity,’ (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer's action.” Doe v. Dep't of Corr. & Rehab., 43 Cal. App. 5th 721, 734 (2019) (citing Yanowitz v. L'Oreal USA, Inc., 36 Cal. 4th 1028, 1042 (2005). Under the burden-shifting scheme of FEHA, after the plaintiff establishes a prima facie case of retaliation, the burden of production shifts to the defendant to articulate a legitimate, non-retaliatory explanation for the adverse employment action.[5] Winarto v. Toshiba America Electronics Components, Inc., 274 F.3d 1276, 1284 (9th Cir.2001). If the employer rebuts the inference of retaliation, the burden of production shifts back to the plaintiff to show that the defendant's explanation is merely a pretext for impermissible retaliation. Id. Pretext may be shown either: (1) directly by persuading the jury that a discriminatory motive more likely than not motivated the employer; or (2) indirectly by showing that the employer's proffered explanation is unworthy of credence. Id. To establish pretext, “very little” direct evidence of discriminatory motive is sufficient, but if circumstantial evidence is offered, such evidence has to be “specific” and “substantial.” Id. 1. Plaintiff Did Not Engage in a Protected Activity *8 In order to have engaged in a protected activity, “an employee must have opposed an employment practice made unlawful by the statute.” Dinslage v. City & Cty. of San Francisco, 5 Cal. App. 5th 368, 381 (2016). “That [plaintiff] opposed what he viewed as unwise or even improper actions by the [employer] is not enough to make his opposition a protected activity.” Id. at 382. In addition, California courts have adopted the federal courts' requirement “that the reasonableness of the employee's belief [that he was opposing a practice prohibited by FEHA] ‘has both a subjective and an objective component.’ ” Id. at 381 (citations omitted). As a result, “complaints about personal grievances or vague or conclusory remarks that fail to put an employer on notice as to what conduct it should investigate will not suffice to establish protected conduct.” Husman v. Toyota Motor Credit Corp., 12 Cal. App. 5th 1168, 1193 (2017) (citations omitted). In this case, Plaintiff has failed to demonstrate that he engaged in a protected activity under FEHA. See Cal. Gov. Code § 12940(h). Plaintiff relies on two incidents that he argues constitute protected activities: (1) his February 19, 2019 meeting with Prevost where Plaintiff and Prevost disagreed regarding the correct disciplinary action with respect to Yanez; and (2) his March 3, 2019 email to Almaraz in Human Resources regarding Prevost's unprofessional conduct. With respect to his February 19, 2019 meeting with Prevost, Plaintiff's disagreement with Prevost's conclusions regarding Yanez and his response to Prevost that Prevost's proposed corrective action with respect to Yanez was unduly harsh is not a protected activity. Alcala v. Best Buy Stores, LP, 2012 WL 6138332, at *12 (C.D. Cal. Nov. 7, 2012) (holding that “simply airing a grievance, complaining about or opposing a decision, without more, cannot amount to a protected activity”). Plaintiff also claims that Prevost's remark during the February 19, 2019 conversation that “Yanez is your boy” was a disguised racial slur. However, Prevost's statement that “Yanez is your boy” is not facially discriminatory. To the contrary, the remark is entirely consistent with Plaintiff's admission that he had previously worked with Yanez at another company and had recommended Yanez for his position with Defendant, which was common knowledge at the Francis Street Ontario facility. In addition, Plaintiff never objected or advised Prevost during the February 19, 2019 meeting that he interpreted Prevost's remark as a racial slur. Instead, Plaintiff “responded to [Prevost's] comment explaining that Yanez was not ‘[his] boy' nor a close personal friend, but rather a colleague [he] had the opportunity to work with in the past.” Moreover, when Plaintiff complained to Human Resources about Prevost's “unprofessional” conduct, including Prevost's conduct during the February 19, 2019 meeting, it is undisputed that Plaintiff never characterized or described their February 19, 2019 conversation as in any way racist or discriminatory, but merely as “unprofessional.” Indeed, Plaintiff testified during his deposition that he did not recall ever sharing his belief that Prevost's remark was a disguised racial slur with anyone. As a result, the Court concludes that Plaintiff's unexpressed “belief” that Prevost's comment that “Yanez is your boy” was a disguised racial slur cannot serve as the basis for Plaintiff's retaliation claim. See, e.g., Villanueva v. City of Colton, 160 Cal. App. 4th 1188, 1199 (2008) (affirming summary adjudication of retaliation claim and holding that an employee has no claim for retaliation where “the record is devoid of evidence that he ever complained to anyone about alleged racial discrimination or did anything to imply that racial discrimination was an issue”). *9 With respect to Plaintiff's March 3, 2019 email to Almaraz in Human Resources, Plaintiff did not accuse Prevost of engaging in racially-motivated conduct or conduct that could be construed as prohibited under FEHA. To the contrary, the March 3, 2019 email is limited to a lengthy description of Prevost's “unprofessionalism” in connection with the proposed discipline of Yanez and Plaintiff's own performance review. Indeed, in his declaration, Almaraz states that: I reviewed [Plaintiff's] email carefully when I received it. I understood [Plaintiff] was unhappy with what he characterized as the “unprofessionalism” of his manager Mr. Prevost. Nothing in [Plaintiff's] email stated or otherwise suggested to me that he believed Mr. Prevost discriminated against Arturo Yanez because of Mr. Yanez's Hispanic heritage. Nor did [Plaintiff] communicate that belief to me in any of my other interactions with him. And, based on my knowledge, training, and experience, nothing in the email described or suggested discriminatory or harassing conduct. Because “simply airing a grievance” does not constitute a protected activity, the Court concludes that Plaintiff's March 3, 2019 email to Almaraz does not constitute a protected activity. Alcala, 2012 WL 6138332, at *12. Accordingly, the Court concludes that Plaintiff has failed to demonstrate that he engaged in a protected activity and Defendant is entitled to summary judgment on Plaintiff's first cause of action for retaliation in violation of FEHA. 2. There is No Evidence of A Casual Connection Between Plaintiff's Alleged Protected Activity and Any Adverse Employment Action It is well established that “[e]ssential to a causal link is evidence that the employer was aware that the plaintiff had engaged in the protected activity.” Morgan v. Regents of Univ. of Cal., 88 Cal. App. 4th 52, 70 (2000) (quoting Cohen v. Fred Meyer, Inc., 686 F.2d 793, 796 (9th Cir. 1982) (internal quotation marks omitted). “Specifically, the plaintiff must provide evidence that ‘decision-making officials’ who were responsible for the adverse employment action were aware of the plaintiff's protected activities at the time they made the relevant decisions.” Franco v. Pier 1 Imports, Inc., 2008 WL 4217848, at *16 (C.D. Cal. Sept. 11, 2008), aff'd, 372 F. App'x 803 (9th Cir. 2010) (citation omitted) In this case, even if Plaintiff could demonstrate that he engaged in a protected activity, the Court concludes that Plaintiff has failed to demonstrate the existence of a casual connection between that alleged protected activity and any adverse employment action. It is undisputed that Librenjak was unaware of Plaintiff's March 3, 2019 email to Human Resources, Plaintiff's complaint that Prevost had acted in an unprofessional manner, or Plaintiff's unexpressed belief that Prevost had used a disguised racial slur. Because it was Librenjak who made the ultimate decision to place Plaintiff on a PIP and ultimately to terminate his employment, Plaintiff cannot demonstrate a connection between Plaintiff's alleged protected activity and any adverse employment action. See Soares v. California, 2016 WL 3519411, at *5 (E.D. Cal. June 28, 2016) (holding that the “decision maker's knowledge of protected activity [is] necessary for causation”) (quoting Billberry v. Brennan, 608 Fed. App'x. 553, 554 (9th Cir. 2015)); Godfrey v. Dep't of Corr. & Rehab., 2020 WL 1316346, at *10 (2020) (holding that where the decision-maker's “declaration that he was unaware of [Plaintiff's] complaint on that date is uncontradicted, [it] eliminate[s] the causal connection element of a retaliation claim”). *10 Accordingly, the Court concludes that Plaintiff has failed to demonstrate that there is a causal connection between his alleged protected activities and Plaintiff's placement on a PIP and ultimate termination, and Defendant is entitled to summary judgment on Plaintiff's first cause of action for retaliation in violation of FEHA. 3. Plaintiff Has Failed to Demonstrate that Defendant's Reasons for Placing Him on a PIP and Its Decision to Terminate Him Were Merely Pretextual. In this case, Defendant has established a legitimate, non-retaliatory reason for placing Plaintiff on a PIP and its decision to terminate him. Specifically, despite numerous warnings over the course of many months from both his supervisors and Samsung that his performance was unsatisfactory and that he failed to meet expectations, Plaintiff's performance did not improve. See, e.g., Pinder v. Employment Development Department, 227 F.Supp. 3d 1123, 1148 (E.D. Cal. 2017) (“Poor job performance constitutes a legitimate, non-retaliatory reason for taking an adverse employment action”). Because Defendant has produced “ample evidence” to support its reasons for placing Plaintiff on a PIP and its decision to terminate him, Defendant has met its burden. Therefore, under the burden shifting analysis, Plaintiff must demonstrate that Defendant's reasons were merely pretextual. To demonstrate pretext, “[t]he [employee] cannot simply show that the employer's decision was wrong or mistaken, since the factual dispute at issue is whether discriminatory animus motivated the employer, not whether the employer is wise, shrewd, prudent, or competent.” Wills v. Super. Ct., 195 Cal. App. 4th 143, 160 (2011), as modified on denial of reh'g, May 12, 2011 (internal quotation marks omitted). Instead, “[a] plaintiff must offer ‘specific’ and ‘substantial’ circumstantial evidence to prove pretext in a retaliation claim under FEHA.” Lawler, 704 F.3d at 1244 (citing Winarto v. Toshiba Am. Elecs. Components, Inc., 274 F.3d 1276, 1284 (9th Cir. 2001)). In this case, Plaintiff has failed to produce any admissible evidence that Defendant's reasons for placing Plaintiff on a PIP and its decision to terminate him were merely pretextual. Indeed, Plaintiff testified at his deposition that he believed his interactions with Locasto were positive and that he did not believe that Locasto had any personal bias against him. Plaintiff also testified that he could not recall anything negative about his working relationship with Librenjak other than his disagreement with Librenjak's decision to place him on a PIP. Plaintiff candidly admitted that part of his responsibilities were to assess and understand Samsung's business. In addition, Locasto had made it clear to Librenjak that Plaintiff failed in those responsibilities and that allowing Plaintiff to remain in his LSM III position at the Francis Street Ontario facility for even three more days would jeopardize Defendant's business with Samsung. Accordingly, the Court concludes that Plaintiff has failed to demonstrate that Defendant's legitimate, non-retaliatory reason for placing him on a PIP and its decision to terminate him were pretextual, and Defendant is entitled to summary judgment on Plaintiff's first cause of action for retaliation in violation of FEHA. C. Plaintiff's Second Cause of Action for Failure to Prevent Discrimination, Harassment, and Retaliation and Fifth Cause of Action for Wrongful Termination in Violation of Public Policy Fail *11 In his second cause of action, Plaintiff alleges a claim for failure to prevent discrimination, harassment, and retaliation. In his fifth cause of action, Plaintiff alleges a claim for wrongful termination in violation of public policy. Failure to prevent discrimination, harassment, and retaliation and wrongful termination in violation of public policy are not stand alone causes of action and they cannot survive when a plaintiff has failed to establish the underlying act of retaliation. See, e.g., Sneddon v. ABF Freight Sys., 489 F. Supp. 2d 1124, 1132-1133 (2007) (holding that “absent a showing of actionable discrimination, there can be no violation of Government Code § 12940(k)”); Dickson v. Burke Williams, Inc., 234 Cal. App. 4th 1307, 1318 (2015) (“There cannot be a claim for failure to take reasonable steps necessary to prevent ... discrimination under section 12940, subdivision (k) if actionable ... discrimination has not been found”); Ferrick v. Santa Clara Univ., 231 Cal. App. 4th 1337, 1357 (2014). (“To establish a claim for wrongful termination in violation of public policy, an employee must prove causation”); Arteaga v. Brinks, Inc., 163 Cal. App. 4th 327, 355 (2008) (holding that “[t]he wrongful termination claim is, after all, based on the FEHA's prohibition of physical disability discrimination ... [and] fails for the same reasons as the FEHA claim”). As discussed above, Plaintiff has failed to establish that Defendant retaliated against him and, thus, he cannot maintain a claim for failure to prevent discrimination, harassment, or retaliation or a claim for wrongful termination in violation of public policy. Accordingly, the Court concludes that the second cause of action for failure to prevent discrimination, harassment, and retaliation and fifth cause of action for wrongful termination in violation of public policy fail as a matter of law, and Defendant is entitled to summary judgment on those claims. IV. Conclusion For all the foregoing reasons, Defendant's Motion is GRANTED. IT IS SO ORDERED. Footnotes [1] To the extent any of these facts are disputed, they are not material to the disposition of the Motion. In addition, to the extent that the Court has relied on evidence to which the parties have objected, the Court has considered and overruled those objections. As to the remaining objections, the Court finds that it is unnecessary to rule on those objections because the disputed evidence was not relied on by the Court. [2] According to Plaintiff, the discussion between Plaintiff and Prevost regarding Yanez was actually a series of conversations that occurred between February 7, 2019 and February 19, 2019. [3] After Michael Bak (“Bak”) at Samsung sent an email to Plaintiff on Friday afternoon asking for “correct estimates” by “EOD Monday” because “the warehouse did not perform their duties as required and provided inaccurate estimates to out team” and Plaintiff had failed to respond to Bak's email by Tuesday morning, Bak added Prevost to the email “for escalation visibility.” Plaintiff responded to Bak several hours later that he would “investigate this opportunity and provide feedback.” [4] Although the Court continued the hearing on Defendant's Motion from July 12, 2021, to August 2, 2021, the Court specifically stated that its “Order does not reopen or extend the discovery cut-off in this action nor does it extend the last day to hear motions for any other purpose.” See Order on Amended Stipulation to Specially Set Hearing Date on Defendant's Motion for Partial Summary Judgment (filed June 21, 2021; Docket No. 46), 1:23-24. [5] The legal standard for a retaliation claim, including the burden shifting analysis, is the same under Title VII and FEHA. Surrell v. California Water Serv. Co., 518 F.3d 1097, 1107 (9th Cir. 2008).