Order filed.: Pursuant to California Rules of Court, rule 8.155(a)(1)(A), the court intends to augment the record on appeal on its own motion to include the following documents, all of which were filed in the Orange County Superior Court, case No. 30-2019-01118759, on January 12, 2023, and are attached hereto: (1) Petition to Vacate Contractual Arbitration Award; (2) Declaration of Christopher J. DeClue in Support of Plaintiff David Wyer's Motion to Vacate Arbitrator's Award and to Return the Case to the Civil Active List; and (3) Memorandum of Points and Authorities in Support of Plaintiff's Motion to Vacate Arbitrator's Award and to Return the Case to the Civil Active List. Any party may file opposition to this proposed action no later than 10 days from the date of this order.
Page 1 Court of Appeal, Fourth Appellate District, Division Three
Brandon L. Henson, Clerk/Executive Officer
Electronically FILED on 1/18/2024 by Lilian De La Torre, Deputy Clerk
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
Plaintiff and Appellant,
G(Super. Ct. No. 30-2019-01118759)
v.
TESLA, INC., et al.,
ORDER
Defendants and
Pursuant to Califomia Rules of Court, rule 8.155(a)(1)(A), the court intends
to augment the record on appeal on its own motion to include the following documents,
all of which were filed in the Orange County Superior Court, case No. 30-201901118759, on January 12, 2023, and are attached hereto: (1) Petition to Vacate
Contractual Arbitration Award; (2) Declaration of Christopher J. DeClue in Support of
Plaintiff David Wyer's Motion to Vacate Arbitrator's Award and to Retum the Case to
the Civil Active List; and (3) Memorandum of Points and Authorities in Support of
Plaintiff s Motion to Vacate Arbitrator's Award and to Retum the Case to the Civil
Active List. Any party may file opposition to this proposed action no later than 10, days
from the date of this order.
O'Leary, P.J.
O'LEARY, P. J.Page 2 tfecironfcaoy rnea Dy Oupenor l.oufl' or aHrornia, l.ounry or urange, u i) i c/cucJ f I Ao:uu rlvf.
30-2019-01118759-CU-OE-WJC - ROA # 103 - DAVID H. YAMASAKI, Clerk of the Court By M. Johnson, DeputyjIc,
j
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I~ave~i SPElihuH(~2T6~249~;lCChnstop~erJ'~eCue, (282807)
EMPLOYEE JUSTICE LEGAL GROUP, PC
1001 Wilshire Boulevard
~ACOUR7USEONLY
A
I'°s A
~~PHONi< OA(~Q~~82-2222 FAXPoO.~t;a„el): (213 382-223U
TTL
E-MAIL ADDRESS (optianal): kelihu@EJ'Glaw.com;
cdeclue@EJLG1aw.col$
AT7ORNEV FOR (Name)): Davtd Wyer
~
SUPERI0R C0URT 0F CALIF0RNtA C0UNTY 0F ORANGE
sTREEr ADDREss: 700 W Civic tenter Dr
fdAILINGADDRESS: 700 W Civic Center Dr
CInr ANDZIP CODE: Santa Ana, sRANCH NAME: CENTRAL JUSTICE CENTER
PETITI0NER: DAVI) WYER
RESP0NDENT: TESLA, INC. ET. AL
PETITION TO
EJ CONFIRM
EJ CORRECT [ZJ VACATE
CONTRACTUAL ARBITRATION AWARD
Jurisdiction (check a/l that apply):
-
EJ Action is a limited civil case
Amount demanded does not exceed $10,exceeds $10,000, but does not exceed $25,
m
Action is an unlimited civil case (exceeds $25,000)
Hearing Date: April 20, 1:30 pm
Time:
W
Dept.:
CASE NUMBER:
30-2019-01118759-CU-OE-CJC
NOTICE: You may use this form to request that the court confirm, correct, or vacate an award in an arbitration conducted
pursuant to an agreement between the parties that is subject to Code of Civi! Procedure section 1285 et seq. and that does
riat !nvra!ve an attorney-client fee dispute. !f you are requesting court action after an attorney-c!iont foo arbitration award,
please read Alternative Dispute Resolution form ADR-105, Information Regarding Rlghts After Attorney-Client Fee
Arbftration.
1. Petitioner and respondent. Petitioner (name each):
Petitioner - David Wyer
Respondent - Tesla, Inc, Christopher Rollins, Carson Schafer
alleges and requests relief against respondent (name each):
Please see attachment
2. Contractual arbitration. This petition requests the court to confirm, correct, orvacate an award in an arbitration conducted
according to an agreement between the parties that is subject to Code of Civil Procedure section 1285 et seq.
3. Pending or new action.
a. ®
b. Q
A court case is already pending, and this is a petition filed in that action. (tf so, proceed to item 4.)
This petition commences a new action. (!f so, complete items 3b(i) through 3b(4).)
(1) Petitioner's capacity. Each petitioner named in item 1 is an individual,
except petitioner (state name and complete one or more of the following):
(a)
is a corporation qualified to do business in Cafifornia.
(b) C]
(c) C]
(d) lJ
is an unincorporated entity (specffy):
is a representative (specify):
is (specify other capacity):
(2) Respondent's capacity. Each respondent named in item 1 is an individual,
EJ except respondent (state name and complete one ormore of the following):
(a) E]
is a business organization, form unknown.
(b) CJ
(c) (d) []
(e) Q
is a corporation.
is an unincorporated entity (specify):
is a representative (specify):
is (specify other capacity):
Page
rorm Approved fot Optlonal Use
Judidal Cauncil of Ca~fomio
ADR-106[NewJenuery1.20oaJ
PETITION TO CONFIRM, C0RRECT, OR VACATE
CONTRACTUAL ARBITRATION AWARD
(Alternative Dispute Resolution)
Code
1 ot
of CiWI Procedure, Q 1285 ct seq.Page 3 PETITIONER: DAVID WYER
CASE NUMBER:
RESPONDENT: TESLA, INC. ET. AL
3. b.
30-2019-01118759-CU-OE-CJC
(3) Amount or property In dispute. This petition involves a dispute over (check and complete alt that apply):
the foilowing amount of money (specify amount): $
(a) EJ
(b) property (if the dispute lnvolves property, complete both of the following):
(i) consisting of (identi(y property in dispute):
(11) having a value of (specify va!ue of property in dispute): $
(4) EZJ Venue. This court is the proper court because (check (a) or (b)):
(a)
this is the court in the county in which the arbitration was held.
(b)
the arbitration was not heid exclusively in any county of California, or was held outside of California,
and (check one or more of the following):
(i) EJ this is the court in the county where the agreement was made.
(ii) EJ this is the court in the county where the agreement is to be performed.
(iii)Q
the agreement does not specify a county where it is to be performed and was not made in any
county in California, and the following party resides or has a place of business in this county
(name of party):
(iv) Q
the agreement does not specify a county where it is to be performed and was not made in any
county in Caiifornia, and no party to this action resides or has a place of business in California.
4. Agreement to arbitrate.
a. Date. Petitioner and respondent entered into a written agreement on or about (date): 8/20/2015, 6/2/b.
Attachment. A copy of the agreement is submitted as Attachment 4(b) and incorporated herein by this reference.
of the agreement provides for arbitration of disputes arising out of the
c. Arbitration provision. Paragraph
agreement as follows (either copy the arbitration provision fn full or summarize the provision):
Plaintiff disputes that the arbitration agreement is valid and enforceable. It is ambiguous which
arbitration agreement controlled the Arbitration.
5. Dispute subject to arbitration. A dispute arose between petitioner and respondent concerning the following matter covered by the
agreement to arbitrate (summarize the dispute):
Petitioner claims that Respondents discriminated, harassed, retaliated and failed to prevent discrimination
and relation. Petitioner further claims that he was wrongfully terminated as a result of his Disabilities,
medical conditions, and/or age, and in retaliation for seeking accommodations and whistle blowing.
6. Arbitrator. The following person was duly selected or appointed as arbitrator (name ot each arbitrator):
Hiro Aragaki
7. Arbitration hearing. The arbitration hearing was conducted as follows (complete both of the following):
a. Date (each date of arbitration): April 29, 2022, May 2-5, b. Location (city and state where arbitration was conducted):
Arbitration was conducted remotely in Los Angeles, Califomia.
8. Arbitration award.
a. Date of award. The arbltration award was made on (date): October 4, b. Terms of award. The arbitration award (check one or more of the following):
(1) respondent
requires
petitioner
to pay the other party this amount: $
(2) ®
requires neither party to pay the other anything.
(3) is different as to different petitioners and respondents.
(4) LJ provides (specify other terms or check item 8(c) and attach a copy of the award):
c.
Attachment of Award. A copy of the award is submitted as Attachment 8(c).
9. Service of award.
a. The signed award or an accompanying document indicates that the award was served on petitioner on (date): Oct 4, b. EJ Petitioner alleges that a signed copy of the award was actually served on (date):
AOR- 1as inrowre~~aro ~, 2oaa~
PETITION TO CONFIRM, CORRECT, OR VACATE
P9®e 2 °f CONTRACTUAL ARBITRATION AWARD
(Alternative Dispute Resolution)Page 4 CASE NUMBER:
PETITIONER: DAVID WYER
l
RESPONDENT: TESLA, INC. ET. AL
30-2019-01118759-CU-OE-CJC
10. Petitioner requests that the court (check all that apply):
a.EJ Confirm the award, and enter judgment according to it.
b.J Correct the award and enter judgment according to the corrected award, as follows:
(1) The award should be corrected because (check all that apply):
(a) EJ
(b) Q
the amount of the award was not caicuiatod Carrectiy, or a person; thing, or property was not described
correctly.
the arbitrator exceeded his or her authority.
(c) the award is imperfect as a matter of form.
(2) The facts supporting the grounds for correcting the award alieged in item 10b(1) are as follows (if additional space
is required, check here
and submit facts on an attachment labeled 10b(2)):
(3) The award should be corrected as follows (if additional space is required, check here
and describe
requested correctlon on an attachment labeled 10b(3)):
c. ®
Vacate (cancei) the award.
(1) The award should be vacated because (check all that apply):
(a) the award was obtained by corruption, fraud, or other unfair means.
(b) an arbitrator was corrupt.
(c) ®
the misconduct of a neutral arbitrator substantially prejudiced petitioner's rights.
(d) LJ the arbitrator exceeded his or her authority, and the award cannot be fairly corrected.
(e) EJ the arbitrator unfairly refused to postpone the hearing or to hear evidence useful to settle the dispute.
(r) EJ an arbitratoi iaiied to disclose witturl the tiu•ie fui disciosure a ground for disquaiific.ation of which the
arbitrator was then aware.
(g)
J an arbitrator should have disqualified himself or herself after petitioner made a demand to do so.
(2) The facts supporting the rounds for vacating the award alleged in item 10c(1) are as follows (if additional space is
and submit facts on an attachment !abeled 10c(2)):
required, check here ~
(3) Petitioner
does
LZI does not
d.0 Award petitioner interest from (date):
request a new arbitration hearing.
(1)at the statutory rate.
(2)EJ at rate of
% per year.
e.0 Award petitioner costs of suit:
(1)EJ in the amount of: $
(2)according to proof.
f. EJ Award petitioner attorney fees Incurred in this action (check only if attomey fees arc rccovcrab/e in this action
according (o statute or the parties'agreement):
(1)EJ in the amount of: $
(2)EJ according to proof.
9•
J Award petitioner thc following other relief (describc reliof roqucetod; if additional space is required, check here []
and describe relief on an attachment labeled 10a):
(1) Vacate Arbitration Award; (2) Lift Staying Pending Arbitration; (3) Set this case for Trial
before the Orange County Superior Court. In the alternative,Plaintiff that the Court to Order this
ease be reheard in arbitration after Plaintiff is perrnitted additional discovery.
11. Pages
Date: January 12, Christopher J. DeClue, Esq.
(TYPE OR PRINT NAME)
ADR-106 (New Jenuary 1, 2004)
(SIGN
- o PETITIONER OR ATTORNEY)
PETITION TO CONFIRM, CORRECT, OR VACATE
CONTRACTUAL ARBITRATION AWARD
(Alternative Dispute Resolution)
Page3of3Page 5
PROOF OF SERVICE
STATE OF CALIFORNIA, COUNTY OF LOS ANGELES
I am employed in the County of Los Angeles, State of California. I am over the age of 18 and
not a party to the within action. My business address is 1001 Wilshire Boulevard, Los Angeles,
California 90017.
On January 12, 2023, I served the foregoing document described as PETITION TO VACATE
CONTRACTUAL ARBITRATION AWARD on the interested parties in this action as follows:
By placing true copies enclosed in a sealed envelope addressed to each addressee as
follows:
10 I
,
Cheryl Johnson-Hartwell, Esq.
BURKE, WILLIAMS & SORENSEN, LLP
444 South Flower Street, Suite Los Angeles, CA cJ'ohnson-harlwell(bwslaw.com
Attorney for Defendants
14.
®
BY E-MAIL: I transmitted a copy of the foregoing document(s) via e-mail to the individual(s)
indicated above. I did not receive, within a reasonable time after transmission, any electronic message
or other indication that the transmission was unsuccessful. The e-mail address of the person who served
the document(s) is: ggomez@eilglaw.com
Executed on. January 12, 2023, at Los Angeles, Califomia.
STATE
I declare under penalty of perjury under the laws of the State of California
that the foregoing is true and correct.
❑
Gladis Gomez
FEDERAL I declare that I am employed in the office of a member of the bar of this
Court at whose direction the service was made.Page 6 CASE NUMBER
PETITIONER/PLAINTIFF
David Wyer,
RESPONDENT/DEFENDANT TESLA, INC. ET. AL,
30-2019-01118759-CU-OE-CJC
Attachment 1:
1.DISCRIMINATION IN VIOLATION OF GOV'T CODE §§12940 ET SEQ.;
2. HARASSMENT IN VIOLATION OF GOV'T CODE §§12940 ET SEQ.;
3.RETALIATION IN VIOLATION OF GOV'T CODE §§12940 ET SEQ.;
4. FAILURE TO PREVENT DISCRIMINATION, HARASSMENT AND RETALIATION IN VIOLATION OF GOV'T
CODE §12940(k);
5.FAILURE TO PROVIDE REASONABLE ACCOMMODATIONS IN VIOLATION OF GOV'T CODE §§12940 ET
SEQ.;
6.FAILURE TO ENGAGE IN A GOOD FAITH INTERACTIVE PROCESS IN VIOLATION OF GOV'T CODE §§ET SEQ.;
7.FOR DECLARATORY JUDGMENT;
8.WRONGFUL TERMINATION IN VIOLATION OF PUBLIC POLICY;
9.NEGLIGENT SUPERVISION AND RETENTION;
10.I.NTENTIONAL INFLICTION OF EMOTIONAL DISTRESS;
11.RETALIATION IN VIOLATION OFLABOR CODES §§ 1102.5 & 1102.6;
12.FAILURE TO PAY WAGES (CAL. LABOR CODE §§201, 1182.12, 1194, 1194.2);
13.FAILURE TO INDEMNIFY (CAL. LABOR CODE §2802);
14.FAILURE TO PROVIDE ITEMIZED WAGE STATEMENTS (CAL. LABOR CODE §§226 ET SEQ.); WAITING
TIME PENALTIES (CAL. LABOR CODE §§201-203); AND
15.UNFAIR COMPETITION (CAL. BUS. & PROF. CODE §17200 ET SEQ.)Page 7 ATTACHMENT 4(b)Page 8 OocuSign Envefope Id:800AN2FE-124e-4841•9868-4085CCCBOSF
SolarCity
August 19, To: David Wyer
Dear David:
'
I am personally and professionally pleased to confirm an offer of employrnent for you to join
SolarCity Corporatiott (the "Company") as an AutoCAD Software Engineer subject to
suc,cessful completion of a backgrourld check and drug te"st as applicab[e. Iri this position you
will be reporting to Travis Rrier. Your employment start date with SolarCity willbe 9/8/and you will be working at,our San Francisco location. The fo.11owing information will outline
your compengation, benefits and responsibifities as a.itew member of the SolarCity team.
Position & Responsibilities: As an AutoCAD Software Engineer .you wil.l render full-time
services to the Company, and you will use your best efforts, skill, and abilities to promote the
Company's in"terests: NVe enoourage you to participate .in the developinent of all aspects of
SolarCity, fostering a spirit of teamwork, pr.ofessi:ona4lism, high eneTgy, and fun.
Comnensation and Benefits: You will receive a sa[ary of •DSD $95;00040/Yr. which will b.e
paid in accordance withthe Company's. nornmal payroll procedures and subject to customary
deductions and withholdings as required by law. As a salari.ed exempt employee, you are not
eligible for overtime pcay. As an employee, you •will also be eligible to reaeive certain employee
benefits including Paid Time Off, prorated per our policies;. specifieally, vacation will accrue at a
two (2) week rate during your fitst year of employment. Beginning your second year of
employment, vacation will begin to aecrue at a.three (3) week rate. Sick leave is available in
accordance with •applieaable law and SolarCity policy. The details of our benefits p[ans sha11 be
provided to you upon your start date or earlier if you wisb. Metlical, dental and vision benefits
begin the first of the montb foilowing 30 days of employment. You should note that the
Company may modify job titles, salaties and benefits from time to time, as it deems necessary:
Restricted Stock Units: Ifjrou decide to join the Coinpany, it w.iJl be recommended at a meeting
'of the Company's Board of Directo.r.s or ,the appropriate coinmittee at a tirpe following your
employment start date, that the Company gratit you •an avirsrd of (~200) restricted stock units .(the
"RSU Award"). The proposed RSU Award, shall be giarited under and subject to the terms and
conditions of the Company's 2012 Fquity incentive Plan {the "Plan"), as inay be ainended from
tirne to tiine; as well as the terms. and conditions of the applieable ILSU Award agreement
(which, among other thiaigs, piovides for the• maridatory sale of shares to cover tax withi►oldingPage 9 OocuSign Enyelope iD: e0oAA2FE-124$-4641-8866-4o6bcCCBo9Fg
obligations), which will be provided to you as soon as practicable after the grant date and which
you will be required to sign or accept in aecordance with the Company's acceptance procedures.
Twenty f ve percent (25°10) of the shares subject to the 1tSU Award shali vest twelve (12) months
after the gratit date, subject to your continued employnient with the Compan.y, and no shares
shall vest befcresuch date. The remaining shares subject to the RSU Award shall vest in equal
quarterly inorements over the next tfiree years, subject to your continued employment with the
Company. However, the Company may iinpose a different vesting schedule for the RSU Award
as required or "recommended to comply with local law, as determined by the Company in its sole
discretion. The exact vesting schedule will be provided to you ih your RSU Award agreement.
The RSU Award is subject to approval by the Board of Directors (or the appropriate committee).
The Coinpany is excited about your joining and looks forward to a beneficial and productive
relationship. Nevertheless, you should be awarethat your employment with the Companyis for
no specified period and constitutes atwill employment, As a result, you are free to resign at any
time, for any reason or for no reason. Similarly, the Company.is fr'ee to terminate its
employment relationship with you at any time, with or without cause, and with orwithout
notice. We request that, in the event of resignation, you give the Company at teast two weelcs
notice.
As a condition ofemployment, eandidates are subject to pre-employment screening for
background an'd reference checks. Candidates. for safety sensitive positions are also subject to
pre-employment drug screening and random drug screening during the course of your
employment at SolarC'ity. SolarCity reserves the right to periodieally conduct baekground
checks throughout any employee's tenure in 'aoeordance with the Fair Credit Reporting Act and
applicable state and local laws. Youi employment, therefore, is contingent upon a clearance of
such a.background "investigation, reference check and/or drug screen; as applicable. Ifthe
Company receives. negative results on your background. check, reference check or drng fest after
your einployrirent begins which would preelude you from-employment at SolarCity, you will be
subject to termination in accordance with applicable law.
For purposes of federal immigration law, you will be requ9red to provide to the Company
documentary evidence of your identity and eligibility for einployment in the United States. Such
docurrientation must be provided to us within three (3) business days.of j►our date of hire, or our
employment relationship with you may be terminated.
We also:ask that, ifyou have not already done so, you disclose to'the Company any and all
agreements relating to your prior employment that may affect yoUr eligibility to be employed by
the Com.pany or iimit the manner in which you may be employ.ed. It .is the Company's
understanding that any such agrEements will not prevent you from performing the duties ofyour
position.and you represent that such .is the case. Mor.e'over, you agree that, during the term of
your •employment with the Company, you will not engage •in any other employment, occupation,
consulting or other business activity directi.y related to the business in which'the Company is
now irivolved or becomes involved during the term of your employment, nor will you engage in
any other activities that conflict with your obligationsto the Company. Sim'iiarlyi you agree not
to bring any third party confidential information to the Corimpany, including that of your formerPage 10 DoeuSipn Envelope 1D:60oAA2FE1249.4641-9868-4D95CCCBo9F
employer, and that in performing your duties for the Company you will not in any way utilize
any such information.
As a Company employee, you will be expected to abide by the Company's rules and
standards. Specitically, you will be required to sign an acknowledgment that you have read and
that you understand the Companys policy covering Business Conduct and Ethics, which are
included in the Company Handbock and you may request, in writing; a copy of the policy prior
to signing this offer letter.
As a condition of your empl.oyrnent,.you will also be required to siga and comply with an AtWill Employrnent, Confidential Ynformat.ion, Invention Assignment, and Arbitration Agreement,
which requires, among other provisions, the assignment of patent rights to any invention made
duriiig your employment at the Company, and non-diselosure of proprietaá3► information. in the
event of any dispute or claim relating to or arising out of our eolployment relationship, you arid
the Conipany agree to aa atbitfation in which Ça) you are waiving any and _all rigbts to ajury triai
but all court remedies will tie available in arbitration, (ii) we agree that .all disputes between you
and tlie Company shall be fully.and finally.resolved by .binding arbitration, (iii) all disputós shall
be resolved by aneutrai arbitrator who shall issue a written opinion, (iv) the•arbitration shall
providefor adequate discovery,and (v) the Company will pay for any administfat'rve or hearing
fees charged by the arbitrator except that you shall pay any filing fees assooiated with any
arbitration that you initiate, but only so much of the filing fees as you would have instead paid
had you filed a complaint in a court of law.
This letter, along with any agreements reliting to proprietary rights between you and the
Company, set forth the terms of your employment with the Company and supersede any prior
representations or agreements including, but not limited to, any reprssentations made during your
recruitment, interviews or pre-employment negotiations, whether written or oral. This letter,
including, but not limited to, its at-will employn►ent provision, inay not be rnodified or amended
exciept by a written. agreeinent signed by the Chief Executive Officer ofthe Company and you.
Please note this offer of employment will expire• if it is not accepted, signed and returned by
8/2X/2o15.
We look forward to. a happy, supportive and mutually beneficial relationship with you. We hope
•that.you will grow and prosperwith us, and that you are as excited aboutjoining SolarCity as we
are at having the opportunity to work with you. We look forward to your favorable reply.
Sincerely,
.i
,
i / ;'
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/
.
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.
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- .1Page 11 CoauSlgn Envetop® !D; 600AA2FE-1849-4841-98SB.4DS5CCC8C3F,
Richard Garcia
Agreed to and accepted:
Legai First Name:
oavid
Legal Last Name:
Wyer
o«osra~•e sx
SIgnature:
Email:
Date: •
p""i1 Wç"
dwgraphics(4mai1bag .can
B/2o%2oi
Please check box to confirm start date: 9/8/
x
*If this is incorrec't, please enter an aiternate Monday start date:Page 12 -
u'_~
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:
~
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~
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Wlay 30;
Irvine. CA Dear Qavid:
We are plaased to le.t.you know thet as part of your ttansfer from SolarCity Corpotation to Teala, Inc,
("Tesla" ot the "Company") e0eclive.June 19. 2017, you witt be employed In the eaempt, satarted posiWon
af Sot3ware Englneer with Tesla, Inc (nTesla" or tha "Company') on the terms set forlh below: As a
Solittivare Engineer, you wili perform the dulles custoniarify assocteted wtth this posfhbn. You wlll report
to Miice lticinski. Your duties,. nesponaibititiea, job tflle. and work tocsttlon may be cha.nged at any time
by Testa
Your annualbed salery w:il be 585,000,00 per year, subject to abandard payroll deductlons and
wllhholdings.As an exernpt employee. you Wl11 not be eitttited to overtlme. You wlll be ellgiblefor
vecatlon and stck leave according to Tesla's stendar0 policy. Suhject to the ruies of the applicable plan
documents, you will also be eligÍbie tc recetve other benefits Tesia may provide to ks efnployees id=A•,
heakh and dental insurance.coverege} beginning on your date of hire. Testa may oonsider you for
bonuses; alOto,ugh the.amount of such tionuses, if any, and the orfteria. for deUarmining the award of such
bonuses, if any, sh®ll be inthe sote discrctlon of Tests. Of cburse, Tesie reserves the right to modtfy
ydur compensation and benefits from tinse to time, as lt deems necessary.
Tesia.atfeis o eompetitive benetits paelcage. Mone detailed ieformat9on about the benefk plans and
instnuations on how to enrotl wltt be prowided duting your onboardtng prooess.
SolarCityEquity Awards: Equily ewards pfeviously granted to you by SolarCtb► have elready been
exehanged Into Tesla equity awards, and witl not be atfeeted by your•tnanšf.er fram SolarCity to Testa.
While you remaln employed by'resla, you wlll çontinue to veat pursuant to the tam,s and conditions of
the stodc plans and agreaments that gbvem your awards.
401K Program: You will be eitglbte to padicipate In Tesle's 401K progrem. The Tesla 401K program is
administened by Fidelity Investments and you will reeeive enro!lntent (natructlons durfng your bnboarding
process.
SolarCity 401K Plan Account Trensfer: If you cumently have a retMement account batance In the
Sclart,ity 401k plan. youia000unt will be transterred on a tax-free, basis to the Testa 401k plan. You wUl
receive informeUon regarding the transfer in the aoming weeks. The transfer is scheduled to ocxur April
2017. In the meantime, should you have any questions, ptease contact Ftdel'dyr at 800-835-50i1'7.
PTO P.rogram; Under Tesla's PTO poticy, negular fu.it time empioyees and part-ttme ernployees whoPage 13 regulars)r wodC at teast 20 hours per week are eligbte for PTO Unmediately and accrue PTO at 1.25 days
(10 hours) per month for a total of 16 days (120 hours) per calenderyear. You may maintain a PTO
balance of up to 240 hours. PTO rnay be used for vacstion or paid sick leave, as provtded under Tes18"s
PTO poliay, and ooneistent wfth applicable law.
Vaeatton TransferAcknowtedgment: By.algNrg tfiris employee tn9neferagreement, you agree to
transfer your vested, unused vecatlon hours from Solart;6y to Tesla, and oonvert them to PTO houta
underTesta!s pollcy..
If your tranaferned SolarClty vacation is less then 240 hours. you will also be rxedited with PTO For your
SotarClty vested, unused stck leave hours, up to the 240 hour PTO oap under Testa's poftcy.
These PTO hours will be avallable for you, to vse knmedlately, eonststent vxi3th Tesla policy.
Servtce Date: As a transferring employee, your Service Date with Teeta wlll be September 08, 2015.
Din:ct Deposit Authotisatlon: If, os of the dab M thts letter, you elected to be pald via Direct Deposit
at SoltirC#y, Tesla will conttnue to pay you via Direct Deposh urdess you adjust your Tes1e paynnent
eteotlons. By sign ing this employee transfer agn3emsnt, you auttiortze SolarC(ty to share your cumenf
Direct Daposlt informetlon, ft applicable, with Tesl®. You ako authorize Tesle to pay you dlrectly to your
acoount itestgnated•in your.SolerCity Direct Deposit Informatfon.
The Company, is excited about your joining and looks feiward to e benefictel•and fruitfuI relationship.
Neverthelass, you ahoufd tie eware that your emptoyment wi6h the Cornpany is for rio speciRed period
end constitutes al-dalil, emplq(rnent As a nasutt; you are iree to ree1gn at any time, for any reason or for
no n:ason, wNt or without notice. .Similarfy, the Company Is free to condude tN emptoyment relationship
vrith you at any tlrne, wfth orwithout aause, and with or wltteout nollee.
We ask that, If you have not already done so, you dtsclose to Testa atty end all agreements nslating to
your pdcr employment that niay apect your ellghilllty to be employad by Tesla,or iirntt the rnanner in
whic.h you majr be emptoyed. It Is Tesla's understanding that any such agneements wN not prevent you
fnni+ pertarrning the duties of your positio:t and you ,represent that such Is. the case; VWe warit to
emphasize that we do not wish you to brin8 eny confidentlal or propri®tary mate:iets of any forrner
employar aahich would violate any obltgatlons you may have to your farmer empfoyer. You agrea not to
rnake any unauthodzed disdosure to Tesle or use on behalf of Teste any contldentfal lnfonnatbn
belonging ,to ar►y of your forrner employers (exoept (n accordanee wBh agreements between Tea(e and
any such former employer). You also werrant that you do not possess any property oontalning a third
party'e conRdential and proprietary information. Of cours®, durtn8 your empbyment wItN Tesla, you may
make u8e of information generally known end used by persofts wfth trelning and axperente comparabte
to your owh, arnd informallon whtch ls comrnon knowledge In the industryor is othelw Ise legally avaDable
in the publtc domain. Moreover, you agnae that, during itie terin of your employment with t>te Campany,
you viiill not engage in any. other employment, ocoupallon. consulGng or other business adWity directty
retaEed to. the busiriess In which Tesia is now lnvolved or becomes lnvolved during fhe term of your
employment, nor wlll you engage !n any other actMtl~es that confllat with your obligattons to Tesla.
Asa Testa emptoyee, you vrItI be expected toeblde by all Testa policies and procedures, end, as a
condltìon of your employrrlent, you wiA,siBn and cornply with Tasla's staridani snmtidentlalily a,gn®ement
which prohibits unauthorized use or dlsctosure of Tes1a conitdentlal Infomation or t#:e eonftdential
Infotmation of Testa's clients.Page 14 In addition, to ansuns the rapht and economicet resoiutbn of disputes thst may arise In oonneotion wilh
your emptoyment wfth Tesla, you and Tesla agree that any and eil disputes; ciaims, or causes of sction,
in law or equily, arising from or retating to your employment, or the letrntna8on of your employment, will
be resotved, to the fullest extent parmltted by iaw by finat; blndlng and confidenti!ai arbltration tn your cdy
and state of etnployment coriducted by the Judtcial Arbitratlon and Mediation SenRoes/Endispute, Ina
("JAMSy, or Its succ:essors, under the then cnarrent rules of JAMS for employmerit disputes; provided that
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Any claim, dispute, or cause of.edion must be brought in a party's indtviduai capadly, end not as a
plaintdf or claee member in any purported clgss or representative pnooeading; and
The eibitrator shail have the authorlty to compel adequste disoovery for the iasolution of the dispute
and to award such rellef as wou!d olherwlse be pa+mitted by law; and
The arbitrator'aha8 not have the aulhorlty to oonsoGdate the claims ot other empkayees and sha11 not
have the suthority to fashion.a proceeding as a dass or cotleetiv® adlon or to award reilst to a group
or class of emptoyeee in one atbhration prooeeding; and
The arbitrabi shaiJ lssue a writtaearbitreDion decision Includ'ing Ihe arbitretors essenilal fihdings end
conclusians and e, statement of the aHrerd; and
Both you and 7estp shaA be entitied to all rights and remedies that you or Tesla would be entttled to
pureue in a court of law; and
Teslashall pay ali fees In axcess of those whiafi would be requhed if the dlspute was dedded In a
court of law
Nothing in this eniptoyee trensfer.agreentent is tntended to pravent either you or Tesia frwn obtaining
injuncllve relief in couA to prevent ir.reparable harm pending the conclusion of any such arbltration.
Nolwshstandlrg the foregoing, you and Tesfa earfi hava the right to .resolve any l6sue or dispute arising
under the Proprtetary Infornieifon and Jnventions Agreemant by Cou¢ action instead of arbitratlon:
Arbitrable dairne do not Include, and this employee transfer agreement does not appiy to or othenvise
restrict, adminlatrative olaims you rnay bring before any goverriment agency where, as niatter of taw,
the parties may not restiict your atiility tofiie such elaims (incfuding dtsaiminatlon and/or retaliation
delrns tiled with the tsqual i*mployment Opportunlly Commission and unfali labor practice charges"61ed
wlth the Netibnai Labor Retations t3oard). Otheiwise, it Is agreed that arbltraUon sliaU be the exclusive
remedy for admlrtlstrative dalmms.
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You acknowtedge and agree that: (t).in the eourse of.your employ,ment by the Ccnpany, it will be
•
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necessary for you to ereate; use, or have access to (A) technicet, buslnasa, orcustomer informatton,
matsriais, or.deta relating to'the Conipany's present or planned buslne"ss that has not'been released to
the public with the Company's authorization, inciuding, but not limited io, confidentiei'information,
materiafs, or proprieta ry
. data betonging to the Comparqt or relattng to the Cornpany's aiiairs (coilectivvety,
"Confidential infomiatton') and (B) informetion and meteriels that Gronoem the t:ompany's business that
come. into the Companys possesslon by reasorr of employment with the Company (coltectivety..
"Business Retated information"); (ii) all Confidential Infonnadon and tauauteas Related information are
the ptopatty of the .Company; (ili) the use, rnieaptu+qpriation, or disctosure of any Confldentiai Informadon
or 8usiness Related information v►ioutd oonstitute a breach of trust and could.cause'settous and
1meparabie Injury to tfie Company; and (ih it is essential to the pnotection of the Company's goodwili and
malntenance of the Campariy's.compebNve. posWon that all Confldetiflal Infonnabon and Business
Related Ihfonnatian be kept•conRdential and that you do not dieclose any Confldentlal lntorriiotton or
Business Refated Inforntatean to others or use Confidential Information or 8ustness Related Infoffnation
to your own adveritage or the advantage of od+ers.
1n recognitton of the adcnovvledgmQnt above, you agree that untll the Confidenual Information andfor
Business Related Infontiatbn be.aomes publidy ava.ilatrle (otiier ihan lihrough a breacii by you), you shell•
(i) hold and safaguard a0 Contidential Infonnation and8usiness Related Inforrriation in tru'st for the
Company; (i) not appropriate or disclose or make available to anyone for use orilside ot the Cornpany'sPage 15 organlxadon at any bme any Confldendai informallon and Buslness Related Infarmation, whether or not
developed by you; (1i) keep iri stricfest oonikiarue any Confl4eMtal infom►atfon or 8usiness Reiated
Infor+rmUon; ({v) not disclose or dhrulge, or allow to be disctosed or divulged by any person within your
controt to any pen3on, ftrm, or oorporation, or use dlnsctly or indirectly, for your own benefit ot the benefit
of othere, eny Contidential Ihformation or Business Retated iMormatPon; and (v) upon the tennfnatlon of
your employment, retum all Confidenttal tnfonnation and Business Records and not make or reteln any
coples or exaets theneof.
Thls employee tn3nsfer agn3ement conetltutas the complete, Bnal end exclusive embodiment of the eMire
agreement between you and 7edla wHh nssped to the tenns and conditlons of your employment, and it
suparsedes any other a8resments or promises matle to you by anyone, whether oral or written. This
employee transfer agreement cennot be changed, amended, or modified exoept in e wdtten agreament
etgrted by an ofQcer of TEsfe. This employee transfer agneement shall be.consirued and lnterpreted tn
acoordenoe wlth the.laws of ihe State of CaliforNe.
As requin3d by Mrntgration law, this offer of employment is cond'itioned upon satisfactory pmof of your
right to wotk in the United States.
We look fonnard to a produgtive and enJoyable work relatlonship.
VerI► ttuiY ycuns,
Qon Musk
Chalrmari of the.Board and CEO
8ign Here:
J
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cate;
Jun 2,
a.rrwv•r:~n .Page 16 ATTACHMENT $(c)Page 17 JAMS ARBITRATION
CASE REFERENCE NO. DAVID Wl'ER
Clafmant,
and
TESLA, INC. dba TESLA MOTORS, INC., CHRISTOPHER ROLLINS, and
CARSON SCHAFER
Respondents.
FINAL AWARD
Counsel:
Rhett Francisco, Esq.
Christopher DeClue; Esq.
Kaveh S. Elihu, Esq.
Ennployee Justice Legal Group,
LLP
3055 Wilshire Blvd, .Suite Los Angeles, CA Phone: 213-382-rfrancisco~EJLGIaw.com
cdeclue(iiEJLG1aw.coni
kelihu(2?EJLGIaw.com
Cheryi L. Johnson-Hartwell, Esq.
Susan V. Arduengo, Esq.
Burke, Williams & Sorensen LLP
444 S. Flower St., Suite Los Angeles, CA Phone: 213236-
gjohnson-hartwell~bwslaw:com
sarduenaobwslaw.com
Coernsel. for Respondent
Corsf7sel for Clai.nrarlt
Arbitrator:
Hiro N. Aragaki, C.Arb, Esq.
JAMS
555 West 5fh Street; 32nd Floor
Los Angeles, CA Te1: (213) 620-
E-mail: HAraeaki~)r,jamsadr.coni
Place. of Arbiti=.ationa Los Angeles, California; il:S:A.Page 18 Date of Final Award: October 4, Having been designated in accordance with the arbitration clause is contained in
the Tesla Employee Transfer Agreement between Claunant and Respondent Tesla, Inc.
dated May 30, 2017, and having examined the submissions, proofs and allegations of the
Parties, I, THE IJNDERSIGNED ARBITRATOR, now find, conclude and issue ttus
Final Award as follows:
I.
Introduction and Procedural Statement
Claimant is an individual and was, at all times relevant hereto, an employee of
Respondent Tesla, Inc.
.
Respondent Tesla, Inc. (hereinafter "Tesla") is a Delaware corporation with its
principal place of business in the State of California. It is an automotive and energy
company that specializes in electric car manufacturing, and, through its SolarCity
subsidiary, solar panel manufactiuing.
Respondent Christopher Rollins is an individual and was, at all times relevant
hereto, a supervisor or managerial employee of Respondent Tesla, Inc.
Respondent Carson Schafer is an individual and was, at all times relevant hereto,
a non-managerial employee of Respondent Tesla, Inc.
On May 30, 2017, Claimant and Tesla entered into an Employee Transfer
Agreement (the "Agreement'), pursuant to which Claimant's employment was
transferred from SolarCity Corporation to Tesla. (See Exh. 48.) The Agreement sets
forth the terms of Claimant's employment with Tesla.
The arbitration was ordered on or about October 15, 2020, by the Orange County
Superior Court in Case No. 30-2019- 01118759-CU-OE-CJC, as to all Parties and
pursuant to theAgreement. Claimant filed a Demand for Arbitration with JAMS dated
November 17, 2020. The claims are arbitrable. (See Amended Order No. 1 dated March
4, 2022.) Respondent responded to the Demand on December 1, 2020.
The Arbitrator was selected as the sole arbitrator pursuant to the arbitration clause
contained in the Agreement. A preliminary hearing was held on April 28, 2021, at which
time the Parties agreed that the applicable substantive law is the law of the State of
California and that the JAMS Employinent Arbitration Rules & Procedures, as modified
by the JAMS Policy on Employment Arbitration Minimum Standards of Procedural
Fainiess would apply. (See Amended Order No. 1.) The Arbitrator issued a Report of
Preliminary Hearing and Scheduling Order No. 1 on May 3, 2021.
Pursuant to Order No. 1, the Parties were to stipulate to whether the arbitration
clause contained in the Agreement, or in the SolarCity At-Will Employment,
Confidential Information, Invention Assignment, and Arbitration Agreement dated
August 20, 2015 (the "SolarCity Agreement"), governs this proceeding. (See Exh. 47.)
No stipulation was forthcoming. The Arbitrator convened a post-Hearing telephonic
Page 2 of 34Page 19 conference to follow up on this issue, during which Claimant clarified that he could not
so stipulate because he continued to maintain that both the Agreement and the SolarCity
Agreement were contracts of adhesion. Claimant's objection notwithstanding, the
Arbitrator concludes that the arbitration clause contained in the Agreement governs.
The Arbitrator subsequently issued Order No. 2 re: Depositions and Length of
Hearing, dated February 24, 2022. Order No. 1 was thereafter amended on March 4,
2022, to reflect the new hearing length ordered by the Arbiti-ator. (See Amended Order
No. 1.) On April 18, 2022, the Arbitrator issued Order No. 3 re: Hearing and
Presentation of Evidence. No further Orders were issued.
A Final Status Conference was conducted on April 14, 2022. Respondents filed
their pre-hearing arbitration brief on April 22; Claiinant filed lus brief on April 28.
The Hearing took place over five days via Zooni, on April 29 and May 2-5, 2022,
and was reported by Lisa Moskowitz. Each side called witnesses and cross-examined
opposing witnesses, as follows: Mahadevan Virudhagiri, Tesla Senior Director for
Software Engineering; Travis Wilson, Tesla Senior Product Manager; Carson Schafer,
Respondent and former Tesla Software Engineer, Chris Rollins, Respondent and Senior
Manager of Software Engineering; Dr. Pauline Sacks, Claimant's Non-Retained Expert;
Allison Arebalo, Tes1a Senior Manager of General/Adnwustrative and Human
Resources; Dayana Hijaz, Tesla Senior Software Engineer; Dr. Jacqueline Nolan,
Claiivant's Retained Expert; Claimant; Dr. Roman Garagulagian, Claimant's Economic
Expert; and Dr. James Rosenberg, Respondents' Psychiatric Expert. Dr. Nolan and Dr.
Garagulagian also submitted declarations in lieu of direct examination during the
Hearing.
During the first day of the Hearing, the Parties stipulated to dismiss Respondent
Schafer. (RT at 300.)
The following Exhibits were introduced during the Hearing: 1, 7, 15, 19, 21, 28,
31, 33, 32, 38, 40, 48-49, 52-58, 61, 64-69, 73, 75, 76, 78, 108, 111, 118, 121, 124, 125,
126, 128, 130, 135, 137, 138, 139, 140, 142, 147, 148, 149, 151, 152, 154, 156, 159, 163,
166, 169, 201, 202, 203, 204, 206-226, 228, 230, 231, 232-236, 238, 239, 240, 241, 242,
244, 246-255, 259, 260, 262, 263, 264, and 265. All objections to the admissibility of
these Exhibits have been noted by the Arbitrator but are overruled. (See Joint Exhibit
List.)
The Parties submitted sunultaneous post-hearing arbitration briefs on August 1,
2022. Respondent and Claimant submitted reply briefs on August 12. and 13,
respectively.
An Interim Award was issued on September 19, 2022 after the Parties agreed to a
one week extension. In the Inferim Award, the Parties were ordered as follows:
By. September 26, 2022, the Parties shall e-mail the Case Manager,
informing him of (1) whether there are any remaining matters they wish to
submit to the Arbitrator before a Final Award is issued; (2) what those
Page 3 of 34Page 20 issues are (if any); and (3) whether they would like to bring to the
Arbitrator's attention any minor errors in, or suggested changes to, the
Interim Award that do not affect the outcome. If there are no further
issues, the Interim Award will be converted into a Final Award. If further
issues have been identified by the stated deadline, the Parties shall, by
October 3, 2022, either (1) meet and confer and stipulate to a procedure
for raising or briefing such issues or (2) schedule a conference with the
Arbitrator to discuss the same.
Claimant requested an extension until October 3. No conununication was received from
either Party by the close of business on October 3.
II.
Facts
The factual findings that follow are necessary to the Award. They are derived
from the briefs, affidavits, and exhibits presented to the Arbitrator. To the extent that
these findings differ from any Party's position, that is the result of determinations by the
Arbitrator as to credibility and relevance, burden of proof considerations, legal principles,
•
and the weighing of the evidence, both oral and written.
Claimant was born on February 10, 1957. (RT at 1176.) He suffers from Autism
Spectrum Disorder (ASD) and hypertension/high blood pressure.' He was 58 years old
when he was hired by SolarCity and 60 years old when his employment transferred to
Tesla. (Id.)
Claimant was hired by SolarCity on September 8, 2015, as an AutoCAD engineer
to write custom software for residential and commercial solar panel installations. (Exh.
1; RT at 1084-85, 1114.) Rollins made the recommendation to hire Claimant at
SolarCity. (RT at 315.) Rollins did not know Claimant's exact age at the time, but he
did know that he was older. (RT at 459.)
Tesla acquired SolarCity in 2017, and Claimant became an employee of Tesla on
June 19, 2017. (Exh. 48; RT at 1086.)
During his employment with both SolarCity and Tesla, Claimant was a fully
remote worker based in Orange County, Califomia. (RT at 459-60.) He was also a
meniber of the Rosetta Pod, a work group conaprised of other Tesla software engineers
working on the solar energy side of the business.
Although Dr. Roseiiberg concluded that Clairnant did not suffer from ASD (see Exh.
250), I find by a preponderance of the evidence, in particular Dr. Nolan's report and
rebuttal report, that he did.
Page 4 of 34Page 21 A. 2018 RIF
In June 2018, Tesla underwent a company-wide organizational restructuring and
announced a reduction in force ("RIF°'). Tesla laid-off approxunately 9% of its
workforce as a part of this RIF. (RT at 141-42.) In preparation for the 2018 RIF, Rollins
ranked Rosetta Pod employees based on two criteria: criticality and performance. (RT at
560.) At the time, Rollins had only been the manager for a few months. (RT at 318.)
Claimant was ranked #4 out of 7 Rosetta Pod members, in part because he was deemed
more critical to Tesla's current operations than those ranked below him. (See Exh. 126;
RT at 317.)
One meniber of the Rosetta Pod—Tony Johnson—was terminated as part of the
2018 RIF. (See Exh. 126; RT at 345.) Rollins estimated that Jolmson was "in his 30s,"
which would have made him approximately 20-30 years younger than Claimant at the
time. (RT at 556.)
B. OLEDB Project
On June 7, 2018, Claimant began working on improving an inefficiency issue in
the energy design software application—a project known as the "OLEDB project."
Specifically, Claimant was trying to identify a solution to fix how the software
communicated with a spreadsheet. (RT at 1116.) Claiinant proposed a solution and the
Rosetta Pod members voted for him to try and implement his solution. (Id.) Rollins told
Claimant that the solution needed to be identified and implemented within a short
timeframe. (RT at 1116-17.) Rollins estimated that Claimant's proposed solution could
have been implemented within two to three weeks. (RT at 507-08.)
Claimant worked for several months on the project but could not get his proposed
solution to work, even with assistance from other team members. (RT at 857-59; 111718.) Claimant repeatedly set and then missed deadlines for completion. (RT at 504-06.)
In mid-October 2018, Rollins put the OLEDB project on hold. (RT at 1118.)
Software Engineer Dayana Hijaz testified that around the time Claimant was
working on the OLEDB project, she noticed a change in Claimant's behavior and
interactions with the Rosetta Pod. Specifically, she observed that he became more
"u.npredictable" and "just worried about miscommunication and niisunderstanding." (RT
at 856.)
C. Claimant's Second Quarter Revlew
Claimant received his performance review for the second quarter (April — June) in
July 2018. (RT at 500.) He received "Achieving Excellence" under the categories
Quarterly Goals and Priorities, Innovative, Collaborative, and Trustworthy. He received
"Exceeding Excellence" under the category, Driven. (See Exh. 203.) In the comments
section, however, Rollins noted some areas for improvement. (Id.) For example,
Claimant had some gaps in his technical knowledge and Rollins wanted him to work on
learning more of the industry standard pattenis and practices. (RT at 500-01.) Rollins
also set goals for Claimant to accomplish during the third quarter. (Exh. 203; RT at 502.)
Page 5 of 34Page 22 D. Alleged Harassment Incidents
The Rosetta Pod team used an online platform called Mattennost for
communication and collaboration. (RT at 155-56.) Mattermost can be described as
something of a virtual watercooler, where team members could post messages regarding
work as well as their outside interests and activities. (RT at 227-28.) The Rosetta Pod
also used an application called Giphy in their Mattermost communications, which
randomly assigned a GIF that a user could post along with a written comment. (RT at
157, 482.)
Claimant claims harassment on the basis of age, disability, or sex based on the
following six Mattermost posts:
First, on or about August 24, 2018, Claiarant alleges that Schafer directed a death
threat against him by authoring a Mattermost post that stated, "Kill the Dave," followed
by a GIF of a woman collapsing with the word "Dead" superimposed on it. Claimant
brought this incident to the attention of Rollins, who in turn escalated it to HR Partner
Jezabel Serrano. (See Exh. 215.)
Second, on or around August 27, Software Engineer Irene Kucherova posted a
video from The Office television show on Mattermost that depicted a character named
Kevin Malone who used an abbreviated language in order to save time in his
conversations with his co-workers. (See https://www.youtube.comlwatch?v=_KL9uhsBLM.) Claimant alleges that the video targeted him because Malone was the
oldest character on the television show and they believed his style of thinking was
inferior. (See Exh. 52.)
Third, at an undetermined point in time, Hijaz posted to Mattermost a GIF
depicting a monkey sneaking up behind a sleeping lion with a bat. (See Exh. 52.)
Claimant contends that the GIF was a "veiled threat directed at me" because the lion was
old and the moiilcey was young, and it appeared that the monkey was about to bludgeon
the lion to death. (Id.)
Fourth, on September 19, Rollins and. Schafer had an exchange on Mattermost,
ostensibly about bicycle helmets and lieads of cnrly hair, that Claimant contends was
actually about penis sizes. (See Exh. 217.) The next morning Claimant responded, "Do
you realize how laced with sexual innuendo all of this `head size' banter is? There are
ladies in this channel, so clear it up." (Id.)
Fifth, during a standup meeting on Sep. 20, Hijaz informed her coworkers that she
was going to a J Balvin concert that weekend. (See Exh. 220.) After being asked who
J Balvin was, Hijaz posted links of a J Balvin music video and song to the Mattermost
channel. (Id.) Both songs were in Spanish, a language that neither Hijaz nor Claimant
speaks. Apparently, the video depicts scantily clad women. Claimant later used Google
translate to translate the song and discovered that the lyrics reference "butt[s]" and
"bum[s]."
Page 6 of 34Page 23 On September 21, Claimant reported the iast two of these incidents directly to
Serrano_ (See Exh. 218.) An investigation ensued, and Hijaz and Schafer were both
questioned by HR. (See Exh. 166.) HR ultunately concluded that Claimant's complaints
were "unsubstantiated." (Id.)
Sixth, two months later (on November 28, 2018), Software Engineer Alex Poniz
posted a GIF of the cartoon character Mr. Freeze during a "code freeze" (a directive not
to make any changes to a portion or the entirety of a program's source code) The image
appears to be from a cartoon show and contains the caption: "Look at me, Mr. Freeze. I
am an old.man." (Exh. 52.) Claiinant contends that Poniz did so in order to harass
Claimant based on his age.
In September 2018, Rollins scheduled a database refresh for the weekend. (RT at
536.) Claimant happened to be working that day and claims that Rollins intentionally
failed to inform him of the refresh in order to cause him to lose data.
E. Claimant's Requests for Accommodations
Meanwhile, on September 21, 2018, Claimant informed HR for the first time that
he had been diagnosed with ASD. (See Exh. 218.) Around this time, he also informed
Rollins of his diagnosis. (See RT at 398-99.)
Over the next approximately two months, Claimant began having conversations
with HR about accommodations. (RT at 1194) By October 12, 2018, he lodged a formal
request for accommodations, which took the form of a table (the "Accommodations
Request") with the following column headings: "Concern[s]," proposed
"Accommodation[s]," and Tesla's "Response." (See Exh. 56.) Claimant filled out. the
first two columns and listed concerns such as "anxiety," "stress," communication issues,
"exclusion and isolation," age discrimination, and retaliation. (See Exh. 56; RT at 104041.) Claimant's conceras and proposed accommodations were discussed among
Claimant, Rollins, and Serrano. Based on these conversations, Rollins and Serrano
completed the "Response" column in red. (See Exh. 244; RT at 519-20.) This interactive
process continued at least through October 30, 2018, when Rollins nientioned it in his
notes of an upcoming meeting with Virudhagiri. (See Exh. 130.)
F. Further Exchanges Between Claimant and Rollins
In response to a comment by Claimant to the Rosetta Pod that he felt like a
second-class citizen and had been excluded from a meeting, on October 14, 2018, Rollins
sent an e-mail to Claimant seeking to "catch up witli you about your comments in the
[Matteraaost] channel Friday afternoon" and requesting him to "refrain from addressing
this again with the broader team until we speak." (Exh. 223.) Rollins and Clainiant met
within the next 24 hours, and on October 15 Rollins sent a "quick recap" e-mail stating,
"[p]lease contact ine when you're at a°2' rather than the whole team when you're at a
'3' .... Try to give the t.eam a chance to explain ... but if you need language or help
approaching it pleas reach out to me first." (Exh. 224.)
Page 7 of 34Page 24 Later, on November 6, 2018, Rollins e-mailed Claimant a recap of a meeting in
which they "agreed that when you were feeling like the teani was treating you differently
or unfairly, you would reach out to me before posting in the public channel so that I could.
help you address it in a constructive way." (Exh. 142).
Claimant contends that in these communications, Rollins was directing lwn to
funnel everything through Rollins and not to communicate with other Rosetta Pod•
members or contact Human Resources (HR) when lie had any complaints or grievances.
G. Clafmant's Hypertensive Episode
On October 26, 2018, Claimant e-mailed the Rosetta Pod to say that he would be
taking a sick day because his "blood pressure is sky Iiigh." (Exh. 53.) Rollins
immediately responded: "Hope you feel better! Is there a document where you've been
tracking the solar roof feature definitions you can forward to me? I'll review today and
then we'lI be on the same page for Monday." (Id.) Rollins made this request because
Claimant had missed a deadline the day before. (Exh. 230.) Claimant replied:
As the attached image indicates, my blood pressure this moming when I
got up was 188/110, with a pulse rate of 111. I am in hospitalization
and/or heart attack territory here. I have been dealing with multiple
rounds of diarrhea since 3am, and have been throwing up (mostly dry
heaves) on and off since I awoke. I also have a niajor league headache.
decided to take the day off because I think adding more stress on top of
where I am now is flat out dangerous, and I'd really prefer not to be
hospitalized again for the third time in the last month.
Is it Tesla's policy for managers to pester individuals who have called in
sick to do work anyway? 0r am I being singled out by Chris Rollins for
this special treatment. Geez.
(Id.) Claimant claims this exchange with Rollins further increased his stress level
because Rollins "essentially asked me to work during a health crisis." (See Exh. 156.)
Claimant' condition was not grave enough to warrant a visit to the ER (see RT at
1061); instead, he was referred to an occupational therapist, which he visited the next
day. (See Exh. 156; RT at 1062.) He was able to secure an appointment with his primary
pliysician at Kaiser for the following week. (RT at 1061.) An incident report was filed
on October 31. (See Exh. 156.) Claimant was granted sick leave until Novernber 5,
2018. (Exh. 157; RT at 1193.) Claimant decided not to file a Workers Compensation
claim. (RT at 1193.)
H. Claimant's Third Quarter Review
Claimant received his performance review for the third quarter (July — September)
in late October. (RT at 384-85.) He received "Not Aclveving" under the categories
Quarterly Goals and Priorities, Driven, and Collaborative. He received "Achieving"
under the categories Innovative and Tiustworthy. (See Exh. 207.) These ratings were
Page 8 of 34Page 25 lower than what Claimant had received in his second quarter review. (See stipra section
II.A.) In the comments section, Rollins explained the basis for the lower ratings:
Dave spent much of the quarter on a single project that did not end up
getting completed. Throughout the quarter, in standup meetings and in 1ls, Dave consistently promised that the project was near coinpletion and
would be out the next day or in the upcoming days. I requested a project
plan with dates and milestones a few times and did eventually get one, but
it only contained one date (which was missed).
Sometimes projects are more difficult than they seeni at first, and this
project definitely was—however, the remaining work on the project was
consistently misrepresented, which caused major disruptions in the project
planning process.
(Exh. 207.) Rollins also explained why Claiinant received "Not Achieving" for the
categories Driven and Collaborative. (Exli. 207.) The perfonnance review was sent to
HR latest by November 6, 2018, shortly before Rollins' e-mail to Claitnant regarding
communicating with Rollins first. (See supra section F.)
I. 2018 Performance Award.
In late November or early December 2018, Claimant received an "Annual
Perfonnance Award." (See Exh. 62.) At least three other Rosetta Pod Members
(Schafer, Hijaz, and Poniz) also received similar awards. (See Exhs. 263-265.) Rollins
testified that rather than a perfonnance-based award, it was more in the nature of a
"conipensation change and stock grant that would apply to most employees." (RT at
534-35.)
J. 2019 RIF
Rollins testified that he was first inforrned that there would be a RIF in early Jan
2019 but that until it was fornially announced, it was uot 100% sure to happen. (RT at
408-09.) The RIF was officially announced oa January 18, 2019. (See Exh. 151.)
To prepare for the RIF, Rollins created another stack rank list in early January.
(RT at 408-09.) He was instructed to rank employees on: (1) their criticality to Tesla's
primary objective of helping the production and delivery of vehicles for Tesla; and (2)
their performance. (RT at 59, 376-78.) Although the energy-side of the business, where
Claimant worked, was still part. of Tesla's fvture, the goal was to keep the eiiergy-side
running with as few resources as possible. (RT at 143.) Part of the detemination of
criticality for each position was whether it could be done more efficiently and
productively by assessing the specific skills and abilities of everyone in the company.
(RT at 552-53.)
Unlike the 2018 stack rank list, this time Claimant ranked last out of six.
(Compare Exh. 126 wtth Exh. 125.) Claimant and Schafer—who ranked #5 out of 6—
Page 9 of 34Page 26 were accord'uigly terminated on January 19, 2019, as part of the 2019 RIP, along with
approxiniately 7% of Tesla's salaried workforce. (RT at 33, 329; see Exh. 15 1.)
Other material facts are addressed in the Analysis, below.
III.
Issues Presented
Claimant's First Amended Complaint ("FAC") contained 15 causes of action.
After the Hearing, Claimant's counsel represented that Claimant would not pursue and
would dismiss the following causes of action ("COA"):
•
COA 7 — Declaratory Judgment
•
COA 9— Negligent Supervision and Retention
•
COA 10 — Intentional Infliction of Emotional Distress
•
COA 12 — Failure to Pay Wages (Labor Code §§ 201, 1182.12, 1194 and 1194.2)
•
COA 13 — Failure to Indemnify (Labor Code § 2802)
•
COA 14 — Failure to Provide Itemized Wage Statements (Labor Code § 226) and
Waiting Time Penalties (Labor Code §§ 201-03)
•
COA 15 — Unfair Competition (Bus & Prof Code 17200)
(Declaration of Cheryl Johnson-Hartwell ["Johnson-Hartwell Decl."] Exh. B, at 2.; cf. RT
at 1512-14.)
Accordingly, the following issues reniain for my decision:
1. Is Respondent Tesla Liable for Age and/or Disability Discriniination
Under the FEHA?
2. Are Respondent Tesla and/or Respondent Rollins Liable for Harassment
based on Age, Disability, and/or Sex Under the FEHA?
3. Is Respondent Tesla Liable for Retaliation Under the FEHA?
4. Is Respondent Tesla Liable for Failure to Prevent Discrimination,
Harassment, and/or Retaliation Under FEHA?
5. Is Respondent Tesla Liable for Failure to Provide Reasonable
Accommodations Under the FEHA?
6. Is Respondent Tesla Liable for Failure to Engage in the Interactive
Process Under the FEHA?
Page 10 of 34Page 27 7. Is Respondent Tesla Liable for Wrongful Ternunation in Violation of
Public Policy?
8. Is Respondent Tesla Liable for Wlustleblower Retaliation Under Labor
Code § 1102.5?
9. Should Dr. Rosenberg's Testimony be Stricken based on People v.
Sattclre~?
10.To What Damages is Claimant Entitled?
(See Johnson-Hartwell Decl. Exh. B, at 2; Claimant's Amended Post-Hearing Brief.)
The only disabilities at issue are ASD and hypertension/high blood pressure.
Claimant's counsel represented as much to Respondent, and Claiinant did not argue other
disabilities in his pre- or post-hearing briefs. (RT at 1513; see Johnson-Hartwell Decl.
Exh. B, at 2.)
IV.
Analysis
A party seeking to establish a violation of the FEHA has the burden of proving all
necessary facts by a preponderance of the evidence. (See CalahNel.l. v. Paramornnt Unif3.ed
ScTrool Dist., 41 Cal. App. 4th 189, 198 (1995).) "Preponderance of the evidence" means
evidence that what the party is required to prove is more likely to be true than not true.
(See CACI No. 200.) The standard "simply requires the trier of fact `to believe that the
existence of a fact is more probable than its nonexistence." (In re Angelia P., 28 Cal. 3d
908, 918 (1981).)
A. Is Respondent Tesla Liable for Age and/or Disability Discrimination Under
the FEHA?
The McDornel.l Douglas burden-shifting test is not applicable at this stage of the
proceeding as the Arbitrator is in the position of making a fmal determination about
liability. The ultimate issue is "which evidence ... is more convincing, that of the
employer's discriiuinatory intent, or that of the employer's race- or age-neutral reasons
for the employment decision." (Caldwell, 41 Cal. App. 4th at 204.)
1.
Age Discrimination
In order to prevail on an age discrimination claun, Claimant must prove that: (1)
he was discharged and/or subjected to an adverse employment action; (2) he was age or older at the time of the discharge/adverse employment action; (3) his age was a
substantial motivating reason for Tesla's decision to discharge%ther adverse employment
action; (4) he was hartned; and (5) Tesla's conduct. was a substantial factor in causing
Claimaiit's harm. (CACI No. 2570 (Age Discrimination — Disparate Treatment —
Essential Factual Elements).) Claimant did not dispute these elements in his Reply Brief.
Page 11 of 34Page 28 Claimant has established the first two elements; however, he has failed to
establish that his age was a substantial motivating reason for his tenmination. First, other
than the possible examples of harassment discussed below, there was no credible
evidence of any comments made by other Rosetta pod members about Claimant's age or
that Claimant was treated differently due to his age. (RT at 216, 240-41, 528-29, 879.)
During his discussions with HR and Rollins about accommodations, Claimant could not
provide any concrete examples of ageist remarks or other situations in which he was
treated differently due to his age. (Exh. 244; RT at 529.) Although Claimant asserts that
he was the "oldest sofflware engineer at Tesla" when he was tenninated, no evidence of
the ages of the thousands of other Tesla software engineers was ever introduced to
substantiate this claim. (See Claimant's Amended Post-Hearing Brief at 1.)
Second, although Rollins knew Claimant was "older," he still recommended
Claimant for hire at SolarCity in 2015. Rollins also selected an employee significantly
younger than Claimant for termination as part of the 2018 RIF. Courts have held that "an
employer's initial willingness to hire the employee-plaintiff is strong evidence that the
employer is not biased against the protected class to which the employee belongs."
(Coglilan v. Avier7carz Seafoods Co. LLC, 413 F.3d 1090, 1096 (9th Cir. 2005); see also
Bradl.ey v. Harcaurt, Brace & Co., 104 F.3d 267, 270-71 (9th Cir. 1996) ("[W]here the
same actor is responsible for both the hiring and the fuing of a discrimination plaintiff,
and both actions occur within a short period of time, a strong inference arises that there
was no discriminatory motive").) In Schnabel v. Abramson, 232 F.3d 83, 91 (2d Cir.
2000), for example, the Second Circuit affirmed summary judgment in an employment
discrimination case based in part on the fact that the plaintiff "was fired by the same man
who had hired him three years earlier." Claimant failed to distinguish any of these cases
in his Post-Hearing Reply Brief.
Finally, for the reasons explained more fully in sections 3 and 4 below, I find that
Claimant was terminated for legitimate business reasons rather than any improper motive.
2.
Disabflity Dfscriruinatfon
In order to prevail on his disability discrimination claim, Claimant must prove
that: (1) Tesla knew that Claimant had a physical or mental conditionz that limited his
ability to perform a major life activity; (2) he was able to perform the essential job duties
of his position with or without a reasonable accommodation; (3) he was discharged
and/or subjected to an adverse employment action; (4) Claimant's physical or mental
z Regardless of whether Claimant's physical conditions actually limited a major
life activity, the FEHA also protects an employee who is "erroneously or mistakenly
believed to have any physical or mental condition that 1'units a major life activity." (Gov.
Code § 12926.1(d).) Moreover, the ADA prohibits discrimination on the basis of any
perceived impainnent regardless of whether it is perceived to have any disabling effect.
(42 U.S.C. § 12103(3).) The ADA is incorporated into the FEHA as a`°floor of
protection." (Gov. Code § 12926.1(d).)
Page 12 of 34Page 29 condition was a substantial motivating reason for Tesla's decision to discharge/other
adverse employmeiit action; (5) he was harmed; and (6) Tesla's conduct was a substantial
factor in causing Claimant's harm. (CACI No. 2540 (Disability Discrimination —
Disparate Treatment — Essential Factual Elements).) Claimant did not dispute these
elements in his Reply Brief.
Here, although Claimant has established the first three elements of a disability
discrimination claim under the FEHA, I find that he has failed to establish that his
disability (or the perception of a disability) was a substantial motivating reason in his
termination. Most of Claimant's colleagues did not know or suspect that he had been
diagnosed with ASD. (RT at 271, 879, 996.) Although Claimant told members of the
Rosetta Pod that he had a "sky high" blood pressure reading on October 26, 2018, he
testified that he did not tell anyone at Tesla that he had been diagnosed with
hypertension. (RT at 1185.) None of the Rosetta Pod members discussed liis medical
conditions or made fun of him for them. (RT at 274, 880.)
Finally, for the reasons explained more fully in sections 3 and 4 below, I find that
Claimant was ternrinated for legitimate business reasons rather than any improper motive.
3.
Respondent had Legitimate Business Reasons for
Selecting Claimant for Termination Pursuant to the 2019 RIF
A key consideration here is that. Clainiant was not the only employee teriaiinated
pursuant to the 2019 RIF: Schafer, «iho was also ternunated on the same day as Claimant
as part of the same RIF, was only 38 years old—more than 20 years Claimant's junior.
(RT at 240.) At the tirne of his termination, Schafer did not have any medical conditions
or disabilities, had not informed Tesla that he had any medical conditions or disabilities,
had not requested any workplace accommodations, and had not requested any medical
leaves of absence. (RT at 274-5.)
Page 13 of 34Page 30 Second, Claimant's performance declined after his second quarter performance
review in June 20183 This was attributable primarily to the OLEDB project. Claimant
consistently failed to meet the deadlines he set for hiinself for completing the project,
could not reasonably explain why he was having such difficulty with (and spending so
much time on) the project, and never lresolved the underlying problem. (See RT at 50406.) Kucherova eventually took over the project in 2019 and was able to fix the issues
without incident. This led Rollins to conclude that were "technical deficiencies-in
[Claimant's] skill-set. There were ... a couple of core[]. .. features that [Claimant] he
should have understood better, [that] may have helped achieve this project." (RT at 505.)
In addition, during the second quarter review. Rollins set several goals for Claimant,
some of which Claimant eventually did not meet. (RT at 499-503.)
Third, Rollins articulated sound business reasons for ranking other Rosetta Pod
members higher than Claunant, and his extensive testimoiiy on this subject was credible
and unimpeached. For example, Rollins testified that unlike Claimant, most of the other
members of the Rosetta Pod had previously worked as a PV Designer at SolarCity. (See
562-63.) This was valuable because the Rosetta Pod was ui charge of designing software
for Tesla's PV Designers. (Id.) Hijaz was ranked higher than Claimant because she had
experience as a software support engineer. (RT at 329-30.) Corey Osterniann was
ranked higher because he had developed relationships with stakeholders, had a deep
knowledge of PV design, and was prepared to take on some responsibilities from a
departing product manager. (RT at 330.) Both Hijaz and Ostermann were also actively
improving and had good third quarter performance reviews. (RT at 331.) Kucherova
was ranked higher than Claimant because, in addition to her knowledge of AutoCAD, she
had experience building and maintaining a web-based design tool and Tesla was
transitioning to more web-based services. (See RT at 334-35.) Claimant did not have the
same experience as Kucherova with web-based systems. (RT at 560-61.)
There are reasons why Claimant was ranked significantly lower on the stack rank list as compared with the 2018 list. First, the two lists are not directly
comparable because only four employees (or about half of the Rosetta Pod) are common
to both lists; the rest are different due to turnover. (See Exhs. 126, 125.) Second, at the
time of the June 2018 RIF, Rollins was only a few montlis into his role as manager of the
Rosetta Pod (see RT at 318); by the tinie of the January 2019 RIF, he had a better
understanding of each team member's strengths and weaknesses. Between the two RIFs,
Rollins also became more aware that the gaps in Claimant's technical knowledge were
more extreme than he initially realized. (RT at 560-61; see 503-11.) For example,
Rollins discovered that Claimant had little or no experience working with C-Sharp, which
is a programming language that is one of the "priinary" tools used on the job. (RT at 506,
579.) Rollins tried to help Claimant by sending huii sorne references so that he could
gain a better understanding of the static keyword in C-Sharp. (See Exh. 234; RT at 54041.)
Page 14 of 34Page 31 4.
The 2019 RIF was Not Pretextual
Claimant nonetheless argues that the 2019 RIF is a pretext because Tesla did not
tenninate Claimant's position; it just tenninated Clainiant. He claims that a RIF occurs
"when a position is eliminated with no intention of replacing it and results in a permanent
cut in headcount." (Claimant's Aniended Post-Hearing Brief at 13.) By contrast,
Claimant argues that (1) he was replaced by a new hire, Palaneeswar Chittoor; (2) there
was no company-wide RIF to begin with because only a "handful" of employees were
tenninated; (3) Schafer was not tenxiinated at the same tune as Claimant because he
remained on Tesla's payroll until April 2019; (4) the stack rank list for the 2018 RIF went
into great detail about why certain employees should be terminated, whereas the stack rank list lacks the same level of detail and therefore appears more arbitrary; and (5)
Claimant was actually selected for termination in November 2018, shortly after his
harassment complaints and his request for acconunodations. (Id. at 13-15.) These
arguments will be considered below.
a.
Did Tesla Hire Chittoor to Replace Claimant?
Claimant argues that, just one day after he was terminated, Tesla replaced him
with a new employee, Chittoor, who is approxiinately 27 years his junior. (See
Claimant's Amended PostHearing Brief at 13-14; RT at 638.) I find this unpersuasive.
First, Chittoor was offered his position with Tesia back in October 2018, several
months prior to the announcement of the 2019 RIF. (See Exh. 226.) Rollins and
Virudhagiri testified that he had been hired to fill a position vacated by Marc Artigas
Sanchez. (RT at 162, 573-74.) The reason why Chittoor's start date was delayed until
right after Claimant's tennination was that Chittoor needed to sort out imrnigration issues
and needed additional time to move from Texas to Califonua.4 (RT at 581-82.)
Second, Chittoor's position was not comparable to Claimant's. Chittoor was
offered the position of software applications engineer, level P3—also known as "senior
software engineer." (RT at 162-64.) Claimant was a software engineer, not a senior
software engineer. (Exh. 201.) Rollins credibly testified that Chittoor's background,
experience, education, and technical knowledge—including his lmowledge of C-Sharp,
which Claimant lacked—were superior to Claimant's. (RT at 574-81; see Exh. 226.)
4 Rollins also testified that he ruled out rescinding Chittoor's offer in order to
retain Claimant. Not only were their skill sets completely different, but Schafer would
also have been retained instead of Claimant, since Schafer was ranked higher on the stack
rank list. (RT at 582.)
Page 15 of 34Page 32 b.
Was there a Company-wide RIF in 2019 that
Eliminated Positions?
To the extent Claimant contends that there was no company-wide RIF to begin
with, because Tesla merely fired a"handful" of employees and then hired a"handful" of
new employees in their place, I am unpersuaded based on the weight of the evidence.
First, Tesla did not merely terminate a"handful" of employees; on January 18,
2019, it announced that it would be reducing its workforce by approximately 7%. (Exh.
151.) Virudhagiri, who supervised between 100 and 200 employees, stated that he
believed approximately 10% of his supervisees were terminated pursuant to the RIF. (RT at 148.) Arebalo, testified that based on her personal knowledge, thousands of
employees were terminated between January 2018 and December 2019. (RT at 847-48.)
Second, Rollins credibly testified that after the January 2019 RIF, no one new was
hired to work in the Rosetta Pod until late 2020 or early 2021, and no one who was
terminated as part of the January 2019 RIF was re-hired to work in the Rosetta Pod. (RT
at 584-85.) The fact that new hires were made in late 2020 is consistent with any number
of benign reasons, including changes in Tesla's needs or in the economy in general.
Furthermore, no one was hired to replace Claimant or hired as an AutoCAD expert
(AutoCAD being Claimant's area of expertise). (RT at 572; see RT at 1084-85.)
Although Virudhagiri testified that Tesla hired software engineers after January 2019, he
did not state that any of them was hired to work in the Rosetta Pod. (RT at 111.)
c.
The Import of Schafer Remafning on Payroll Untfl
Aprf
Claimant next argues that Shafer was not tenninated pursuant to the 2019 RIF
because he remaiaed on the payroll several months after his termination date. That is,
Tesla did not tenninate someone who was significantly younger and had no disabilities at
the same time as Claimant; instead, it singled out Claimant.
Yet Schafer testified that he received an additional two months of salary in
exchange for signing a general release and that he did not perform any work for Tesla
during this period. (RT at 572.) By contrast, Claimant did not execute a.release. (RT at
1282-83.) This would explain why Schafer remained on payroll for longer than.
Claimant. The evidence cited by Claimant is insuff'icient for me to conclude that Shafer
was not part of the 2019 R1F. Schafer and Claimant were both ranked at the bottom of
the 2019 stack rank list. (See Exh. 125.) I find that both were tenninated pursuant to the
2019 RIF. (See RT at 569-72.)
d.
Does the Comparative Lack of Detail in the 2019 Versus
2018 Stack Rank Lists Suggest that the Former was
Pretextual?
Claimant argues that the 2018 stack rank list, ul which Claimant was ranked #out of 7 Rosetta Pod members, evinces more detail, methodology, and reasoning than the
2019 list, wlucli appears on its face to be more off-the-cuff. (See Claimant's Ainended
Page 16 of 34Page 33 Post-Hearing Brief at 14; compnre Exh. 126 wltJs Exh. 125.) Although there are
differences between the two stack rank lists along these lines, they are not sufficient to
permit me to conclude that the 2019 RIF was pretextual. Rollins testified that the two
principal criteria for both RIFs were perfonnance and criticality. (RT at 376.) As to both
RIFs, there was no written rubric that defined "performance" or "criticality," or that
instructed managers how to apply these concepts to tennination decisions; nonetheless,
Rollins testified that he understood what both terms meant and had no difficulty applying
them to both RIFs. (RT at 376-79.)
e.
Whether Clalmant was Actually Selected for
Terminatton Back in November
Finally, Claimant claims that the decision to terminate him was actually made in
November 2018 rather than January 2019—that is, "immediately" after his reports of
harassment and his requests for accommodation in September/October and his
hypertensive episode at the end of October. (See Claimant's Amended Post-Hearing
Brief, at 12, 17-19.) To back up his claim, he relies principally on Exhibit 124, wliich is
a heavily redacted excel spreadsheet that contains the word, "separate." Claimant also
points to the fact that in his deposition, Rollins originally testified that he compiled the
stack rank list in November 2018; however, a month and a half later, during the second
half of his deposition, Rollins changed his testimony to the effect that he did not compile
the list untii January 2019. (See RT at 381-82.)
I am unpersuaded that the decision to terminate Claiinant happened in November
2018. First, no witness was able to authenticate Exhibit 124—to explain who created it,
for what purpose, and the meaning of the word "separate" in colunm D. (See Exh. 124.)
Although Claimant testified that the Exhibit appears to have been created on November
19, 2018, this does not rule out the possibility that the entries relating to Claimant were
made later, in January 2019. Exhibit 124's probative value is accordingly linuted.
Second, although Rollins' deposition testimony raises some suspicions, there are
benign explanations for why a deponent niight be led to revise their testimony between
two sittings. For example, during the first sitting Rollins originally stated that he thought
the 2019 stack rank list had been created in late 2018 but that he was not "`100%
certain." (RT at 409-10.) Rollins subsequently clianged his testimony because, prior to
the second sitting, he checked the creation date of the excel file and discovered that the
2019 list had been created in January 2019. (RT at 557-58; see Exh. 125.) Rollins'
explanation was credible.
Third, the weight of the evideiice points to the fact that the decision to terminate
Claimant was not made until January 2019. Rollins testified that he did not prepare the
stack rank list until January 2019 and did not know that a RIF would take place
beforehand. (See RT at 408, 511-12, 574.) Virudhagiri also did iiot know a RIF would
happen until early January 2019. (RT at 163.) Tesla first issued a statement about the
RIF on January 18, 2019. (Exh. 151.)
Page 17 of 34Page 34 Claimant places great emphasis on the alleged proximity of his tennination to his
complaints about harassment and his requests for accommodation. This argunient is
substantially undercut, however, because I have found that the decision to terminate
Claisnant was not made until January 2019—two months after the events in question. To
be sure, this might still be proximate enough to raise suspicions about Tesla's motive.
But proximity alone is not sufficient to establish that the reasons for terminating Claimant
were pretextual. (See McRae v. Department ofCorrections & Rehab. 142 Cal. App. 4th
377, 388 (2006); Loggins v. KaiserPernranerrtebnt'I 151 Cal. App. 4th 1 102, 1 1 12-1 1 (2007).) On closer inspection and with the benefit of having heard the totality of the
evidence, I am persuaded that there were legitimate and independent reasons for Tesla's
decision to terminate Claimant, even as of November 2018.
***
Claimant has failed to establish by a preponderance of the evidence that the RIF was pretextual. In addition, he has failed to establish that his age or disability was a
substantial motivating reason for Tesla's adverse employment decisions. (See supra
sections IV.A.1 & 2.)
B. Are Respondent Tesla and/or Respondent Rollfns Liable for Harassment
based on Age, Disability, and/or Sex Under the FEHA?
In order to prevail on his harassment claim based upon age and/or disability
against Tesla, Claimant must prove: (1) he was subjected to harassing conduct because he
was over 40 years old and/or because he had a disability; (2) that the harassing conduct
was severe or pervasive; (3) that a reasonable person in Claimant's circumstances would
have considered the work environment to be hostile, intimidating, offensive, oppressive,
or abusive; (4) that Claimant considered the work environment to be hostile, intimidating,
offensive, oppressive, or abusive; (5) that a supervisor engaged in the conduct or that
supervisors lwew or should have known of the conduct and failed to take immediate and
appropriate corrective action; (6) that Claimant was harmed; and (7) that the conduct was
a substantial factor in causing Claimant's harm. (CACI No. 2521A (Work Environment
Harassment — Conduct Directed at Plaintiff — Essential Factual Elements — Employer or
Entity Defendant).) For his harassment claim against Respondent Rollins, Claimant must
prove the same elements as his claim against Tesla; however, for element (5) he must
prove that Rollins participated in, assisted, or encouraged the harassing conduct. (CACI
No. 2522A (Work Environment Harassniant — Conduct Directed at Plaintiff — Essential
Factual Elements — Individual Defendant).) Claimant did not dispute these elements in
his Reply Brief.
All of Claimant's "harassment" allegations relate to Mattermost posts and are
described in more detail above. (See supra sectioii II.D.) I find that none of these posts,
either individually or collectively, rises to the level of harassment because they fail to
satisfy the first, second, third, and f fth elements of a cause of action for harassment.
Page 18 of Page 35 1.
"Get rid of the Dave"
Contrary to Claimant's allegations, other than Claimant's testiinony there is no
evidence that Schafer actually typed, "Kill the Dave," and thus that there was any
conduct of a harassing nature at all.s Instead, I find that Schafer typed, "Get rid of the
Dave" and then immediately apologized, stating that this was a typo and that he had
meant to say, "Get rid of it Dave." (See Exh. 211.) Schafer's testimony on this point was
eminently credible. It was moreover clear from the exchange that the only thing that was
the subject to being eliminated was a message box, not a person such as Claimant. (See
Exh. 211.) After all, it was Claimant who initiated the thread by asking, "Does anyone
have any issues with n,e getting rid of tlris iuessngebox.?" (Id. (emphasis added).)
Second, as the following Mattermost excerpt shows, Claimant himself understood
that Schafer had made an honest mistake, and he was happy at the time to joke about it:
David Wyer 15:06: Get rid of the °`dave" 7:(
Carson Schafer 15:33: ahh,, sorry buddy i meant it
David Wyer 15:34: lol I know.
Carson Schafer 15:34: git rid of IT , dave!
David Wyer 15:34: just ribbing you a little
Carson Schafer 15:34: [posts a GIF of a rib roast]
https://niedia3.giphy.com/media/3o6orteZR3g8VwD756/giphy.gif
David Wyer 15:34: It's FRIDAY! Oh that looks tasty!
I conclude that no reasonable person would take this as "severe or pervasive" or
as creating a hostile work environment. It was simply a typo. It is moreover implausible
to me that Schafer, who considered Wyer a friend, purchased a video camera for him so
he would not feel excluded from the Rosetta Pod. as a reinote worker, helped Wyer
review code on weekends, and also comniiserated with Wyer after they were both laid
off, would have so much as joked about threatening to kill Claimant. (RT at 243, 246,
253; .Exh. 246.) Finally, although Claimant later reported this incident to Rollins, Rollins
did not fail to take corrective action because no action was necessary.
5 Althougli Claimant clainis that Tesla doctored tlie Mattermost chat by deleting
"Kill the Dave" and replacing it with "Get rid of the Dave," he has failed to substantiate
this claim by a preponderance of the evidence.
Page 19 of 34_Page 36 Z.
YouTube link to "The Office"
Kucherova's post did not identify Claimant and there was no evidence about the
context surrounding the post that would allow me to conclude that it was somehow
directed at Claimant. Even assuming the video depicts a scene in which "younger actors
berate the oldest person on the show," or berate the person with an erratic style of
speaking, does not imply that Kucherova's post targeted Claimant6 (RT at 1166-67.)
Second, one of the characters in the video clip mentions SeaWorld, and Kucherova had
previously stated in the Mattermost chat that she was going to SeaWorld that weekend.
The natural inference here is that Kucherova selected the clip not to harass Claimant but
rather because she wanted to add color to the announcement about her weekend plans. I
found unpersuasive Claimant's contention that Kucherova was lying about visiting
SeaWorld because she lives some 500 miles away from it and did not post about her tiip
on Facebook. (See RT at 1166.)
I find that Kucherova's post did not constitute "harassing conduct," was not
"severe or persuasive," and would not reasonably be construed as creating a hostile work
environment. Furthermore, Claimant never reported the posting to Tesla. (RT at 117172.)
3.
Lion/Monkey GIF
There is nothing about the image itself that would lead a reasonable person to
believe that the lion was old and the monkey was young. Claunant simply assumed that
the lion was old because it had a full mane, was sleeping, and had white fur around its
muzzle. (RT at 1158.) Moreover, the image does not make any reference to age and
Claimant's name was never mentioned. Rather than threatening, the iniport of the image
is clearly humorous, as is confirmed cliclsing the embedded URL.
I find that Hijaz's posting of this image did not constitute "harassing conduct,"
was not "severe or persuasive," and would not reasonably be construed as creating a
hostile work environment. Furthermore, Claimant never reported the posting to Tesla.
(RT at 1158-59.)
4.
Bicycle Helmets
As a thud party reading the exchange in the abstract, I can well see why Claimant
interpreted the messages in the way he did and why he felt coinpelled to report it.
It was not clear that the character in the video was "the oldest person on the
show" or that the theme of the clip was soinehow age-related. Respondent claims that
there were many other older characters on the show—a claim that Claimant did not refute
in his Post-Hearing Reply Brief. Even Claimant admitted that he had never watched The
Office and was taking a"leap of faith" that the character was, in fact, the oldest character
on the show. (RT at 1167.)
Page 20 of 34Page 37 Nonetheless, the exchange doesn't rise to the level of actionable sexual harassment for a
number of reasons.
First, Claimant has not alleged or established harassment against him on the basis
of sex. (See Complaint ¶ 61.) If anything, he was concemed about the effect of the
conversation not on himself but on the "ladies in this channel" who might "[not] staiid up
for themselves." (Exh. 217; RT at 1093-94 ("I championed ... how [female co-workers]
might interpret it . . . .").)
Second, the conversation was not "severe or pervasive" and would not have led a
reasonable person to consider the workplace environment hostile. At most, it was
inappropriate "locker room talk." (RT at 1093 ("I thought there was a chance [of the
conversation amounting to sexual harassment].") (emphasis added).) The word "penis"
was never used. (See Exh. 217.) Moreover, other team members did not interpret the
conversation in a sexual way. This is perhaps because the entire conversation was longer
than the segment excerpted in Claimant's Exhibit 33 and includes context as to what
Rollins and Schaffer meant by the word "head." (Conlparfe Exh. 33 wi.th Exh. 217; RT at
1095-96.) Claimant also knew that Schafer was a bicycle user and that Rollins has a
curly head of hair. (RT at 1090-93.) Hijaz, who observed the conversation in real-time,
interpreted it as it was intended and did not believe that it was "code" or sexual innuendo.
(RT at 862-64.) During her testimony, she conveyed genuine incredulity about
Claimant's interpretation. Schafer and Rollins also credibly testified that they did not
intend to talk about penises. (RT at 258-65, 486-88.) Given Rollins' demeanor during
the hearing aiid the evidence that his team members held him in high regard (RT at 13839, 214-16, 267-79, 875-77), I also find it unlikely that Rollins--a member of
managementwould have even alluded to the size of his penis in front of alZ of his
subordinates in an archived communication channel.
Finally, after Claimant reported this incident to HR, an investigation was
conducted and Schafer was interviewed. The investigation concluded that Claimant's
allegations were unsubstantiated. (Exh. 166.)
5.
YoaTube Links for Two Spanish Songs
First, Claimant failed to introduce evidence of the video or a certified translation
proof. Second, I am unpersuaded that
of the lyrics even though he bears the burden of.
these links constitute harassing conduct as against Claimant because Claimant has not
alleged harassment on the basis of sex. (See Coinplaint ¶ 61.) In any event, Hijaz posted
the links not to harass anybody but in response to her co-workers' request after she
informed them about the concert she was attending later that day. Claimant was not at
the standup meeting when the co-workers made this request and therefore missed the
broader context. (RT at 873-74, 1110-11; Exh. 220.)
Second, the postings are not "severe or pervasive" and would not lead a
reasonable person to consider the workplace environment hostile. The (uncertified)
English translation of the song lyrics only includes phrases such as "move your butt" or
"shake your butt," which are innocuous. (See Exh. 218.) Claimant admitted that he does
Page 21 of 34Page 38 not speak Spanish and had to take the affumative step of translating the songs the next
day in order to understand the lyrics. Hijaz herself did not find the video or the song
offensive to women, and from her comportment during the hearing she seemed genuinely
surprised that someone had taken offense at them. (See also Exh. 220; RT at 864, 868,
874.) There is moreover no evidence that anyone other than Claimant was offended by
her post. (RT at 868, 1105.) J Balvin is also an award-winning rapper and his music
video has 1.2 billion views. (See Exh. 220.)
Third, after Claimant reported this incident to HR, an investigation was conducted
and Hijaz was interviewed and cautioned to be more mindful about lier posts. (Exh. 166.)
The investigation concluded that Claimant's allegations were unsubstantiated. (Id.)
6.
Mr. Freeze GIF
The context here is important: Members of the Rosetta Pod used an application
called Giphy in their Mattermost communications, and the Giphy app randomly assigns a
GIF when a user types words into the Giphy app. (RT at 157, 482.) It was therefore
coincidental that the GIF randomly selected by the Giphy app contained an image of, and
text referring to, an "old man." Second, Claimant acknowledged that it is tradition within
the Rosetta Pod to search Giphy for a "freeze-related" image anytime there is a "code
freeze" and that Poniz posted the "Mr. Freeze" GIF during a code freeze. (RT at 1160,
1164-65; Exh. 253, lines 7731-52.). The upshot is that the image, even if it happened to
impact Claimant adversely, was not intended or reasonably intended in that way. Third,
Poniz's post does not mention Claimant by name and there is no other evidence that the
GIF was targeted at Claimant.
I find that the Mr. Freeze GIF was not harassing conduct based on age, was not
"severe or persuasive," and would not lead a reasonable person to consider the workplace
environment hostile. Finally, Claimant never complained about this incident to Rollins or
Tesla. (RT at 1159-60.)
***
The foregoing analysis remains unchanged even when the posts and videos/GIFs
are taken together rather than individually.
The upshot is that none of these posts or videos/GIFs, either together or in
isolation, satisfies the first, second, third, or fifth elements of a claim of harassment.
Claimant furthermore failed to respond to any of these points, originally briefed by
Respondent, in his Ainended Post-Hearing Reply Brief.
Page 22 of 34Page 39 C. Is Respondent Tesia Liable for Retaliation Under the FEHA?
Claimant's asserted bases for retaliation are: Age, disability, sex (including
reporting sexual harassment), requesting accommodations, and reporting disability.'
(See, e.g., Exhs. 56, 218; Johnson-Hartwell Decl. Exh. B, at 2.) Claimant claims that this
retaliation took the form, i»ter alia, of (1) being placed in "high pressure situations
whereby he was subjected to extremely time intense projects with nearly impossible
deadlines," (2) Rollins restricting his communications with others in the Rosetta Pod, (3)
being excluded from video conference meetings and quarterly team meetings, (4) Rollins
introducing untested code into a the OLEDB project, scheduling a database refresh
during a critical phase of the OLEDB project without notifying Claimant, and cancelling
Claimant's OLEDB project, (5) receiving a "sanction" for reporting two harassment
incidents, and (6) ultimately of being terminated. (Claimant's Pre-Hearing Brief at 6-8;
RT at 1037.)
In order to prevail on his FEHA retaliation claim, Claimant niust prove: (1) he
engaged in a protected activity; (2) he was discharged or subjected to other adverse
employinent action; (3) his protected activity was a substantial motivating reason for
Tesla's decision to discharge/subject him to an adverse employment action; (4) he was
hanmed; and (5) Tesla's decision to discharge/subject him to an adverse employment
action was a substantial factor in causing him harm. (CACI No. 2505 (Retaliation —
Essential Factual Elements (Gov't Code, §12940(h))).) Claunant did not dispute these
elements in liis Reply Brief.
Claimant has established the first element of a retaliation claim—namely, that he
engaged in a protected activity. Specifically, on September 21, 2018, Claimant reported
two Mattermost communications that he believed were inappropriate and stated that he
had been diagnosed with ASD. (See Exh. 218.) Claimant also requested
accommodations from HR latest by October 12, 2018. (See Exh. 56.)
As explained below, however, he has failed to establish one or more of the
remaining elements.
1.
Being placed in "high pressure situations"
There was no evidence that Claimant was placed in higher pressure situations than
others—and much less because he requested accommodations or reported harassment or
a disability. Silicon Valley companies are notorious for their round-the-clock work
schedules and the demands they place on employees. Even Claiinant admitted that all
work at Tesla is time sensitive, that other employees were assigned "extremely timesensitive projects," and that Tesla was a more high-pressured work environment than
' Nowhere in his pre- or post-hearing briefs did Claimant assert retaliation based
on safety issues associated with solar panels. During and after the Hearing, Claimant's
counsel represented that the retaliation claims are not predicated on these issues. (RT at
1513; see Johnson-Hartwell Decl. Exh. B, at 2.)
Page 23 of 34Page 40 SolarCit.y. (RT at 1185-86.) Wilson, Schafer, and Rollins corroborated this point. (RT
at 216-17, 288, 527.)
2.
Rollins restricting Claimant's Communications
Claimant alleges that on October 14,2018, Rollins told him to "funnel" all
communication through Rollins and not to communicate with other Rosetta Pod members
or contact HR anytime he felt he had been treated unfairly. (See RT at 1131.) Clainzant
contends that this adverse employment action is suspiciously close in proximity to lvs
September 21 report to HR and the date by which he first requested acconnnodations on
October 12, 2018. The contention is unavailing for several reasons.
First; Rollins' October 14 e-mail was not an adverse employment action. What
Rollins actually said was as follows:
Heya - I really want to catch up with you about. your comments in the
channel Friday afteinoon. I absolutely hear your concerns and I have some
suggestions for how we can change the communication dynamic from
both sides to increase visibility and clarity about what's happening. ... I'd
like to ask that you refrain from addressing this again with the broader
team until we speak—it's already going to be somewhat crazy without me
around and there's a lot to deliver this week. I assure you that I will
address it in a structured manner once I'm back in office and after we've
come up with a solution that works for you.
_
(Exh. 223.)
The background to the e-mail is that, although Claimant had proposed to delay the
release of OLEDB, upon further discussion in the office, the team decided to push ahead
with the existing deadline nonetheless. Claimant responded in the Mattermost chat:
"Thanks for including me in the pow wow. I guess I am a second class citizen in the
pod." (Exh. 253, lines 5408-09.) Schafer quickly apologized and explained that the
reason Claimant. was not included was that "I asked a question in the office [a]isle to
Chris and that how the discussion started." (Id. line 5410.) He continued:
If you have an opinion by all means please tell us. ... Dave, if you need
anything to help get OLEDB out the door, please know that's first priority
right now, so just ask. I want you to know that we see that OLEDB has
been a hard road for you, and we cai-e.
(Id. lines 5411, 5428.)
Rollins' e-mail was entirely justified because Claimant had niisinterpreted his coworkers' benign actions to be deliberate exclusion; by reacting negatively, he was
potentially creating unnecessary tension in the workplace. The objectively reasonable
import of the October 14 e-mail is that Rollins was merely asking Claimant to refrain
from speaking about this one issue with the team until he and Claunant had a chance to
confer first. As even Claimant was forced to concede, Claimant was not being told to
Page 24 of 34Page 41 refrain from contacting HR or from communicating with the team at all. (RT at 113149). In any event, he was in communication with HR after the date of the e-mail. (RT at
1143, 1146; see Exhs. 56, 231.) Finally, the tone of the e-mail was supportive rather than
retaliatory.
The same is largely true of the October 15 and November 6 e-mails from Rollins
to Claimant. In those communications, Rollins evinced an intention to support Claimant
and help him communicate more constructively with other members of the Rosetta Pod.
(Exhs; 142, 224.) His tone throughout was supportive. The objectively reasonable
meaning of both e-mails is irot that Rollins was instructing Claiinant to funnel everything
through Rollins or refrain from communicating with HR without Rollins' permission;
instead, it is that both Rollins and Claimant had orally "agreed" in an iintnediately prior
conversation that Claimant would check in with Rollins first—before posting messages in
Matterimostif he felt the team was treating him unfairly. (See Exh. 142.)
3.
Being excluded fi•om meetings
Claimant alleges that he was excluded from video conference meetings and
quarterly team meetings; however, he has failed to provide any specific examples.
By contrast, there are examples of Claimant being regularly included in
Mattermost communications that post-date his protected activities. (See Exh. 253, line
3639 ff.) Shafer and Hijaz credibly testified that they did not believe that anyone in the
Rosetta Pod ever intentionally excluded Claimant or stated they did not want to work
with him. (RT at 244-45, 879.) To the contrary, there was evidence that other team
members helped Claimant even though it was not part of their assigned responsibilities,
sometimes even late at night and on weekends. (RT at 246, 858-59; Exh. 208 ("As Dave
will be here [in person] next week, I feel it is superdy uber important that everyone be in
office as much as possible .... Its been a long time since he has been up here so let's
show him some love and be present and available in the office as much as possible!
[Smiley face] Freaking excited to see ya, Dave!"); Exh. 212.) Schafer bought a webcam
with his own money so that Claimant could feel more connected to the team as a remote
employee. (RT at 243.) Schafer also took the time to research ways to make remote
workers feel more connected. (RT at 243-44.) Finally, Claimant admitted that anyone
who was not physically in the office would be excluded from the planning meetings that
were typically held spontaneously with those who worked onsite. (ItT at 1124-26.)
4.
1Vlisconduct by Rollfns
Rollins Introducina Untested Code. Claimant testified that Rollins "sabotaged"
hini by introducing untested code into the OLEDB project in September-October 2018.
He did not mention this to anyone (including HR), however. (RT at 1197-98.) Other
than Claimant's testimony, there is no independent evidence that his code had been
tampered with.
I found Claimant's testimony not credible, particularly when juxtaposed against
Rollins' testimony when he was asked about these allegations. I also find it implausible
Page 25 of 34Page 42 that Claimant did not mention to anyone at Tesla that he had been "sabotaged" in this
way: He had no trouble speaking up about other incidents that bothered him, such as the
Mattermost communications. Claimant acknowledged that he had a "direct
coin►nunication style, which is a hallmark of [his] disability, and that he was "unafraid to
challenge" Rollin's °`poor judgment and decision making." (Exh. 52.)
Database Refresh. A database refresh is performed periodically and for the
benefit of ttie entire organization. Rollins scheduled a database refresh to occur on a
weekend, likely because that was a time when teazn members would not be using it. He
credibly testified that, although he did not recall who he informed about the database
refresh, he did not purposefully fail to inform Claimant. (See RT at 537-38.) I find it
implausible that Rollins refreshed the database specifically to target Claimant.
Cancellation of OLEDB Project. As Claimant himself conceded, the OLEDB
project was not cancelled but rather only suspended. (Exh. 73; RT at 1204; see RT at
63 1.) Rollins testified that it was suspended because Claimant had taken significantly
longer than necessary and had continually misrepresented the tinieline for its completion.
(Exh. 207; RT at 384-85.) This testimony was credible.
5.
Receiving "Sanctions" from HR
Claimant alleges that he was retaliated against for complaining to HR about the
bicycle hehnet and J Balvin posts because he was "sanction[ed]" for these incidents with
"counseling," even though Rollins, who was actually involved in the bicycle helmet
incident, was not. (See Claimant's Amended Post-Hearing Brief, at 8, 16.) The only
support for this claim is Tesla's investigative report of the incident. (See Exh. 166.)
Schafer testified that he was never actually counseled, however. (RT at 294-95.)
Claimant did not testify as to the nature of any sanction or counseling that he received.
6.
Termination
Finally, Claimant contends that his protected activity was a substantial motivating
reason for his termination. He was tenninated on January 19, 2019—more than two
months after his first protected activity on September 21, 2018, and his requests for
accommodation, which were made latest by October 12, 2018. Although Claimant
claims that the decision to terminate him was actually made earlier, around November 19,
2018, this allegation was not proven by a preponderance of the evidence. (See supra
section N.A.4.e.) Even so, °`temporal proximity ... does not, without more" establish
pretext. (McRae v. Depar•tmen.t of Corrections & ReTiab. 142 Cal. App. 4th 377, (2006).) In any event, and for the reasons explained above, Respondent had legitimate
business reasons to terminate Claimant. (See supra section IV.A.3 & 4.)
* * *
For all alleged incidents of retaliation other than termination, whether taken
individuatly or collectively, I find that Claimant has failed to prove that he suffered any
adverse employment action. For all alleged incidents, I fartlier find that he has failed to
Page 26 of 34Page 43 establish that his protected activity was a "substantial motivating reason" for any
termination or adverse employment action.
D. Is Respondent Tesla Uable for Failure to Prevent Discrimination,
Harassment, and/or Retaliation Under FEHA?
In order to prevail on his fourth cause of action, Claimant must prove: (1) he was
subjected to discrimination, harassment, and/or retaliation in the course of employment;
(2) Tesia failed to take all reasonable steps to prevent the discrimination, harassment,
and/or retaliation; (3) Claimant was harmed; and (4) Tesla's failure to take all reasonable
steps was a substantial factor in causing Claimant's harm. (CACI 2527 (Failure to
Prevent Harassment, Discrimination, or Retaliation — Essential Factual Elements —
Employer or Entity Defendant (Gov. Code § 12940(k))).) Claiinant did not dispute these
eleinents in his Reply Brief.
Before a Claimant can prevail on a claim under Govenunent Code sectioii
12940(k), there niust be a finding of actual discrimination, retaliation, or harassment.
(Dickson. v. Burke Willipl)is, Inc., 234 Cal. App. 4th 1307, 1314 (2015).) For the reasons
explained above, Claunant was not harassed, discriminated, or retaliated against. (See
stspra sections IV.A, B, C.)
Furthermore, Tesla took all reasonable steps to prevent discrimination,
harassment, and retaliation. Tesla has a policy that prohibits discrimination and
harassment in the workplace. The anti-harassnient and anti-discrimination policy are
provided to all Tesla employees when they are hired. All Tesla employees are also
trained on the policy. (RT at 457-58, 832, 835; see Exh. 252.) All Tesla supervisors are
trained on the harassment policy at hire and then annually thereafter. (RT at 838.)
Claimant also argues that Tesla did not have any safeguards to prevent potentially
disturbing or offensive GIFs, such as the Mr. Freeze GIF or the GIF of a woman dropping
dead, from being randomly selected by the Giphy app for use in Mattermost. (Claimant's
Amended Post-Hearing Brief at 16.) I conclude, however, that these GIFs would not be
offensive to a reasonable person and thus that any failure to implement such safeguards
does not amount to a failure to prevent harassment, discrirnination, or retaliation.
E.
Is Respondent Tesla Liable for Failure to Provide Reasonable
Accommodations Under the FEHA?
To prevail on his fifth cause of action, Claimant must prove: (1) that Tesla knew
of Claimant's physical or mental condition that linvted his ability to perfonn the essential
functions of his job; (2) that he was able to perfonn the essential duties of his position
with reasonable acconunodation; (3) that Tesla failed to provide reasonable
accommodation for Claimant's ASD or hypertension; (4) that Clainiant was harmed; and
(5) that Tesla's failure to provide reasonable accomiiodation was a substantial factor in
causing Claimant's harm. (CACI 2541 (Disability Discrimination — Reasonable
AccomLuodation — Essential Factual Elements (Gov. Code § 12940(m))).) Claimant did
not dispute these elements in his Reply Brief.
Page 27 of 34Page 44 Clairnant first argues that affter he informed HR and Rollins that he suffered from
ASD, Respondent had an obligation to reasonably accommodate him. (See Claimant's
Amended Post-Hearing Brief at 17-18.) But merely stating that he has ASD did not
trigger an obligation on Tesla's part to reasonably accommodate Claimant. Without
more, Tesla did not know or have reason to know that Claimant's ASD actually limited
his ability to perform the essential functions of his job.$ Rollins testified that he did not
believe Claimant was socially awkward or needed help with his work due to ASD. (See
RT at 399, 470.) Even Claimant stated that he was 'not .. . the least capable
programmer" in the Rosetta Pod. (See Exh. 52 (emphasis added).) Wilson testified that
there were "no issues" with Claimant's work, which was "pretty reasonably ...
accomplished" but not perfect. (RT at 197.) And although Dr. Sacks wrote a note
diagnosing him with ASD in 2015—before Claimant even began working at SolarCity—
there was no e-mail correspondence or other documentary evidence to corroborate that
the note had actually been transmitted to Tesla (other than Claimant's testunony). Given
how well Claimant documented virtually everything else, I find it implausible that he
would not have established such a documentary record. Even if the note had been
transniitted, it did not prescnbe any work restrictions or other accommodations for
Claimant. (RT at 694-96, 1194; Exh. 9.)
Claimant also argues that Tesla ignored his Accommodations Request. But the
"Response" column on the Accommodations Request shows, in fact, that Tesla agreed to .
many of his requests.9 For example, Claimant requested that he be allowed to partner
with other co-workers when being introduced to new technologies. In response, Tesla
agreed to take Claimant's request into account before staffing him on future projects.
(Exh. 244.) When Claimant requested a copy of his job description, Tesla provided it.
(See Exh. 21; RT at 1196-97.) Claimant also requested that Tesla assign him an advocate
to whom he could safely express his concems about events or communications he found
disconcerting. In response, Tesla agreed that Rollins would help Claimant in stressful
situations, whether based on project or team relationships, and Rollins himself agreed to
more regular one-on-one meetings with Claimant. (Exli. 244; RT at 525.) When asked
what would be a type of accommodation that would be helpful to, or generally offered by
employers for, Claimant's medical conditions (including ASD), the fust and only
$ Claimant testified that he did not tell anyone at Tesla that he had been diagnosed
with hypertension. (RT at 1185.)
Clainiant's contention that, in response to his request for accommodation, Tesla
"simply responded that they were not going to accommodate any of [Claimant's]
proposals" is groundless. (See Claimant's Post-Hearing Brief at 18.) The sole back up
for this assertion is Exhibit 56, which is just an earlier version of Claimant's requests for
accommodation—the version from before Tesla had an opportunity to respond.
Claimant's contention that "[o]n November 28, 2018, HR. responded to [Claimant's]
proposed accommodations list and denied [Claiinant's] requests" is likewise unsupported
by any evidence. (See id. at 10.)
Page 28 of 34Page 45 suggestions offered by Claimant's treating physician Dr. Sacks were check-ins and oneon-ones with a manager. (RT at 660-61.)
Moreover, several of Claimant's requests for accommodation were already being
fnlfilled by Tesla. For example, Claimant asked to be perinanently classified as a remote
employee even though he already was. (See Exh. 244; RT at 467, 521-22.) .Claimant
stated that he was experiencing job-related anxiety and stress and agreed that regular oneon-one meetings with Rollins would help alleviate that anxiety (Exh. 244); however, he
also testif ed that he was already meeting with Rollins on a regular basis, and had done so
approximately 12 to 24 times during 2018. (RT at 1195.)
Although Tesla did not agree to all of Claimaiit's requests, it is also not required
to. The staiidard is one of reasonable accoannodation. Even Claimant testified that he
did not expect Tesla to agree to everything he was suggesting. (RT at 1193-94.) In any
event, I find that Tesla's accommodations were, on the whole, reasonable. For example,
Tesla had good reasons for not accommodating several of Clainiant's requests, such as
those based upon a lack of understanding about his job duties and the duties of other team
members. For example, Claimant complained that Rollins was making individual team
menibers responsible for QA rather than having a dedicated QA engineer (Exh. 244);
however, Rollins credibly testified that each software engineer is responsible for
proofreading their own code and that it is not feasible for the QA department to be the
only verification point for bugs. (RT at 526.) In response to Claimant's concern that he
was not receiving the same level of support from team members that others in the Rosetta
Pod were receiving, Rollins explained that he could not require other employees to help
Claimant with his workload but offered to help Claimant if he felt his requests were being
ignored. (RT at 527.) Tesla could not accommodate Claimant's request to be assigned
less tiine-sensitive work because projects are assigned based on business need and team
member availability and, as explained above, all of the work at Tesla (including tech debt
projects) is time-sensitive and high pressure. (See Exh. 244.)
Finally, Claimant argues that when he returned to work from his hypertensive
episode, rather than accoinmodate Claimant's medical condition Rollins' first response
was to require Claimant to "work his ass off for 8 hours and then stop."10 (Claimant's
Amended Post-Hearing Brief at 9; see id. at 18; Exh. 38.) But the objectively reasonable
interpretation of this conversation is 1701 that Claimant was being directed to work
intensely for 8 hours straight and immediately after a hypertensive episode. Instead, in
response to Claimant's statement that he was "ok now," Rollins was merely explaining
Exhibit 38 purports to be a transcript of a Zoom meeting between Claimant and
Rollins. Respondent objects to the admissibility of Exhibit 38 on the ground that it is not
a certified transcript of and it is inhereiitly unreliable, since several words and portions of
statements appear to have been oniitted by the transcription software. (Respondent's
Post-Hearing Brief at 42-43.) Although Respondent's concerns about the reliability of
the transcription are well taken, rather than excluding Exhibit 38 outright the Arbitrator
will include it but give it the weight that he thinks it deserves.
Page 29 of 34Page 46 that he wanted Rosetta Pod members to be more laser-focused during the workday,
precisely so that they could get more rest on weekends and avoid working late or taking
work home:
David Wyer: I've gone to the doctor and I'm on some different
medications that have pulled my blood pressure down .... But I was in
like life threatening territory and ... I had to kind of step away from
everything for a few days to get yet create some space for me to ...[b]e
able to take on any more stress or more anything. ...[But] i'm not in that
place anymore so i'm ok now ....
Chris Rollins: I really don't want people working [i]n the middle all
night and weekends. ... I really want people to take breaks for precisely
the reason that I don't want people to ... get burnt out, ... I would very
much like us all to be focused on how do I take this eight hours of my
day....[a]nd make it super productive. .. . How do I get the most work
done in this eight hours and really be on like [y]ou know, work, workyour
ass o,,~'f of those eight hours and then take the rest that we need to work
your ass off the next eight hours making sure that we're playing ....
(Exh. 38, WYER 000339-40 (emphasis added).) My interpretation is corroborated by
Claimant's own reaction to the foregoing exchange: Rather than protest or otherwise
show surprise at (allegedly) being ordered to get back to the grind just days after he
returned from medical leave, Claimant merely asked for more one-on-one meetings with
Rollins. (See id.) In any event, Claimant was granted a medical leave until November 5.
2018approximately 10 days from when he first called in sick. (RT at 1062.)
For these reasons, Tesla did not fail to reasonably accommodate Claimant's
hypertension- or high blood pressure-related medical condition.
F.
Is Respondent Tesla Liable. for Failure to Engage In the Interactive
Process Under the FEHA?
To prevail on an action for failure engage in the interactive process under FEHA,
Claimant must prove: (1) that Claimant had a mental or physical condition which limited
his ability to perform the essential functions of his position and that was known to Tesla;
(2) that Claimant requested that Tesla make reasonable accommodation for his mental or
physical condition so that he would be able to perform the essential job requirements; (3)
that Claimant was willing to participate in an interactive process to determine whether
reasonable accommodation could be made; (4) that Tesla failed to participate in a tunely
good-faith interactive process to detenmine whether reasonable accommodation could be
made; (5) that Claimant was harmed; and (6) that Tesla's failure to engage in a good-faith
interactive process was a substantial factor in causing Claimant's harm. (CACI (Disability Discrimination — Reasonable Accommodation — Failure to Engage in the
Interactive Process (Gov. Code § 12940(n))).) Claimant did not dispute these elements in
his Reply Brief.
Page 30 of 34Page 47 For the reasons stated above, Claimant has failed to establish that Tesla knew that
his ASD or hypertension linuted his ability to perform the essential functions of his job.
(See sr+p,•a section N,E.)
He has also failed to prove the fourth element, since it is undisputed that he
exchanged approximately a dozen emails with Serrano regarding his requests for
accommodation and had five Zoom sessions with her over an approximately two month
period. (RT at 1194-95.) Rollins also participated in some of these meetYngs. (Id.) In
consultation with Claimant, Rollins and Serrano provided detailed, written responses to
each of Claimant's Accommodation Requests. (See Exh. 244; RT at 518-20.) They
attempted to find ways to accommodate Claimant's comniunication, exclusion, and
anxiety-related issues even though Claimant did not present a doctor's note prescribing
work restrictions or other accommodations. (RT at 694-96, 707-08, 1194.) Tesla
engaged in the interactive process nonetheless, which is also consistent with its policy to
do so even where the eniployee does not present a doctor's note. (See RT at 835-37.)
Finally, as explained in more detail above, Tesla did not fail to provide Claimant with
reasonable accommodations; indeed, it granted many of Claimant's accommodation
requests and had good reasons for not granting others.
For the foregoing reasons, I find that Tesla did not fail to participate in a timely
good-faith interactive process.
G. Is Respondent Tesla Liable for Whistleblower Retatiation Under Labor Code
§ 1102.5?
Claimant's whistleblower clauns are predicated on his reports of sexual
harassment (in the form of "comments about penis size and videos depicting women
twerking") and his requests for "medical treatment," by which I understand his report t1iat
he suffered froin ASD and a hypertensive episode as a result of work-related stress. (See
Claimant's Amended Post-Hearing Brief at 18-19; Johnson-Hartwell Decl. Exh. B, at 2.)
Nowhere in his pre- or post-hearing briefs did Claimant assert retaliation based on safety
issues associated with solar panels. Claimant also indicated to Respondents that he did
not intend to predicate his retaliation claim on such issues. (See Johnson-Hartwell Decl.
Exh. B, at 2, 4.)
The current form civil jury instructions list the following elements for Claimant to
prevail on his seventh cause of action: (1) he disclosed to a person with authority to
investigate, discover, or coirect legal violations; (2) he had reasonable cause to believe
that the infonnation disclosed a violation of a state/federal statute or rule or regulation;
(3) that Tesla discharged him or subjected him to another adverse employinent action; (4)
that Ciaimant's disclosure of inforniation was a contributing factor in Tesla's decision to
discharge Claimant or subject him to another adverse employment action; (5) that
Claimant was hanned; and (6) that Tesla's conduct was a substantial factor in causing
Page 31 of 34Page 48 Claimant's harm.; (CACI 4603 (Whistleblower Protection — Essential Factual Elements
(Lab. Code § 1102.5)).) Claimant did not dispute these elenients in his Reply Brief.
Although Claimant has established the first and third elements, he has failed to
establish the second and fourth elements. For the reasons explained in section N.B
above, Claimant did not have reasonable cause to believe that his reporting of the bicycle
helniet conversation between Rollins and Schafer, or of Hijaz's posts of two Spanishlanguage songs, disclosed a violation of the law. Claimant was also not reasonable in
believing that he had disclosed a state or federal violation by informing Tesla that he
suffered from ASD or a hypertensive episode. (See Claimant's Amended Post-Hearing
Brief at 18-19.) No reasonable person would believe that a medical condition could
constitute a violation of the law.
For many of the same reasons discussed in section N.0 above, I also find that
Claimant's disclosures were not a contributing factor in any adverse employment action.
In particular, there is no evidence from which I could reasonably infer that these
disclosures contributed in any way to the decision to terminate Claimant. Claimant was
well liked by his colleagues and Rollins showed a consistent desire to support Claimant
and even to encourage criticism from Claimant. Finally, as explained in section IV.A.& 4 above, Tesla had legitimate, non-retaliatory business reasons for terminating
Claimant's employmentreasons that I find Tesla has proven by clear and convincing
evidence.
H. Is Respondent Tesla Liable for Wrongful Termination in Violation of Public
Policy?
To prevail on this claim, Claiinant must prove: (1) Claimant was employed by
Tesla; (2) Tesla discharged Claimant; (3) a violation of public policy was a substantial
motivating reason for Claimant's discharge; (4) Claimant was harmed; and (5) the
In its Post-Hearing Brief, Tesla brought the Arbitrator's attention to the
California Supreme Court's recent decision in Lrnvson v. PPG Architectural Finishes,
Inc., 2022 WL 244731 (2022). In Lawson, the Court clarified "that section 1102.G, and
not McDonnell Dorsglas, supplies the applicable framework for litigating and
adjudicating section 1102.5 whistleblower claims." (Id. at *4.) Section 1102.6 relaxes
the employee's burden on summary judgment to establish a pt•in►afacie case and
increases the employer's burden to establish a legitimate, non-retaliatory reason for the
adverse employment action.
Tesla does not concede that Lawson is applicable to this case but argues that even
if it were, Claimant still cannot prevail on his eleventh cause of action. (See
Respondent's Post-Hearing Brief at 32.) Claiinant did not address the applicability of
Lmvson to this case in any of its pre-hearing or post-hearing briefs, including its Reply to
Respondent's Post-Hearing Brief. Claimant has accordingly waived any argument that
Lawson applies.
Page 32 of 34 ,Page 49 discharge was a substantial factor in causing harm. (CACI 2430 (Wrongful Discharge in
Violation of Public Policy — Essential Factual Elements); accord Claimant's Amended
Post-Hearing Brief at 17.)
Here, the asserted violation of public policy consists in discrimination on the basis
of disability and age, failure to accommodate, and retaliation. (Id.; Claimant's Amended
Post-Hearing Reply Brief at 4.) Because I found that none of the foregoing was a
substantial motivating reason for Claimant's discharge, Claimant has failed to prove his
wrongful ternzination claim by a preponderance of the evidence.
I. Should Dr. Rosenberg's Testimony be Stricken based on People v. Sancliez?
Claimant argues that Dr. Rosenberg's testimony should be entirely stricken
pursuant to Peopie v. Sarrche.:, 63 Cal. 4th 665 (2016). Sanclie; articulated the following
rule: "When any expert relates to the jury case-specific out-of-court statements, and
treats the content of those statements as true and accurate to support the expert's opinion,
the statements are hearsay." (Id. at 686.) The argument is unavailing for several reasons.
First, evidentiary rules do not apply strictly in arbitration, largely because there is
no jury; thus, rather than exclude the evidence, the Arbitrator will give it the weight that
it deserves. Second, Dr. Rosenberg made it clear that many of his findings were based on
his interactions with Claimant and on Claimant's subjective self-reporting during his
examination. In several instances, Dr. Rosenberg testified that his opinion was not based
on outside records at all. (See, e.g., RT at 1391.). Third, other than refer the Arbitrator to
the portion of the record during which his counsel lodged the Sancliez objection,
Claimant has not explained exactly what hearsay evidence Dr. Rosenberg relied on and
tvhether or how his opinions were predicated on that evidence.
For the foregoing reasons, Dr. Rosenberg's testimony will not be stricken from
the record. Nonetheless, the Arbitrator has noted Claimant's other objections to both the
style and• substance of Dr. Rosenberg's testimony, and has assessed that testimony with
those objections in mind.
J. To What Damages Is Claimant Entitled?
Because Claimant has failed to prove liability by a preponderance of the evidence,
he is not entitled to any damages
K. Conclusion
For the foregoing reasons, Claimant has failed to establish by a preponderance of
the evidence any of his claims against Respondents Tesla or Rollins. The sanie is hue of
Respondent Schafer, whom Claimant dismissed.
///
ll/
Page 33 of 34Page 50 FINAL AWARD
Claimant sliall take nothing from Respondents Tesla, Rollins, or Schafer.
This Award determines all issues submitted for decision in this proceediag. Any
claims.not expressly addressed in this Award are denied.
Dated: October 4, Hiro'N. .Aragalci
Arbitrator
Page 34 of 34Page 51 ~iecrronicauy rueu oy oupenor oun or anrornia,
or urange, u I/ IL/LVLJ i i:5ts:uu rivt.
18759-CU-OE-WJC - ROA # 100 - DAVID H. YAMASAKI, Clerk of the Court By E. efilinguser, Deputy Clerk.
30-
Kaveh S. Elihu, Esq. (SBN 268249)
kelihutulEJLGlaw.com
2 Rhett T. Francisco (SBN 232749)
rfrancisco@ei11aw.com
3 Christopher J. DeClue, Esq. (SBN 282807)
cdec1ue ,EJLG1aw.com
4 EMPLOYEE JUSTICE LEGAL GROUP, PC
1001 Wilshire Boulevard,
5 Los Angeles, Califomia Telephone: (213) 382-• 6 Facsunile: (213) 382-
Attorneys for Plaintiff,
DAVID VVYER
SUPERIOR COURT OF THE STATE OF CALIFORNIA,
FOR THE COUNTY OF ORANGE, CENTRAL JUSTICE CENTER
DAVID WYER, an individual,
Arbitrating with Hfro N. Aragaki Esq
Claimant,
Case No.:
vs.
TESLA, INC. WHICH WILL DO BUSINESS
IN CALIFORNIA AS TESLA MOTORS,
INC., a Delaware corporation;
CHRISTOPHER ROLLINS, an individual;
CARSON SCHAFER, an individual; and
DOES 1 through 20, inclusive,
Defendants.
DECLARATION OF CHRISTOPHER J.
DECLUE IN SUPPORT OF PLAINTIFF
DAVID WYER'S MOTION TO VACATE
ARBITRATOR'S AWARD AND TO RETURN
TFIE CASE TO THE CIVIL ACTIVE LIST
Complaint filed:: December 17, FAC filed: February 6, Arbitration date: April 29, Hearing Date: April 20, Hearing Time: 1:30 P.M.
Hearing Dept: WReservation No.
26 •
DECLARATION OF CHRISTOPHER J. DECLUEPage 52 7•
DECLARATION OF CHRISTOPHER J. DECLUE
I, Christopher J. DeClue, declare as follows:
1.
I am an attorney at law licensed to practice before all courts of the State of Califonva
am associated with Employee Justice Legal Group, counsel for Plaintiff David Wyer ("Plaintiff').
2.
I have personal Irnowledge of the facts of this case, including those presented in
motion, and if called as a witness could and would testify competently to the matters stated in
declaration. My personal knowledge is based upon my participation in this litigation and the evenl
described in this motion, and my review of the litigation file in this matter. I file this declaration i
support of Plaintiffs Post Arbitration Brief.
3.
Attached hereto as Exhibit 1 is a true and correct copy of SolarCity's Arbitratic
Agreement signed by Plaintiff David Wyer on August 20, 2015.
4.
Attached hereto as Exhibit 2 is a true and correct copy of Defendant Tesla, Inc
Arbitration Agreement signed by PlaintiffDavid Wyer on June 2, 2017.
5.
On June 4, 2021 Arbitrator Hiro N. Aragaki signed the joint stipulated discovery plan,:
which the parties agreed to limit the depositions to five(5) each side and the agreement that either par
may seek leave to take further depositions upon showing of good cause. The Joint Discovery Plan mac
it very clear that Plaintiff intended to call at least 8 vvitnesses at that early stage of the litigatio:
Attached hereto as Exhibit 3 is a true and correct copy of the Joint Discovery Plan.
6.
On February 16 2022, I requested an expedited conference with. the Parties and tl
Arbitrator to request that the Arbitrator allow Plaintiff to take additional depositions. I provided
detailed brief setting forth the additional depositions requested and the reasons why they were necessai
for Plaintiff's case. Attached hereto as Exhibit 4 is a true and correct copy of the email to the Arbitrati
requesting more depositions.
7.
On February 23, 2022, a telephonic hearing was conducted to discuss Plaintiffs ri
to take further depositions and Defendant's request to shorten the number of hearing dates. A
reporter was present for the conference. Attached hereto as Exhibit 5 is a true and correct copy of
February 23, 2022 hearing transcripts.
-2DECLARATION OF CHRISTOPHER J. DECLUEPage 53
8.
Having considered the parties' arguments during the hearing the Arbitrator ordered that ii
found no good cause for increasing the number of depositions even though Plaintiff informed the
Arbitrator that this matter was more complex than the ordinary single Plaintiff discrimination case
Moreover, the Arbitrator ordered the Arbitration to be shorten to the evidentiary hearing from ten day;
to five days. Attached hereto as Exhibit 6 is a true and correct copy of the Arbitrator's ruling or.
Plaintiffs Request for more Discovery.
I declare under penalty of perjury under the Laws of the State of Califorrua that the foregoing is
true and correct
Executed on January 12, 2023 at Los Angeles, California.
Chnstopher J. DeClue
-3DECLARATION OF CHRISTOPHER J. DECLUEPage 54 PROOF OF SERVICE
STATE OF CALIFORNIA, COUNTY OF LOS ANGELES
I am employed in the County of Los Angeles, State of Califomia. I am over the age of 18 and
not a party to the within action. My business address is 1001 Wilshire Boulevard, Los Angeles,
California 90017.
On January 12, 2023, I served the foregoing document described as DECLARATION OF
CHRISTOPHER J. DECLUE IN SUPPORT OF PLAINTIFF DAVID WYER'S MOTION TO
VACATE ARBITRATOR'S AWARD AND TO RETURN THE CASE TO THE CIVIL ACTIVE
LIST on the interested parties in this action as follows:
®
By placing true copies enclosed in a sealed envelope addressed to each addressee as
follows:
Cheryl Johnson-Hartwell, Esq.
BURKE, WILLIAMS & SORENSEN, LLP
444 South Flower Street, Suite Los Angeles, CA Johnson-hartwell bws1aw.com
Attorneyfor Defendants
®
BY E-MAIL: I transmitted a copy of the foregoing document(s) via e-mail to the individual(s)
indicated above. I did not receive, within a reasonable time after transmission, any electronic message
or other indication that the transmission was unsuccessful. The e-mail address of the person who served
the document(s) is: ggomez@eilglaw.com
Executed on January 12, 2023, at Los Angeles, California.
STATE
I declare under penalty of perjury under the laws of the State of California
that the foregoing is true and correct.
❑
FEDERAL I declare that I am employed in the office of a member of the bar of this
Court at whose direction the service was made.
~
Gladis Gomez •
-4DECLARATION OF CHRISTOPHER J. DECLUEPage 55 I-IB-IT
1.Page 56 OoouSign Envefopo IDt 6DCAA2PL-1249-4G41•9866•Ob65CCCBo3E
SolarL.Ity
August 19, To: David Wyer
Dear David:
I am personalty and professionaliy pleased to confirm an offer of employment for you to join
SolarCity Corporation (the "Company") as an AutoCAD Software Engfneer subject to
sucoessfu:l completion of a ba4kground check and drug test as applicable. In this position you
will be reporting to Travis Brier. Your employment start date with SolarCity will be 9/8/and you will be working at our San Francisco location. The following informstion will outline
your compensation, bene.fits and responsibilities as a new member of the SolarCity team.
Position & Responsibilities: As .an AutoCAD Software Engineer you will render full-time
services to the Company, and you will use your best effforts, skill, and abilities to promote the
Company's iaterests. We encourage .you to participate in the development of all aspects, of
SolarCity, fostering a sp.irit of teamwork; professionalism; high energy, and. fun.
.Comoensation and Benefits: You will receive a salary of USD $95,000.00/Yr. which will be
paid in accflrdanca with the Company's normal payroll procedures and subje:ct to customa,ry
deductions and vrithholdings as required by .law. As a sataried exempt employee, you are not
•eligible for overtime pay. As an employee, you will also be eligible to receive certain employee
benefts including Paid Time Off, prorated per our pol•icies; specifically, vacation will accrue at a
tvi►o (2) vueek rate during your first year of employment. Beginning your second year of
employment, vacation will begin to accrve at a three (3) week rate. Sick leave is available in
acxordance with applicable law and SolarCity policy. The details of our benefits plans shal) be
provided to you upon your start date or tiarlier if you wish. Medical, dental and vision benefits
begin the first of the moritii follovving 30 days of employinent. You should note that the
Company may modify job titles, salaries and benefits from time to tirne, as it deems necessary.
Restricted St,ock Units: Ifyou decide to jo.in the Company, it will be recommended at a meeting
of the Company's Board of Directors ar the appropriate committee at a time following your
ernployrnent start date, that the Company grant you an award of (1200) restricted stock units (the
"RSU Awar•d"). The proposed RSU Award, shall be granted under apd subject to the tenms.and
conditions of the Compeny's 2012 Equity ineentive Plan (the "Pian"), as.may be amended from
timb to time, as well as the terms and conditions of the a,pplicable RSU Award agreement
(which, among other things, provides for the mandatory sale of shares to cover tax withholdingPage 57 OoeuSign Envelope 10: 60QAA2FE-1249.4841-9869-406sCCC809F
obligations), which will be provided to you as soon as practicable after the grant date and whieh
you will be required to sign or accept in accordance with the Compapy's acceptance procedures.
Twenty five percent (25%) of the shares subject to the RSU Award shall vest twelve ( l2) months
after the grant date, subject to your continued employment with the Company, and no shares
shall vest before sueh date. The remaining shares subject to the RSU Award shall vest in equal
quarterly increments over the next three years, subject to your continued employment with the
Company. However, the Company may impose a different vesring schedule for the RSU Award
as required or reconunended to comply with local law, as determined by the Company in its sole
discretion. The exact vesting schedule will be provided to you. in your RSU Award agreemerit.
Tlie RSU Award is subject to approval by the Board of Directors (or the appropriate committee).
The Co.mpan.y is excited about your joining and looks forward to a bene.fi.cial and productive
relationship. Nevertheless, you should be aware that your employment with the Compaay is for
no speçif ed period and constitutes at-will employment As a result; you are free to resign at sny
time; for any reason or for no reason. Similarly, the Company •is free to terminate its
employment relationship with you at any time, with or without cause, and with' or without
notice. We request that, in the event of resignation, you give the Companyat teast two weeks
notice.
As.a condition of employment, candidates are subject to pre=employment screening for
backg"round and reference checks. Candidates for safety sensitive positions are also subject to
pre-employment drug sdreening and random drug screening during the cotirse of your
employment at SolarCity. SolarCity reserves the right to periodically eonduot background
cbecks throughout any employee's tenure in accordance with'the.Fair Credit Iteporting Act and
applicable state and loca! ('aws. YouT einp`loym.ent; therefore, is contingent upon a clearance of
such a background investigation, reference check and/or drug screen, as applieable. l.f the
Company feceives negative resutts on your background check, reference check or drug test after
your employment begins which would preclude you from employment at SolarC.ity, you viill be
subject to tenmination in accordance with applicable law.
For purposes of federel immigration law, you will be required to •provide to the Company
documentary evidence of your identity and eligibility for employinent in the United States. Such
documentation must be provided to us within three (3) business days 'of your date of hire, or our
employment relationship with you may be'terminated.
We also ask that, if you have not already dotie so, you disclose to the Company any and all
agreements relating to your prior employment that may affect your eligibility to be employed by
the Company or limit the manner in which you may be employed. 1t is the Cornpany's
understanding that any sucfi agreements will not preveat you fro,m. performing the duties of your
position and you represent that.such is the cese. Moreover, you agree that, during the term of
your employment with the Company, you will not engage in any other einployment, occupation,
consulting or other business activity directly related to the business in which the Company is
now invoivad or becomes involved during the term of your.emplo.yment, not will you engage in
any otfier activities that conflict with your obligations to the Company. Similarly, you agree not
to bring any third party confidential infortriation to the Cornpany, including that of your forcrierPage 58 Doauetgn Emetope ID600AA2FE-1249-4641-®8864D65CCCBD8F
employer, and that in performing your duties for the Company you will not in any way utilize
any, such information.
As a Company employee, you will be expected to abide by the Company's rules and
standards. S:pecifically, you will be required to sign an acknowledgment that you have read and
that you understand the Company's policy covering Business Conduct and Ethics, which are
included in the Company Handbook and you may request, in writing; a copy of the pollcy prior
to signing this offer letter.
As a condition of your employment, you will also be required to sign and comply with $n AtWi11 Employment; Con.fidential .Information, Invention Assignment, and Arbitretion Agreement,
which requires, among other provisions, the as.signment ofpatent rights to any invention made
during your empioyment at the Company, and non-disclosure of proprietary:infoimation. In the
eveint of any dispute or ciaim relatipg to or arising out of our employment relationsh`ip, you and
the Company agrBeto an ai•bitration in which (i) you are waiving any and all rights to a jurytrial
but all court remedies will be available in arbitratioa,, (ii) We agree that ail disputes between you
and the Company shall be fully and finally resolved by binding arbitration; (iii) all disputes shall
be resolved by a neutral arbitn3tor who shall issue a written opinion, (iv) the arbitrstion shall
provide for adequate discovery; and (v) the Compan.y. will pay for any adrnministrative or hearing
fees charged by the arbitrator except that you shall pay.any filing fees associamd with any
arbitration ihat .you initiate, but only so much of the fiIing fees as you vvould have instead paid
had you fiied a complaint in a court of law.
This letter, along with any agr+eements relating to proprietaly rights between you and the
Company, set forth the terms .of your employment with the Company and supersede any prior
representations or agreements including, but not limited to, any repr.esentations made during your
recru'rtment, interviews or pre-employment negdtiations, whether Wr.itten or oral, 'I'his letter,
ineluding, but not limited to, its at-will employment provlsion, inay not be moditied or amended
eiccept by a written agreement signed by the Chief Bxecutive Officer of the Company and you.
Please note this offer of employment will expire if it is not accepted, signed and returned by
snl,nois.
We look forward to a happy, supportive and mutually benefieial relationship with you. We hope
that you will grow and pro.sper with us, and that you are as exeited about joining SolarCity as we
are at.havipg the opportunity to work with you. We look forward to your favorable reply.Page 59 OaoaSign EmrPlope 1D: 600AAZFE1249-4641•888640B5CCC803F
Ltichard Crarcia
Agreed to and accepted:
Lega1 First Name;
David
Legal Last Name:
wyer
Sign ature:
Email:
Date:
oOGt~e er
w:' U►t,y
~.~..~._
ED
dwgraphics®mallbag.cae
8/20%
Please check box to contirm start date: 9/8/2a
x
*If this is incorrect, please enter an atternate Monday start date:Page 60 EXIIIIBIT 2Page 61 :
.
i~"
•
i
~_:
:
AAay 30, David Vyrer
Irvine, CA Deat Davkt:
We are pleased to let you knaw ttiat as part of,your transfer from SofarCity Co~poretion to Tesla, Ino.
rTesla" or the "Cornpany°) efrecthre June 1g; 2017, you wlll ee employed in the exempt, salarled positbn
of.Sofbwars Engineer wRh Testa, Inc. ('Tesla"or the °t:ompany") on the terms.set forth betcw. As a
Software l:ngineer, you wUi perform the duties customerdy essoctaDsd with this position. You w1li report
to Mike Klclnski. Your duties, nssponslbiSies, job tille, and viiork tocatton may be changed at any ttme
by Tesia.
Your annualized salary will be $96,000.00 per year; subject to etendard payioll d®ductions and
wUhholdings. Ae in exempt employee, you wUl not be entitled to overtime: You will be eligibte for
iracatlon and sk;k leave aocording to Testa's standard poli.cy. Subject to the tules oFthe ibplicable pten
documents, you wilt also be:ellgb!e to recehre other beneflts Tosla may provide to Bs employeea (e.g.,
heaitir and dental insurance eoverege) (ieginning on your date of hire. Ta.sla may onnsider you for
bon:ises. although the amount of such bonuses, if any, and the cfiteria for detenmtning the award of such
bonuses, iF any, stu911 be in the sote disanetion of Teate. Of eourse, Teste re.serves the dght to modify
your compensalion and benefita from time to time, as it deems necessary.
Testa otfers e oompetitive benet3ts package. Ntore deta:led intorinatlon about the beiter:t plans and
lnstnùctions on how to enroll will be provided during your onboarding process.
SotarCity tequlty Awards: Equtty awards previously granted to you by SotatCl(y have alrady been
exchanged into Tesla eqully awards. and will not be affected by your transfer from SolarCity to Tes1a
While you remain empioyad by Tesla, you will cornttnue to vest pursuant to the terms and eandldons of
the stock plans and egneements4hat govern your awards.
401K Program: You.+ndll be eligibie to patticipate in Tosle"s 401K progrefin. The Tesia 401K pro8rarn is
admintstsrsd by FideNty Investments and yau wili reçelve ennollmertt lnstruations during your onboaiding
process.
SolarClty 401K Plan Aeoount Transfer: If you currently have a retirement acaount balance in the
SolarCity 401k pJan. your acoount will be transferred on a tax-free basis to the Tesla 401k ptan. You will
receive lnformation reger+ding the transler in the corriing v,reeke. The transfer is sdiedu!ed to octur Aptil
2017. In the fneantime, should yau have any questions, please contact Fidefity at 8o0•8S5•5097.
PTO Program: Under Tesla's PTO po6cy. regular full time emptoyees and part-time employees whoPage 62 r@gulady woak at least 20 hours per wesk are eiigible far PTO Uuaediatety and acaue PTO at 1.25 days
(10 hours) per month for a totai of 16 days (120 hours) per ealarniar year, You rnay maintain a PTO
balance of up to 240 hours. PTO may be used for vacation or paid sick ieave, ae provided under Tes1a's
PTO policy, and consistent w6h applhmbie tew.
Vacation Transfer Actatowtedgmentc B.y signing thle amployee transferagreement, you agree to
treesfer your vested, unused vacation hours from SolarCity to Tesle. and convert them to PTO hours
under Tesis's pogcy.
It your transferred SotarCtty vaemtlon ts less than 240 hours, you will also be credited with PTO for your
SoiarCity vested, unused sick leave hours, up to the 240 hour PTO cap under Tesle's policy.
These PTO hours wlll be avallable for you to use immediatteiy, oonsistent with Tesla pollcy.
Service Oate: Ae a transferdng employee, your Service Date with Tesla w+11 be September 08, 2015.
Dfrect Deposlt Authortzation: (f, as ofthe date of this (elter, you elected to be patd via Dir®rd t7eposit
at SolarCity. Tesla wlN continue to pay you via Dinect0eposD unless you adjust your Tesla payment
elections. By stSning this empioyse trensfer agneement, you authorize SolarCity to share your cunrent
Difect Deposit.inforrrbation. if app6cable, with Tea1a. You elso tauthor'iae Tesla to pay you directty to your
acoount designated in your SolerCtly Direct Deposit Information.
The Company is excited about your joining end tooks fonNard to a beneflolai and fruitfui reiationship.
Nevertheless, you should be aware that your ®mptoyment with the Company Is for no speraped pedod
and constltutes at.will emptoyment. As a result, you are free to nesign at any tlrne, ior any reason orfor
no reeson, whh or wittiout notit;e. S6nitarly, the Coinpany Ia frae to conclude its emptoyment nelattonship
witth you at any tUne, with or witfaut cause, and with or wlthout notke.
We ask that. If you have notatready done so, you disciose to Tesla any and all agreemente retating to
your prior efiptoyment that may affect your ellg~b8ity to be employed by Testa or Gmb the manner ln
which you may be employed. It is T.esla's understanding tliat eny such agredtnenls wiii not prevent yoir
from performing the duttes Qf your posltion aind you represent that such Is the case. We want to
emp},asïze that we do not wish you to bring any eonRdentlai or proprietary ineteriels of'any tormer
emptoyer which would violate any obligations you mey have to your former emptoyec. You agree not to
make any uneuthori,zed disclosure to Tesie or.u'se on belmiPof Teela any contidential infomretion
betonging to any of your former empioyers (exaept in .eonordanee wtth agneeriments between 7esla and
any such former employer). You also warrant thet you do not posaess any property conte.irting a third
. information. Of course. during.your empioynient with Tesla, you may
partys confidential end propdetery
rnake use of intormdtlon genereliy, knowrierid used by peraons with training and experoence comparable
to your own, and irrformation whfeh is comrnon lmowledge In the induatry or Js otherwLse legally avaftable
in the public dornsin. Moreover, you agner that; durin8 the term of your employnrent with the Company,
you wilt not engege in any other ernployment. occupetlon, oonsuRing or othor business activity din:otay
retated to the business In which Tesfa iä now invoived or becomes irivohred during the term of your
ernployment, nor wlil you engage li1 any other acthdties thatoonttict with your obligetions to Tesla.
As a Testa errrptoyee, you wfil be expectad to abide by ell Tesia poltc+esand procedures, end, as a
condition of youi empioyment, you wip sign and cornpiy, with Tesla's standard cpntTdentiatity agieement
which prohibits uneuthorized uss or disciosure of Tesis.confidentlai. infonnaliomor tlse coMidential
infonnationaf7esta'a cAents.Page 63 tn addilion, to ensure the rapid and economical resoiution of disputes that may adse in connection with
your emptoyment with 7esta, you arid Testa agree that eny and all disputes, clalnis, or causes of action,
in law or equity, adsing from or refating to your employment, or the tennination of your employment, will
be resolvad; to the fullest exdent parmltted by law by Anal, titnd(ng and oonddential artdtradon In your clqr
snd atate of employment cpnduded by the Judiclal Arbftrallon and pAedfation SenriceaiEndispute, tnc.
("JAMS°), or its suooessors, under the then current iulees of JAMS for empioyment dispuUes; provided that:
•
•
•
•
•
•
•
•
Any claim, dispute, or cause of aetion must be brought M a parqls IndNiduat capadly, and not as a
ptaintiff or dass m,ember in any purported class or rppresentative prooeeding; end
The erbitrstor shall have the authority to compel adequate disoovery t'or the resotutlon of the dlsptde
and to dward such refief as would otherwise be pennitted by leuV; .and
The arbttratorshell not have the.aulhortqr.to conso8date the: ctairme; of other employees and shall not
heve fhe authorlt,r to fashion a proceeding as e dass or cotlective adion or to ewani relief to a group
or class of emptoyees In one arblt+atlon proceedin8; and
The arbitrator she11 issue a witttsn arbitnstion deciston lncluding the, arbitratos's sssentiel tntdings and
conclusions arid a staternent of the award; and
t3oth you and Tesle shatl be enUUed to ait rights and rerredlea that you or Tesla would be ei►titled to
pursue 1ft a court of 1aw; end
Tesia shall pay all fees in exiess of tFiose which would be requlred it the dispute was decided tn a
court of law
Nothing in thk emp.loyea transfer agreement is intended to pr.evant eNher you or T.esia from obtaining
in)unctive relief in cdurt to prevent irreparablae hann pending the concluusloa of any such artiE
Notwithslanding the foregoing,• you and Tesia each have tlie rtght to resoive eny issue ior dispute arising
under the Propfietary Information and Imrenitons Agnaement by Court actton lnstaad of adttfration.
Arbitrable alairns do not include, and this empioyee transfer egreenlent does not apply to or otherovise
restiiet, adminlstrative daims you rriay bring befon: any government agency where, as a matter of lauir,
the parties mey not restrGct your abiifty to file such cialms (inoluding discriminetion and/or retailation
dalms ftled wi0i the Equal mployment•Opportunity Comrinisslon antl unfair labor practtce charges t(ted
vdth the tVationel Labor Relattbne Board), OthenNise, it•is agreed that arbltratlon shxlt be the excluslve
remedyfor edmminislretive clairns.
•
'
•
•
You.acknowledge and agree thab (i) In the eourse of your employment by the Company, it will be
neoessary for you to create. use. or have aocess to (A) teehnical, businese, or eustorrier lnformallon;
niaterlais, or data refattng to the t;onipany's present or planned buainess that has not been released to
the public wlth the Company's authorization, including, but not timfled to, confkientiat inforrnatbn,,
malerials, or propdetary date belongleg to the Company or retetlng to the Company's affaiFs (collectivety,
"Confidenlia) Infomatton") and (B) information and rriatertais tttet coneerri the t3ompany's buslness that
come Into the Conpany's posseselon by reason of errjployment with the Company (col(eetively,
°Business Releted Intormatlon"); n all Conf'idential lnformatio.n and Buelness Related Infornretion are
the properly of the Company, {iq} the use, misappropriaHon, or dis.ctosure of anyConfidentiel Information
or Business Related lnlbrmeNon xroull.d aonstitute a bn}ach of trust and couid cause seltous and
irreparable inJury to the Company; end (Iv) it ts essentlel to the proteoticn 'of the Carnpany's Soodwil) and
maintenance ofthe Compeny's oompetitive p(ältion thot all Cdnfidenttal Infonnetaon and Business
Retated Infonnatlon be .kept conedential and that you do not disatose any Confidentist information or
t3ustness itelated Infonnation to others or use.Coriridential iriformatioil or 8usiness Related Information
to your own ad'vantage or the adv'sntage of others.,
In recognition of the acknowledgment above, you agree that .untii the. Confidiidal Inbrmation and/or
Bustness Related Infonnation becor.nes pubCcty available (other lhen, through a breach by you), you ehell:
(i) hakl and safepuard all Confidantial tttfortnatlon and Business Retated Informetion in trust for the
CompanY (i+) not appropriate or disclose or make aveilabte to enyone for use outskfe of Ihe CorfipanysPage 64 organization at any ttme any Confldentta) Inforntetlon and Business Related Infomtiation, whether or ta>t
developed by you; (111) keep in striatest oonfidence any ConfldenfMt Infomretlon or Buslness Releted
Information; (tv) not dfsdose or ditruige, or atlow to be disdosed or d'nni(ged by any person within your
control; to sinypereon, dnn, or corporatlon, or use directly or htdliecliy, for your own l;enefit or the benefit
of others, any Conhdenttal lnformartion or Business Releted Infomtation; and (v) upon the tenninatbn of
your emptoyment. retum e11 Conridentiat InformaUon and Businees Revonis and not maite or relein any
coples or exects thereof.
Thts employea transferagnjement eonstkutas the complete, flnal and exctustve en.tbodltrtent ot the enWe
agreement between yop and.Tesle with resped to the hemie and condl8ons of your ernpbyment, and h
supensedas any other e8reements ofprwntses made to .you by anyone, whetherorat or wittten. Thie
employee tnsnsfer ag'reement cannot be changed, amended, or modi8ed except in a wrtttert agreement
eigned.by an ofttcer of Tesla. Thle emptoyee transfer egreement ehall be oortstrued and Interpreted ln
aocordanoe vriLh the laws oi the State of Califomle.
As reQuired by Irnmigration law, thts otTer of empfoymerrt ¿s condilioned upon satistaetory pnoaf of yow
right to work In the United•Stetee. •
We laok forward to a pioductive antl enjoyable work retatbnship.
Vey lruly yours,
Elan Musk
Chairman of the Board and CEO
Slgn Here:
oate:
eC,
w1•Re'w•l . r.'
Jun 2, 2017Page 65 EXHIBIT 3Page 66
Cheryl Johnson-Hartwell (SBN 221063)
E-mail: cjohnson-harhvell@bwslaw.coni
Susan V. Arduengb (SBN 293946)
E-mail: sarduengo@bwslaw.com
Burke, Will}ains & Sorensen, LLP
444 So.uth Flower.Street, Suite Los Angeles, CA 90071-295.Tel: 213.236.0600 Eax: 213.236.270(
Attorneys for Resp.ondents, TESLA,.INC.GHRiSTOPHER ROLLINS, and CARSON
•SCHAFER
1.
1.
JUDICIAL ARBITRATION AND MEDIATION SERVICES
1.
.(JAMS)
1:20.
•
DAVID WYER
JAMS Ref.No.: Arbitration Demand Filed: November 17,
Claiulant,
JOI:'Y`Y' DISCOVERY PLAN
v.
TESL-A,. INC. WI{ICH WILL DO
BUSINESS IN CALIFORNIA AS TESLA
22, MOTOiLS; INC., .a Delaware co&poration;.
CIIRISTOPHER ROLLINS; an individual;
23 CARSON SCHAFER, an individ'.ual; and
DOES 1 through 20,inclusive.
Respondents.
LA8:4823-9187-1'?18 v
-I-
JOINT DISCOVERY PL•ANPage 67 i
TO THE ARBITRATOR A.ND TO ALL COITÑSEL OF RECORD:
Clainiant DAVID WYER (."Claimaiit"), by and through liis counsel of record and
I Respondents TESLA, INC. ("Tesla"), CHRISTOPHER ROLLINS ("Rollins"), and CARSON'
l SCHAFER ("Schafer°') (collectively "Respondents°'), b.y and througli ttteir counsel of record, do
l hereby submit their Joint Discovery Plan •as set forth°below.
A.
The Parties have participated in the JAMS Rule 17 Exchange.
RULE 17 EhCHANGE
B.
PROTECTIVE ORDER
The:Parties agreed to a.Stipulat.ed Protective Order to govern this matter. On May 18,
10 ~ 2021, Arbitrator~Aragaki entered the Stipulated Protective Order
C.
WRITTEN DISCOVERY
•'The Parties agree .that the anticipated written discover;► inay ahange upon fiuther
13'
iriformation and discovery
. . However, presently the'Parties' ant.icipated discovery is as follows:
Form Interrogatories — General, Form Interr.ogatories — Employmeilt, Special Inter.rogatories,
Requests:for Adniission, and Requests forProductiori of Docunieiits. Tlie Parties will limit each
. may
.set of diseovery requests to no more than 20 interrogatories or requests per set. Either Party
'18~
1•9~
seek leave to issue filrther requests. but only upon a showing of good cause.
D.
DEPOSITIONS
The Parties agree to the following liriiit on deposition duration: (1) Claimant —,8 hours; (2)
20.
C1ristopher Rollins ("Rollius") and C.arson Schafe,r (s'Scliafer") — 6liours; and (3) all r.emaining
witnesses — 4 hours. The depositions of Plaintiff,'Rollins, atid Schafer n;ay be continued to a
22.
secoiid deposition date as needed.
.23~
The Parties are liniited to 5 depositions eacli. Either Party ina.y seek leave to take further
depositions but only upon a slrowing of good cause.
.Respondents antioipated deponents:
1 j David Wyer
2) Dr. Pauline Sacks
28. ~
3) Dr. Nathan Ford
BLRI.E, WSLt:iAn45 BF
SoRaNse•.Y., LL P
A7ScqtCLls A LAtiC
LOS A\Ctt0f
LA #4823-21S7-1718 v
-~JQI_NT ~ISCOVERY PLANPage 68
4) Dr. Maria Ruby Leynes
Claimant's anticipated deponents:
1) Chris Rollins;
2) Carson Schafer;
3) Maliadevan Virudhagiri;
4) Travis Wilson;
5) Irene Kucherova;
6) Maria Malik;
.~
7) Son Dang;
8) Tesla Person Most Knowledgeable.
E:
DISCOVERY CUTOFF DATES
The Parties agree to conduct discovery• and related discovery cutoff. dates in accordance
•
~.vith the California Code of Civil Proc.edure and Report'of Preliminaiy Hearing and Scheduling
Order No. 1.
_, Dated: May,
BURKE; WILLIAMS & S0RENSEN, LLP
16.,
By: .
`Cl~ery,l• Jolurson-Hartwell
Susan V. •Ardueugo
Attofne.ys for Respondents TESLA, INC.,
CHRISTOPHER.itOLLINS, and
CARSON
.
.
.. SCHAi?ER
20.
21•
Dated: 1Vlay
, 202•
EMPLOYEE JUSTICE LEGAL.: GR0LJP, PC
B.y:
Kaveh SïElihu
Christopl~er J. .DeClue
Att.orneys for C1aimant DAVID WYER
23'
•
SO ORDERED
Dated: June 4,
i .
Hiro. N. Aragalci, Arbitrator
BLsxs,. Wiciiax['s &
SORsseN, LLP
nnoox:rr ar tAW
i cs A+euss
Z,A?;4823-9187-1718 vQ
- 3 JOI~
-.1T`D.ISCOVERI PL•A1V'Page 69 PROOF OF SERVICE
2.
1.
I, Theresa Nevarez, declare:
.I am a citizen of the United States and emplo.yed i•n Los Angeles County, California. I am
over the age of eighteen years and not a party to the within-entitled action. My liusiness address
is 444 South Flower Street, Suite.2400, Los Angeles,. Califomia 9007.1=2953. On June 4,
2021Apri12, 2021, I served a copy. of the within document(s):
JOINT DISCOVlRY PLAN
o bq transmitting via e-mail or electronic transmission the document(s) listed above to the
p•erson(s) •at the e-mail address('es) set forth below.
o by placing the documeiit(s) listed above in a sealed envelo:.pe with postage thereon full.y
prepaid; in the United States mail at Los Angeles;•California addressed as set forth below.
envelope and affixing a preo.by placing the docuient(s) listed above in a sealed
be
to
a
agent for delivery.
paid air bill, and causing tlie enveiop:e to delivered
..
BY E-MAIL•: Based dn.a court order oi an agreEirleitt of the palties to accept service by evnail or electronic transmission, I caused the document(s) to be sent ftonm e-lnail address
.znèvarer@liwslaw.coni to the persôns at the e-mail addresses listed in the below Service
List. I did not receive, within a reasonable tirue after the transmissior. any electronic
iaessage or othei indication that the transmission was upsuccessful
1.4~
16~
•7ames G.. Bohm; Esq.
Sheriy Giaybehl D'Antony
Joanne P. Freeman
695 Town Center Drive, Suite Costa Mesa, CA •Tel: 714138.4-G500;. Pax: 7141384=65:0 Y
Email: •ifreeman,bohmwildi;
sdantona.bohinvvildish:coin
jb.olmlCa~b.ohmR►ildish.com
lrivaia6'bolilnwildish.com cc
1.8.
1.~21..
22.
.I am readily fanuliar with .the firm's practice of •co.11.ection and processing correspondence.
for niailing. Under that pr.ac.tice.it would be deposited with the U.S. Postal Service on that :same
day with postage thereon fiilly prepaid• iri the ordinary course• of business. I aiii aware•that oii
motion of tfie party served, service is presumed invaiid if postal cancellation date or postage
mete'r :date is more thali one day after .date .of deposit:for mailuig in ãffldavit.
.I declare uuder penaity of pei7uiy, urider flie laws.of t•he .State of California that the above
i•s true and cor•rect.
.
Executed on June 4.,. 2021, •at Los Angeles, Califoraia.
~
Ther.esa Nevarez
LA f{Q823-9,187-1718 vZ
-1,PROOF OF SERVICEPage 70 EXHIBIT 4Page 71 Gladis Gomez
From:
Sent:
To:
Christopher DeClue [cdeclue@ejlglaw.com]
Wednesday, February 16, 2022 5:50 PM
'Ricardo Juarez'; 'Johnson-Hartwell, Cheryl'; 'Arduengo, Susan V.'
Cc:
ggomez@ejlglaw.com; spanosian@ejlglaw.com; 'Ashworth, Barbara'; 'Valadez, Olga';
Subject:
'Ashworth, Barbara'; dfriedman@ejlglaw.com; kelihuc~iejlglaw.com
Re: Wyer v. Tesla - Claimant's Request for Expidited Conference Re: Clairnant's Need for
Additional Depositions
Mr. Juarez,
Claimant requested an expedited hearing regarding the following matter. Claimant requests that Arbitrator Aragaki
permit claimant to take additional depositions in this case. Claimant requests additional depositions because they are
highly relevant, and they are required to address Respondent's unsubstantiated and allegedly false reasons for
terminating Claimant.
As this point, Claimant has taken 3 of the 5 depositions initially permitted by Arbitrator Aragaki. Respondent delayed
the deposition dates for Claimant's final 2 depositions, including the alleged manager who terminated Claimant and the
PMK regarding the categories regarding Claimant's termination, including the alleged Reduction in Forces that took
place in 2018 and allegedly Jan. 2019. Currently, a conference is set for Feb. 23, 2022, to discuss another matter.
However, Claimant cannot wait until Feb. 23, 2022 because Respondent will likely not produce these necessary
witnesses prior to the discovery cut-off in this case. Time is of the essence, and Claimant needs an order to produce
these witnesses prior to the discovery cutoff.
Discovery obtained in this case warrants the following depositions, as follows:
1. Mahadevan Virudhagiri (aka Maha) — this witness allegedly made the decision to terminate Claimant's
employment. Claimant has been requesting his depositon since December 2021, and Respodent only provided
dates in March 2022.
2. PMK regarding the following topics:
a. The 2018 RIF (Reduction in force)
b. The 2019 RIF (Reduction in force)
c. Policies and procedures in place regarding the termination of employees under the 2018 and 2019 RIFS,
and how those policies and procedures were applied to Mr. Wyer
d. Policies and procedures regarding addressing employee complaints of workplace injuries, including
referring employees to medical care through Tesla's workers' compensation medical provider network,
accommodating employees with work related stress or other work-related injuries/medical conditions,
and engaging the interactive process to address employees with work-related injuries/medical
conditions, and the application of those policies and procedures to Mr. Wyer.
3. Palaneeswar Chittoor (aka Palanee) - this witness replaced Claimant after an alleged reduction in force. This
employee was not subject to Claimant's protected characteristics that Clalmant was protected by under the
FEHA)
4. Alex Poniz —this witness worked with Claimant on a daily basis, on Claimant's team. This witness's will recall
personal accounts of Claimant's performance and this witness's performance ranking compared to Claimant are
highly relevant, considering Claimant's termination was based on Claimant ranking lower than this witness on
Defendant Rollin's "Stack and Rank List" — which has only been produced as a scratch-excel-table that was never
finalized.
5. Dayana Hijaz - this witness worked with Claimant on a daily basis, on Claimant's team. This witness's will recall
personal accounts of Claimant's performance and this witness's performance ranking compared to Claimant are
highly relevant, considering Claimant's termination was based on Claimant ranking lowerthan this witness on
Defendant Rollin's "Stack and Rank List" — which has only been produced as a scratch-excel-table that was never
finalized.Page 72 6. Maira Malik - this witness worked with Claimant on a daily basis, on Claimant's team. This witness's will recall
personal accounts of Claimant's performance and this witness's performance ranking compared to Claimant are
highly relevant, considering Claimant's termination was based on Claimant ranking lower than this witness on
Defendant Rollin's "Stack and Rank List" — which has only been produced as a scratch-excel-table that was never
finaiized.
7. Marc Artigas-Sanchez - this witness worked with Claimant on a daily basis, on Claimant's team. This witness's
will recall personal accounts of Claimant's performance and this witness's performance ranking compared to
Clairnant are highly relevant, considering Claimant's termination was based on Ciaimant ranking lower than this
witness on Defendant Rollin's "Stack and Rank List" — which has only been produced as a scratch-excel-table that
was never finalized.
Moreover, Defendant has noticed depositions for Claimant's treating physicians. However, at this point, only one of
three of those treating physicians has agreed to and/or will appear. Claimant requests the opportunity to depose those
physicians via agreement or subpoena.
is Arbitrator Aragaki available to discuss these issues on Friday of this week or early next week?
Warm regards,
Christopher J. DeClue
Senior Litigatiort Attorney
Employee Justice Legal Group, P.C.
1001 Wf[shire Blvd.
Los Angeles, California Ph: (213) 382-Fax: (213) 382-Email: cdeclue'Crìeilelaw.com
This transmission is intended for the sole use of the individual or entity to whom it is addressed. Said transmission may
contain information that is privileged, confidential or otherwise protected by both FEDERAL and STATE Iaw. Any
dissemination, distribution or transmission of this information is strictiy prohibited. If you received this e-mail
communication in error, please notify our office immediately by telephone so that remedial measures may be taken to
properly direct this correspondence. Nothing in this email creates an attorney-client relationship or is intended to do so.
Additionally nothing in this emaii should be construed as legal advice.Page 73 EXHIBIT 5Page 74 Hearing
February 23,
JAMS ARBITRATION SERVICES
DAVID WYER, an individual,
Claimant,
v.
TESLA, INC. WHICH WILL DO
BUSINESS IN CALIFORNIA AS TESLA
MOTORS INC., a Delaware
corporation; CHRISTOPHER,
ROLLINS, an individual; CARSON,
SCHAFER, an individual; and DOES
1 through 20, inclusive,
Respondents.
JAMS Case No.
Via Videoconferencing Meeting
Wednesday, February 23,
ATKINSON-BAKER, A VERITEXT COMPANY
(800) 288-
Reported by:
File
No.:
EILEEN ELDRIDGE, Notary Public
AB
Page
Atkinson-Baker, A Veritext Company
(818) 551-
www.veritext.comPage 75 Hearing
February 23,
JAMS ARBITRATION SERVICES
DAVID WYER, an individual,
Claimant,
v.
TESLA, INC. WHICH WILL DO
BUSINESS IN CALIFORNIA AS TESLA
MOTORS INC., a Delaware
corporation; CHRISTOPHER,
ROLLINS, an individual; CARSON,
6 : SCHAFER, an individual; and DOES
1 through'20, inclusive,
Respondents.
JAMS Case No.
Hearing held via videoconferencing
equipment, commencing at 4:02 p.m., on
Wednesday, February 23, 2022, taken before
Eileen Eldridge, Notary Public.
ATKINSON-BAKER, INC.
(800) 288-
Reported by: EILEEN ELDRIDGE, Notary Public
File No.: AB Page Atkinson-Baker, A Veritext Company
(818) 551-
www.veritext.comPage 76 Hearing
February 23,
APPEARANCES
ON BEHALF OF CLAIMANT DAVID WYER, AN INDIVIDUAL:
CHRISTOPHER J. DECLUE, ESQ.
Employee Justice Legal Group
1001 Wilshire Boulevard
Los Angeles, California 90017-cedeclue@ejlglaw.com
(213) 382-
ON BEHALF OF RESPONDENTS TESLA, INC. WHICH WILL DO
BUSINESS IN CALIFORNIA AS TESLA MOTORS, INC., A DELAWARE
CORPORATION; CHRISTOPHER ROLLINS, AN INDIVIDUAL; AND
CARSON SCHAFER, AN INDIVIDUAL:
SUSAN V. ARDUENGO, ESQ.
Burke, Williams & Sorensen, LLP
444 South Flower Street, Suite Los Angeles, California 90071-sarduengo@bwslaw.com
(213) 236-
Page
Atkinson-Baker, A Veritext Company
(818) 551-
www.veritext.comPage 77 Hearing
February 23,
Los Angeles, California, Wednesday, February 23, 4:02 p.m.
ARBITRATOR ARAGAKI:
•
BY MR. DE CLUE:
Okay.
(Audio distortion.)
ARBITRATOR ARAGAKI:
You are kind of cutting.
Mr. DeClue, are you on a mobile phone?
way you can improve your phone, the quality of your
transmission?
MR. DE CLUE:
Yes.
For the moment.
THE REPORTER:
ARBITRATOR ARAGAKI:
Okay.
Ms.
I think so.
Eldridge, do you need him to repeat
anything?
THE REPORTER:
Yes.
If Mr. DeClue could repeat
what he said.
MR. DE CLUE:
My apologies.
in through my computer.
distortion).
Does this sound better
right now?
Is there some
I did try to call
I guess I was (audio
So counsel and I have discussed a number of
I think we're moving towards a -- if
collateral issues.
for some reason Ms. Arduengo would like to discuss
those, I am happy to, if Arbitrator Aragaki is open to
Page Atkinson-Baker, A Veritext Company
(818) 551-
www.veritext.comPage 78 Hearing
February 23,
discussing limited collateral issues.
MS. ARDUENGO:
I
This is Susan Arduengo.
believe the only collateral issue currently is the issue
of the Claimant's IME.
point to involve you Arbitrator Aragaki.
I think it's premature at this
I hope -- I would like to make further effort
to resolve the issues •with counsel about your =- about
waiting for your assistance.
ARBITRATOR ARAGAKI:
A11 right.
So let's put
this on the agenda list for the time being, but let's
focus on the first two issues, because those are the
ones that you've been waiting to have addressed.
So why don't we start with the deposition
So my understanding, Mr. DeClue, is that you've
issue.
taken three out of the five depositions; is that right?
And you're thinking that you need more than just the
five?
That's correct.
MR. DE CLUE:
ARBITRATOR ARAGAKI:
Okay.
And say more about
how much more you think you need, and what is the reason
for needing more at this stage?
MR. DE CLUE:
Yes, of course, thank you,
At this point, I would like to
Arbitrator Aragaki.
remind the Arbitrator that two of three depositions we
have taken are two of the named Defendants.
So,
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obviously, we can't learn things about Mr. Wyer's
employment in relationship with those particular
individual Defendants, as the claims are --
individually.
But as far as the bulk of the lawsuit, it
really is -- most of the claims are against Tesla.
it's really•limited on what we can find and limited to
who we can talk to about termination, about --
apparently, we learned there was a reduction in force,
So
which we learned through one of the depositions.
And we learned that there is an individual much
younger, much less experienced than Mr. Wyer, that
replaced Mr. Wyer after Mr. Wyer was terminated after an
alleged reduction in force.
And we learned -- we think we know the person
that made the decision to terminate Mr. Wyer.
just'Mr. Rollins, direct supervisor, his first name for
short is Maha.
It wasn't
And we've been working since December to get a
deposition date for that individual, trying to carve out
the PMK categories that cover, not'only the termination
policies, but procedures of the two different alleged
reduction of forces that Tesla had, but also how they
handle accommodating people with Asperger's, people with
high blood pressure, people that had to go to the
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February 23,
hospital for emergencies and taking time off of work.
This case is unfortunately not a simple
straightforward single-claimant employment case.
involves a lot of working parts.
information that we need, and every time we have a
deposition or get another 1,000 or 2- pages of
documents, it raises more questions and answers.
It
And we don't have the
And so we're trying go through all of these
thousands of pages of documents and thousands of pages
of printed spreadsheets and we think we carved out the
PMKs.
it's more than five people.
I think we know who we need, but; unfortunately,
We need the -- we need the person that, at this
point, we hope is the one that made the decision to fire
Mr. Wyer.
might not be the same person. •We.need to take the
deposition of the person who replaced our client, a
younger person that didn't have the condition our client
had.
We need the PMKs on multiple categories that
And given the fact that we've recently learned
21 •
that our client was terminated and excused out of -- you
know, he went from the middle of the road on the ra.nking
list of his department; he's dead last within one
quarter.
And it requires an imperative amount on the
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February 23,
other individuals who didn't end up last; that went from
last to the middle of the back and switched spots with
Mr. Wyer.
talk to and they're working every day.
So those are the people that we wanted to
ARBITRATOR ARAGAKI:
sure I'm understanding.
understanding you.
Okay.
So let me just make
Let me make sure that I'm
So you're saying you disclosed Mr. Maha, you
requested PMK depositions for the person who replaced
Mr. Wyer, and on the comparative evals is there just one
11 '
or some group of people that you are hoping to dispose?
MR. DE CLUE:
Yes.
We have a list of four
individuals that work closely with our client.
see one or two things.
comparative analysis with how they were ranked, whether
or not they were actually ever ranked and --
I can
0ne that can help us would be
(Reporter clarification.)
MR. DE CLUE:
-- whether or not there was a
reduction in force, reduction of force, reduction in
force of -- that they were considered on the ranking
list, and the fact that these individuals who worked
with Mr. Wyer on a daily basis, who didn't have the
necessary background and training and experience to give
an opinion on his work quality.
But, apparently, went from a very solid to at
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February 23,
least average to this absolute last on the list within
KI
one quarter after he whistle blew for some kind of
disability requiring accommodations.
important for an understanding of their opinion on his
work product, so we don't have to go into the
arbitration and call all these witnesses.
We can -- it's
Now, I want to make it very clear the
comparative analysis coworker depositions, we can
probably do all those in one day or a couple of days,
We're not asking for days
short two-hour depositions.
and days, but we would like to have a chance to talk to
these individuals, so that the first time we talk to
them is at arbitration.
ARBITRATOR ARAGAKI:
Okay.
Thank vou,
Mr. DeClue.
Ms. Arduengo?
MS. ARDUENGO:
This is Susan Arduengo.
First
of all, the reduction in force, it's not,new knowledge
that was gained during the course of this arbitration.
Claimant was well aware of the fact that he was
subjected to the reduction of force.
Pre-litigation, pre-arbitration, it was
national news because 15 percent of Tesla's workforce
was unfortunately subjected to a reduction in force in
2018, 2019.
So the reduction of force, in and of
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itself, doesn't provide good cause for any additional
depositions.
So far Claimant has deposed both individual
Respondents and a coworker of Claimant, so in terms of
comparative data, there have been two depositions of
Claimant's coworkers and the deposition of Claimant's
direct supervisor.
ARBITRATOR ARAGAKI:
And who was -- who was the
coworker, Ms. Arduengo.
MS. ARDUENGO:
One of the coworkers was named
Travis Wilson, and he other coworker was Carson Schafer,
who was also an individual Respondent, who was also
subjected to the same reduction in force as the
Claimant.
ARBITRATOR ARAGAKI:
MS. ARDUENGO:
Got it.
And then Claimant's direct
supervisor is an individual Respondent, Chris Rollins.
He's been deposed twice.
Claimant's replacement, it's Tesla's position that there
was no one hired to replace Claimant.
And then, finally, in terms of
His position was eliminated through the
I believe the individuals that
reduction in force.
Claimant will claim replaced him, had different job
duties, a different job title, a different•experience,
you-know, it's -- Tesla will contest that there
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was anyone that was hired to replace Claimant, let alone
this particular.individual that I believe Claimant will
claim replaced him.
It's merely conjecture at this point.
There is
no -- there's no testimony or evidence that anyone
replaced Claimant.
ARBITRATOR ARAGAKI:
Okay.
And you're saying
that a lot of the other reasons why additional
depositions might be needed were known or should have
been known before the joint discovery plan was put
together?
Is that part of what you're saying?
MS. ARDUENGO:
Right.
Arbitrator Aragaki, the
discovery plan limited each party to five depositions
each.
to the discovery plan to extend the scope of the
deposition.
disagree with what my opposing counsel states.
There has to be a showing of good cause pursuant
At this point, you know, I'm going to
This is a traditional discrimination
There so nothing
single-plaintiff arbitration matter.
about this case that makes it any more complex or
complicated than any other single-plaintiff case where
in arbitration Claimant has two additional depositions
that they can take.
And we are -- we have been, you know,
exceedingly cooperative in terms of helping to figure
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out which additional deponents Claimant would like to
take.
Part of the frustration in this process has
been over the past few months Claimant has brought up
ten different names of deponents that they want to
depose.
okay, which of these ten witnesses do you want?
us know, we'11 produce them.
And so there's been some frustration with,
Let's
But we can't really come to a consensus on
which of these additional ten depositions -- witnesses
are necessary?
point.
So that's kind of where we stand at this
ARBITRATOR ARAGAKI:
Got it.
Got it.
So, Mr. DeClue, I guess, I would ask you -- so
the parties did come together and file a joint discovery
plan.
hearing anything so far that suggests that you have
discovered new information that would warrant rnore than
the five that you agreed to.
I'm not
Can you explain that a little bit better to me?
You agreed on five depositions each.
•
MR. DE CLUE:
Of course, Your Honor.
I want to
make it very clear, Arbitrator Aragaki, our client had
no idea why he was fired, and we learned that through
discovery.
about a reduction in force by Tesla, doesn't have any
Just because something was on nationally
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play here.
That being said, the first reduction in force
that happened in 2018, our client survived that one.
That was a full analysis that they showed us all their
breakdown of the reduction in force in 2018 in
discovery, we saw that.
He was not a part of that.
He made it through the first alleged round.
The second alleged round of reduction in force in 2019,
we don't have any comparative analysis or breakdown, we
just have a little list by his supervisor and the same
that he was fired under for reduction of force that we
don't have any assurances or evidence that there was
actually a reduction in force, except for our client and
his coworker.
That being
So this is -- we don't know why.
said, we didn't know that Maha, which we have been
trying to depose since December, was the one that
allegedly made the call after Mr. Rollins, the
Defendant, our client's supervisor, gave him a list
saying that David Wyer is now lapsed.
And now (audio distortion) -- you have some
part of it or made decisions or maybe, again, if he
comes in a deposition and says I was told by my hirer,
you know --
(Simultaneous crosstalk.)
Page Atkinson-Baker, A Veritext Company
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February 23,ARBITRATOR ARAGAKI:
Part of what -- some of
It's just the
this, Mr. DeClue, is inevitable; right?
nature of the beast.
trying to notice the deposition of Mr. -- I think it's
Mr. Maha, and the witness has not been produced.
I think also that you've been
Are you having difficulty getting the
deposition scheduled,•is that part of what you're also
saying?
MR. DE CLUE:
Yes.
ARBITRATOR ARAGAKI:
I see.
Can you address
Is there some problem getting the
that issue?
deposition on file or on notice of scheduled or...
MS. ARDUENGO:
So we had the deposition of Maha
set for deposition, I believe it was March 2nd, and the
same day that we set that deposition, or maybe the day
after, counsel for Claimant had to reschedule Claimant's
continued deposition.
And because of Claimant's counsel having to
reschedule Claimant's deposition, it prevented us from
being able to prepare Maha for deposition on March 2nd.
And so probably three to four times I have reached out
to Claimant counsel's office.
us
And to ease the scheduling, I said let
know
all dates that you're available in March and we'll reset
Maha's deposition.. I have not heard back.
I've asked
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two to three times.
incorrect.
So I believe that's entirely
They've actually had a date set for Maha's
deposition, due to Claimant's counsel's.unavailability
for their client's deposition, we had to take Maha's
C:i
deposition off.
And they've been unresponsive at my many
attempts to get it back on schedule.
ARBITRATOR ARAGAKI:
So, Mr. DeClue, do you
agree that there was a date set for Maha's deposition
but that had to be taken off?
MR. DE CLUE:
They were trying to get it in
January; we were trying to get it in February.
offered dates in March.
they took Maha's off calendar.
They
We had to reschedule it and
ARBITRATOR ARAGAKI:. Got it.
So, you know, so looking at joint discovery
plan, so Maha was clearly a known entity to when you
agreed to five depositions; right?
Okay.
A11 right.
And PMK is something that you would have
Well,
factored into your calculus of five depositions.
it does not appear to me that now you realize that you
one or more PMK depositions that you need to take, you
know, that that justifies additional depositions.
And then the comparative analysis, I guess, I'm
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trying to get my head around that a little bit.
So
you're thinking if you depose all these other people who
might have moved up the ranking, that that's going to
give you more information?
Why isn't that kind of comparative analysis
something that could be obtained through other modes of
discovery?
forms of documentary evidence.
MR. DE CLUE:
It actually might be better obtained through
Arbitrator Aragaki, if you are
having Ms. Arduengo to produce the personnel files of
these other coworkers with their rankings and their
performance•reviews, that might be able to resolve the
issues.
But my understanding of the privacy objection
that they don't think they're going to be producing it.
ARBITRATOR ARAGAKI:
Well, okay.
Is there any
way to get you that•information without disclosing the
entire personnel file?
BY MR. DE CLUE:
The rankings and the
performance reviews of the individuals?
ARBITRATOR ARAGAKI:
So, Ms. Arduengo, what
about the rankings, is that something that you would be
willing to produce?
MS. ARDUENGO:
Oh, we've already produced that.
Yes, we've already produced the ranking information, and
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individual Respondent, Christopher Rollins, that was
Claimant's direct supervisor, he was the one who
actually created the ranking.
He was just disposed within the last month and
he was'questioned about why he ranked employees in the
manner he did.
already been obtained through written discovery and
through deposition as well.
So I mean this is discovery that has
ARBITRATOR ARAGAKI:
Okay.
And then, I guess,
it sounds like, Ms. Arduengo, asking for the reviews
themselves, is that something -- so the reviews of these
other employees, is that something that you consider
confidential and not discoverable without an order?
MS. ARDUENGO:
Correct, Arbitrator Aragaki.
We
would consider that third-party privacy information, and
we would object to producing that information.
ARBITRATOR ARAGAKI:
Okay.
So I think we've
exhausted the discovery issue, unless either one of you
has any more comments on that.
I --
MS. ARDUENGO:
MR. DE CLUE:
ARBITRATOR ARAGAKI:
We -- go ahead, Ms. Arduengo.
Mr. DeClue, why don't you
go first.
MR. DE CLUE:
Yes, Arbitrator Aragaki.
I want
to make it very•clear at the scheduling conference, the
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joint discovery plan was proposed and we talked about
the discovery plan at the scheduling conference.
We sought more depositions at the very outset.
Arbitrator Aragaki's decision was we were going to start
with five.
could talk about it, if he agreed to it.
wanted more knowing that the case is not a normal
single-plaintiff case.
If we have a reason, we could take more, we
•
We always
There's a lot of working parts.
And there's a lot of information that we're
trying to get, and it's been a good deal of avoiding
providing any information on Tesla's behalf.
ARBITRATOR ARAGAKI:
So let -- so let me ask
you a little bit more about •that, Mr. DeClue.
You said many times, and I think we also
15•
discussed it, that the original AMT, this exhibit, an
unusually complicated case involving moving parts.
Can you maybe describe that a little bit more
to me, so that I can get my head around what makes •this
more unusual than the typical single-plaintiff
employment discrimination case.
MR. DE CLUE:
Of course.
Normally, we're able
to find the right people quickly before depositions.
a case like this, we commonly take five or six
depositions.
(audio distortion).
We were limited to five.
In
Two of them
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(Reporter clarification.)
MR. DE CLUE:
Okay.
There's a lot of moving
Our client whistle blew, told them about a
parts.
Asperger's, had a health issue from high blood pressure
from the stress of Mr. Rollins, and having to go to the
hospital and taking time off work, all in the span of
♦
about two months.
And then right after that, he was fired.
9 •
this also includes issues about Asperger's.
But
So, again,
an expert that was able to handle the emotional distress
and take into account how that affected -- how that was
affected by his Asperger's.
We have issues about the economic damages or
client loss, possibly over a $1,000,000 in stock options
that were lost at his termination getting pulled from
his 401(k).
And not only that, his -- his -- he went from a
very above average to a not-exceeded-expectations
employee.
He's been working in this industry for over
30 years.
A11 of a sudden was last on the list, and no
one was able to explain except for he just wasn't doing
that good on a project all of a sudden.
Which our client completely has a different
position on it and was trying to get help on it and was
doing a good job on.
And no one is willing to come out
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and explain how he all of a sudden he fell to the bottom
of the list, that we don't even know existed, because we
don't have a rough draft to the guy who wrote it.
And someone has to explain it.
And,
unfortunately, we have to ask around to figure this out
because we are having to put all the pieces together.
It's a big burden on our side, and they have all the
information.
ARBITRATOR ARAGAKI:
Ms. Arduengo?
MS. ARDUENGO:
A11 right.
I mean, if the person that made
the decision as to where Claimant was ranked was just
deposed and he testified as to his reasons for why he
ranked Claimant as he did, I think this is really a
situation where Claimant doesn't like what he heard in
that testimony and it sort of, you know, a hunt for a
witnesses that will depose in his favor.
I mean, nothing that opposing counsel has said
shows good cause for why they need more than two
20 I
additional depositions.
exerts and economic damages, but that's irrelevant too,
you know, the need for additional depositions at this
point.
They mentioned issues with
There are two additional depositions that
they're entitled to and we will work with them to secure
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,Page 94 Hearing
February 23,
the right witness if it's a current Tesla employee.
we can't get a consensus out to who those witnesses are,
those two additional witnesses that they want to
dispose.
ARBITRATOR ARAGAKI:
Uh-huh.
But
And then what
about this -- the point about this being more than an
number of hearing days, which I think currently, we have
I suppose that ties in with the issue of the
ten days; is that right?
MR. DE CLUE:
That's correct,
Arbitrator Aragaki.
MS. ARDUENGO:
Yes.
ARBITRATOR ARAGAKI:
Now, so what's -- (audio
distortion) of why this is more than a single plaintiff
kind of traditional kind of case.
.
Ms. Arduengo, could you give me your read on
this, your thoughts?
MS. ARDUENGO:
Sure.
So this is a case where
the Plaintiff was subjected to a reduction in force.
was not a long-time Tesla employee.
company, I believe, less than three years.
communicate that he had Asperger's during his
employment.
He
He worked for the
He did
This notion that he was a whistleblower is
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greatly exaggerated.
described -- I don't mean to lesson Claimant's case, but
this is a run-of-the-mill single-plaintiff employment
case.
I mean other than what I just
ARBITRATOR ARAGAKI:
And how many days,
Ms. Arduengo, do you think this case needs?
It's Respondent's position that•
MS. ARDUENGO:
only four to five days will be needed for this -- to
conduct the arbitration hearing.
When we initially met
with you, Arbitrator Aragaki, we discussed the fact that
a full ten days for the arbitration hearing was highly
unlikely.
We set the ten days knowing that it was
unlikely to be necessary, but just so we could reserve
the dates.
we would further reduce those dates.
we're asking you to do and to reduce the days from ten
to four to five max.
And'I think there was'every intention that
ARBITRATOR ARAGAKI:
And so that's what
Let me ask you,
Ms. Arduengo, do you have sense of how many witnesses
you're planning to call?
MS. ARDUENGO:
I believe it would just be our
individual Respondents, so that would be two.
I would say five, five to -- five to seven.
an estimate at this point, maybe not even that many.
Perhaps,
It's just
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February 23,
ARBITRATOR ARAGAKI:
Does that include experts?
MS. ARDUENGO:
Yes, that would include
Yes.
experts.
ARBITRATOR ARAGAKI:
I see.
And would -- do
you know who -- so it's two individual Respondents,
obviously.
percipient witnesses might be?
Are you prepared to say now who the others
MS. ARDUENGO:
me off guard.
Arbitrator Aragaki, you caught
I have not.
I have not -Okay.
ARBITRATOR ARAGAKI:
you knew.
I just wondered if
Okay.
MS. ARDUENGO:
And I think five -- I think five
I'm sorry.
to seven is -- oh, I'm sorry.
I think five to seven is very generous.
I'm
sort of expanding on that, so I don'•t tell you too low
of a number.. I don't know if it will be that high.
ARBITRATOR ARAGAKI:
Got it.
Okay.
All right.
So and let me ask you this, Ms. Arduengo:
Did you actually submit a Notice of Deposition
for the PMKs?
MR. DE CLUE:
Chris DeClue for Plaintiff.
We
have provided PMK categories and we're trying to get
dates for them.
ARBITRATOR ARAGAKI:
I see.
So you guys have
sort of started discussing it.
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So, Ms. Arduengo, do you think that one person
can satisfy all those PMK categories or what are your
thoughts about that?
MS. ARDUENGO:
categories.
So they have four proposed PMK
We have agreed to produce a witness as to
the fourth category.
twice on the remaining three categories.
We've attempted to meet and confer
At this point, the categories are so broad,
we're trying to figure out what exactly it is that
Claimant is looking for.
unable to properly designate the right witness.
an example, one of the PMK categories is simply the
reduction in force.
Because at this point, we are
And as
So, you know, there were probably thousands of
employees involved in that massive reduction in force in
2018.
completely unable to designate anyone for that category
or the other -- the other two as well.
So without narrowing that category, we're just
ARBITRATOR ARAGAKI:
Got it.
Okay.
So I think
that getting and preparing a list, you know, is a good
idea.
assistance in that process, you know, we can have
another phone call.
And to the extent, you know, you need my
But I encourage you both do try to continue
that process.
And, I guess, my thought would be, you
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know, you know, it might be that there's rnore than one
person that, you know, that's best suited to respond to
these categories.
And I'm wondering, Ms. Arduengo, if you would
be amenable to, if there's two or possibly three, if
they could all be completed within the number of hours
that you agreed to in one sitting, in one day, that's
four hours.
Would you be willing to finish more than one
PMK?
Do you mean go over the
MS. ARDUENGO:
additional -- I guess, I'm unclear as to what you're
asking, Arbitrator Aragaki.
ARBITRATOR ARAGAKI:
In other words, if you
would -- you reviewed now -- that the PMK categories
went to four, let's say.
And it turns out you that one person could not
testify to all four categories, would you be amenable to
a situation where you might have more than one PMK on
the condition that they all get done within the same
day, within the same limits that you have, I think it's
four hours per day?
MS. ARDUENGO:
We would be okay with producing
two PMKs as long as we're within the five depositions
for each party.
You know, we don't see any need -Page Atkinson-Baker, A Veritext Company
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there's no -- there's been no showing of good cause to
exceed that five deposition count.
And that's really the whole point, have them
move to arbitrate this matter if it lessons discovery
costs?
ARBITRATOR ARAGAKI:
I guess what I'm
Right.
saying is if we could just -- if we could use one of
those spots with more than one PMK deponents.
words, I think it's a four-hour period for each day of
In other
depositions, for each deposition.
But if it turns out that one person could not
adequately respond to all categories that you went down
to, what if we did a situation where more than one PMK
witness would be able to testify in that one slot, if
that makes sense.
MS. ARDUENGO:
I understand.
I think it's
It's possible we can get one
premature at this point.
PMK witness to testify to all four categories.
ARBITRATOR ARAGAKI:
MS. ARDUENGO:
Yes.
We just can'.t get to that point
yet, because the categories are so vague.
ARBITRATOR ARAGAKI:
MS. ARDUENGO:
.
Yeah.
My clients are firmly committed
to sticking with the five deponents limitation that you
set pursuant to the discovery plan.
You know, even if
Page
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we have two PMK witnesses that are presented both for
deposition within the four hours, you know, it doubles
the prep time that has to go into preparing them to be
an adequate PMK.
So at this point, I think it's premature
because it's possible we can get all these categories
completed with one PMK witness.
ARBITRATOR ARAGAKI:
the hope.
Yeah, for sure.
Yes.
Okay.
Well, that would be
So I think I've asked
all the questions that I needed to.
And I think on the IME, maybe Mr. DeClue just
What you think the issue is
briefly outline that dates.
that you would want me to determine today about the IME
or would you agree that it can be deferred to a later
date?
MR. DE CLUE:
I think it can be deferred to a
The one matter regarding IME
later date, if necessary.
evaluations that I brought to Ms. Arduengo's attention
today, is that our client is in Orange County.
Traveling and being in public for him is something that
he is very uncomfortable with right now.
He's presented not vaxxed and he would like to
take the IME evaluation remotely, if possible, or if
anything closer to his house in Orange County, so that
his travel is very limited.
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February 23,
ARBITRATOR ARAGAKI:
MR. DE CLUE:
I see.
That's the worse case scenario.
He's very uncomfortable, even going out in public right
now.
ARBITRATOR ARAGAKI:
Yes.
Totally
I would not want to put any witness in
understandable.
an uncomfortable or potentially life-threatening
situation.
analysis.
Of course, I think it's a case-by-case
So I think•your raising an important point,
Mr. DeClue.
But I just think at this time, I can't impress
that the two of you can work something out, but that we
don't necessarily have to address it today.
Understood.
MR. DE CLUE:
ARBITRATOR ARAGAKI:
ahead, Mr. DeClue.
So I think there are two issues.
MR. DE CLUE:
ARBITRATOR ARAGAKI:
MR. DE CLUE:
The two issues -- go
Go ahead, Mr. DeClue.
I just wanted to raise a few
points before we get into the deposition issue.
ARBITRATOR ARAGAKI:
MR. DE CLUE:
Yes.
One of the things that,
Your Honor, Arbitrator Aragaki, had -- was the
scheduling conference is that when I pushing for more
depositions, but a lot of forums, you know, it's just
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February 23,
one or two, and then you, you know, you bring up more in
and sometimes you might hear testimony for the first
time at arbitration.
I was hoping to avoid that situation in this
We're calling in 12 people that we've never had
case.
an opportunity other than -- and it just -- the whole
process, you don't know what they're going to say.
we're able to get through, you know, rapid speed
depositions of some of the comparative coworkers, have a
few -- an hour or two with the person we beiieve
replaced our client.
if
And then with four -- officers who can --
(audio distortion) -- Mr. Maha and get through as many
categories in one day on the PMKs, we will never be able
to cover all the PMKs that we need.
And, again, we're happy to learn about it for
the first time in arbitration, but no one wants a big
18.
surprise, when we find out that they're not going to be
helpful.
it seems like it's easier to ask that way to take the
depositions at the arbitration.
Maybe Respondent calls thenn,, maybe it's the --
ARBITRATOR ARAGAKI:
Yeah, I mean, I hear what
you're saying.
cultural too; right?
the world that does prehearing depositions, everyone
I think a lot of this is, you know,
I mean, we're the only country in
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February 23,
else responds to the witness for the first time at a
trial.
But I hear you, what you're saying.
I think
the that problems that I'm having is that you both
agreed to a particular deposition limit.
to really figure out whether there is good cause to
change that.
up against at this point.
And so I need
And that's really what I'm kind of running
There's no reason why you couldn't, you know,
negotiate some kind of arrangement like that,
Mr. DeClue, if your opponent is amenable.
it's a six-hour slot, you know, to have two deponents
for three hours or even three deponents for two hours
each in exchange for, maybe, reducing the total
number of hours allotted the for that day.
I don't know.
That's up to you.
So, you know,
But in terms
of my decision, I think I should follow your
instructions which is that you agreed to limit it to
five each unless there is showing of good cause.
MR. DE CLUE:
We never agreed to that.
We
asked for 10 or 12 and came there was a compromise at
five at the hearing.
Arbitrator Aragaki kind of met in the middle and ordered
five.
And it wasn't an agreement,
ARBITRATOR ARAGAKI:
Yes.
But the agreement
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February 23,
was'five each upon a showing of good cause to be
increased.
MR. DE CLUE:
We would submit that there's good
cause to move -- opposed person to replace their client.
ARBITRATOR ARAGAKI:
Any other point people
would like to make, any issues that we need discuss?
How about the hearing you mentioned coming up right
around the corner?
have done three depositions.
How many -- I guess, the Claimants
Respondent, how many deposition have you taken
already.
MS. ARDUENGO:
We've taken the deposition of
the Claimant, we•were unable to finish, so we're
continuing that deposition to the first week of March.
We've taken -- we've have attempted to subpoena three of
the Claimant's treating physicians.
One failed to appear.
We're rescheduling that
deposition, and we have another treater set for
deposition for next Friday.
we've been unable to serve.
And then another treater
And we've only taken one deposition so far..
are -- we don't anticipate any more than five
depositions.
-
We
,
ARBITRATOR ARAGAKI:
Got it.
But it sounds
like you're having trouble with some.of these
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February 23,
third-party witnesses.
MS. ARDUENGO:
Right.. There's one of
Claimant's treaters, we believe she's retired now.
have had trouble serving her.
ARBITRATOR ARAGAKI:
Okay.
Right.
We
So it does
seem to me that since we are really coming up on March
now, that time is reallyof the essence.
extent, you know, we can try and speed things up to the
extent, you know, you need my intervention especially
with third parties, do feel free to speak up, contact
the case manager.
I would like to really make sure we're on track
at least for the hearing in late April, early May.
Arbitrator Aragaki --
MS. ARDUENGO:
ARBITRATOR ARAGAKI:
MS. ARDUENGO:
So to the
to bring up.
Yeah.
I have two more points I wanted
I guess now is the right time.
ARBITRATOR ARAGAKI:
MS. ARDUENGO:
Sure.
Could -So I wanted to clarify
Like I said, you caught me
our arbitration witnesses.
off guard when you first asked, but I did some thinking
during the call.-
that Respondents will present at arbitration.
I think no more than five witnesses
ARBITRATOR ARAGAKI:
MS. ARDUENGO:
Got it.
And there was one -- the other
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February 23,
issue is the issue of the JAMS payment, the payment for
the arbitration hearing.
for February 24th, and I know that we've had
difficulty -- there's been a couple weeks' delay between
trying to seek this conference.
The date for payment is set
ARBITRATOR ARAGAKI:
MS. ARDUENGO:
And --
Yes.
-- actually having the
conference, so I wanted to see if you would be amenable
to extending payment date?
ARBITRATOR ARAGAKI:
MS. ARDUENGO:
Yes.
So we know exactly -- we don't
want to pay for it if it's --
ARBITRATOR ARAGAKI:
MS. ARDUENGO:
ARBITRATOR ARAGAKI:
Of course.
Of course.
-- agreed to -- okay.
Yeah, of course.
Of
So tell me what would you like to extend that
course.
to?
give you a ruling on these issues today or tomorrow,
when would you issue the payment date.
What time would you need?
MS. ARDUENGO:
So assuming that I can
So the payment comes directly
from Tesla, and so there's hoops to go trough in terms
of --
'
ARBITRATOR ARAGAKI:
MS. ARDUENGO:
Yes.
-- getting that payment -- me to
get it from our firm and then to Tesla and then a check
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February 23, If at.all possible, if
being issued from Tesla to JAMS.
we can get an extension until March 18th, that would be
a deal.
ARBITRATOR ARAGAKI:
MS. ARDUENGO:
ARBITRATOR ARAGAKI:
March 1-8?
Yes.
Okay.
take that under consideration.
down.
Okay.
Great.
MR. DE CLUE:
Arbitrator Aragaki.
thing.
Let me just write that
Anything else on either side?
Let me -- let me
No objection•to that,
I was going to propose the same
I just would like to address the number of
witnesses if Arbitrator Aragaki would like to.
ARBITRATOR ARAGAKI:
MR. DE CLUE:
Sure.
At this point, we're looking at,
if we have to, bring them in for the first time at the
18 ~
arbitration.
So witnesses -- three experts.
We're looking it over (audio distortion).
ARBITRATOR ARAGAKI:
MR. DE CLUE:
ARBITRATOR ARAGAKI:
I think
you said on the value of the stock?
So three experts.
Yeah.
Yeah.
On his damages and then
Asperger's; is that right?
MR. DE CLUE:
Correct.
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February 23,
ARBITRATOR ARAGAKI:
That's about 12 other
I don't even see 12 people listed in the
witnesses.
complaint, but who -- who besides Rollins and Schafer,
and I take it the coworker that you deposed, I guess,
you're going to address Mr. Maha -- who else?
Palanee who replaced M.r. Wyer.
MR. DE CLUE:
ARBITRATOR ARAGAKI:
MR. DE CLUE:
Uh-huh.
The four individuals listed on
our request to have a hearing on comparative coworkers.
And they don't make up the whole list of coworkers, I
was just trying to narrow it down what we thought would
be the most important and rapid fire.
more.
But there are
There are two or three percipient witnesses
that are related to Mr. Wyer that were in the apartment
when Mr. Wyer had any of these conversations there with
his supervisor.
(Reporter clarification.)
MR. DE CLUE:
Where Mr. Wyer had conversations
with his supervisors, with his coworkers.
percipient witnesses that heard these conversations.
The praise that he was given for the project, negative
(audio distortion).
There are
There are people that were terminated before
Mr. Wyer that have some insight into their termination
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February 23,
and the similarities between their termination and
F~
Mr. Wyer's termination.
ARBITRATOR ARAGAKI:
Got it.
Okay.
So, you
know, I think we can cross that bridge when we get to
it.
is, you know, sometimes less is more.
I guess, the thought that I would leave.you with
So if you think about that, I think if we also
have, you know, to kind of use up the timethat you've
been given.
You were given a whole lot of time, I need
you to fill that out.
If you are given a shorter period of time,
sometimes it just focuses the presentation and you can
get pretty much the same out, but in a more targeted
fashion.
So I think that a lot of these concerns we can
deal with once I decide the threshold issue about the
depositions and number of days.
about that.
to the hearing, at which point, many of these issues can
also be resolved.
li
I'm not too concerned
But we will have a final conference prior
So let me take these issues under
I hope to get back to you no later than
consideration.
tomorrow about that.
confer and other efforts to try and wrap up the
discovery as soon as possible given that we are now into
And good luck with your meet and
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February 23,
March, almost, next week.
I do hope that we are on track for the hearing
To the extent you see any obstacles or
as scheduled.
issues, let me know and let's see if we can all
troubleshoot and try to get things back on track.
MS. ARDUENGO:
MR. DE CLUE:
Thank you.
Very well.
Thank you,
Arbitrator Aragaki.
ARBITRATOR ARAGAKI:
Take care.
All right.
Thank you.
Thank you for your time.
(Arbitration adjourned at 4:50 p.m.)
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February 23,
HEARING REPORTER'S CERTIFICATE
I, EILEEN ELDRIDGE, HEARING REPORTER, IN
AND FOR THE STATE OF CALIFORNIA, DO HEREBY
CERTIFY:
THAT THE FOREGOING TRANSCRIPT OF
PROCEEDINGS WERE LATER TRANSCRIBED BY
COMPUTER-AIDED TRANSCRIPTION UNDER MY DIRECTION
AND SUPERVISION; THAT THE FOREGOING IS A TRUE
RECORD OF THE TESTIMONY AND PROCEEDINGS TAKEN AT
THAT TIME.
I FURTHER CERTIFY THAT I AM IN NO WAY
INTERESTED IN THE OUTCOME OF SAID ACTION.
I HAVE HEREUNTO SUBSCRIBED MY NAME THIS
9TH DAY OF MARCH 2022.
EILEEN ELDRIDGE
HEARING REPORTER
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February 23, [& - arduengo]
--&
& 3:1 1:6 2:1,000 7:1,000,000 19:1-8 34:10 30:1001 3:12 29:5 30:21 35:35:1220067183 1:2:15 9:18th 34:
31:5,24 32:5,32:15,18,24 33:4:50 37:30:33:10,13,15,ahead 17:2128:34:4,6,11,14,28:5107614 1:25 2:34:20,23 35:1,aided 38:36:3 37:8,alleged 6:14,800 1:22 2:aragald's 18:13:7,arbitrate 26:allegedly 13:1:12:arbitration
allotted
30:90017-2415 3:9:6,13,19,amenable 255,90071-2953 3:11:19,22 22:9,] 30:1133:9th 38:29:3,17,21 32:amount 7:a
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7:2 7:accommodating
12:13,22 14:1,anticipate 31:20 1:6 2:6:15:9,16 16:9,apartment 35:2018 9:25 13:3,accommodations
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38:23:1,22:5,10,appear
15:38:additional 10:23:8,10,17,31:213 3:5,11:8,22 12:1,24:19 25:13,april 32:23 1:15 2:14 4:15:24 20:20,22,24 aragaki 4:5,7,26:6,19,22 27:236-0600 3:21:3 25:28:1,5,15,18,4:25 5:5,9,19,2400 3:address. 14:28:23 29:22 30:8:5 9:14 10:8,24th 33:28:13 34:13 35:30:25 31:5,11:7,12 12:13,27621 38:addressed 5:32:5,14,15,18,14:1,10 15:9,2883376 1:adequate 27:33:6,10,13,15,16:9,16,17:2:adequately 26:34:4,6,11,14,17:14,17,22,2nd - .14:14,adjourned 37:34:20,23 35:1,18:12 20:9 21:agenda 5:36:3 37:8,21:12,14 22:5,30 19:agree 15:10 27:22:19 23:1,4,8,10 arduengo 3:9•4:382-2222 3:agreed 12:16,5:2,2 9:16,17,23:17,24 24:15:19 18:6 24:10:9,10,16 11:25:13,14 26:6,25:7 30:5,18,14:13 16:10,21;26:22 27:8 28:1,401 19:33:17:10,14,20,21 .
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agreement 30:
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21:19 22:6,7,22:22 23:2,8,23:18 24:1,4 25:25:11,23 26:16,26:23 31:12 32:32:14,16,19,33:7,11,14,20,34:5 37:arduengo's 27:arrangement
30:asked 14:25 27:30:21 32:asking 9:1017:22:17 25:asperger's 6:19:4,9,12 21:34:assistance 5:24:assuming 33:assurances 13:atkinson 1:22 2:attempted 24:31:attempts 15:attention 27:audio 4:6,20 13:18:25 21:14 29:34:18 35:available 14:i average 9:1 19:avoid 29:avoiding 18:aware 9:b
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Atkinson-Baker, A Veritext Company
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.14:16,18,19 15:
17:2 22:2 31:32:claimants 31:claims 6:3,clarification 8:19:1 35:clarify 32:clear 9:7 12:17:clearly 15:client 7:17,18,8:13 12:22 13:13:13 19:3,14,27:19 29:11 31:client's 13:19 15:clients 26:closely 8:closer 27:clue 4:6,11,19 5:5:22 8:12,12:21 14:9 15:16:9,19 17:21,18:21 19:2 21:23:21 27:16 28:28:14,17,19,30:20 31:3 34:34:16,22,25 35:35:8,19 37:collateral 4:23 5:5:come 12:9,19:comes 13:23 33:coming 31:7 32:commencing 2:comments 17:committed 26:commonly 18:communicate
21:Page •
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February 23, [company - direct]
company 1:
21:comparative 8:
cooperative 11:corner 31:corporation 1:
dates 14:24 15:
22:15,16 23:27:david 1:2 2:2 3:
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10:23,24,24 12:19:difficulty 14:33:direct 6:17 10:7,17:Page
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February 23, [direction - four]
~direction 38:directly 33:disability 9:disagree 11:disclosed 8:disclosing 16:discoverable 17:discovered 12:discovery 11:10,11:15 12:15,13:6 15:17 16:
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files 16:
fill 36:
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26:18 27:1,4,pmks 7:11,23:20 25:24 29:29:point 5:5,23 7:11:4,16 12:20:23 21:6 22:24:8,10 26:3,26:20 27:5 28:30:8 31:5 34:36:points 28:20 32:policies 6:position 10:19,19:24 22:possible 26:27:6,23 34:36:possibly 19:25:potentially 28:praise 35:pre 9:22,prehearing 29:premature 5:26:17 27:prep 27:prepare 14:prepared 23:preparing 24:27:present 32:presentation 36:presented 27:1,pressure 6:25 19:pretty 36:prevented 14:printed 7:prior 36:privacy 16:17:
probably 9:14:21 24:problem 14:problems 30:procedures 6:proceedings 38:38:process 12:3 24:24:25 29:produce 12:16:10,23 24:produced 14:16:24,producing 16:17:16 25:product 9:project 19:35:properly 24:propose 34:proposed 18:24:provide 10:provided 23:providing 18:public 1:24 2:2:24 27:20 28:pulled 19:pursuant 11:26:pushing 28:put 5:9 11:10 20:28:quality 4:9 8:quarter 7:24 9:questioned 17:questions 7:27:quickly 18:
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Page Atkinson-Baker, A Veritext Company
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CASE REFEREÑCE NO.DAVID WYER
Clafmant,
and
i TC., CIiRISTOP.HER ROLLINS, and CARSON
TESLA, INC. dba TESLA MOTORS;
SCHAFER
Responclents.
•ORDER.NO. 2 RE: DEPOSITIONS A1VD LENGTH OF HEARING
A telephonic hearing was conducted iti tliis matter on Febivary ?3, .2022, 'to discuss
Glaim_ant's request to take further depositions and Respandent's tequest'to shorten the nuinber of
hearing days. Having considered the parties' argunient:s during the heaiing, the Arbitrator
ORDERS as follows:
De9ositions
The Parties executed a Joint Discovery P1an and agreed to a linut of 5 depositions each,
with the proviso that eitlier party may seek leave to take furthei depositions but only upon a
showing of good cause. The JAMS l;.mplaymerit Arbitration Rules pr.ovide one deposition as of
right to each party. (See Ritle 17.) The number of any remain~ 'depositions to be taken is
subject to the sound disci:etion of the.Arbitrator.
The Arbitrator sees no good cause for increasing the nuinber of.depositions at this late
stage. To the extent Claimant seeks the deposition of a'PMK and there is no one individual who
can addtess all topics, however, Claimant. ay depose mofe than one PMK so long as all 'of those
depositions can be completed: (1) within the time period:allo,tted for one :deposition and (2) all in
one sittttirig.
HearinQ .lenath
During, the AMC, the Arbitrator re..served 10 days of hearing time but suggested that days was probably inore than necessary. He agreed to allow the Parties to revisit tttis issue after
the contouis of the case became clearer.. Respondents now renew their request to sliorten the
heanng to 4-5 days. Claimant cont,ends that this case is more coinplex than the ordinary sirigle
plaintiff discriinination case and requires 10 days of hearing time. .
Page 1of 2Page 124 .The Arbitrator sees no reason why this •case. cannot be,tried in .5 days. The Parties are
urged tb be selective:about the witnesse's they present, to introduce evidence through oral
testimon:y when there is no other tnore effective mearis of doing. so, and to stipulate as niucli as
possible to uncontested facts:
.
The Parties may stipulate to five (5) hearing days during the period Apri125-IVIay 6; and inform the Case Manager oftheir selectioii by .1Vlarcli Z, 2022: If the.y, are. unable to so
stipulate, the hearing sha11 ccur May 2-6,'2022.
Dated: February 24,
Eira N. Aragaki
Arbitrator
Page2of2Page 125 tiectronicany ruea oy aupenor our[ or '.aurornia, i.ounry or urange, u u i~lcuð.s i i:oo:uu rnn.
1118759-CU-OE-WJC - ROA # 102 - DAVID H. YAMASAKI, Clerk of the Court By M. Johnson, Deputy
30-
Kaveh S. Elihu, Esq. (SBN 268249)
kelihu@EJLG1aw.com
Christopher J. DeClue, Esq. (SBN 282807)
cdec1ueä,EJLG1aw.com
EMPLOYEE JUSTICE LEGAL GROUP, PC
1001 Wilshire Boulevard,
Los Angeles, California Telephone: (213) 382-Facsimile: (213) 382-
Attorneys for Claimant,
DAVID WYER
SUPERIOR COURT OF THE STATE OF CALIFORNIA,
FOR THE COUNTY OF ORANGE, CENTRAL JUSTICE CENTER
;
VID WYER, an individual,
Case No.: 30-2019-01118759-CU-OE-CJC
■!
Claimant,
vs.
~LA, INC. WHICH WILL DO
SINESS IN CALIFORNIA AS TESLA
ITORS, INC., a Delaware corporation;
RISTOPHER ROLLINS, an individual;
RSON SCHAFER, an individual; and
ES 1 through 20, inclusive,
Respondents
Assigned to the Hon. Richard Lee in Dept.
W1S
MEMORANDUM OF POII\TTS AND
AUTHORITIES IN SUPPORT PF
PLAINTIFF'S MOTION TO VACATE
ARBITRATOR'S AWARD AND TO
RETURN THE CASE TO THE CIVIL
ACTIVE LIST; DECLARATION OF
CHRISTOPHER J. DECLUE AND
COMPENDEUM OF EVIDENCE IN
SUPPORT THEREOF
(Filed concurrently with [Proposed] Order)
Date: April 20, Time: 1:30 P.M.
Dept: W
Reservation:
TO THIS HONORABLE COURT AND ALL PARTIES AND THEIR ATTORNEYS
RECORD:
PLEASE TAKE NOTICE that on March 23, 2022 at 1:30 p.m., or as soon thereafter as the
ter may be heard, before the Honorable Richard Lee, in Department W15 of this Court, at MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT (
MOTION TO VACATE ARBITRATOR'S AWARDPage 126
Civic Center Drive West, Santa Ana, CA 92701, Plaintiff David Wyer will move the Court for an
order vacating the Arbitrator's Award.
This motion is based on Code of Civil Procedure sections 1285, and 1286.2(4)- (5),
the following Memorandum of Points and Authorities, Declaration of Christopher J. DeClue,
Exhibits, and such other evidence as may be presented at the hearing on the motion.
DATED: January 12,
EMPLOYEE JUSTICE LEGAL GROUP, PC
.
By
Kaveh S. Elihu, Esq.
Christopher J. DeClue, Esq.
Attorneys for Plaintiff
DAVID WYER
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT (
MOTION TO VACATE ARBITRATOR'S AWARDPage 127 MEMORANDUM OF POINTS AND AUTHORITIES
INTRODUCTION
California Code of Civil Procedure § 1286.2(5) provides this Court with the authority to
the arbitrator's award and issue an order that this case be reheard in arbitration. The
refused to hear evidence that was material to Plaintiff Wyer's case. The Arbitrator
to allow Plaintiff Wyer to obtain evidence that was essential to the case. Despite the fact
the evidence supporting Plaintiff Wyer's case was clearly available, the Arbitrator forced
lJ
Wyer to present his case in a vacuum. There were countless, important questions and
that were left unasked and unanswered because the Arbitrator refused to allow Plaintiff
aiscovery that was requested. After Plaintiff requested additional discovery based on newly
discovered information, the Arbitrator denied the request and, sua sponte, reduced Plaintiffs
evidentiary hearing from ten days to five and limited Plaintiff to only 15 hours of total examination.
The Arbitrator refused to allow Plaintiff Wyer to depose the individual who replaced
lainta; ff Wyer the day after Plaintiff was terminated as a result of an alleged "reduction in force."
A reduction in force means that a position is eliminated. If Plaintiff Wyer was truly terminated
subject to a reduction in force, then Defendant would not have replaced him the next day.
However, the Arbitrator opined that there was not good cause to depose the individual who replaced
Plaintiff after his termination, despite the fact that Plaintiff . requested this additional deposition
immediately after learning about Plaintiff's replacement.
-
The Arbitrator refused to allow Plaintiff Wyer the opportunity to depose the individual that
was nearly twenty-five years younger than Mr. Wyer who replaced Plaintiff Wyer the day after
22 Plaintiff Wyer was terminated. The arbitrator refused to allow Plaintiff Wyer the opportunity to
obtain discovery regarding the younger, non-disabled, and healthier software engineers, that were
not subject to the reduction in force
The arbitrator shortened the evidentiary hearing from ten days to five days, sua sponte, over
Plaintiff's objections, even though it was clear that Plaintiff needed the originally scheduled ten
days to present the evidence in support of Plaintiff's case. The Arbitrator did not allow Plaintiff to
take additional, necessary depositions. The Arbitrator's rationale was that Plaintiff could call the
~I OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF'S
MOTION TO VACATE ARBJTRATOR'S AWARD
Nr
,Page 128
witnesses that Plaintiff wanted •to depose to testify at the evidentiary hearing, even if the
examinations were more like depositions, i.e, took longer to complete than an exaxnination.
However, the Arbitrator, thereafter, and sua sponte, reduced the arbitration from ten days to five
days and limited Plaintiff to fifteen hours of examination, including cross examination of
Defendants witnesses. There was no way for Plaintiff Wyer to meet Defendants' alleged defenses
and sift through the new information acquired for the first time during the evidentiary hearing with
the time limitations that the arbitrator placed on this case. The arbitrator's discovery limitations and
time limitations on the evidentiary hearing significantly prejudiced Plaintiff at the outset. The
reduced-time, five-day evidentiary hearing resulted in undeniable evidentiary and procedural
linutations that were highly prejudicial to Plaintiff Wyer.
This Court should vacate the Arbitrator's award because Plaintiff was not allowed to take
depositions that were absolutely necessary to PlaintifPs case. The arbitrator also reduced Plaintiffs
evidentiary hearing which significantly prejudiced Plaintiffs ability to present his case and the
necessary evidence to support his case. The Arbitrator's award was an abuse of discretion and
substantially prejudiced Plaintiff's rights and should be vacated.
U.
.
STATEMENTS OF FACTS
Around January 18, 2019 Plaintiff David Wyer was wrongfully terminated from his
employment with Tesla, Inc. The termination was based on Plaintiff s age (early 62), disability
(autism spectrum disorder), and medical conditions (high blood pressure and hypertensive
episodes). The termination was unlawfully in retaliation against Plaintiff because he requested
accommodations for his disabilities and medical conditions and reported that his supervisor,
Defendant Rollins was harassing him (whistle blowing)
On December 17, 2019, Plaintiff timely filed a complaint for damages against Defendants
Tesla, Inc, Christopher Rollins, and Carson Schafer, in the Superior Court of the State of Califomia,
County of Orange, alleging claims of discrimination, retaliation, harassment, failure to provide
reasonable accommodations, failure to engage in a good faith interactive process under the
California Fair Employment and Housing Act (FEHA) pursuant to Government Code Sections
12900 et seq. and wrongful termination in violation of public policy.
-
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF'S
MOTION TO VACATE ARBITRATOR'S AWARDPage 129
On March 27, 2020, Defendant Tesla filed its motion to compel arbitration and stay
litigation pending Arbitration. Defendants presented two, separate arbitration agreements to the
Court in support of their Motion to Compel Arbitration. One of the arbitration agreements was an
agreement between Plaintiff and his prior employer. (CEO, Exhs. 1& 2) On October 1, 2020,
Plaintiff opposed Defendant's motion to compel arbitration and stay litigation pending Arbitration.
Dn October 15, 2020, the court ordered the matter to binding arbitration pursuant to the arbitration
agreements. The Court never specified which arbitration agreement govemed the arbitration. At
the arbitration, the arbitrator never made a fmding as to which arbitration agreement governed the
On February 25, 2021, Arbitrator Hiro Aragaki, Esq. was appointed as the Arbitrator for this
ter. On April 28, 2021, a preliminary hearing was conducted and a scheduling order was issued
ring Arbitration over ten days between April 25, 2022 and May 6, 2022.
On June 2, 2021, the parties submitted a discovery plan in which the parties agreed to limit
depositions to five (5) each side and the agreement that either party may seek leave to take
her depositions upon showing of good cause. (COE, Exh. 3) The Joint Discovery Plan made it
clear that Plaintiff intended to call at least 8 witnesses at that early stage of the litigation.
By February 2022, it became abundantly clear that Plaintiff needed to take additional
~sitions that were necessary to support Plaintiff s claims. Through discovery, Plaintiff leamed
an individual twenty years younger than Plaintiff was hired to replace Plaintiff the day after
ntiff was fired. Telsa argued that Plaintiff was fired because there was a reduction in force,
which meant that Plaintiff's position was eliminated. However, Plaintiff's position could not have
been eliminated if someone began working for Telsa, perfornung Plaintiffls job duties the day after
Plaintiff was ten:ninated. It became clear that Plaintiff needed to depose the individual who
24 'replaced Plaintiff the day after Plaintiff was terminated. Moreover, it became clear that Plaintiff
needed to depose other co-workers in Plaintiffs group who were suddenly ranked higher than
Plaintiff after Plaintiff reported his disability and medical conditions, requested reasonable
accommodations, reported harassment in the workplace, and requested medical attention through
Tesla's workers' compensation medical provider network.
MEMORANDUM OF POINTS AND AUTHORIT'IES IN SUPPORT OF PLAINTIFF'S
MOTION TO VACATE ARBITRATOR'S AWARD .Page 130 On February 16 2022, Plaintiff requested an expedited conference with the Parties and the
A
tor to request that the Arbitrator allow Plaintiff to take additional depositions. Plaintiff
d a detailed brief setting forth the additional depositions requested and the reasons why they
were necessary for Plaintiff's case. (COE, Exh. 4)
On February 23, 2022, a telephonic hearing was conducted to discuss Plaintiff's request to
take further depositions.
A court reporter was present for the conference.
(COE, Exh. 5)
after referred to as "RT"). At the hearing, the Arbitrator represented the following:
1. In response to Plaintiff s request for additional depositions, the Arbitrator said
.
fl
"sometimes less is more." (RT 36:3-6).
2. The Arbitrator endorsed shortening the evidentiary hearings to force the parties to target
the issues to be decided. (RT, 36:11-14)
fl
3. The Arbitrator recognized that Plaintiff intended to call at least 12 witnesses, despite the
fact that he later reduced the evidentiary hearing from ten days to five days, which
resulted in Plaintiffs inability to call at least six witnesses that Plaintiff intended to call
because PlaintifP's "time" had run out. (RT, 35:1-5).
4. The Arbitrator recognized that Plaintiff would need to call witnesses for the first time at
the evidentiary hearing, despite the not knowing if their testimony was helpful or,
relevant. (RT:35:1-36:5.) Thereafter, the Arbitrator reduced the evidentiary hearing from
ten days to five days, making it prejudicial for Plaintiffto call the witnesses that Plaintiff,
sought to depose but was not permitted to. Knowing what these witnesses would say
would have targeted any questions during examination at the evidentiary hearing.
5. The Arbitrator's position that pre-trial depositions are not necessary was clearly
The Arbitrator stated, as he also stated during several case management
prejudicial.
conference, "we're the only country in the world that does prehearing depositions,
everyone else responds to the witness for the first time at a trial." (RT 29:3-30:2)
Having considered the parties' arguments during the hearing, the Arbitrator ordered that
was not good cause for increasing the number of depositions. Moreover, the Arbitrator
:d the evidentiary hearing be shortened from ten days to five days. (COE, Exh. 6)
d OF POINTS AND AUTHORITIES lAT SUPPORT OF
MOTION TO VACATE ARBITRATOR'S AWARD
ThePage 131 ■ rl
Arbitrator said at the February 23, 2022 hearing that "less is more" and he made is clear that he
would prefer to give the parties less time for the evidentiary hearing so that the parties "targeted"
their examinations. (See RT, 36:3-14)
Plaintiff was significantly prejudiced by the Arbitrator's refusal to allow additional,
necessary discovery and order reducing Plaintiffs evidentiary hearing from ten days to five days.,
Not only was Plaintiff deprived of the ability to obtain necessary discovery, but Plaintiff was also
deprived of the time needed to present his case to the arbitrator.
Plaintiff now timely files this Motion to Vacate the Arbitrator's Ruling pursuant to
California Code of Civil Procedure § 1286.2, subsections 4 and 5. The Court should vacate the
award and order a rehearing in arbitration or, in the alternative, order that this care be heard before
11 I the Superior Court.
;
12 III. ARGUMENT
.
This Court has Authority to Vacate the Arbitrator's Award
A.
This Court has authority to vacate the arbitrator's award. Pursuant to Code of Civil
Procedure § 1285, "[a]ny party to an arbitration in which an award has been made may petition the
court to confirm, correct or vacate the award." Furthermore, pursuant to Code of Cival Procedure §
1286.2 the court shall vacate the award if the court determines either of the following:
;
The rights of the party were substantially prejudiced by the refusal
of the arbitrators to postpone the hearing upon sufficient cause
being shown therefor or by the refusal of the arbitrators to hear
evidence material to the controversy or by other conduct of the
arbitrators contrary to the provisions of this title.
of Civil Procedure § 1286(5) (emphasis added).
Here, the Arbitrator's award must be vacated pursuant to § 1286.2 (5). The arbitrator denied
iff the ability to conduct reasonable discovery. The Arbitrator reduced Plaintiff s evidentiary
tg to further deny Plaintiff the ability to conduct reasonable discovery during the hearing.
B.
The Arbitrator Abused His Discretion When He Refused Plaintiff's Request to
Conduct Necessary Discovery.
MEMORANDUM OF POINTS AND AUTHORITiES IN SUPPORT (
MOTION TO VACATE ARBITRATOR'S AWARDPage 132
Defendants presented two arbitration agreements before the Court and the Arbitrator. The ~
Arbitrator appeared to rely on the Tesla Arbitration Agreement. Plaintiff maintains that there was ~
decision as to which arbitration agreement govemed this arbitration, either by the Court or the ~
Arbitrator. Notwithstanding, the Tesla was used by the arbitrator and relied on by Defendant in
their motion to confirm the award. The arbitration agreement that Defendants rely on states that
"the arbitrator shall have the authority to compel adequate discovery for resolve of the dispute."
(COE, Exh. 2, pg. 3). Plaintiff begged for adequate discovery. The arbitrator denied Plaintiffs
request. Plaintiff told the arbitrator that the discovery would have to develop during the evidentiary
hearing. The arbitrator reduced the hearing from ten days to five days to prevent Plaintiff from
obtaining important discovery to meet the defenses that Defendants raised in this case. This was
unfair and prejudicial.
To find substantial prejudice, the court must first accept the arbitrator's theory and conclude
the arbitrator niight well have made a different award had the evidence been allowed." Malek
14, t'Iedia Group LLC v. AXQG Corp. (2020) 58 Ca1.App.5th 817, review denied, (Mar. 30, 2021).
Agreeing to arbitrate a claim is not a waiver of rights afforded by law. It is merely an
agreement that such rights be determined by an arbitrator, instead of a judicial forum. See
t'fitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc. (1985) 473 US 614, 628, 105 S.Ct. 3346,
3355. The Arbitrator initially limited the Parties to five depositions per side, despite the fact that
Plaintiff asked for more depositions at the outset of arbitration and later when more information
was uncovered. (See COE, Exhs., 3& 4). After initial discovery and initial depositions of the two
individual defendants and a relevant co-worker, Plaintiff learned of additional, individual witnesses
that were necessary.
Defendant refused to produce additional witnesses and started an unprofessional and strategic game
of "gotcha." (COE, Exh. 4.)
Plaintiff met and conferred with Defendants to resolve the issue, but
By February 2022, it became abundantly clear that Plaintiff needed to take additional
depositions that were necessary to support Plaintiffs claims. Through discovery, Plaintiff learned
that an individual twenty years younger than Plaintiff was hired to replace Plaintiff the day after
Plaintiff was fired. Telsa argued that Plaintiff was fired because there was a reduction in force,
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF'S
MOTION TO VACATE ARBITRATOR'S AWARDPage 133
which meant that Plaintiff s position was eliminated. However, Plaintiff's position could not have
been eliminated if someone began working for Telsa, performing Plaintiff's job duties the day after
Plaintiff was terminated. It became clear that Plaintiff needed to depose the individual who
Plaintiff the day after Plaintiff was terminated. Moreover, it became clear that Plaintiff
to depose other co-workers in Plaintiff's group who were suddenly ranked higher than
after Plaintiff reported his disability and medical conditions, requested reasonable
dations, reported harassment in the workplace, and requested medical attention through
.'s workers' compensation medical provider network.
On February 23, 2022, a telephonic hearing was conducted to discuss Plaintiffs request to,
further depositions. ' A court reporter was present for the conference.
(COE, Exh. 5),
,after referred to as "RT"). At the hearing, the Arbitrator represented the following:
6. In response to Plaintiff's request for additional depositions, the Arbitrator said
"sometimes less is more." (RT 36:3-6).
7. The Arbitrator endorsed shortening the evidentiary hearings to force the parties to target
the issues to be decided. (RT, 36:11-14)
8. The Arbitrator recognized that Plaintiff intended to call at least 12 witnesses, despite the
fact that he later reduced the evidentiary hearing from ten days to five days, which
resulted in Plaintiffs inability to call at least six witnesses that Plaintiff intended to call
because Plaintiff's "time" had run out. (RT, 35:1-5).
9. The Arbitrator recognized that Plaintiff would need to call witnesses for the first time at
the evidentiary hearing, despite the not knowing if their testimony was helpful or
relevant. (RT:35:1-36:5.) Thereafter, the Arbitrator reduced the evidentiary hearing from
ten days to five days, making it prejudicial for Plaintiff to call the witnesses that Plaintifl
sought to depose but was not pennitted to. Knowing what these witnesses would say
would have targetcd any questions during examination at the evidentiary hearing.
10. The Arbitrator's position that pre-trial depositions are not necessary was clearly
prejudicial.
The Arbitrator stated, as he also stated during several case management
4 OF POINTS AND AUTHORITIES TN SUPPORT OF PLAINTIFF'S
MOTTON TO VACATE ARBITRATOR'S AWARDPage 134
conference, "we're the only country in the world that does prehearing depositions,
everyone else responds to the witness for the first time at a trial." (RT 29:3-30:2)
Having considered the parties' arguments during the hcaring, the Arbitrator ordered that
there was not good cause for increasing the number of depositions. Moreover, the Arbitrator
ordered the evidentiary hearing be shortened from ten days to five days. (COE, Exh. 6)
Arbitrator said at the February 23, 2022 hearing that "less is more" and he made is clear that he
would prefer to give the parties less time for the evidentiary hearing so that the parties "targeted"
their examinations. (See RT, 36:3-14)
The
Plaintiff was significantly prejudiced by the Arbitrator's refusal to allow additional,
~sary discovery and the Arbitrator's order reducing Plaintiff's evidentiary hearing from ten
to five days. Not only was Plaintiff deprived of the ability to obtain necessary discovery, but
tiff was also deprived of the time needed to present his case to the arbitrator.
C.
The Arbitrator Abused His Discretion When He Reduced Plaintiff's
Evidentiary Hearing from 10 Days to 5 Days, Despite Plaintiff's Need and
Reauest for 10 Daws to Comoensate for the Arbitrator's Refusal to Allow
Additional Discoverv.
The Arbitrator prejudiced Plaintiff be denying Plaintiff the opportunity for necessary
,scovery and sufficient time to present his case at the evidentiary hearing. The Arbitrator reduced
~aintiff's evidentiary hearing from 10 days to 5 days, despite knowing that there were various
■u
itnesses that Plaintiff would need to call for the first time at the hearing because the arbitrator
fused to allow Plaintiff to depose those witnesses. The Arbitrator told Plaintiff that "less is more"
hen Plaintiff represented that he would need to spend more time examining the witnesses that he
23 •
unable to depose. (RT, 36:6).
When considering prejudice, the question before this Court is whether the arbitrator
ented Plaintiff from fairly presenting her case and prejudiced her rights as a result. Royal
«ce Associates, Inc. v. Liebhaber (2016) 2 Cal.App.5th 1092. To find prejudice, the court must
accept the arbitrator's theory and conclude the arbitrator might well have made a different
d OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF'S
MOTION TO VACATE ARBITRATOR'S AWARDPage 135 1 l laward had the evidence been allowed." Malek Media Group LLC v. AXQG Corp. (2020)
Ca1.App.5th 817, review denied, (Mar. 30, 2021).
In this case, the arbitrator initially set the evidentiary hearing in this case for a 10-days.
Plaintiff always made it clear that this case required dozens of witnesses, including experts, which
is why a 10-day evidentiary hearing was set. However, two months before the evidentiary hearing,
the Arbitrator, sua sponte, reduced the evidentiaixhearing from 10 days to 5 days. The Arbitrator
later limited Plaintiff to a mere 15 hours of examination. Plaintiff needed the originally scheduled
10-da.ys because the Arbitrator would not permit Plaintiff to take necessary depositions and would
to examine witnesses for the very first time during arbitration.
D.
There is No Clarity as to Which of the TWO Arbitration Agreements
Governing the Arbitration or the Arbitration Award.
At no point did this Court or the Arbitrator decide which arbitration agreement governed the
13.
ration. Indeed, the arbitrator asked the parties one month before issuing the award which of the
arbitration agreements governed.
led and reserved his objection that the arbitration agreement issue was never resolved. This was
ly prejudicial to Plaintiff and made the whole process arbitrary and nomadic. Nonetheless, the
trator still issued an award. Which arbitration agreement the arbitrator relied on is still unclear.
Court must vacate the award because the award is not based on any governing arbitration ~
Plaintiff made it clear that the issue was not agreed to or '
.
CONCLUSION
Based on the arguments above, Plaintiffs respectfully request that the Arbitrator's award be
;d because Plaintiff was not allowed to take depositions that were absolutely necessary to
iff°s case. The arbitrator also reduced Plaintiff's evidentiary hearing which significantly
liced Plaintiff s ability to present his case and the necessary evidence to support his case. The
ator's award was an abuse of discretion and substantially prejudiced Plaintiif's rights and
should be vacated.
MEIVIORANDUM OF POINTS AND AUTH0RITIES IN SUPPORT OF PLAINTIFF'S
MOTiOn' TO VACATE ARBITRATOR'S AWARDPage 136
DATED: January 12,
EMPLOYEE JUSTICE LEGAL GROUP, PC
•
•
B
c~
Y
. Elihu, Esq.
K
Christopher J. DeClue, Esq.
Attorneys for Plaintiff
DAVID WYER
.
F
.
28 '
MEMORANDUM OF POI\rTS AND AliTHORTTIES IN SUPPORT OF PLAINTiF'F'S
MOTION TO VACATE ARBITRATOR'S AWARDPage 137 n
PROOF OF SERVICE
STATE OF CALIFORNIA, COUNTY OF LOS ANGELES
I am employed in the County of Los Angeles, State of California. I am over the age of not a party to the within action. My business address is 1001 Wilshire Boulevard, Los Angeles,
fornia 90017.
January 12, 2023, I served the foregoing document described as MEMORANDUM OF
INTS AND AUTHORITIES IN SUPPORT PF PLAINTIFF'S MOTION TO VACATE
BITRATOR'S AWARD AND TO RETURN TIiE CASE TO THE CIVIL ACTIVE LIST;
CLARATION OF CHRISTOPHER J. DECLUE AND COMPEl\'DEUM OF EVIDENCE
SUPPORT THEREOF
on the interested parties in this action as follows:
®
By placing true copies enclosed in a sealed envelope addressed to each addressee as
follows:
Cheryl Johnson-Hartwell, Esq.
BURKE, WILLIAMS & SORENSEN, LLP
444 South Flower Street, Suite Los Angeles, CA _ cjohnson-harttivell(a bwslaw.com
Attorney for Defendants
14.
®
BY E-MAIL: I transmitted a copy of the foregoing document(s) via e-mail' to the
individual(s) indicated above. I did not receive, within a reasonable time after transmission, any
electronic message or other indication that the transmission was unsuccessful. The e-mail address
the person who served the document(s) is: ggomez(äejlglaw.com
Executed on January 12, 2023, at Los Angeles, California.
STATE
I declare under penalty of perjury under the laws of the State of
California that the foregoing is true and correct.
❑
FEDERAL I declare that I am employed in the office of a member of the bar of
this Court at whose direction the service was made.
IUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF
MOTION TO VACATE ARBITRATOR'S AWARD
.
.
PDF Page 1
PlainSite Cover Page
PDF Page 2
Court of Appeal, Fourth Appellate District, Division Three
Brandon L. Henson, Clerk/Executive Officer
Electronically FILED on 1/18/2024 by Lilian De La Torre, Deputy Clerk
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
Plaintiff and Appellant,
G062810
(Super. Ct. No. 30-2019-01118759)
v.
TESLA, INC., et al.,
ORDER
Defendants and
Pursuant to Califomia Rules of Court, rule 8.155(a)(1)(A), the court intends
to augment the record on appeal on its own motion to include the following documents,
all of which were filed in the Orange County Superior Court, case No. 30-201901118759, on January 12, 2023, and are attached hereto: (1) Petition to Vacate
Contractual Arbitration Award; (2) Declaration of Christopher J. DeClue in Support of
Plaintiff David Wyer's Motion to Vacate Arbitrator's Award and to Retum the Case to
the Civil Active List; and (3) Memorandum of Points and Authorities in Support of
Plaintiff s Motion to Vacate Arbitrator's Award and to Retum the Case to the Civil
Active List. Any party may file opposition to this proposed action no later than 10, days
from the date of this order.
O'Leary, P.J.
O'LEARY, P. J.
PDF Page 3
tfecironfcaoy rnea Dy Oupenor l.oufl' or aHrornia, l.ounry or urange, u i) i c/cucJ f I Ao:uu rlvf.
30-2019-01118759-CU-OE-WJC - ROA # 103 - DAVID H. YAMASAKI, Clerk of the Court By M. Johnson, DeputyjIc,
j06
O
O
I~ave~i SPElihuH(~2T6~249~;lCChnstop~erJ'~eCue, (282807)
EMPLOYEE JUSTICE LEGAL GROUP, PC
1001 Wilshire Boulevard
~ACOUR7USEONLY
A
I'°s A
~~PHONi< OA(~Q~~82-2222 FAXPoO.~t;a„el): (213 382-223U
TTL
E-MAIL ADDRESS (optianal): kelihu@EJ'Glaw.com;
cdeclue@EJLG1aw.col$
AT7ORNEV FOR (Name)): Davtd Wyer
~
SUPERI0R C0URT 0F CALIF0RNtA C0UNTY 0F ORANGE
sTREEr ADDREss: 700 W Civic tenter Dr
fdAILINGADDRESS: 700 W Civic Center Dr
CInr ANDZIP CODE: Santa Ana, 92701
sRANCH NAME: CENTRAL JUSTICE CENTER
PETITI0NER: DAVI) WYER
RESP0NDENT: TESLA, INC. ET. AL
PETITION TO
EJ CONFIRM
EJ CORRECT [ZJ VACATE
CONTRACTUAL ARBITRATION AWARD
Jurisdiction (check a/l that apply):
-
EJ Action is a limited civil case
Amount demanded 0
does not exceed $10,000
exceeds $10,000, but does not exceed $25,000
0
m
Action is an unlimited civil case (exceeds $25,000)
Hearing Date: April 20, 2023
1:30 pm
Time:
W15
Dept.:
CASE NUMBER:
30-2019-01118759-CU-OE-CJC
NOTICE: You may use this form to request that the court confirm, correct, or vacate an award in an arbitration conducted
pursuant to an agreement between the parties that is subject to Code of Civi! Procedure section 1285 et seq. and that does
riat !nvra!ve an attorney-client fee dispute. !f you are requesting court action after an attorney-c!iont foo arbitration award,
please read Alternative Dispute Resolution form ADR-105, Information Regarding Rlghts After Attorney-Client Fee
Arbftration.
1. Petitioner and respondent. Petitioner (name each):
Petitioner - David Wyer
Respondent - Tesla, Inc, Christopher Rollins, Carson Schafer
alleges and requests relief against respondent (name each):
Please see attachment 1
2. Contractual arbitration. This petition requests the court to confirm, correct, orvacate an award in an arbitration conducted
according to an agreement between the parties that is subject to Code of Civil Procedure section 1285 et seq.
3. Pending or new action.
a. ®
b. Q
A court case is already pending, and this is a petition filed in that action. (tf so, proceed to item 4.)
This petition commences a new action. (!f so, complete items 3b(i) through 3b(4).)
(1) Petitioner's capacity. Each petitioner named in item 1 is an individual,
0
except petitioner (state name and complete one or more of the following):
(a) 0
is a corporation qualified to do business in Cafifornia.
(b) C]
(c) C]
(d) lJ
is an unincorporated entity (specffy):
is a representative (specify):
is (specify other capacity):
(2) Respondent's capacity. Each respondent named in item 1 is an individual,
EJ except respondent (state name and complete one ormore of the following):
(a) E]
is a business organization, form unknown.
(b) CJ
(c) 0
(d) []
(e) Q
is a corporation.
is an unincorporated entity (specify):
is a representative (specify):
is (specify other capacity):
Page
rorm Approved fot Optlonal Use
Judidal Cauncil of Ca~fomio
ADR-106[NewJenuery1.20oaJ
PETITION TO CONFIRM, C0RRECT, OR VACATE
CONTRACTUAL ARBITRATION AWARD
(Alternative Dispute Resolution)
Code
1 ot 3
of CiWI Procedure, Q 1285 ct seq.
PDF Page 4
PETITIONER: DAVID WYER
CASE NUMBER:
RESPONDENT: TESLA, INC. ET. AL
3. b.
30-2019-01118759-CU-OE-CJC
(3) Amount or property In dispute. This petition involves a dispute over (check and complete alt that apply):
the foilowing amount of money (specify amount): $
(a) EJ
(b) 0
property (if the dispute lnvolves property, complete both of the following):
(i) consisting of (identi(y property in dispute):
(11) having a value of (specify va!ue of property in dispute): $
(4) EZJ Venue. This court is the proper court because (check (a) or (b)):
(a)
this is the court in the county in which the arbitration was held.
(b) 0
the arbitration was not heid exclusively in any county of California, or was held outside of California,
and (check one or more of the following):
(i) EJ this is the court in the county where the agreement was made.
(ii) EJ this is the court in the county where the agreement is to be performed.
(iii)Q
the agreement does not specify a county where it is to be performed and was not made in any
county in California, and the following party resides or has a place of business in this county
(name of party):
(iv) Q
the agreement does not specify a county where it is to be performed and was not made in any
county in Caiifornia, and no party to this action resides or has a place of business in California.
4. Agreement to arbitrate.
a. Date. Petitioner and respondent entered into a written agreement on or about (date): 8/20/2015, 6/2/2017
b.
Attachment. A copy of the agreement is submitted as Attachment 4(b) and incorporated herein by this reference.
of the agreement provides for arbitration of disputes arising out of the
c. Arbitration provision. Paragraph
agreement as follows (either copy the arbitration provision fn full or summarize the provision):
Plaintiff disputes that the arbitration agreement is valid and enforceable. It is ambiguous which
arbitration agreement controlled the Arbitration.
5. Dispute subject to arbitration. A dispute arose between petitioner and respondent concerning the following matter covered by the
agreement to arbitrate (summarize the dispute):
Petitioner claims that Respondents discriminated, harassed, retaliated and failed to prevent discrimination
and relation. Petitioner further claims that he was wrongfully terminated as a result of his Disabilities,
medical conditions, and/or age, and in retaliation for seeking accommodations and whistle blowing.
6. Arbitrator. The following person was duly selected or appointed as arbitrator (name ot each arbitrator):
Hiro Aragaki
7. Arbitration hearing. The arbitration hearing was conducted as follows (complete both of the following):
a. Date (each date of arbitration): April 29, 2022, May 2-5, 2022
b. Location (city and state where arbitration was conducted):
Arbitration was conducted remotely in Los Angeles, Califomia.
8. Arbitration award.
a. Date of award. The arbltration award was made on (date): October 4, 2022
b. Terms of award. The arbitration award (check one or more of the following):
(1) 0
respondent
requires
0
petitioner
0
to pay the other party this amount: $
(2) ®
requires neither party to pay the other anything.
(3) 0
is different as to different petitioners and respondents.
(4) LJ provides (specify other terms or check item 8(c) and attach a copy of the award):
c.
Attachment of Award. A copy of the award is submitted as Attachment 8(c).
9. Service of award.
a. The signed award or an accompanying document indicates that the award was served on petitioner on (date): Oct 4, 2022
b. EJ Petitioner alleges that a signed copy of the award was actually served on (date):
AOR- 1as inrowre~~aro ~, 2oaa~
PETITION TO CONFIRM, CORRECT, OR VACATE
P9®e 2 °f 3
CONTRACTUAL ARBITRATION AWARD
(Alternative Dispute Resolution)
PDF Page 5
CASE NUMBER:
PETITIONER: DAVID WYER
l
RESPONDENT: TESLA, INC. ET. AL
30-2019-01118759-CU-OE-CJC
10. Petitioner requests that the court (check all that apply):
a.EJ Confirm the award, and enter judgment according to it.
b.J Correct the award and enter judgment according to the corrected award, as follows:
(1) The award should be corrected because (check all that apply):
(a) EJ
(b) Q
the amount of the award was not caicuiatod Carrectiy, or a person; thing, or property was not described
correctly.
the arbitrator exceeded his or her authority.
(c) 0
the award is imperfect as a matter of form.
(2) The facts supporting the grounds for correcting the award alieged in item 10b(1) are as follows (if additional space
is required, check here 0
and submit facts on an attachment labeled 10b(2)):
(3) The award should be corrected as follows (if additional space is required, check here 0
and describe
requested correctlon on an attachment labeled 10b(3)):
c. ®
Vacate (cancei) the award.
(1) The award should be vacated because (check all that apply):
(a) 0
the award was obtained by corruption, fraud, or other unfair means.
(b) 0
an arbitrator was corrupt.
(c) ®
the misconduct of a neutral arbitrator substantially prejudiced petitioner's rights.
(d) LJ the arbitrator exceeded his or her authority, and the award cannot be fairly corrected.
(e) EJ the arbitrator unfairly refused to postpone the hearing or to hear evidence useful to settle the dispute.
(r) EJ an arbitratoi iaiied to disclose witturl the tiu•ie fui disciosure a ground for disquaiific.ation of which the
arbitrator was then aware.
(g)
J an arbitrator should have disqualified himself or herself after petitioner made a demand to do so.
(2) The facts supporting the rounds for vacating the award alleged in item 10c(1) are as follows (if additional space is
and submit facts on an attachment !abeled 10c(2)):
required, check here ~
(3) Petitioner 0
does
LZI does not
d.0 Award petitioner interest from (date):
request a new arbitration hearing.
(1)0
at the statutory rate.
(2)EJ at rate of
% per year.
e.0 Award petitioner costs of suit:
(1)EJ in the amount of: $
(2)0
according to proof.
f. EJ Award petitioner attorney fees Incurred in this action (check only if attomey fees arc rccovcrab/e in this action
according (o statute or the parties'agreement):
(1)EJ in the amount of: $
(2)EJ according to proof.
9•
J Award petitioner thc following other relief (describc reliof roqucetod; if additional space is required, check here []
and describe relief on an attachment labeled 10a):
(1) Vacate Arbitration Award; (2) Lift Staying Pending Arbitration; (3) Set this case for Trial
before the Orange County Superior Court. In the alternative,Plaintiff that the Court to Order this
ease be reheard in arbitration after Plaintiff is perrnitted additional discovery.
11. Pages
Date: January 12, 2023
Christopher J. DeClue, Esq.
(TYPE OR PRINT NAME)
ADR-106 (New Jenuary 1, 2004)
(SIGN
- o PETITIONER OR ATTORNEY)
PETITION TO CONFIRM, CORRECT, OR VACATE
CONTRACTUAL ARBITRATION AWARD
(Alternative Dispute Resolution)
Page3of3
PDF Page 6
1
PROOF OF SERVICE
2
3
4
5
6
STATE OF CALIFORNIA, COUNTY OF LOS ANGELES
I am employed in the County of Los Angeles, State of California. I am over the age of 18 and
not a party to the within action. My business address is 1001 Wilshire Boulevard, Los Angeles,
California 90017.
On January 12, 2023, I served the foregoing document described as PETITION TO VACATE
CONTRACTUAL ARBITRATION AWARD on the interested parties in this action as follows:
7
By placing true copies enclosed in a sealed envelope addressed to each addressee as
follows:
8
9
10 I
11
,
Cheryl Johnson-Hartwell, Esq.
BURKE, WILLIAMS & SORENSEN, LLP
444 South Flower Street, Suite 2400
Los Angeles, CA 90071
cJ'ohnson-harlwell(bwslaw.com
Attorney for Defendants
12
14.
®
BY E-MAIL: I transmitted a copy of the foregoing document(s) via e-mail to the individual(s)
indicated above. I did not receive, within a reasonable time after transmission, any electronic message
or other indication that the transmission was unsuccessful. The e-mail address of the person who served
the document(s) is: ggomez@eilglaw.com
15
Executed on. January 12, 2023, at Los Angeles, Califomia.
13
16
STATE
I declare under penalty of perjury under the laws of the State of California
that the foregoing is true and correct.
17
18
❑
19
20
21
22
23
24
25
26
27
28
Gladis Gomez
FEDERAL I declare that I am employed in the office of a member of the bar of this
Court at whose direction the service was made.
PDF Page 7
CASE NUMBER
PETITIONER/PLAINTIFF
David Wyer,
RESPONDENT/DEFENDANT TESLA, INC. ET. AL,
30-2019-01118759-CU-OE-CJC
Attachment 1:
1.DISCRIMINATION IN VIOLATION OF GOV'T CODE §§12940 ET SEQ.;
2. HARASSMENT IN VIOLATION OF GOV'T CODE §§12940 ET SEQ.;
3.RETALIATION IN VIOLATION OF GOV'T CODE §§12940 ET SEQ.;
4. FAILURE TO PREVENT DISCRIMINATION, HARASSMENT AND RETALIATION IN VIOLATION OF GOV'T
CODE §12940(k);
5.FAILURE TO PROVIDE REASONABLE ACCOMMODATIONS IN VIOLATION OF GOV'T CODE §§12940 ET
SEQ.;
6.FAILURE TO ENGAGE IN A GOOD FAITH INTERACTIVE PROCESS IN VIOLATION OF GOV'T CODE §§12940
ET SEQ.;
7.FOR DECLARATORY JUDGMENT;
8.WRONGFUL TERMINATION IN VIOLATION OF PUBLIC POLICY;
9.NEGLIGENT SUPERVISION AND RETENTION;
10.I.NTENTIONAL INFLICTION OF EMOTIONAL DISTRESS;
11.RETALIATION IN VIOLATION OFLABOR CODES §§ 1102.5 & 1102.6;
12.FAILURE TO PAY WAGES (CAL. LABOR CODE §§201, 1182.12, 1194, 1194.2);
13.FAILURE TO INDEMNIFY (CAL. LABOR CODE §2802);
14.FAILURE TO PROVIDE ITEMIZED WAGE STATEMENTS (CAL. LABOR CODE §§226 ET SEQ.); WAITING
TIME PENALTIES (CAL. LABOR CODE §§201-203); AND
15.UNFAIR COMPETITION (CAL. BUS. & PROF. CODE §17200 ET SEQ.)
PDF Page 8
ATTACHMENT 4(b)
PDF Page 9
OocuSign Envefope Id:800AN2FE-124e-4841•9868-4085CCCBOSF9
SolarCity
August 19, 2015
To: David Wyer
Dear David:
'
I am personally and professionally pleased to confirm an offer of employrnent for you to join
SolarCity Corporatiott (the "Company") as an AutoCAD Software Engineer subject to
suc,cessful completion of a backgrourld check and drug te"st as applicab[e. Iri this position you
will be reporting to Travis Rrier. Your employment start date with SolarCity willbe 9/8/2015
and you will be working at,our San Francisco location. The fo.11owing information will outline
your compengation, benefits and responsibifities as a.itew member of the SolarCity team.
Position & Responsibilities: As an AutoCAD Software Engineer .you wil.l render full-time
services to the Company, and you will use your best efforts, skill, and abilities to promote the
Company's in"terests: NVe enoourage you to participate .in the developinent of all aspects of
SolarCity, fostering a spirit of teamwork, pr.ofessi:ona4lism, high eneTgy, and fun.
Comnensation and Benefits: You will receive a sa[ary of •DSD $95;00040/Yr. which will b.e
paid in accordance withthe Company's. nornmal payroll procedures and subject to customary
deductions and withholdings as required by law. As a salari.ed exempt employee, you are not
eligible for overtime pcay. As an employee, you •will also be eligible to reaeive certain employee
benefits including Paid Time Off, prorated per our policies;. specifieally, vacation will accrue at a
two (2) week rate during your fitst year of employment. Beginning your second year of
employment, vacation will begin to aecrue at a.three (3) week rate. Sick leave is available in
accordance with •applieaable law and SolarCity policy. The details of our benefits p[ans sha11 be
provided to you upon your start date or earlier if you wisb. Metlical, dental and vision benefits
begin the first of the montb foilowing 30 days of employment. You should note that the
Company may modify job titles, salaties and benefits from time to time, as it deems necessary:
Restricted Stock Units: Ifjrou decide to join the Coinpany, it w.iJl be recommended at a meeting
'of the Company's Board of Directo.r.s or ,the appropriate coinmittee at a tirpe following your
employment start date, that the Company gratit you •an avirsrd of (~200) restricted stock units .(the
"RSU Award"). The proposed RSU Award, shall be giarited under and subject to the terms and
conditions of the Company's 2012 Fquity incentive Plan {the "Plan"), as inay be ainended from
tirne to tiine; as well as the terms. and conditions of the applieable ILSU Award agreement
(which, among other thiaigs, piovides for the• maridatory sale of shares to cover tax withi►olding
PDF Page 10
OocuSign Enyelope iD: e0oAA2FE-124$-4641-8866-4o6bcCCBo9Fg
obligations), which will be provided to you as soon as practicable after the grant date and which
you will be required to sign or accept in aecordance with the Company's acceptance procedures.
Twenty f ve percent (25°10) of the shares subject to the 1tSU Award shali vest twelve (12) months
after the gratit date, subject to your continued employnient with the Compan.y, and no shares
shall vest befcresuch date. The remaining shares subject to the RSU Award shall vest in equal
quarterly inorements over the next tfiree years, subject to your continued employment with the
Company. However, the Company may iinpose a different vesting schedule for the RSU Award
as required or "recommended to comply with local law, as determined by the Company in its sole
discretion. The exact vesting schedule will be provided to you ih your RSU Award agreement.
The RSU Award is subject to approval by the Board of Directors (or the appropriate committee).
The Coinpany is excited about your joining and looks forward to a beneficial and productive
relationship. Nevertheless, you should be awarethat your employment with the Companyis for
no specified period and constitutes atwill employment, As a result, you are free to resign at any
time, for any reason or for no reason. Similarly, the Company.is fr'ee to terminate its
employment relationship with you at any time, with or without cause, and with orwithout
notice. We request that, in the event of resignation, you give the Company at teast two weelcs
notice.
As a condition ofemployment, eandidates are subject to pre-employment screening for
background an'd reference checks. Candidates. for safety sensitive positions are also subject to
pre-employment drug screening and random drug screening during the course of your
employment at SolarC'ity. SolarCity reserves the right to periodieally conduct baekground
checks throughout any employee's tenure in 'aoeordance with the Fair Credit Reporting Act and
applicable state and local laws. Youi employment, therefore, is contingent upon a clearance of
such a.background "investigation, reference check and/or drug screen; as applicable. Ifthe
Company receives. negative results on your background. check, reference check or drng fest after
your einployrirent begins which would preelude you from-employment at SolarCity, you will be
subject to termination in accordance with applicable law.
For purposes of federal immigration law, you will be requ9red to provide to the Company
documentary evidence of your identity and eligibility for einployment in the United States. Such
docurrientation must be provided to us within three (3) business days.of j►our date of hire, or our
employment relationship with you may be terminated.
We also:ask that, ifyou have not already done so, you disclose to'the Company any and all
agreements relating to your prior employment that may affect yoUr eligibility to be employed by
the Com.pany or iimit the manner in which you may be employ.ed. It .is the Company's
understanding that any such agrEements will not prevent you from performing the duties ofyour
position.and you represent that such .is the case. Mor.e'over, you agree that, during the term of
your •employment with the Company, you will not engage •in any other employment, occupation,
consulting or other business activity directi.y related to the business in which'the Company is
now irivolved or becomes involved during the term of your employment, nor will you engage in
any other activities that conflict with your obligationsto the Company. Sim'iiarlyi you agree not
to bring any third party confidential information to the Corimpany, including that of your former
PDF Page 11
DoeuSipn Envelope 1D:60oAA2FE1249.4641-9868-4D95CCCBo9F9
employer, and that in performing your duties for the Company you will not in any way utilize
any such information.
As a Company employee, you will be expected to abide by the Company's rules and
standards. Specitically, you will be required to sign an acknowledgment that you have read and
that you understand the Companys policy covering Business Conduct and Ethics, which are
included in the Company Handbock and you may request, in writing; a copy of the policy prior
to signing this offer letter.
As a condition of your empl.oyrnent,.you will also be required to siga and comply with an AtWill Employrnent, Confidential Ynformat.ion, Invention Assignment, and Arbitration Agreement,
which requires, among other provisions, the assignment of patent rights to any invention made
duriiig your employment at the Company, and non-diselosure of proprietaá3► information. in the
event of any dispute or claim relating to or arising out of our eolployment relationship, you arid
the Conipany agree to aa atbitfation in which Ça) you are waiving any and _all rigbts to ajury triai
but all court remedies will tie available in arbitration, (ii) we agree that .all disputes between you
and tlie Company shall be fully.and finally.resolved by .binding arbitration, (iii) all disputós shall
be resolved by aneutrai arbitrator who shall issue a written opinion, (iv) the•arbitration shall
providefor adequate discovery,and (v) the Company will pay for any administfat'rve or hearing
fees charged by the arbitrator except that you shall pay any filing fees assooiated with any
arbitration that you initiate, but only so much of the filing fees as you would have instead paid
had you filed a complaint in a court of law.
This letter, along with any agreements reliting to proprietary rights between you and the
Company, set forth the terms of your employment with the Company and supersede any prior
representations or agreements including, but not limited to, any reprssentations made during your
recruitment, interviews or pre-employment negotiations, whether written or oral. This letter,
including, but not limited to, its at-will employn►ent provision, inay not be rnodified or amended
exciept by a written. agreeinent signed by the Chief Executive Officer ofthe Company and you.
Please note this offer of employment will expire• if it is not accepted, signed and returned by
8/2X/2o15.
We look forward to. a happy, supportive and mutually beneficial relationship with you. We hope
•that.you will grow and prosperwith us, and that you are as excited aboutjoining SolarCity as we
are at having the opportunity to work with you. We look forward to your favorable reply.
Sincerely,
.i
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PDF Page 12
CoauSlgn Envetop® !D; 600AA2FE-1849-4841-98SB.4DS5CCC8C3F9
,
Richard Garcia
Agreed to and accepted:
Legai First Name:
oavid
Legal Last Name:
Wyer
o«osra~•e sx
SIgnature:
Email:
Date: •
p""i1 Wç"
dwgraphics(4mai1bag .can
B/2o%2oi5
Please check box to confirm start date: 9/8/2015
x
*If this is incorrec't, please enter an aiternate Monday start date:
PDF Page 13
-
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:
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ta
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Wlay 30; 2017
Irvine. CA 02818
Dear Qavid:
We are plaased to le.t.you know thet as part of your ttansfer from SolarCity Corpotation to Teala, Inc,
("Tesla" ot the "Company") e0eclive.June 19. 2017, you witt be employed In the eaempt, satarted posiWon
af Sot3ware Englneer with Tesla, Inc (nTesla" or tha "Company') on the terms set forlh below: As a
Solittivare Engineer, you wili perform the dulles custoniarify assocteted wtth this posfhbn. You wlll report
to Miice lticinski. Your duties,. nesponaibititiea, job tflle. and work tocsttlon may be cha.nged at any time
by Testa
Your annualbed salery w:il be 585,000,00 per year, subject to abandard payroll deductlons and
wllhholdings.As an exernpt employee. you Wl11 not be eitttited to overtlme. You wlll be ellgiblefor
vecatlon and stck leave according to Tesla's stendar0 policy. Suhject to the ruies of the applicable plan
documents, you will also be eligÍbie tc recetve other benefits Tesia may provide to ks efnployees id=A•,
heakh and dental insurance.coverege} beginning on your date of hire. Testa may oonsider you for
bonuses; alOto,ugh the.amount of such tionuses, if any, and the orfteria. for deUarmining the award of such
bonuses, if any, sh®ll be inthe sote discrctlon of Tests. Of cburse, Tesie reserves the right to modtfy
ydur compensation and benefits from tinse to time, as lt deems necessary.
Tesia.atfeis o eompetitive benetits paelcage. Mone detailed ieformat9on about the benefk plans and
instnuations on how to enrotl wltt be prowided duting your onboardtng prooess.
SolarCityEquity Awards: Equily ewards pfeviously granted to you by SolarCtb► have elready been
exehanged Into Tesla equity awards, and witl not be atfeeted by your•tnanšf.er fram SolarCity to Testa.
While you remaln employed by'resla, you wlll çontinue to veat pursuant to the tam,s and conditions of
the stodc plans and agreaments that gbvem your awards.
401K Program: You will be eitglbte to padicipate In Tesle's 401K progrem. The Tesla 401K program is
administened by Fidelity Investments and you will reeeive enro!lntent (natructlons durfng your bnboarding
process.
SolarCity 401K Plan Account Trensfer: If you cumently have a retMement account batance In the
Sclart,ity 401k plan. youia000unt will be transterred on a tax-free, basis to the Testa 401k plan. You wUl
receive informeUon regarding the transfer in the aoming weeks. The transfer is scheduled to ocxur April
2017. In the meantime, should you have any questions, ptease contact Ftdel'dyr at 800-835-50i1'7.
PTO P.rogram; Under Tesla's PTO poticy, negular fu.it time empioyees and part-ttme ernployees who
PDF Page 14
regulars)r wodC at teast 20 hours per week are eligbte for PTO Unmediately and accrue PTO at 1.25 days
(10 hours) per month for a total of 16 days (120 hours) per calenderyear. You may maintain a PTO
balance of up to 240 hours. PTO rnay be used for vacstion or paid sick leave, as provtded under Tes18"s
PTO poliay, and ooneistent wfth applicable law.
Vaeatton TransferAcknowtedgment: By.algNrg tfiris employee tn9neferagreement, you agree to
transfer your vested, unused vecatlon hours from Solart;6y to Tesla, and oonvert them to PTO houta
underTesta!s pollcy..
If your tranaferned SolarClty vacation is less then 240 hours. you will also be rxedited with PTO For your
SotarClty vested, unused stck leave hours, up to the 240 hour PTO oap under Testa's poftcy.
These PTO hours will be avallable for you, to vse knmedlately, eonststent vxi3th Tesla policy.
Servtce Date: As a transferring employee, your Service Date with Teeta wlll be September 08, 2015.
Din:ct Deposit Authotisatlon: If, os of the dab M thts letter, you elected to be pald via Direct Deposit
at SoltirC#y, Tesla will conttnue to pay you via Direct Deposh urdess you adjust your Tes1e paynnent
eteotlons. By sign ing this employee transfer agn3emsnt, you auttiortze SolarC(ty to share your cumenf
Direct Daposlt informetlon, ft applicable, with Tesl®. You ako authorize Tesle to pay you dlrectly to your
acoount itestgnated•in your.SolerCity Direct Deposit Informatfon.
The Company, is excited about your joining and looks feiward to e benefictel•and fruitfuI relationship.
Neverthelass, you ahoufd tie eware that your emptoyment wi6h the Cornpany is for rio speciRed period
end constitutes al-dalil, emplq(rnent As a nasutt; you are iree to ree1gn at any time, for any reason or for
no n:ason, wNt or without notice. .Similarfy, the Company Is free to condude tN emptoyment relationship
vrith you at any tlrne, wfth orwithout aause, and with or wltteout nollee.
We ask that, If you have not already done so, you dtsclose to Testa atty end all agreements nslating to
your pdcr employment that niay apect your ellghilllty to be employad by Tesla,or iirntt the rnanner in
whic.h you majr be emptoyed. It Is Tesla's understanding that any such agneements wN not prevent you
fnni+ pertarrning the duties of your positio:t and you ,represent that such Is. the case; VWe warit to
emphasize that we do not wish you to brin8 eny confidentlal or propri®tary mate:iets of any forrner
employar aahich would violate any obltgatlons you may have to your farmer empfoyer. You agrea not to
rnake any unauthodzed disdosure to Tesle or use on behalf of Teste any contldentfal lnfonnatbn
belonging ,to ar►y of your forrner employers (exoept (n accordanee wBh agreements between Tea(e and
any such former employer). You also werrant that you do not possess any property oontalning a third
party'e conRdential and proprietary information. Of cours®, durtn8 your empbyment wItN Tesla, you may
make u8e of information generally known end used by persofts wfth trelning and axperente comparabte
to your owh, arnd informallon whtch ls comrnon knowledge In the industryor is othelw Ise legally avaDable
in the publtc domain. Moreover, you agnae that, during itie terin of your employment with t>te Campany,
you viiill not engage in any. other employment, ocoupallon. consulGng or other business adWity directty
retaEed to. the busiriess In which Tesia is now lnvolved or becomes lnvolved during fhe term of your
employment, nor wlll you engage !n any other actMtl~es that confllat with your obligattons to Tesla.
Asa Testa emptoyee, you vrItI be expected toeblde by all Testa policies and procedures, end, as a
condltìon of your employrrlent, you wiA,siBn and cornply with Tasla's staridani snmtidentlalily a,gn®ement
which prohibits unauthorized use or dlsctosure of Tes1a conitdentlal Infomation or t#:e eonftdential
Infotmation of Testa's clients.
PDF Page 15
In addition, to ansuns the rapht and economicet resoiutbn of disputes thst may arise In oonneotion wilh
your emptoyment wfth Tesla, you and Tesla agree that any and eil disputes; ciaims, or causes of sction,
in law or equily, arising from or retating to your employment, or the letrntna8on of your employment, will
be resotved, to the fullest extent parmltted by iaw by finat; blndlng and confidenti!ai arbltration tn your cdy
and state of etnployment coriducted by the Judtcial Arbitratlon and Mediation SenRoes/Endispute, Ina
("JAMSy, or Its succ:essors, under the then cnarrent rules of JAMS for employmerit disputes; provided that
'
•
•
•
,
.
•
Any claim, dispute, or cause of.edion must be brought in a party's indtviduai capadly, end not as a
plaintdf or claee member in any purported clgss or representative pnooeading; and
The eibitrator shail have the authorlty to compel adequste disoovery for the iasolution of the dispute
and to award such rellef as wou!d olherwlse be pa+mitted by law; and
The arbitrator'aha8 not have the aulhorlty to oonsoGdate the claims ot other empkayees and sha11 not
have the suthority to fashion.a proceeding as a dass or cotleetiv® adlon or to award reilst to a group
or class of emptoyeee in one atbhration prooeeding; and
The arbitrabi shaiJ lssue a writtaearbitreDion decision Includ'ing Ihe arbitretors essenilal fihdings end
conclusians and e, statement of the aHrerd; and
Both you and 7estp shaA be entitied to all rights and remedies that you or Tesla would be entttled to
pureue in a court of law; and
Teslashall pay ali fees In axcess of those whiafi would be requhed if the dlspute was dedded In a
court of law
Nothing in this eniptoyee trensfer.agreentent is tntended to pravent either you or Tesia frwn obtaining
injuncllve relief in couA to prevent ir.reparable harm pending the conclusion of any such arbltration.
Nolwshstandlrg the foregoing, you and Tesfa earfi hava the right to .resolve any l6sue or dispute arising
under the Proprtetary Infornieifon and Jnventions Agreemant by Cou¢ action instead of arbitratlon:
Arbitrable dairne do not Include, and this employee transfer agreement does not appiy to or othenvise
restrict, adminlatrative olaims you rnay bring before any goverriment agency where, as niatter of taw,
the parties may not restiict your atiility tofiie such elaims (incfuding dtsaiminatlon and/or retaliation
delrns tiled with the tsqual i*mployment Opportunlly Commission and unfali labor practice charges"61ed
wlth the Netibnai Labor Retations t3oard). Otheiwise, it Is agreed that arbltraUon sliaU be the exclusive
remedy for admlrtlstrative dalmms.
a
'
•
You acknowtedge and agree that: (t).in the eourse of.your employ,ment by the Ccnpany, it will be
•
•
necessary for you to ereate; use, or have access to (A) technicet, buslnasa, orcustomer informatton,
matsriais, or.deta relating to'the Conipany's present or planned buslne"ss that has not'been released to
the public with the Company's authorization, inciuding, but not limited io, confidentiei'information,
materiafs, or proprieta ry
. data betonging to the Comparqt or relattng to the Cornpany's aiiairs (coilectivvety,
"Confidential infomiatton') and (B) informetion and meteriels that Gronoem the t:ompany's business that
come. into the Companys possesslon by reasorr of employment with the Company (coltectivety..
"Business Retated information"); (ii) all Confidential Infonnadon and tauauteas Related information are
the ptopatty of the .Company; (ili) the use, rnieaptu+qpriation, or disctosure of any Confldentiai Informadon
or 8usiness Related information v►ioutd oonstitute a breach of trust and could.cause'settous and
1meparabie Injury to tfie Company; and (ih it is essential to the pnotection of the Company's goodwili and
malntenance of the Campariy's.compebNve. posWon that all Confldetiflal Infonnabon and Business
Related Ihfonnatian be kept•conRdential and that you do not dieclose any Confldentlal lntorriiotton or
Business Refated Inforntatean to others or use Confidential Information or 8ustness Related Infoffnation
to your own adveritage or the advantage of od+ers.
1n recognitton of the adcnovvledgmQnt above, you agree that untll the Confidenual Information andfor
Business Related Infontiatbn be.aomes publidy ava.ilatrle (otiier ihan lihrough a breacii by you), you shell•
(i) hold and safaguard a0 Contidential Infonnation and8usiness Related Inforrriation in tru'st for the
Company; (i) not appropriate or disclose or make available to anyone for use orilside ot the Cornpany's
PDF Page 16
organlxadon at any bme any Confldendai informallon and Buslness Related Infarmation, whether or not
developed by you; (1i) keep iri stricfest oonikiarue any Confl4eMtal infom►atfon or 8usiness Reiated
Infor+rmUon; ({v) not disclose or dhrulge, or allow to be disctosed or divulged by any person within your
controt to any pen3on, ftrm, or oorporation, or use dlnsctly or indirectly, for your own benefit ot the benefit
of othere, eny Contidential Ihformation or Business Retated iMormatPon; and (v) upon the tennfnatlon of
your employment, retum all Confidenttal tnfonnation and Business Records and not make or reteln any
coples or exaets theneof.
Thls employee tn3nsfer agn3ement conetltutas the complete, Bnal end exclusive embodiment of the eMire
agreement between you and 7edla wHh nssped to the tenns and conditlons of your employment, and it
suparsedes any other a8resments or promises matle to you by anyone, whether oral or written. This
employee transfer agreement cennot be changed, amended, or modified exoept in e wdtten agreament
etgrted by an ofQcer of TEsfe. This employee transfer agneement shall be.consirued and lnterpreted tn
acoordenoe wlth the.laws of ihe State of CaliforNe.
As requin3d by Mrntgration law, this offer of employment is cond'itioned upon satisfactory pmof of your
right to wotk in the United States.
We look fonnard to a produgtive and enJoyable work relatlonship.
VerI► ttuiY ycuns,
Qon Musk
Chalrmari of the.Board and CEO
8ign Here:
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Jun 2, 2017
a.rrwv•r:~n .
PDF Page 17
ATTACHMENT $(c)
PDF Page 18
JAMS ARBITRATION
CASE REFERENCE NO. 1220067183
DAVID Wl'ER
Clafmant,
and
TESLA, INC. dba TESLA MOTORS, INC., CHRISTOPHER ROLLINS, and
CARSON SCHAFER
Respondents.
FINAL AWARD
Counsel:
Rhett Francisco, Esq.
Christopher DeClue; Esq.
Kaveh S. Elihu, Esq.
Ennployee Justice Legal Group,
LLP
3055 Wilshire Blvd, .Suite 1120
Los Angeles, CA 90010
Phone: 213-382-2222
rfrancisco~EJLGIaw.com
cdeclue(iiEJLG1aw.coni
kelihu(2?EJLGIaw.com
Cheryi L. Johnson-Hartwell, Esq.
Susan V. Arduengo, Esq.
Burke, Williams & Sorensen LLP
444 S. Flower St., Suite 2400
Los Angeles, CA 90071
Phone: 213236-0600
gjohnson-hartwell~bwslaw:com
sarduenaobwslaw.com
Coernsel. for Respondent
Corsf7sel for Clai.nrarlt
Arbitrator:
Hiro N. Aragaki, C.Arb, Esq.
JAMS
555 West 5fh Street; 32nd Floor
Los Angeles, CA 90013
Te1: (213) 620-1133
E-mail: HAraeaki~)r,jamsadr.coni
Place. of Arbiti=.ationa Los Angeles, California; il:S:A.
PDF Page 19
Date of Final Award: October 4, 2022
Having been designated in accordance with the arbitration clause is contained in
the Tesla Employee Transfer Agreement between Claunant and Respondent Tesla, Inc.
dated May 30, 2017, and having examined the submissions, proofs and allegations of the
Parties, I, THE IJNDERSIGNED ARBITRATOR, now find, conclude and issue ttus
Final Award as follows:
I.
Introduction and Procedural Statement
Claimant is an individual and was, at all times relevant hereto, an employee of
Respondent Tesla, Inc.
.
Respondent Tesla, Inc. (hereinafter "Tesla") is a Delaware corporation with its
principal place of business in the State of California. It is an automotive and energy
company that specializes in electric car manufacturing, and, through its SolarCity
subsidiary, solar panel manufactiuing.
Respondent Christopher Rollins is an individual and was, at all times relevant
hereto, a supervisor or managerial employee of Respondent Tesla, Inc.
Respondent Carson Schafer is an individual and was, at all times relevant hereto,
a non-managerial employee of Respondent Tesla, Inc.
On May 30, 2017, Claimant and Tesla entered into an Employee Transfer
Agreement (the "Agreement'), pursuant to which Claimant's employment was
transferred from SolarCity Corporation to Tesla. (See Exh. 48.) The Agreement sets
forth the terms of Claimant's employment with Tesla.
The arbitration was ordered on or about October 15, 2020, by the Orange County
Superior Court in Case No. 30-2019- 01118759-CU-OE-CJC, as to all Parties and
pursuant to theAgreement. Claimant filed a Demand for Arbitration with JAMS dated
November 17, 2020. The claims are arbitrable. (See Amended Order No. 1 dated March
4, 2022.) Respondent responded to the Demand on December 1, 2020.
The Arbitrator was selected as the sole arbitrator pursuant to the arbitration clause
contained in the Agreement. A preliminary hearing was held on April 28, 2021, at which
time the Parties agreed that the applicable substantive law is the law of the State of
California and that the JAMS Employinent Arbitration Rules & Procedures, as modified
by the JAMS Policy on Employment Arbitration Minimum Standards of Procedural
Fainiess would apply. (See Amended Order No. 1.) The Arbitrator issued a Report of
Preliminary Hearing and Scheduling Order No. 1 on May 3, 2021.
Pursuant to Order No. 1, the Parties were to stipulate to whether the arbitration
clause contained in the Agreement, or in the SolarCity At-Will Employment,
Confidential Information, Invention Assignment, and Arbitration Agreement dated
August 20, 2015 (the "SolarCity Agreement"), governs this proceeding. (See Exh. 47.)
No stipulation was forthcoming. The Arbitrator convened a post-Hearing telephonic
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conference to follow up on this issue, during which Claimant clarified that he could not
so stipulate because he continued to maintain that both the Agreement and the SolarCity
Agreement were contracts of adhesion. Claimant's objection notwithstanding, the
Arbitrator concludes that the arbitration clause contained in the Agreement governs.
The Arbitrator subsequently issued Order No. 2 re: Depositions and Length of
Hearing, dated February 24, 2022. Order No. 1 was thereafter amended on March 4,
2022, to reflect the new hearing length ordered by the Arbiti-ator. (See Amended Order
No. 1.) On April 18, 2022, the Arbitrator issued Order No. 3 re: Hearing and
Presentation of Evidence. No further Orders were issued.
A Final Status Conference was conducted on April 14, 2022. Respondents filed
their pre-hearing arbitration brief on April 22; Claiinant filed lus brief on April 28.
The Hearing took place over five days via Zooni, on April 29 and May 2-5, 2022,
and was reported by Lisa Moskowitz. Each side called witnesses and cross-examined
opposing witnesses, as follows: Mahadevan Virudhagiri, Tesla Senior Director for
Software Engineering; Travis Wilson, Tesla Senior Product Manager; Carson Schafer,
Respondent and former Tesla Software Engineer, Chris Rollins, Respondent and Senior
Manager of Software Engineering; Dr. Pauline Sacks, Claimant's Non-Retained Expert;
Allison Arebalo, Tes1a Senior Manager of General/Adnwustrative and Human
Resources; Dayana Hijaz, Tesla Senior Software Engineer; Dr. Jacqueline Nolan,
Claiivant's Retained Expert; Claimant; Dr. Roman Garagulagian, Claimant's Economic
Expert; and Dr. James Rosenberg, Respondents' Psychiatric Expert. Dr. Nolan and Dr.
Garagulagian also submitted declarations in lieu of direct examination during the
Hearing.
During the first day of the Hearing, the Parties stipulated to dismiss Respondent
Schafer. (RT at 300.)
The following Exhibits were introduced during the Hearing: 1, 7, 15, 19, 21, 28,
31, 33, 32, 38, 40, 48-49, 52-58, 61, 64-69, 73, 75, 76, 78, 108, 111, 118, 121, 124, 125,
126, 128, 130, 135, 137, 138, 139, 140, 142, 147, 148, 149, 151, 152, 154, 156, 159, 163,
166, 169, 201, 202, 203, 204, 206-226, 228, 230, 231, 232-236, 238, 239, 240, 241, 242,
244, 246-255, 259, 260, 262, 263, 264, and 265. All objections to the admissibility of
these Exhibits have been noted by the Arbitrator but are overruled. (See Joint Exhibit
List.)
The Parties submitted sunultaneous post-hearing arbitration briefs on August 1,
2022. Respondent and Claimant submitted reply briefs on August 12. and 13,
respectively.
An Interim Award was issued on September 19, 2022 after the Parties agreed to a
one week extension. In the Inferim Award, the Parties were ordered as follows:
By. September 26, 2022, the Parties shall e-mail the Case Manager,
informing him of (1) whether there are any remaining matters they wish to
submit to the Arbitrator before a Final Award is issued; (2) what those
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issues are (if any); and (3) whether they would like to bring to the
Arbitrator's attention any minor errors in, or suggested changes to, the
Interim Award that do not affect the outcome. If there are no further
issues, the Interim Award will be converted into a Final Award. If further
issues have been identified by the stated deadline, the Parties shall, by
October 3, 2022, either (1) meet and confer and stipulate to a procedure
for raising or briefing such issues or (2) schedule a conference with the
Arbitrator to discuss the same.
Claimant requested an extension until October 3. No conununication was received from
either Party by the close of business on October 3.
II.
Facts
The factual findings that follow are necessary to the Award. They are derived
from the briefs, affidavits, and exhibits presented to the Arbitrator. To the extent that
these findings differ from any Party's position, that is the result of determinations by the
Arbitrator as to credibility and relevance, burden of proof considerations, legal principles,
•
and the weighing of the evidence, both oral and written.
Claimant was born on February 10, 1957. (RT at 1176.) He suffers from Autism
Spectrum Disorder (ASD) and hypertension/high blood pressure.' He was 58 years old
when he was hired by SolarCity and 60 years old when his employment transferred to
Tesla. (Id.)
Claimant was hired by SolarCity on September 8, 2015, as an AutoCAD engineer
to write custom software for residential and commercial solar panel installations. (Exh.
1; RT at 1084-85, 1114.) Rollins made the recommendation to hire Claimant at
SolarCity. (RT at 315.) Rollins did not know Claimant's exact age at the time, but he
did know that he was older. (RT at 459.)
Tesla acquired SolarCity in 2017, and Claimant became an employee of Tesla on
June 19, 2017. (Exh. 48; RT at 1086.)
During his employment with both SolarCity and Tesla, Claimant was a fully
remote worker based in Orange County, Califomia. (RT at 459-60.) He was also a
meniber of the Rosetta Pod, a work group conaprised of other Tesla software engineers
working on the solar energy side of the business.
Although Dr. Roseiiberg concluded that Clairnant did not suffer from ASD (see Exh.
250), I find by a preponderance of the evidence, in particular Dr. Nolan's report and
rebuttal report, that he did.
1
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A. 2018 RIF
In June 2018, Tesla underwent a company-wide organizational restructuring and
announced a reduction in force ("RIF°'). Tesla laid-off approxunately 9% of its
workforce as a part of this RIF. (RT at 141-42.) In preparation for the 2018 RIF, Rollins
ranked Rosetta Pod employees based on two criteria: criticality and performance. (RT at
560.) At the time, Rollins had only been the manager for a few months. (RT at 318.)
Claimant was ranked #4 out of 7 Rosetta Pod members, in part because he was deemed
more critical to Tesla's current operations than those ranked below him. (See Exh. 126;
RT at 317.)
One meniber of the Rosetta Pod—Tony Johnson—was terminated as part of the
2018 RIF. (See Exh. 126; RT at 345.) Rollins estimated that Jolmson was "in his 30s,"
which would have made him approximately 20-30 years younger than Claimant at the
time. (RT at 556.)
B. OLEDB Project
On June 7, 2018, Claimant began working on improving an inefficiency issue in
the energy design software application—a project known as the "OLEDB project."
Specifically, Claimant was trying to identify a solution to fix how the software
communicated with a spreadsheet. (RT at 1116.) Claiinant proposed a solution and the
Rosetta Pod members voted for him to try and implement his solution. (Id.) Rollins told
Claimant that the solution needed to be identified and implemented within a short
timeframe. (RT at 1116-17.) Rollins estimated that Claimant's proposed solution could
have been implemented within two to three weeks. (RT at 507-08.)
Claimant worked for several months on the project but could not get his proposed
solution to work, even with assistance from other team members. (RT at 857-59; 111718.) Claimant repeatedly set and then missed deadlines for completion. (RT at 504-06.)
In mid-October 2018, Rollins put the OLEDB project on hold. (RT at 1118.)
Software Engineer Dayana Hijaz testified that around the time Claimant was
working on the OLEDB project, she noticed a change in Claimant's behavior and
interactions with the Rosetta Pod. Specifically, she observed that he became more
"u.npredictable" and "just worried about miscommunication and niisunderstanding." (RT
at 856.)
C. Claimant's Second Quarter Revlew
Claimant received his performance review for the second quarter (April — June) in
July 2018. (RT at 500.) He received "Achieving Excellence" under the categories
Quarterly Goals and Priorities, Innovative, Collaborative, and Trustworthy. He received
"Exceeding Excellence" under the category, Driven. (See Exh. 203.) In the comments
section, however, Rollins noted some areas for improvement. (Id.) For example,
Claimant had some gaps in his technical knowledge and Rollins wanted him to work on
learning more of the industry standard pattenis and practices. (RT at 500-01.) Rollins
also set goals for Claimant to accomplish during the third quarter. (Exh. 203; RT at 502.)
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D. Alleged Harassment Incidents
The Rosetta Pod team used an online platform called Mattennost for
communication and collaboration. (RT at 155-56.) Mattermost can be described as
something of a virtual watercooler, where team members could post messages regarding
work as well as their outside interests and activities. (RT at 227-28.) The Rosetta Pod
also used an application called Giphy in their Mattermost communications, which
randomly assigned a GIF that a user could post along with a written comment. (RT at
157, 482.)
Claimant claims harassment on the basis of age, disability, or sex based on the
following six Mattermost posts:
First, on or about August 24, 2018, Claiarant alleges that Schafer directed a death
threat against him by authoring a Mattermost post that stated, "Kill the Dave," followed
by a GIF of a woman collapsing with the word "Dead" superimposed on it. Claimant
brought this incident to the attention of Rollins, who in turn escalated it to HR Partner
Jezabel Serrano. (See Exh. 215.)
Second, on or around August 27, Software Engineer Irene Kucherova posted a
video from The Office television show on Mattermost that depicted a character named
Kevin Malone who used an abbreviated language in order to save time in his
conversations with his co-workers. (See https://www.youtube.comlwatch?v=_KL9uhsBLM.) Claimant alleges that the video targeted him because Malone was the
oldest character on the television show and they believed his style of thinking was
inferior. (See Exh. 52.)
Third, at an undetermined point in time, Hijaz posted to Mattermost a GIF
depicting a monkey sneaking up behind a sleeping lion with a bat. (See Exh. 52.)
Claimant contends that the GIF was a "veiled threat directed at me" because the lion was
old and the moiilcey was young, and it appeared that the monkey was about to bludgeon
the lion to death. (Id.)
Fourth, on September 19, Rollins and. Schafer had an exchange on Mattermost,
ostensibly about bicycle helmets and lieads of cnrly hair, that Claimant contends was
actually about penis sizes. (See Exh. 217.) The next morning Claimant responded, "Do
you realize how laced with sexual innuendo all of this `head size' banter is? There are
ladies in this channel, so clear it up." (Id.)
Fifth, during a standup meeting on Sep. 20, Hijaz informed her coworkers that she
was going to a J Balvin concert that weekend. (See Exh. 220.) After being asked who
J Balvin was, Hijaz posted links of a J Balvin music video and song to the Mattermost
channel. (Id.) Both songs were in Spanish, a language that neither Hijaz nor Claimant
speaks. Apparently, the video depicts scantily clad women. Claimant later used Google
translate to translate the song and discovered that the lyrics reference "butt[s]" and
"bum[s]."
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On September 21, Claimant reported the iast two of these incidents directly to
Serrano_ (See Exh. 218.) An investigation ensued, and Hijaz and Schafer were both
questioned by HR. (See Exh. 166.) HR ultunately concluded that Claimant's complaints
were "unsubstantiated." (Id.)
Sixth, two months later (on November 28, 2018), Software Engineer Alex Poniz
posted a GIF of the cartoon character Mr. Freeze during a "code freeze" (a directive not
to make any changes to a portion or the entirety of a program's source code) The image
appears to be from a cartoon show and contains the caption: "Look at me, Mr. Freeze. I
am an old.man." (Exh. 52.) Claiinant contends that Poniz did so in order to harass
Claimant based on his age.
In September 2018, Rollins scheduled a database refresh for the weekend. (RT at
536.) Claimant happened to be working that day and claims that Rollins intentionally
failed to inform him of the refresh in order to cause him to lose data.
E. Claimant's Requests for Accommodations
Meanwhile, on September 21, 2018, Claimant informed HR for the first time that
he had been diagnosed with ASD. (See Exh. 218.) Around this time, he also informed
Rollins of his diagnosis. (See RT at 398-99.)
Over the next approximately two months, Claimant began having conversations
with HR about accommodations. (RT at 1194) By October 12, 2018, he lodged a formal
request for accommodations, which took the form of a table (the "Accommodations
Request") with the following column headings: "Concern[s]," proposed
"Accommodation[s]," and Tesla's "Response." (See Exh. 56.) Claimant filled out. the
first two columns and listed concerns such as "anxiety," "stress," communication issues,
"exclusion and isolation," age discrimination, and retaliation. (See Exh. 56; RT at 104041.) Claimant's conceras and proposed accommodations were discussed among
Claimant, Rollins, and Serrano. Based on these conversations, Rollins and Serrano
completed the "Response" column in red. (See Exh. 244; RT at 519-20.) This interactive
process continued at least through October 30, 2018, when Rollins nientioned it in his
notes of an upcoming meeting with Virudhagiri. (See Exh. 130.)
F. Further Exchanges Between Claimant and Rollins
In response to a comment by Claimant to the Rosetta Pod that he felt like a
second-class citizen and had been excluded from a meeting, on October 14, 2018, Rollins
sent an e-mail to Claimant seeking to "catch up witli you about your comments in the
[Matteraaost] channel Friday afternoon" and requesting him to "refrain from addressing
this again with the broader team until we speak." (Exh. 223.) Rollins and Clainiant met
within the next 24 hours, and on October 15 Rollins sent a "quick recap" e-mail stating,
"[p]lease contact ine when you're at a°2' rather than the whole team when you're at a
'3' .... Try to give the t.eam a chance to explain ... but if you need language or help
approaching it pleas reach out to me first." (Exh. 224.)
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Later, on November 6, 2018, Rollins e-mailed Claimant a recap of a meeting in
which they "agreed that when you were feeling like the teani was treating you differently
or unfairly, you would reach out to me before posting in the public channel so that I could.
help you address it in a constructive way." (Exh. 142).
Claimant contends that in these communications, Rollins was directing lwn to
funnel everything through Rollins and not to communicate with other Rosetta Pod•
members or contact Human Resources (HR) when lie had any complaints or grievances.
G. Clafmant's Hypertensive Episode
On October 26, 2018, Claimant e-mailed the Rosetta Pod to say that he would be
taking a sick day because his "blood pressure is sky Iiigh." (Exh. 53.) Rollins
immediately responded: "Hope you feel better! Is there a document where you've been
tracking the solar roof feature definitions you can forward to me? I'll review today and
then we'lI be on the same page for Monday." (Id.) Rollins made this request because
Claimant had missed a deadline the day before. (Exh. 230.) Claimant replied:
As the attached image indicates, my blood pressure this moming when I
got up was 188/110, with a pulse rate of 111. I am in hospitalization
and/or heart attack territory here. I have been dealing with multiple
rounds of diarrhea since 3am, and have been throwing up (mostly dry
heaves) on and off since I awoke. I also have a niajor league headache.
decided to take the day off because I think adding more stress on top of
where I am now is flat out dangerous, and I'd really prefer not to be
hospitalized again for the third time in the last month.
Is it Tesla's policy for managers to pester individuals who have called in
sick to do work anyway? 0r am I being singled out by Chris Rollins for
this special treatment. Geez.
(Id.) Claimant claims this exchange with Rollins further increased his stress level
because Rollins "essentially asked me to work during a health crisis." (See Exh. 156.)
Claimant' condition was not grave enough to warrant a visit to the ER (see RT at
1061); instead, he was referred to an occupational therapist, which he visited the next
day. (See Exh. 156; RT at 1062.) He was able to secure an appointment with his primary
pliysician at Kaiser for the following week. (RT at 1061.) An incident report was filed
on October 31. (See Exh. 156.) Claimant was granted sick leave until Novernber 5,
2018. (Exh. 157; RT at 1193.) Claimant decided not to file a Workers Compensation
claim. (RT at 1193.)
H. Claimant's Third Quarter Review
Claimant received his performance review for the third quarter (July — September)
in late October. (RT at 384-85.) He received "Not Aclveving" under the categories
Quarterly Goals and Priorities, Driven, and Collaborative. He received "Achieving"
under the categories Innovative and Tiustworthy. (See Exh. 207.) These ratings were
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lower than what Claimant had received in his second quarter review. (See stipra section
II.A.) In the comments section, Rollins explained the basis for the lower ratings:
Dave spent much of the quarter on a single project that did not end up
getting completed. Throughout the quarter, in standup meetings and in 1ls, Dave consistently promised that the project was near coinpletion and
would be out the next day or in the upcoming days. I requested a project
plan with dates and milestones a few times and did eventually get one, but
it only contained one date (which was missed).
Sometimes projects are more difficult than they seeni at first, and this
project definitely was—however, the remaining work on the project was
consistently misrepresented, which caused major disruptions in the project
planning process.
(Exh. 207.) Rollins also explained why Claiinant received "Not Achieving" for the
categories Driven and Collaborative. (Exli. 207.) The perfonnance review was sent to
HR latest by November 6, 2018, shortly before Rollins' e-mail to Claitnant regarding
communicating with Rollins first. (See supra section F.)
I. 2018 Performance Award.
In late November or early December 2018, Claimant received an "Annual
Perfonnance Award." (See Exh. 62.) At least three other Rosetta Pod Members
(Schafer, Hijaz, and Poniz) also received similar awards. (See Exhs. 263-265.) Rollins
testified that rather than a perfonnance-based award, it was more in the nature of a
"conipensation change and stock grant that would apply to most employees." (RT at
534-35.)
J. 2019 RIF
Rollins testified that he was first inforrned that there would be a RIF in early Jan
2019 but that until it was fornially announced, it was uot 100% sure to happen. (RT at
408-09.) The RIF was officially announced oa January 18, 2019. (See Exh. 151.)
To prepare for the RIF, Rollins created another stack rank list in early January.
(RT at 408-09.) He was instructed to rank employees on: (1) their criticality to Tesla's
primary objective of helping the production and delivery of vehicles for Tesla; and (2)
their performance. (RT at 59, 376-78.) Although the energy-side of the business, where
Claimant worked, was still part. of Tesla's fvture, the goal was to keep the eiiergy-side
running with as few resources as possible. (RT at 143.) Part of the detemination of
criticality for each position was whether it could be done more efficiently and
productively by assessing the specific skills and abilities of everyone in the company.
(RT at 552-53.)
Unlike the 2018 stack rank list, this time Claimant ranked last out of six.
(Compare Exh. 126 wtth Exh. 125.) Claimant and Schafer—who ranked #5 out of 6—
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were accord'uigly terminated on January 19, 2019, as part of the 2019 RIP, along with
approxiniately 7% of Tesla's salaried workforce. (RT at 33, 329; see Exh. 15 1.)
Other material facts are addressed in the Analysis, below.
III.
Issues Presented
Claimant's First Amended Complaint ("FAC") contained 15 causes of action.
After the Hearing, Claimant's counsel represented that Claimant would not pursue and
would dismiss the following causes of action ("COA"):
•
COA 7 — Declaratory Judgment
•
COA 9— Negligent Supervision and Retention
•
COA 10 — Intentional Infliction of Emotional Distress
•
COA 12 — Failure to Pay Wages (Labor Code §§ 201, 1182.12, 1194 and 1194.2)
•
COA 13 — Failure to Indemnify (Labor Code § 2802)
•
COA 14 — Failure to Provide Itemized Wage Statements (Labor Code § 226) and
Waiting Time Penalties (Labor Code §§ 201-03)
•
COA 15 — Unfair Competition (Bus & Prof Code 17200)
(Declaration of Cheryl Johnson-Hartwell ["Johnson-Hartwell Decl."] Exh. B, at 2.; cf. RT
at 1512-14.)
Accordingly, the following issues reniain for my decision:
1. Is Respondent Tesla Liable for Age and/or Disability Discriniination
Under the FEHA?
2. Are Respondent Tesla and/or Respondent Rollins Liable for Harassment
based on Age, Disability, and/or Sex Under the FEHA?
3. Is Respondent Tesla Liable for Retaliation Under the FEHA?
4. Is Respondent Tesla Liable for Failure to Prevent Discrimination,
Harassment, and/or Retaliation Under FEHA?
5. Is Respondent Tesla Liable for Failure to Provide Reasonable
Accommodations Under the FEHA?
6. Is Respondent Tesla Liable for Failure to Engage in the Interactive
Process Under the FEHA?
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7. Is Respondent Tesla Liable for Wrongful Ternunation in Violation of
Public Policy?
8. Is Respondent Tesla Liable for Wlustleblower Retaliation Under Labor
Code § 1102.5?
9. Should Dr. Rosenberg's Testimony be Stricken based on People v.
Sattclre~?
10.To What Damages is Claimant Entitled?
(See Johnson-Hartwell Decl. Exh. B, at 2; Claimant's Amended Post-Hearing Brief.)
The only disabilities at issue are ASD and hypertension/high blood pressure.
Claimant's counsel represented as much to Respondent, and Claiinant did not argue other
disabilities in his pre- or post-hearing briefs. (RT at 1513; see Johnson-Hartwell Decl.
Exh. B, at 2.)
IV.
Analysis
A party seeking to establish a violation of the FEHA has the burden of proving all
necessary facts by a preponderance of the evidence. (See CalahNel.l. v. Paramornnt Unif3.ed
ScTrool Dist., 41 Cal. App. 4th 189, 198 (1995).) "Preponderance of the evidence" means
evidence that what the party is required to prove is more likely to be true than not true.
(See CACI No. 200.) The standard "simply requires the trier of fact `to believe that the
existence of a fact is more probable than its nonexistence." (In re Angelia P., 28 Cal. 3d
908, 918 (1981).)
A. Is Respondent Tesla Liable for Age and/or Disability Discrimination Under
the FEHA?
The McDornel.l Douglas burden-shifting test is not applicable at this stage of the
proceeding as the Arbitrator is in the position of making a fmal determination about
liability. The ultimate issue is "which evidence ... is more convincing, that of the
employer's discriiuinatory intent, or that of the employer's race- or age-neutral reasons
for the employment decision." (Caldwell, 41 Cal. App. 4th at 204.)
1.
Age Discrimination
In order to prevail on an age discrimination claun, Claimant must prove that: (1)
he was discharged and/or subjected to an adverse employment action; (2) he was age 40
or older at the time of the discharge/adverse employment action; (3) his age was a
substantial motivating reason for Tesla's decision to discharge%ther adverse employment
action; (4) he was hartned; and (5) Tesla's conduct. was a substantial factor in causing
Claimaiit's harm. (CACI No. 2570 (Age Discrimination — Disparate Treatment —
Essential Factual Elements).) Claimant did not dispute these elements in his Reply Brief.
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Claimant has established the first two elements; however, he has failed to
establish that his age was a substantial motivating reason for his tenmination. First, other
than the possible examples of harassment discussed below, there was no credible
evidence of any comments made by other Rosetta pod members about Claimant's age or
that Claimant was treated differently due to his age. (RT at 216, 240-41, 528-29, 879.)
During his discussions with HR and Rollins about accommodations, Claimant could not
provide any concrete examples of ageist remarks or other situations in which he was
treated differently due to his age. (Exh. 244; RT at 529.) Although Claimant asserts that
he was the "oldest sofflware engineer at Tesla" when he was tenninated, no evidence of
the ages of the thousands of other Tesla software engineers was ever introduced to
substantiate this claim. (See Claimant's Amended Post-Hearing Brief at 1.)
Second, although Rollins knew Claimant was "older," he still recommended
Claimant for hire at SolarCity in 2015. Rollins also selected an employee significantly
younger than Claimant for termination as part of the 2018 RIF. Courts have held that "an
employer's initial willingness to hire the employee-plaintiff is strong evidence that the
employer is not biased against the protected class to which the employee belongs."
(Coglilan v. Avier7carz Seafoods Co. LLC, 413 F.3d 1090, 1096 (9th Cir. 2005); see also
Bradl.ey v. Harcaurt, Brace & Co., 104 F.3d 267, 270-71 (9th Cir. 1996) ("[W]here the
same actor is responsible for both the hiring and the fuing of a discrimination plaintiff,
and both actions occur within a short period of time, a strong inference arises that there
was no discriminatory motive").) In Schnabel v. Abramson, 232 F.3d 83, 91 (2d Cir.
2000), for example, the Second Circuit affirmed summary judgment in an employment
discrimination case based in part on the fact that the plaintiff "was fired by the same man
who had hired him three years earlier." Claimant failed to distinguish any of these cases
in his Post-Hearing Reply Brief.
Finally, for the reasons explained more fully in sections 3 and 4 below, I find that
Claimant was terminated for legitimate business reasons rather than any improper motive.
2.
Disabflity Dfscriruinatfon
In order to prevail on his disability discrimination claim, Claimant must prove
that: (1) Tesla knew that Claimant had a physical or mental conditionz that limited his
ability to perform a major life activity; (2) he was able to perform the essential job duties
of his position with or without a reasonable accommodation; (3) he was discharged
and/or subjected to an adverse employment action; (4) Claimant's physical or mental
z Regardless of whether Claimant's physical conditions actually limited a major
life activity, the FEHA also protects an employee who is "erroneously or mistakenly
believed to have any physical or mental condition that 1'units a major life activity." (Gov.
Code § 12926.1(d).) Moreover, the ADA prohibits discrimination on the basis of any
perceived impainnent regardless of whether it is perceived to have any disabling effect.
(42 U.S.C. § 12103(3).) The ADA is incorporated into the FEHA as a`°floor of
protection." (Gov. Code § 12926.1(d).)
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condition was a substantial motivating reason for Tesla's decision to discharge/other
adverse employmeiit action; (5) he was harmed; and (6) Tesla's conduct was a substantial
factor in causing Claimant's harm. (CACI No. 2540 (Disability Discrimination —
Disparate Treatment — Essential Factual Elements).) Claimant did not dispute these
elements in his Reply Brief.
Here, although Claimant has established the first three elements of a disability
discrimination claim under the FEHA, I find that he has failed to establish that his
disability (or the perception of a disability) was a substantial motivating reason in his
termination. Most of Claimant's colleagues did not know or suspect that he had been
diagnosed with ASD. (RT at 271, 879, 996.) Although Claimant told members of the
Rosetta Pod that he had a "sky high" blood pressure reading on October 26, 2018, he
testified that he did not tell anyone at Tesla that he had been diagnosed with
hypertension. (RT at 1185.) None of the Rosetta Pod members discussed liis medical
conditions or made fun of him for them. (RT at 274, 880.)
Finally, for the reasons explained more fully in sections 3 and 4 below, I find that
Claimant was ternrinated for legitimate business reasons rather than any improper motive.
3.
Respondent had Legitimate Business Reasons for
Selecting Claimant for Termination Pursuant to the 2019 RIF
A key consideration here is that. Clainiant was not the only employee teriaiinated
pursuant to the 2019 RIF: Schafer, «iho was also ternunated on the same day as Claimant
as part of the same RIF, was only 38 years old—more than 20 years Claimant's junior.
(RT at 240.) At the tirne of his termination, Schafer did not have any medical conditions
or disabilities, had not informed Tesla that he had any medical conditions or disabilities,
had not requested any workplace accommodations, and had not requested any medical
leaves of absence. (RT at 274-5.)
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Second, Claimant's performance declined after his second quarter performance
review in June 20183 This was attributable primarily to the OLEDB project. Claimant
consistently failed to meet the deadlines he set for hiinself for completing the project,
could not reasonably explain why he was having such difficulty with (and spending so
much time on) the project, and never lresolved the underlying problem. (See RT at 50406.) Kucherova eventually took over the project in 2019 and was able to fix the issues
without incident. This led Rollins to conclude that were "technical deficiencies-in
[Claimant's] skill-set. There were ... a couple of core[]. .. features that [Claimant] he
should have understood better, [that] may have helped achieve this project." (RT at 505.)
In addition, during the second quarter review. Rollins set several goals for Claimant,
some of which Claimant eventually did not meet. (RT at 499-503.)
Third, Rollins articulated sound business reasons for ranking other Rosetta Pod
members higher than Claunant, and his extensive testimoiiy on this subject was credible
and unimpeached. For example, Rollins testified that unlike Claimant, most of the other
members of the Rosetta Pod had previously worked as a PV Designer at SolarCity. (See
562-63.) This was valuable because the Rosetta Pod was ui charge of designing software
for Tesla's PV Designers. (Id.) Hijaz was ranked higher than Claimant because she had
experience as a software support engineer. (RT at 329-30.) Corey Osterniann was
ranked higher because he had developed relationships with stakeholders, had a deep
knowledge of PV design, and was prepared to take on some responsibilities from a
departing product manager. (RT at 330.) Both Hijaz and Ostermann were also actively
improving and had good third quarter performance reviews. (RT at 331.) Kucherova
was ranked higher than Claimant because, in addition to her knowledge of AutoCAD, she
had experience building and maintaining a web-based design tool and Tesla was
transitioning to more web-based services. (See RT at 334-35.) Claimant did not have the
same experience as Kucherova with web-based systems. (RT at 560-61.)
There are reasons why Claimant was ranked significantly lower on the 2019
stack rank list as compared with the 2018 list. First, the two lists are not directly
comparable because only four employees (or about half of the Rosetta Pod) are common
to both lists; the rest are different due to turnover. (See Exhs. 126, 125.) Second, at the
time of the June 2018 RIF, Rollins was only a few montlis into his role as manager of the
Rosetta Pod (see RT at 318); by the tinie of the January 2019 RIF, he had a better
understanding of each team member's strengths and weaknesses. Between the two RIFs,
Rollins also became more aware that the gaps in Claimant's technical knowledge were
more extreme than he initially realized. (RT at 560-61; see 503-11.) For example,
Rollins discovered that Claimant had little or no experience working with C-Sharp, which
is a programming language that is one of the "priinary" tools used on the job. (RT at 506,
579.) Rollins tried to help Claimant by sending huii sorne references so that he could
gain a better understanding of the static keyword in C-Sharp. (See Exh. 234; RT at 54041.)
3
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4.
The 2019 RIF was Not Pretextual
Claimant nonetheless argues that the 2019 RIF is a pretext because Tesla did not
tenninate Claimant's position; it just tenninated Clainiant. He claims that a RIF occurs
"when a position is eliminated with no intention of replacing it and results in a permanent
cut in headcount." (Claimant's Aniended Post-Hearing Brief at 13.) By contrast,
Claimant argues that (1) he was replaced by a new hire, Palaneeswar Chittoor; (2) there
was no company-wide RIF to begin with because only a "handful" of employees were
tenninated; (3) Schafer was not tenxiinated at the same tune as Claimant because he
remained on Tesla's payroll until April 2019; (4) the stack rank list for the 2018 RIF went
into great detail about why certain employees should be terminated, whereas the 2019
stack rank list lacks the same level of detail and therefore appears more arbitrary; and (5)
Claimant was actually selected for termination in November 2018, shortly after his
harassment complaints and his request for acconunodations. (Id. at 13-15.) These
arguments will be considered below.
a.
Did Tesla Hire Chittoor to Replace Claimant?
Claimant argues that, just one day after he was terminated, Tesla replaced him
with a new employee, Chittoor, who is approxiinately 27 years his junior. (See
Claimant's Amended PostHearing Brief at 13-14; RT at 638.) I find this unpersuasive.
First, Chittoor was offered his position with Tesia back in October 2018, several
months prior to the announcement of the 2019 RIF. (See Exh. 226.) Rollins and
Virudhagiri testified that he had been hired to fill a position vacated by Marc Artigas
Sanchez. (RT at 162, 573-74.) The reason why Chittoor's start date was delayed until
right after Claimant's tennination was that Chittoor needed to sort out imrnigration issues
and needed additional time to move from Texas to Califonua.4 (RT at 581-82.)
Second, Chittoor's position was not comparable to Claimant's. Chittoor was
offered the position of software applications engineer, level P3—also known as "senior
software engineer." (RT at 162-64.) Claimant was a software engineer, not a senior
software engineer. (Exh. 201.) Rollins credibly testified that Chittoor's background,
experience, education, and technical knowledge—including his lmowledge of C-Sharp,
which Claimant lacked—were superior to Claimant's. (RT at 574-81; see Exh. 226.)
4 Rollins also testified that he ruled out rescinding Chittoor's offer in order to
retain Claimant. Not only were their skill sets completely different, but Schafer would
also have been retained instead of Claimant, since Schafer was ranked higher on the stack
rank list. (RT at 582.)
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b.
Was there a Company-wide RIF in 2019 that
Eliminated Positions?
To the extent Claimant contends that there was no company-wide RIF to begin
with, because Tesla merely fired a"handful" of employees and then hired a"handful" of
new employees in their place, I am unpersuaded based on the weight of the evidence.
First, Tesla did not merely terminate a"handful" of employees; on January 18,
2019, it announced that it would be reducing its workforce by approximately 7%. (Exh.
151.) Virudhagiri, who supervised between 100 and 200 employees, stated that he
believed approximately 10% of his supervisees were terminated pursuant to the 2019
RIF. (RT at 148.) Arebalo, testified that based on her personal knowledge, thousands of
employees were terminated between January 2018 and December 2019. (RT at 847-48.)
Second, Rollins credibly testified that after the January 2019 RIF, no one new was
hired to work in the Rosetta Pod until late 2020 or early 2021, and no one who was
terminated as part of the January 2019 RIF was re-hired to work in the Rosetta Pod. (RT
at 584-85.) The fact that new hires were made in late 2020 is consistent with any number
of benign reasons, including changes in Tesla's needs or in the economy in general.
Furthermore, no one was hired to replace Claimant or hired as an AutoCAD expert
(AutoCAD being Claimant's area of expertise). (RT at 572; see RT at 1084-85.)
Although Virudhagiri testified that Tesla hired software engineers after January 2019, he
did not state that any of them was hired to work in the Rosetta Pod. (RT at 111.)
c.
The Import of Schafer Remafning on Payroll Untfl
Aprf12019
Claimant next argues that Shafer was not tenninated pursuant to the 2019 RIF
because he remaiaed on the payroll several months after his termination date. That is,
Tesla did not tenninate someone who was significantly younger and had no disabilities at
the same time as Claimant; instead, it singled out Claimant.
Yet Schafer testified that he received an additional two months of salary in
exchange for signing a general release and that he did not perform any work for Tesla
during this period. (RT at 572.) By contrast, Claimant did not execute a.release. (RT at
1282-83.) This would explain why Schafer remained on payroll for longer than.
Claimant. The evidence cited by Claimant is insuff'icient for me to conclude that Shafer
was not part of the 2019 R1F. Schafer and Claimant were both ranked at the bottom of
the 2019 stack rank list. (See Exh. 125.) I find that both were tenninated pursuant to the
2019 RIF. (See RT at 569-72.)
d.
Does the Comparative Lack of Detail in the 2019 Versus
2018 Stack Rank Lists Suggest that the Former was
Pretextual?
Claimant argues that the 2018 stack rank list, ul which Claimant was ranked #4
out of 7 Rosetta Pod members, evinces more detail, methodology, and reasoning than the
2019 list, wlucli appears on its face to be more off-the-cuff. (See Claimant's Ainended
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Post-Hearing Brief at 14; compnre Exh. 126 wltJs Exh. 125.) Although there are
differences between the two stack rank lists along these lines, they are not sufficient to
permit me to conclude that the 2019 RIF was pretextual. Rollins testified that the two
principal criteria for both RIFs were perfonnance and criticality. (RT at 376.) As to both
RIFs, there was no written rubric that defined "performance" or "criticality," or that
instructed managers how to apply these concepts to tennination decisions; nonetheless,
Rollins testified that he understood what both terms meant and had no difficulty applying
them to both RIFs. (RT at 376-79.)
e.
Whether Clalmant was Actually Selected for
Terminatton Back in November 2018
Finally, Claimant claims that the decision to terminate him was actually made in
November 2018 rather than January 2019—that is, "immediately" after his reports of
harassment and his requests for accommodation in September/October and his
hypertensive episode at the end of October. (See Claimant's Amended Post-Hearing
Brief, at 12, 17-19.) To back up his claim, he relies principally on Exhibit 124, wliich is
a heavily redacted excel spreadsheet that contains the word, "separate." Claimant also
points to the fact that in his deposition, Rollins originally testified that he compiled the
stack rank list in November 2018; however, a month and a half later, during the second
half of his deposition, Rollins changed his testimony to the effect that he did not compile
the list untii January 2019. (See RT at 381-82.)
I am unpersuaded that the decision to terminate Claiinant happened in November
2018. First, no witness was able to authenticate Exhibit 124—to explain who created it,
for what purpose, and the meaning of the word "separate" in colunm D. (See Exh. 124.)
Although Claimant testified that the Exhibit appears to have been created on November
19, 2018, this does not rule out the possibility that the entries relating to Claimant were
made later, in January 2019. Exhibit 124's probative value is accordingly linuted.
Second, although Rollins' deposition testimony raises some suspicions, there are
benign explanations for why a deponent niight be led to revise their testimony between
two sittings. For example, during the first sitting Rollins originally stated that he thought
the 2019 stack rank list had been created in late 2018 but that he was not "`100%
certain." (RT at 409-10.) Rollins subsequently clianged his testimony because, prior to
the second sitting, he checked the creation date of the excel file and discovered that the
2019 list had been created in January 2019. (RT at 557-58; see Exh. 125.) Rollins'
explanation was credible.
Third, the weight of the evideiice points to the fact that the decision to terminate
Claimant was not made until January 2019. Rollins testified that he did not prepare the
stack rank list until January 2019 and did not know that a RIF would take place
beforehand. (See RT at 408, 511-12, 574.) Virudhagiri also did iiot know a RIF would
happen until early January 2019. (RT at 163.) Tesla first issued a statement about the
RIF on January 18, 2019. (Exh. 151.)
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Claimant places great emphasis on the alleged proximity of his tennination to his
complaints about harassment and his requests for accommodation. This argunient is
substantially undercut, however, because I have found that the decision to terminate
Claisnant was not made until January 2019—two months after the events in question. To
be sure, this might still be proximate enough to raise suspicions about Tesla's motive.
But proximity alone is not sufficient to establish that the reasons for terminating Claimant
were pretextual. (See McRae v. Department ofCorrections & Rehab. 142 Cal. App. 4th
377, 388 (2006); Loggins v. KaiserPernranerrtebnt'I 151 Cal. App. 4th 1 102, 1 1 12-1 1 13
(2007).) On closer inspection and with the benefit of having heard the totality of the
evidence, I am persuaded that there were legitimate and independent reasons for Tesla's
decision to terminate Claimant, even as of November 2018.
***
Claimant has failed to establish by a preponderance of the evidence that the 2019
RIF was pretextual. In addition, he has failed to establish that his age or disability was a
substantial motivating reason for Tesla's adverse employment decisions. (See supra
sections IV.A.1 & 2.)
B. Are Respondent Tesla and/or Respondent Rollfns Liable for Harassment
based on Age, Disability, and/or Sex Under the FEHA?
In order to prevail on his harassment claim based upon age and/or disability
against Tesla, Claimant must prove: (1) he was subjected to harassing conduct because he
was over 40 years old and/or because he had a disability; (2) that the harassing conduct
was severe or pervasive; (3) that a reasonable person in Claimant's circumstances would
have considered the work environment to be hostile, intimidating, offensive, oppressive,
or abusive; (4) that Claimant considered the work environment to be hostile, intimidating,
offensive, oppressive, or abusive; (5) that a supervisor engaged in the conduct or that
supervisors lwew or should have known of the conduct and failed to take immediate and
appropriate corrective action; (6) that Claimant was harmed; and (7) that the conduct was
a substantial factor in causing Claimant's harm. (CACI No. 2521A (Work Environment
Harassment — Conduct Directed at Plaintiff — Essential Factual Elements — Employer or
Entity Defendant).) For his harassment claim against Respondent Rollins, Claimant must
prove the same elements as his claim against Tesla; however, for element (5) he must
prove that Rollins participated in, assisted, or encouraged the harassing conduct. (CACI
No. 2522A (Work Environment Harassniant — Conduct Directed at Plaintiff — Essential
Factual Elements — Individual Defendant).) Claimant did not dispute these elements in
his Reply Brief.
All of Claimant's "harassment" allegations relate to Mattermost posts and are
described in more detail above. (See supra sectioii II.D.) I find that none of these posts,
either individually or collectively, rises to the level of harassment because they fail to
satisfy the first, second, third, and f fth elements of a cause of action for harassment.
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1.
"Get rid of the Dave"
Contrary to Claimant's allegations, other than Claimant's testiinony there is no
evidence that Schafer actually typed, "Kill the Dave," and thus that there was any
conduct of a harassing nature at all.s Instead, I find that Schafer typed, "Get rid of the
Dave" and then immediately apologized, stating that this was a typo and that he had
meant to say, "Get rid of it Dave." (See Exh. 211.) Schafer's testimony on this point was
eminently credible. It was moreover clear from the exchange that the only thing that was
the subject to being eliminated was a message box, not a person such as Claimant. (See
Exh. 211.) After all, it was Claimant who initiated the thread by asking, "Does anyone
have any issues with n,e getting rid of tlris iuessngebox.?" (Id. (emphasis added).)
Second, as the following Mattermost excerpt shows, Claimant himself understood
that Schafer had made an honest mistake, and he was happy at the time to joke about it:
David Wyer 15:06: Get rid of the °`dave" 7:(
Carson Schafer 15:33: ahh,, sorry buddy i meant it
David Wyer 15:34: lol I know.
Carson Schafer 15:34: git rid of IT , dave!
David Wyer 15:34: just ribbing you a little
Carson Schafer 15:34: [posts a GIF of a rib roast]
https://niedia3.giphy.com/media/3o6orteZR3g8VwD756/giphy.gif
David Wyer 15:34: It's FRIDAY! Oh that looks tasty!
I conclude that no reasonable person would take this as "severe or pervasive" or
as creating a hostile work environment. It was simply a typo. It is moreover implausible
to me that Schafer, who considered Wyer a friend, purchased a video camera for him so
he would not feel excluded from the Rosetta Pod. as a reinote worker, helped Wyer
review code on weekends, and also comniiserated with Wyer after they were both laid
off, would have so much as joked about threatening to kill Claimant. (RT at 243, 246,
253; .Exh. 246.) Finally, although Claimant later reported this incident to Rollins, Rollins
did not fail to take corrective action because no action was necessary.
5 Althougli Claimant clainis that Tesla doctored tlie Mattermost chat by deleting
"Kill the Dave" and replacing it with "Get rid of the Dave," he has failed to substantiate
this claim by a preponderance of the evidence.
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Z.
YouTube link to "The Office"
Kucherova's post did not identify Claimant and there was no evidence about the
context surrounding the post that would allow me to conclude that it was somehow
directed at Claimant. Even assuming the video depicts a scene in which "younger actors
berate the oldest person on the show," or berate the person with an erratic style of
speaking, does not imply that Kucherova's post targeted Claimant6 (RT at 1166-67.)
Second, one of the characters in the video clip mentions SeaWorld, and Kucherova had
previously stated in the Mattermost chat that she was going to SeaWorld that weekend.
The natural inference here is that Kucherova selected the clip not to harass Claimant but
rather because she wanted to add color to the announcement about her weekend plans. I
found unpersuasive Claimant's contention that Kucherova was lying about visiting
SeaWorld because she lives some 500 miles away from it and did not post about her tiip
on Facebook. (See RT at 1166.)
I find that Kucherova's post did not constitute "harassing conduct," was not
"severe or persuasive," and would not reasonably be construed as creating a hostile work
environment. Furthermore, Claimant never reported the posting to Tesla. (RT at 117172.)
3.
Lion/Monkey GIF
There is nothing about the image itself that would lead a reasonable person to
believe that the lion was old and the monkey was young. Claunant simply assumed that
the lion was old because it had a full mane, was sleeping, and had white fur around its
muzzle. (RT at 1158.) Moreover, the image does not make any reference to age and
Claimant's name was never mentioned. Rather than threatening, the iniport of the image
is clearly humorous, as is confirmed cliclsing the embedded URL.
I find that Hijaz's posting of this image did not constitute "harassing conduct,"
was not "severe or persuasive," and would not reasonably be construed as creating a
hostile work environment. Furthermore, Claimant never reported the posting to Tesla.
(RT at 1158-59.)
4.
Bicycle Helmets
As a thud party reading the exchange in the abstract, I can well see why Claimant
interpreted the messages in the way he did and why he felt coinpelled to report it.
It was not clear that the character in the video was "the oldest person on the
show" or that the theme of the clip was soinehow age-related. Respondent claims that
there were many other older characters on the show—a claim that Claimant did not refute
in his Post-Hearing Reply Brief. Even Claimant admitted that he had never watched The
Office and was taking a"leap of faith" that the character was, in fact, the oldest character
on the show. (RT at 1167.)
6
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Nonetheless, the exchange doesn't rise to the level of actionable sexual harassment for a
number of reasons.
First, Claimant has not alleged or established harassment against him on the basis
of sex. (See Complaint ¶ 61.) If anything, he was concemed about the effect of the
conversation not on himself but on the "ladies in this channel" who might "[not] staiid up
for themselves." (Exh. 217; RT at 1093-94 ("I championed ... how [female co-workers]
might interpret it . . . .").)
Second, the conversation was not "severe or pervasive" and would not have led a
reasonable person to consider the workplace environment hostile. At most, it was
inappropriate "locker room talk." (RT at 1093 ("I thought there was a chance [of the
conversation amounting to sexual harassment].") (emphasis added).) The word "penis"
was never used. (See Exh. 217.) Moreover, other team members did not interpret the
conversation in a sexual way. This is perhaps because the entire conversation was longer
than the segment excerpted in Claimant's Exhibit 33 and includes context as to what
Rollins and Schaffer meant by the word "head." (Conlparfe Exh. 33 wi.th Exh. 217; RT at
1095-96.) Claimant also knew that Schafer was a bicycle user and that Rollins has a
curly head of hair. (RT at 1090-93.) Hijaz, who observed the conversation in real-time,
interpreted it as it was intended and did not believe that it was "code" or sexual innuendo.
(RT at 862-64.) During her testimony, she conveyed genuine incredulity about
Claimant's interpretation. Schafer and Rollins also credibly testified that they did not
intend to talk about penises. (RT at 258-65, 486-88.) Given Rollins' demeanor during
the hearing aiid the evidence that his team members held him in high regard (RT at 13839, 214-16, 267-79, 875-77), I also find it unlikely that Rollins--a member of
managementwould have even alluded to the size of his penis in front of alZ of his
subordinates in an archived communication channel.
Finally, after Claimant reported this incident to HR, an investigation was
conducted and Schafer was interviewed. The investigation concluded that Claimant's
allegations were unsubstantiated. (Exh. 166.)
5.
YoaTube Links for Two Spanish Songs
First, Claimant failed to introduce evidence of the video or a certified translation
proof. Second, I am unpersuaded that
of the lyrics even though he bears the burden of.
these links constitute harassing conduct as against Claimant because Claimant has not
alleged harassment on the basis of sex. (See Coinplaint ¶ 61.) In any event, Hijaz posted
the links not to harass anybody but in response to her co-workers' request after she
informed them about the concert she was attending later that day. Claimant was not at
the standup meeting when the co-workers made this request and therefore missed the
broader context. (RT at 873-74, 1110-11; Exh. 220.)
Second, the postings are not "severe or pervasive" and would not lead a
reasonable person to consider the workplace environment hostile. The (uncertified)
English translation of the song lyrics only includes phrases such as "move your butt" or
"shake your butt," which are innocuous. (See Exh. 218.) Claimant admitted that he does
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not speak Spanish and had to take the affumative step of translating the songs the next
day in order to understand the lyrics. Hijaz herself did not find the video or the song
offensive to women, and from her comportment during the hearing she seemed genuinely
surprised that someone had taken offense at them. (See also Exh. 220; RT at 864, 868,
874.) There is moreover no evidence that anyone other than Claimant was offended by
her post. (RT at 868, 1105.) J Balvin is also an award-winning rapper and his music
video has 1.2 billion views. (See Exh. 220.)
Third, after Claimant reported this incident to HR, an investigation was conducted
and Hijaz was interviewed and cautioned to be more mindful about lier posts. (Exh. 166.)
The investigation concluded that Claimant's allegations were unsubstantiated. (Id.)
6.
Mr. Freeze GIF
The context here is important: Members of the Rosetta Pod used an application
called Giphy in their Mattermost communications, and the Giphy app randomly assigns a
GIF when a user types words into the Giphy app. (RT at 157, 482.) It was therefore
coincidental that the GIF randomly selected by the Giphy app contained an image of, and
text referring to, an "old man." Second, Claimant acknowledged that it is tradition within
the Rosetta Pod to search Giphy for a "freeze-related" image anytime there is a "code
freeze" and that Poniz posted the "Mr. Freeze" GIF during a code freeze. (RT at 1160,
1164-65; Exh. 253, lines 7731-52.). The upshot is that the image, even if it happened to
impact Claimant adversely, was not intended or reasonably intended in that way. Third,
Poniz's post does not mention Claimant by name and there is no other evidence that the
GIF was targeted at Claimant.
I find that the Mr. Freeze GIF was not harassing conduct based on age, was not
"severe or persuasive," and would not lead a reasonable person to consider the workplace
environment hostile. Finally, Claimant never complained about this incident to Rollins or
Tesla. (RT at 1159-60.)
***
The foregoing analysis remains unchanged even when the posts and videos/GIFs
are taken together rather than individually.
The upshot is that none of these posts or videos/GIFs, either together or in
isolation, satisfies the first, second, third, or fifth elements of a claim of harassment.
Claimant furthermore failed to respond to any of these points, originally briefed by
Respondent, in his Ainended Post-Hearing Reply Brief.
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C. Is Respondent Tesia Liable for Retaliation Under the FEHA?
Claimant's asserted bases for retaliation are: Age, disability, sex (including
reporting sexual harassment), requesting accommodations, and reporting disability.'
(See, e.g., Exhs. 56, 218; Johnson-Hartwell Decl. Exh. B, at 2.) Claimant claims that this
retaliation took the form, i»ter alia, of (1) being placed in "high pressure situations
whereby he was subjected to extremely time intense projects with nearly impossible
deadlines," (2) Rollins restricting his communications with others in the Rosetta Pod, (3)
being excluded from video conference meetings and quarterly team meetings, (4) Rollins
introducing untested code into a the OLEDB project, scheduling a database refresh
during a critical phase of the OLEDB project without notifying Claimant, and cancelling
Claimant's OLEDB project, (5) receiving a "sanction" for reporting two harassment
incidents, and (6) ultimately of being terminated. (Claimant's Pre-Hearing Brief at 6-8;
RT at 1037.)
In order to prevail on his FEHA retaliation claim, Claimant niust prove: (1) he
engaged in a protected activity; (2) he was discharged or subjected to other adverse
employinent action; (3) his protected activity was a substantial motivating reason for
Tesla's decision to discharge/subject him to an adverse employment action; (4) he was
hanmed; and (5) Tesla's decision to discharge/subject him to an adverse employment
action was a substantial factor in causing him harm. (CACI No. 2505 (Retaliation —
Essential Factual Elements (Gov't Code, §12940(h))).) Claunant did not dispute these
elements in liis Reply Brief.
Claimant has established the first element of a retaliation claim—namely, that he
engaged in a protected activity. Specifically, on September 21, 2018, Claimant reported
two Mattermost communications that he believed were inappropriate and stated that he
had been diagnosed with ASD. (See Exh. 218.) Claimant also requested
accommodations from HR latest by October 12, 2018. (See Exh. 56.)
As explained below, however, he has failed to establish one or more of the
remaining elements.
1.
Being placed in "high pressure situations"
There was no evidence that Claimant was placed in higher pressure situations than
others—and much less because he requested accommodations or reported harassment or
a disability. Silicon Valley companies are notorious for their round-the-clock work
schedules and the demands they place on employees. Even Claiinant admitted that all
work at Tesla is time sensitive, that other employees were assigned "extremely timesensitive projects," and that Tesla was a more high-pressured work environment than
' Nowhere in his pre- or post-hearing briefs did Claimant assert retaliation based
on safety issues associated with solar panels. During and after the Hearing, Claimant's
counsel represented that the retaliation claims are not predicated on these issues. (RT at
1513; see Johnson-Hartwell Decl. Exh. B, at 2.)
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SolarCit.y. (RT at 1185-86.) Wilson, Schafer, and Rollins corroborated this point. (RT
at 216-17, 288, 527.)
2.
Rollins restricting Claimant's Communications
Claimant alleges that on October 14,2018, Rollins told him to "funnel" all
communication through Rollins and not to communicate with other Rosetta Pod members
or contact HR anytime he felt he had been treated unfairly. (See RT at 1131.) Clainzant
contends that this adverse employment action is suspiciously close in proximity to lvs
September 21 report to HR and the date by which he first requested acconnnodations on
October 12, 2018. The contention is unavailing for several reasons.
First; Rollins' October 14 e-mail was not an adverse employment action. What
Rollins actually said was as follows:
Heya - I really want to catch up with you about. your comments in the
channel Friday afteinoon. I absolutely hear your concerns and I have some
suggestions for how we can change the communication dynamic from
both sides to increase visibility and clarity about what's happening. ... I'd
like to ask that you refrain from addressing this again with the broader
team until we speak—it's already going to be somewhat crazy without me
around and there's a lot to deliver this week. I assure you that I will
address it in a structured manner once I'm back in office and after we've
come up with a solution that works for you.
_
(Exh. 223.)
The background to the e-mail is that, although Claimant had proposed to delay the
release of OLEDB, upon further discussion in the office, the team decided to push ahead
with the existing deadline nonetheless. Claimant responded in the Mattermost chat:
"Thanks for including me in the pow wow. I guess I am a second class citizen in the
pod." (Exh. 253, lines 5408-09.) Schafer quickly apologized and explained that the
reason Claimant. was not included was that "I asked a question in the office [a]isle to
Chris and that how the discussion started." (Id. line 5410.) He continued:
If you have an opinion by all means please tell us. ... Dave, if you need
anything to help get OLEDB out the door, please know that's first priority
right now, so just ask. I want you to know that we see that OLEDB has
been a hard road for you, and we cai-e.
(Id. lines 5411, 5428.)
Rollins' e-mail was entirely justified because Claimant had niisinterpreted his coworkers' benign actions to be deliberate exclusion; by reacting negatively, he was
potentially creating unnecessary tension in the workplace. The objectively reasonable
import of the October 14 e-mail is that Rollins was merely asking Claimant to refrain
from speaking about this one issue with the team until he and Claunant had a chance to
confer first. As even Claimant was forced to concede, Claimant was not being told to
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refrain from contacting HR or from communicating with the team at all. (RT at 113149). In any event, he was in communication with HR after the date of the e-mail. (RT at
1143, 1146; see Exhs. 56, 231.) Finally, the tone of the e-mail was supportive rather than
retaliatory.
The same is largely true of the October 15 and November 6 e-mails from Rollins
to Claimant. In those communications, Rollins evinced an intention to support Claimant
and help him communicate more constructively with other members of the Rosetta Pod.
(Exhs; 142, 224.) His tone throughout was supportive. The objectively reasonable
meaning of both e-mails is irot that Rollins was instructing Claiinant to funnel everything
through Rollins or refrain from communicating with HR without Rollins' permission;
instead, it is that both Rollins and Claimant had orally "agreed" in an iintnediately prior
conversation that Claimant would check in with Rollins first—before posting messages in
Matterimostif he felt the team was treating him unfairly. (See Exh. 142.)
3.
Being excluded fi•om meetings
Claimant alleges that he was excluded from video conference meetings and
quarterly team meetings; however, he has failed to provide any specific examples.
By contrast, there are examples of Claimant being regularly included in
Mattermost communications that post-date his protected activities. (See Exh. 253, line
3639 ff.) Shafer and Hijaz credibly testified that they did not believe that anyone in the
Rosetta Pod ever intentionally excluded Claimant or stated they did not want to work
with him. (RT at 244-45, 879.) To the contrary, there was evidence that other team
members helped Claimant even though it was not part of their assigned responsibilities,
sometimes even late at night and on weekends. (RT at 246, 858-59; Exh. 208 ("As Dave
will be here [in person] next week, I feel it is superdy uber important that everyone be in
office as much as possible .... Its been a long time since he has been up here so let's
show him some love and be present and available in the office as much as possible!
[Smiley face] Freaking excited to see ya, Dave!"); Exh. 212.) Schafer bought a webcam
with his own money so that Claimant could feel more connected to the team as a remote
employee. (RT at 243.) Schafer also took the time to research ways to make remote
workers feel more connected. (RT at 243-44.) Finally, Claimant admitted that anyone
who was not physically in the office would be excluded from the planning meetings that
were typically held spontaneously with those who worked onsite. (ItT at 1124-26.)
4.
1Vlisconduct by Rollfns
Rollins Introducina Untested Code. Claimant testified that Rollins "sabotaged"
hini by introducing untested code into the OLEDB project in September-October 2018.
He did not mention this to anyone (including HR), however. (RT at 1197-98.) Other
than Claimant's testimony, there is no independent evidence that his code had been
tampered with.
I found Claimant's testimony not credible, particularly when juxtaposed against
Rollins' testimony when he was asked about these allegations. I also find it implausible
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that Claimant did not mention to anyone at Tesla that he had been "sabotaged" in this
way: He had no trouble speaking up about other incidents that bothered him, such as the
Mattermost communications. Claimant acknowledged that he had a "direct
coin►nunication style, which is a hallmark of [his] disability, and that he was "unafraid to
challenge" Rollin's °`poor judgment and decision making." (Exh. 52.)
Database Refresh. A database refresh is performed periodically and for the
benefit of ttie entire organization. Rollins scheduled a database refresh to occur on a
weekend, likely because that was a time when teazn members would not be using it. He
credibly testified that, although he did not recall who he informed about the database
refresh, he did not purposefully fail to inform Claimant. (See RT at 537-38.) I find it
implausible that Rollins refreshed the database specifically to target Claimant.
Cancellation of OLEDB Project. As Claimant himself conceded, the OLEDB
project was not cancelled but rather only suspended. (Exh. 73; RT at 1204; see RT at
63 1.) Rollins testified that it was suspended because Claimant had taken significantly
longer than necessary and had continually misrepresented the tinieline for its completion.
(Exh. 207; RT at 384-85.) This testimony was credible.
5.
Receiving "Sanctions" from HR
Claimant alleges that he was retaliated against for complaining to HR about the
bicycle hehnet and J Balvin posts because he was "sanction[ed]" for these incidents with
"counseling," even though Rollins, who was actually involved in the bicycle helmet
incident, was not. (See Claimant's Amended Post-Hearing Brief, at 8, 16.) The only
support for this claim is Tesla's investigative report of the incident. (See Exh. 166.)
Schafer testified that he was never actually counseled, however. (RT at 294-95.)
Claimant did not testify as to the nature of any sanction or counseling that he received.
6.
Termination
Finally, Claimant contends that his protected activity was a substantial motivating
reason for his termination. He was tenninated on January 19, 2019—more than two
months after his first protected activity on September 21, 2018, and his requests for
accommodation, which were made latest by October 12, 2018. Although Claimant
claims that the decision to terminate him was actually made earlier, around November 19,
2018, this allegation was not proven by a preponderance of the evidence. (See supra
section N.A.4.e.) Even so, °`temporal proximity ... does not, without more" establish
pretext. (McRae v. Depar•tmen.t of Corrections & ReTiab. 142 Cal. App. 4th 377, 388
(2006).) In any event, and for the reasons explained above, Respondent had legitimate
business reasons to terminate Claimant. (See supra section IV.A.3 & 4.)
* * *
For all alleged incidents of retaliation other than termination, whether taken
individuatly or collectively, I find that Claimant has failed to prove that he suffered any
adverse employment action. For all alleged incidents, I fartlier find that he has failed to
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establish that his protected activity was a "substantial motivating reason" for any
termination or adverse employment action.
D. Is Respondent Tesla Uable for Failure to Prevent Discrimination,
Harassment, and/or Retaliation Under FEHA?
In order to prevail on his fourth cause of action, Claimant must prove: (1) he was
subjected to discrimination, harassment, and/or retaliation in the course of employment;
(2) Tesia failed to take all reasonable steps to prevent the discrimination, harassment,
and/or retaliation; (3) Claimant was harmed; and (4) Tesla's failure to take all reasonable
steps was a substantial factor in causing Claimant's harm. (CACI 2527 (Failure to
Prevent Harassment, Discrimination, or Retaliation — Essential Factual Elements —
Employer or Entity Defendant (Gov. Code § 12940(k))).) Claiinant did not dispute these
eleinents in his Reply Brief.
Before a Claimant can prevail on a claim under Govenunent Code sectioii
12940(k), there niust be a finding of actual discrimination, retaliation, or harassment.
(Dickson. v. Burke Willipl)is, Inc., 234 Cal. App. 4th 1307, 1314 (2015).) For the reasons
explained above, Claunant was not harassed, discriminated, or retaliated against. (See
stspra sections IV.A, B, C.)
Furthermore, Tesla took all reasonable steps to prevent discrimination,
harassment, and retaliation. Tesla has a policy that prohibits discrimination and
harassment in the workplace. The anti-harassnient and anti-discrimination policy are
provided to all Tesla employees when they are hired. All Tesla employees are also
trained on the policy. (RT at 457-58, 832, 835; see Exh. 252.) All Tesla supervisors are
trained on the harassment policy at hire and then annually thereafter. (RT at 838.)
Claimant also argues that Tesla did not have any safeguards to prevent potentially
disturbing or offensive GIFs, such as the Mr. Freeze GIF or the GIF of a woman dropping
dead, from being randomly selected by the Giphy app for use in Mattermost. (Claimant's
Amended Post-Hearing Brief at 16.) I conclude, however, that these GIFs would not be
offensive to a reasonable person and thus that any failure to implement such safeguards
does not amount to a failure to prevent harassment, discrirnination, or retaliation.
E.
Is Respondent Tesla Liable for Failure to Provide Reasonable
Accommodations Under the FEHA?
To prevail on his fifth cause of action, Claimant must prove: (1) that Tesla knew
of Claimant's physical or mental condition that linvted his ability to perfonn the essential
functions of his job; (2) that he was able to perfonn the essential duties of his position
with reasonable acconunodation; (3) that Tesla failed to provide reasonable
accommodation for Claimant's ASD or hypertension; (4) that Clainiant was harmed; and
(5) that Tesla's failure to provide reasonable accomiiodation was a substantial factor in
causing Claimant's harm. (CACI 2541 (Disability Discrimination — Reasonable
AccomLuodation — Essential Factual Elements (Gov. Code § 12940(m))).) Claimant did
not dispute these elements in his Reply Brief.
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Clairnant first argues that affter he informed HR and Rollins that he suffered from
ASD, Respondent had an obligation to reasonably accommodate him. (See Claimant's
Amended Post-Hearing Brief at 17-18.) But merely stating that he has ASD did not
trigger an obligation on Tesla's part to reasonably accommodate Claimant. Without
more, Tesla did not know or have reason to know that Claimant's ASD actually limited
his ability to perform the essential functions of his job.$ Rollins testified that he did not
believe Claimant was socially awkward or needed help with his work due to ASD. (See
RT at 399, 470.) Even Claimant stated that he was 'not .. . the least capable
programmer" in the Rosetta Pod. (See Exh. 52 (emphasis added).) Wilson testified that
there were "no issues" with Claimant's work, which was "pretty reasonably ...
accomplished" but not perfect. (RT at 197.) And although Dr. Sacks wrote a note
diagnosing him with ASD in 2015—before Claimant even began working at SolarCity—
there was no e-mail correspondence or other documentary evidence to corroborate that
the note had actually been transmitted to Tesla (other than Claimant's testunony). Given
how well Claimant documented virtually everything else, I find it implausible that he
would not have established such a documentary record. Even if the note had been
transniitted, it did not prescnbe any work restrictions or other accommodations for
Claimant. (RT at 694-96, 1194; Exh. 9.)
Claimant also argues that Tesla ignored his Accommodations Request. But the
"Response" column on the Accommodations Request shows, in fact, that Tesla agreed to .
many of his requests.9 For example, Claimant requested that he be allowed to partner
with other co-workers when being introduced to new technologies. In response, Tesla
agreed to take Claimant's request into account before staffing him on future projects.
(Exh. 244.) When Claimant requested a copy of his job description, Tesla provided it.
(See Exh. 21; RT at 1196-97.) Claimant also requested that Tesla assign him an advocate
to whom he could safely express his concems about events or communications he found
disconcerting. In response, Tesla agreed that Rollins would help Claimant in stressful
situations, whether based on project or team relationships, and Rollins himself agreed to
more regular one-on-one meetings with Claimant. (Exli. 244; RT at 525.) When asked
what would be a type of accommodation that would be helpful to, or generally offered by
employers for, Claimant's medical conditions (including ASD), the fust and only
$ Claimant testified that he did not tell anyone at Tesla that he had been diagnosed
with hypertension. (RT at 1185.)
Clainiant's contention that, in response to his request for accommodation, Tesla
"simply responded that they were not going to accommodate any of [Claimant's]
proposals" is groundless. (See Claimant's Post-Hearing Brief at 18.) The sole back up
for this assertion is Exhibit 56, which is just an earlier version of Claimant's requests for
accommodation—the version from before Tesla had an opportunity to respond.
Claimant's contention that "[o]n November 28, 2018, HR. responded to [Claimant's]
proposed accommodations list and denied [Claiinant's] requests" is likewise unsupported
by any evidence. (See id. at 10.)
9
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suggestions offered by Claimant's treating physician Dr. Sacks were check-ins and oneon-ones with a manager. (RT at 660-61.)
Moreover, several of Claimant's requests for accommodation were already being
fnlfilled by Tesla. For example, Claimant asked to be perinanently classified as a remote
employee even though he already was. (See Exh. 244; RT at 467, 521-22.) .Claimant
stated that he was experiencing job-related anxiety and stress and agreed that regular oneon-one meetings with Rollins would help alleviate that anxiety (Exh. 244); however, he
also testif ed that he was already meeting with Rollins on a regular basis, and had done so
approximately 12 to 24 times during 2018. (RT at 1195.)
Although Tesla did not agree to all of Claimaiit's requests, it is also not required
to. The staiidard is one of reasonable accoannodation. Even Claimant testified that he
did not expect Tesla to agree to everything he was suggesting. (RT at 1193-94.) In any
event, I find that Tesla's accommodations were, on the whole, reasonable. For example,
Tesla had good reasons for not accommodating several of Clainiant's requests, such as
those based upon a lack of understanding about his job duties and the duties of other team
members. For example, Claimant complained that Rollins was making individual team
menibers responsible for QA rather than having a dedicated QA engineer (Exh. 244);
however, Rollins credibly testified that each software engineer is responsible for
proofreading their own code and that it is not feasible for the QA department to be the
only verification point for bugs. (RT at 526.) In response to Claimant's concern that he
was not receiving the same level of support from team members that others in the Rosetta
Pod were receiving, Rollins explained that he could not require other employees to help
Claimant with his workload but offered to help Claimant if he felt his requests were being
ignored. (RT at 527.) Tesla could not accommodate Claimant's request to be assigned
less tiine-sensitive work because projects are assigned based on business need and team
member availability and, as explained above, all of the work at Tesla (including tech debt
projects) is time-sensitive and high pressure. (See Exh. 244.)
Finally, Claimant argues that when he returned to work from his hypertensive
episode, rather than accoinmodate Claimant's medical condition Rollins' first response
was to require Claimant to "work his ass off for 8 hours and then stop."10 (Claimant's
Amended Post-Hearing Brief at 9; see id. at 18; Exh. 38.) But the objectively reasonable
interpretation of this conversation is 1701 that Claimant was being directed to work
intensely for 8 hours straight and immediately after a hypertensive episode. Instead, in
response to Claimant's statement that he was "ok now," Rollins was merely explaining
Exhibit 38 purports to be a transcript of a Zoom meeting between Claimant and
Rollins. Respondent objects to the admissibility of Exhibit 38 on the ground that it is not
a certified transcript of and it is inhereiitly unreliable, since several words and portions of
statements appear to have been oniitted by the transcription software. (Respondent's
Post-Hearing Brief at 42-43.) Although Respondent's concerns about the reliability of
the transcription are well taken, rather than excluding Exhibit 38 outright the Arbitrator
will include it but give it the weight that he thinks it deserves.
10
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that he wanted Rosetta Pod members to be more laser-focused during the workday,
precisely so that they could get more rest on weekends and avoid working late or taking
work home:
David Wyer: I've gone to the doctor and I'm on some different
medications that have pulled my blood pressure down .... But I was in
like life threatening territory and ... I had to kind of step away from
everything for a few days to get yet create some space for me to ...[b]e
able to take on any more stress or more anything. ...[But] i'm not in that
place anymore so i'm ok now ....
Chris Rollins: I really don't want people working [i]n the middle all
night and weekends. ... I really want people to take breaks for precisely
the reason that I don't want people to ... get burnt out, ... I would very
much like us all to be focused on how do I take this eight hours of my
day....[a]nd make it super productive. .. . How do I get the most work
done in this eight hours and really be on like [y]ou know, work, workyour
ass o,,~'f of those eight hours and then take the rest that we need to work
your ass off the next eight hours making sure that we're playing ....
(Exh. 38, WYER 000339-40 (emphasis added).) My interpretation is corroborated by
Claimant's own reaction to the foregoing exchange: Rather than protest or otherwise
show surprise at (allegedly) being ordered to get back to the grind just days after he
returned from medical leave, Claimant merely asked for more one-on-one meetings with
Rollins. (See id.) In any event, Claimant was granted a medical leave until November 5.
2018approximately 10 days from when he first called in sick. (RT at 1062.)
For these reasons, Tesla did not fail to reasonably accommodate Claimant's
hypertension- or high blood pressure-related medical condition.
F.
Is Respondent Tesla Liable. for Failure to Engage In the Interactive
Process Under the FEHA?
To prevail on an action for failure engage in the interactive process under FEHA,
Claimant must prove: (1) that Claimant had a mental or physical condition which limited
his ability to perform the essential functions of his position and that was known to Tesla;
(2) that Claimant requested that Tesla make reasonable accommodation for his mental or
physical condition so that he would be able to perform the essential job requirements; (3)
that Claimant was willing to participate in an interactive process to determine whether
reasonable accommodation could be made; (4) that Tesla failed to participate in a tunely
good-faith interactive process to detenmine whether reasonable accommodation could be
made; (5) that Claimant was harmed; and (6) that Tesla's failure to engage in a good-faith
interactive process was a substantial factor in causing Claimant's harm. (CACI 2546
(Disability Discrimination — Reasonable Accommodation — Failure to Engage in the
Interactive Process (Gov. Code § 12940(n))).) Claimant did not dispute these elements in
his Reply Brief.
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For the reasons stated above, Claimant has failed to establish that Tesla knew that
his ASD or hypertension linuted his ability to perform the essential functions of his job.
(See sr+p,•a section N,E.)
He has also failed to prove the fourth element, since it is undisputed that he
exchanged approximately a dozen emails with Serrano regarding his requests for
accommodation and had five Zoom sessions with her over an approximately two month
period. (RT at 1194-95.) Rollins also participated in some of these meetYngs. (Id.) In
consultation with Claimant, Rollins and Serrano provided detailed, written responses to
each of Claimant's Accommodation Requests. (See Exh. 244; RT at 518-20.) They
attempted to find ways to accommodate Claimant's comniunication, exclusion, and
anxiety-related issues even though Claimant did not present a doctor's note prescribing
work restrictions or other accommodations. (RT at 694-96, 707-08, 1194.) Tesla
engaged in the interactive process nonetheless, which is also consistent with its policy to
do so even where the eniployee does not present a doctor's note. (See RT at 835-37.)
Finally, as explained in more detail above, Tesla did not fail to provide Claimant with
reasonable accommodations; indeed, it granted many of Claimant's accommodation
requests and had good reasons for not granting others.
For the foregoing reasons, I find that Tesla did not fail to participate in a timely
good-faith interactive process.
G. Is Respondent Tesla Liable for Whistleblower Retatiation Under Labor Code
§ 1102.5?
Claimant's whistleblower clauns are predicated on his reports of sexual
harassment (in the form of "comments about penis size and videos depicting women
twerking") and his requests for "medical treatment," by which I understand his report t1iat
he suffered froin ASD and a hypertensive episode as a result of work-related stress. (See
Claimant's Amended Post-Hearing Brief at 18-19; Johnson-Hartwell Decl. Exh. B, at 2.)
Nowhere in his pre- or post-hearing briefs did Claimant assert retaliation based on safety
issues associated with solar panels. Claimant also indicated to Respondents that he did
not intend to predicate his retaliation claim on such issues. (See Johnson-Hartwell Decl.
Exh. B, at 2, 4.)
The current form civil jury instructions list the following elements for Claimant to
prevail on his seventh cause of action: (1) he disclosed to a person with authority to
investigate, discover, or coirect legal violations; (2) he had reasonable cause to believe
that the infonnation disclosed a violation of a state/federal statute or rule or regulation;
(3) that Tesla discharged him or subjected him to another adverse employinent action; (4)
that Ciaimant's disclosure of inforniation was a contributing factor in Tesla's decision to
discharge Claimant or subject him to another adverse employment action; (5) that
Claimant was hanned; and (6) that Tesla's conduct was a substantial factor in causing
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Claimant's harm.; (CACI 4603 (Whistleblower Protection — Essential Factual Elements
(Lab. Code § 1102.5)).) Claimant did not dispute these elenients in his Reply Brief.
Although Claimant has established the first and third elements, he has failed to
establish the second and fourth elements. For the reasons explained in section N.B
above, Claimant did not have reasonable cause to believe that his reporting of the bicycle
helniet conversation between Rollins and Schafer, or of Hijaz's posts of two Spanishlanguage songs, disclosed a violation of the law. Claimant was also not reasonable in
believing that he had disclosed a state or federal violation by informing Tesla that he
suffered from ASD or a hypertensive episode. (See Claimant's Amended Post-Hearing
Brief at 18-19.) No reasonable person would believe that a medical condition could
constitute a violation of the law.
For many of the same reasons discussed in section N.0 above, I also find that
Claimant's disclosures were not a contributing factor in any adverse employment action.
In particular, there is no evidence from which I could reasonably infer that these
disclosures contributed in any way to the decision to terminate Claimant. Claimant was
well liked by his colleagues and Rollins showed a consistent desire to support Claimant
and even to encourage criticism from Claimant. Finally, as explained in section IV.A.3
& 4 above, Tesla had legitimate, non-retaliatory business reasons for terminating
Claimant's employmentreasons that I find Tesla has proven by clear and convincing
evidence.
H. Is Respondent Tesla Liable for Wrongful Termination in Violation of Public
Policy?
To prevail on this claim, Claiinant must prove: (1) Claimant was employed by
Tesla; (2) Tesla discharged Claimant; (3) a violation of public policy was a substantial
motivating reason for Claimant's discharge; (4) Claimant was harmed; and (5) the
11
In its Post-Hearing Brief, Tesla brought the Arbitrator's attention to the
California Supreme Court's recent decision in Lrnvson v. PPG Architectural Finishes,
Inc., 2022 WL 244731 (2022). In Lawson, the Court clarified "that section 1102.G, and
not McDonnell Dorsglas, supplies the applicable framework for litigating and
adjudicating section 1102.5 whistleblower claims." (Id. at *4.) Section 1102.6 relaxes
the employee's burden on summary judgment to establish a pt•in►afacie case and
increases the employer's burden to establish a legitimate, non-retaliatory reason for the
adverse employment action.
Tesla does not concede that Lawson is applicable to this case but argues that even
if it were, Claimant still cannot prevail on his eleventh cause of action. (See
Respondent's Post-Hearing Brief at 32.) Claiinant did not address the applicability of
Lmvson to this case in any of its pre-hearing or post-hearing briefs, including its Reply to
Respondent's Post-Hearing Brief. Claimant has accordingly waived any argument that
Lawson applies.
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discharge was a substantial factor in causing harm. (CACI 2430 (Wrongful Discharge in
Violation of Public Policy — Essential Factual Elements); accord Claimant's Amended
Post-Hearing Brief at 17.)
Here, the asserted violation of public policy consists in discrimination on the basis
of disability and age, failure to accommodate, and retaliation. (Id.; Claimant's Amended
Post-Hearing Reply Brief at 4.) Because I found that none of the foregoing was a
substantial motivating reason for Claimant's discharge, Claimant has failed to prove his
wrongful ternzination claim by a preponderance of the evidence.
I. Should Dr. Rosenberg's Testimony be Stricken based on People v. Sancliez?
Claimant argues that Dr. Rosenberg's testimony should be entirely stricken
pursuant to Peopie v. Sarrche.:, 63 Cal. 4th 665 (2016). Sanclie; articulated the following
rule: "When any expert relates to the jury case-specific out-of-court statements, and
treats the content of those statements as true and accurate to support the expert's opinion,
the statements are hearsay." (Id. at 686.) The argument is unavailing for several reasons.
First, evidentiary rules do not apply strictly in arbitration, largely because there is
no jury; thus, rather than exclude the evidence, the Arbitrator will give it the weight that
it deserves. Second, Dr. Rosenberg made it clear that many of his findings were based on
his interactions with Claimant and on Claimant's subjective self-reporting during his
examination. In several instances, Dr. Rosenberg testified that his opinion was not based
on outside records at all. (See, e.g., RT at 1391.). Third, other than refer the Arbitrator to
the portion of the record during which his counsel lodged the Sancliez objection,
Claimant has not explained exactly what hearsay evidence Dr. Rosenberg relied on and
tvhether or how his opinions were predicated on that evidence.
For the foregoing reasons, Dr. Rosenberg's testimony will not be stricken from
the record. Nonetheless, the Arbitrator has noted Claimant's other objections to both the
style and• substance of Dr. Rosenberg's testimony, and has assessed that testimony with
those objections in mind.
J. To What Damages Is Claimant Entitled?
Because Claimant has failed to prove liability by a preponderance of the evidence,
he is not entitled to any damages
K. Conclusion
For the foregoing reasons, Claimant has failed to establish by a preponderance of
the evidence any of his claims against Respondents Tesla or Rollins. The sanie is hue of
Respondent Schafer, whom Claimant dismissed.
///
ll/
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FINAL AWARD
Claimant sliall take nothing from Respondents Tesla, Rollins, or Schafer.
This Award determines all issues submitted for decision in this proceediag. Any
claims.not expressly addressed in this Award are denied.
Dated: October 4, 2022
Hiro'N. .Aragalci
Arbitrator
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~iecrronicauy rueu oy oupenor oun or anrornia,
or urange, u I/ IL/LVLJ i i:5ts:uu rivt.
18759-CU-OE-WJC - ROA # 100 - DAVID H. YAMASAKI, Clerk of the Court By E. efilinguser, Deputy Clerk.
30-201
1
Kaveh S. Elihu, Esq. (SBN 268249)
kelihutulEJLGlaw.com
2 Rhett T. Francisco (SBN 232749)
rfrancisco@ei11aw.com
3 Christopher J. DeClue, Esq. (SBN 282807)
cdec1ue ,EJLG1aw.com
4 EMPLOYEE JUSTICE LEGAL GROUP, PC
1001 Wilshire Boulevard,
5 Los Angeles, Califomia 90017
Telephone: (213) 382-2222
• 6 Facsunile: (213) 382-2230
7
8
Attorneys for Plaintiff,
DAVID VVYER
9
SUPERIOR COURT OF THE STATE OF CALIFORNIA,
10
FOR THE COUNTY OF ORANGE, CENTRAL JUSTICE CENTER
11
12
13
DAVID WYER, an individual,
Arbitrating with Hfro N. Aragaki Esq
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Claimant,
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Case No.: 1220067183
vs.
TESLA, INC. WHICH WILL DO BUSINESS
IN CALIFORNIA AS TESLA MOTORS,
INC., a Delaware corporation;
CHRISTOPHER ROLLINS, an individual;
CARSON SCHAFER, an individual; and
DOES 1 through 20, inclusive,
Defendants.
DECLARATION OF CHRISTOPHER J.
DECLUE IN SUPPORT OF PLAINTIFF
DAVID WYER'S MOTION TO VACATE
ARBITRATOR'S AWARD AND TO RETURN
TFIE CASE TO THE CIVIL ACTIVE LIST
Complaint filed:: December 17, 2019
FAC filed: February 6, 2020
Arbitration date: April 29, 2022
Hearing Date: April 20, 2023
Hearing Time: 1:30 P.M.
Hearing Dept: W15
Reservation No. 73928424
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25
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DECLARATION OF CHRISTOPHER J. DECLUE
PDF Page 53
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DECLARATION OF CHRISTOPHER J. DECLUE
I, Christopher J. DeClue, declare as follows:
1.
I am an attorney at law licensed to practice before all courts of the State of Califonva
am associated with Employee Justice Legal Group, counsel for Plaintiff David Wyer ("Plaintiff').
2.
I have personal Irnowledge of the facts of this case, including those presented in
motion, and if called as a witness could and would testify competently to the matters stated in
declaration. My personal knowledge is based upon my participation in this litigation and the evenl
described in this motion, and my review of the litigation file in this matter. I file this declaration i
support of Plaintiffs Post Arbitration Brief.
3.
Attached hereto as Exhibit 1 is a true and correct copy of SolarCity's Arbitratic
Agreement signed by Plaintiff David Wyer on August 20, 2015.
4.
Attached hereto as Exhibit 2 is a true and correct copy of Defendant Tesla, Inc
Arbitration Agreement signed by PlaintiffDavid Wyer on June 2, 2017.
5.
On June 4, 2021 Arbitrator Hiro N. Aragaki signed the joint stipulated discovery plan,:
16
which the parties agreed to limit the depositions to five(5) each side and the agreement that either par
17
may seek leave to take further depositions upon showing of good cause. The Joint Discovery Plan mac
18
it very clear that Plaintiff intended to call at least 8 vvitnesses at that early stage of the litigatio:
19
Attached hereto as Exhibit 3 is a true and correct copy of the Joint Discovery Plan.
20
6.
On February 16 2022, I requested an expedited conference with. the Parties and tl
21
Arbitrator to request that the Arbitrator allow Plaintiff to take additional depositions. I provided
22
detailed brief setting forth the additional depositions requested and the reasons why they were necessai
23
for Plaintiff's case. Attached hereto as Exhibit 4 is a true and correct copy of the email to the Arbitrati
24
requesting more depositions.
25
26
27
28
7.
On February 23, 2022, a telephonic hearing was conducted to discuss Plaintiffs ri
to take further depositions and Defendant's request to shorten the number of hearing dates. A
reporter was present for the conference. Attached hereto as Exhibit 5 is a true and correct copy of
February 23, 2022 hearing transcripts.
-2DECLARATION OF CHRISTOPHER J. DECLUE
PDF Page 54
1
8.
Having considered the parties' arguments during the hearing the Arbitrator ordered that ii
2
found no good cause for increasing the number of depositions even though Plaintiff informed the
3
Arbitrator that this matter was more complex than the ordinary single Plaintiff discrimination case
4
Moreover, the Arbitrator ordered the Arbitration to be shorten to the evidentiary hearing from ten day;
5
to five days. Attached hereto as Exhibit 6 is a true and correct copy of the Arbitrator's ruling or.
6
Plaintiffs Request for more Discovery.
7
8
I declare under penalty of perjury under the Laws of the State of Califorrua that the foregoing is
true and correct
9
10
Executed on January 12, 2023 at Los Angeles, California.
11
12
Chnstopher J. DeClue
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-3DECLARATION OF CHRISTOPHER J. DECLUE
PDF Page 55
PROOF OF SERVICE
2
3
4
5
6
7
STATE OF CALIFORNIA, COUNTY OF LOS ANGELES
I am employed in the County of Los Angeles, State of Califomia. I am over the age of 18 and
not a party to the within action. My business address is 1001 Wilshire Boulevard, Los Angeles,
California 90017.
On January 12, 2023, I served the foregoing document described as DECLARATION OF
CHRISTOPHER J. DECLUE IN SUPPORT OF PLAINTIFF DAVID WYER'S MOTION TO
VACATE ARBITRATOR'S AWARD AND TO RETURN THE CASE TO THE CIVIL ACTIVE
LIST on the interested parties in this action as follows:
8
9
10
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12
®
By placing true copies enclosed in a sealed envelope addressed to each addressee as
follows:
Cheryl Johnson-Hartwell, Esq.
BURKE, WILLIAMS & SORENSEN, LLP
444 South Flower Street, Suite 2400
Los Angeles, CA 90071
Johnson-hartwell bws1aw.com
Attorneyfor Defendants
13
14
15
16
®
BY E-MAIL: I transmitted a copy of the foregoing document(s) via e-mail to the individual(s)
indicated above. I did not receive, within a reasonable time after transmission, any electronic message
or other indication that the transmission was unsuccessful. The e-mail address of the person who served
the document(s) is: ggomez@eilglaw.com
Executed on January 12, 2023, at Los Angeles, California.
17
STATE
I declare under penalty of perjury under the laws of the State of California
that the foregoing is true and correct.
18
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❑
FEDERAL I declare that I am employed in the office of a member of the bar of this
Court at whose direction the service was made.
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~
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Gladis Gomez •
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-4DECLARATION OF CHRISTOPHER J. DECLUE
PDF Page 56
I-IB-IT
1.
PDF Page 57
OoouSign Envefopo IDt 6DCAA2PL-1249-4G41•9866•Ob65CCCBo3E8
SolarL.Ity
August 19, 2015
To: David Wyer
Dear David:
I am personalty and professionaliy pleased to confirm an offer of employment for you to join
SolarCity Corporation (the "Company") as an AutoCAD Software Engfneer subject to
sucoessfu:l completion of a ba4kground check and drug test as applicable. In this position you
will be reporting to Travis Brier. Your employment start date with SolarCity will be 9/8/2015
and you will be working at our San Francisco location. The following informstion will outline
your compensation, bene.fits and responsibilities as a new member of the SolarCity team.
Position & Responsibilities: As .an AutoCAD Software Engineer you will render full-time
services to the Company, and you will use your best effforts, skill, and abilities to promote the
Company's iaterests. We encourage .you to participate in the development of all aspects, of
SolarCity, fostering a sp.irit of teamwork; professionalism; high energy, and. fun.
.Comoensation and Benefits: You will receive a salary of USD $95,000.00/Yr. which will be
paid in accflrdanca with the Company's normal payroll procedures and subje:ct to customa,ry
deductions and vrithholdings as required by .law. As a sataried exempt employee, you are not
•eligible for overtime pay. As an employee, you will also be eligible to receive certain employee
benefts including Paid Time Off, prorated per our pol•icies; specifically, vacation will accrue at a
tvi►o (2) vueek rate during your first year of employment. Beginning your second year of
employment, vacation will begin to accrve at a three (3) week rate. Sick leave is available in
acxordance with applicable law and SolarCity policy. The details of our benefits plans shal) be
provided to you upon your start date or tiarlier if you wish. Medical, dental and vision benefits
begin the first of the moritii follovving 30 days of employinent. You should note that the
Company may modify job titles, salaries and benefits from time to tirne, as it deems necessary.
Restricted St,ock Units: Ifyou decide to jo.in the Company, it will be recommended at a meeting
of the Company's Board of Directors ar the appropriate committee at a time following your
ernployrnent start date, that the Company grant you an award of (1200) restricted stock units (the
"RSU Awar•d"). The proposed RSU Award, shall be granted under apd subject to the tenms.and
conditions of the Compeny's 2012 Equity ineentive Plan (the "Pian"), as.may be amended from
timb to time, as well as the terms and conditions of the a,pplicable RSU Award agreement
(which, among other things, provides for the mandatory sale of shares to cover tax withholding
PDF Page 58
OoeuSign Envelope 10: 60QAA2FE-1249.4841-9869-406sCCC809F9
obligations), which will be provided to you as soon as practicable after the grant date and whieh
you will be required to sign or accept in accordance with the Compapy's acceptance procedures.
Twenty five percent (25%) of the shares subject to the RSU Award shall vest twelve ( l2) months
after the grant date, subject to your continued employment with the Company, and no shares
shall vest before sueh date. The remaining shares subject to the RSU Award shall vest in equal
quarterly increments over the next three years, subject to your continued employment with the
Company. However, the Company may impose a different vesring schedule for the RSU Award
as required or reconunended to comply with local law, as determined by the Company in its sole
discretion. The exact vesting schedule will be provided to you. in your RSU Award agreemerit.
Tlie RSU Award is subject to approval by the Board of Directors (or the appropriate committee).
The Co.mpan.y is excited about your joining and looks forward to a bene.fi.cial and productive
relationship. Nevertheless, you should be aware that your employment with the Compaay is for
no speçif ed period and constitutes at-will employment As a result; you are free to resign at sny
time; for any reason or for no reason. Similarly, the Company •is free to terminate its
employment relationship with you at any time, with or without cause, and with' or without
notice. We request that, in the event of resignation, you give the Companyat teast two weeks
notice.
As.a condition of employment, candidates are subject to pre=employment screening for
backg"round and reference checks. Candidates for safety sensitive positions are also subject to
pre-employment drug sdreening and random drug screening during the cotirse of your
employment at SolarCity. SolarCity reserves the right to periodically eonduot background
cbecks throughout any employee's tenure in accordance with'the.Fair Credit Iteporting Act and
applicable state and loca! ('aws. YouT einp`loym.ent; therefore, is contingent upon a clearance of
such a background investigation, reference check and/or drug screen, as applieable. l.f the
Company feceives negative resutts on your background check, reference check or drug test after
your employment begins which would preclude you from employment at SolarC.ity, you viill be
subject to tenmination in accordance with applicable law.
For purposes of federel immigration law, you will be required to •provide to the Company
documentary evidence of your identity and eligibility for employinent in the United States. Such
documentation must be provided to us within three (3) business days 'of your date of hire, or our
employment relationship with you may be'terminated.
We also ask that, if you have not already dotie so, you disclose to the Company any and all
agreements relating to your prior employment that may affect your eligibility to be employed by
the Company or limit the manner in which you may be employed. 1t is the Cornpany's
understanding that any sucfi agreements will not preveat you fro,m. performing the duties of your
position and you represent that.such is the cese. Moreover, you agree that, during the term of
your employment with the Company, you will not engage in any other einployment, occupation,
consulting or other business activity directly related to the business in which the Company is
now invoivad or becomes involved during the term of your.emplo.yment, not will you engage in
any otfier activities that conflict with your obligations to the Company. Similarly, you agree not
to bring any third party confidential infortriation to the Cornpany, including that of your forcrier
PDF Page 59
Doauetgn Emetope ID600AA2FE-1249-4641-®8864D65CCCBD8F9
employer, and that in performing your duties for the Company you will not in any way utilize
any, such information.
As a Company employee, you will be expected to abide by the Company's rules and
standards. S:pecifically, you will be required to sign an acknowledgment that you have read and
that you understand the Company's policy covering Business Conduct and Ethics, which are
included in the Company Handbook and you may request, in writing; a copy of the pollcy prior
to signing this offer letter.
As a condition of your employment, you will also be required to sign and comply with $n AtWi11 Employment; Con.fidential .Information, Invention Assignment, and Arbitretion Agreement,
which requires, among other provisions, the as.signment ofpatent rights to any invention made
during your empioyment at the Company, and non-disclosure of proprietary:infoimation. In the
eveint of any dispute or ciaim relatipg to or arising out of our employment relationsh`ip, you and
the Company agrBeto an ai•bitration in which (i) you are waiving any and all rights to a jurytrial
but all court remedies will be available in arbitratioa,, (ii) We agree that ail disputes between you
and the Company shall be fully and finally resolved by binding arbitration; (iii) all disputes shall
be resolved by a neutral arbitn3tor who shall issue a written opinion, (iv) the arbitrstion shall
provide for adequate discovery; and (v) the Compan.y. will pay for any adrnministrative or hearing
fees charged by the arbitrator except that you shall pay.any filing fees associamd with any
arbitration ihat .you initiate, but only so much of the fiIing fees as you vvould have instead paid
had you fiied a complaint in a court of law.
This letter, along with any agr+eements relating to proprietaly rights between you and the
Company, set forth the terms .of your employment with the Company and supersede any prior
representations or agreements including, but not limited to, any repr.esentations made during your
recru'rtment, interviews or pre-employment negdtiations, whether Wr.itten or oral, 'I'his letter,
ineluding, but not limited to, its at-will employment provlsion, inay not be moditied or amended
eiccept by a written agreement signed by the Chief Bxecutive Officer of the Company and you.
Please note this offer of employment will expire if it is not accepted, signed and returned by
snl,nois.
We look forward to a happy, supportive and mutually benefieial relationship with you. We hope
that you will grow and pro.sper with us, and that you are as exeited about joining SolarCity as we
are at.havipg the opportunity to work with you. We look forward to your favorable reply.
PDF Page 60
OaoaSign EmrPlope 1D: 600AAZFE1249-4641•888640B5CCC803F6
Ltichard Crarcia
Agreed to and accepted:
Lega1 First Name;
David
Legal Last Name:
wyer
Sign ature:
Email:
Date:
oOGt~e er
w:' U►t,y
~.~..~._
ED
dwgraphics®mallbag.cae
8/20%2015
Please check box to contirm start date: 9/8/2a15
x
*If this is incorrect, please enter an atternate Monday start date:
PDF Page 61
EXIIIIBIT 2
PDF Page 62
:
.
i~"
•
i
~_:
:
AAay 30, 2017
David Vyrer
Irvine, CA 92618
Deat Davkt:
We are pleased to let you knaw ttiat as part of,your transfer from SofarCity Co~poretion to Tesla, Ino.
rTesla" or the "Cornpany°) efrecthre June 1g; 2017, you wlll ee employed in the exempt, salarled positbn
of.Sofbwars Engineer wRh Testa, Inc. ('Tesla"or the °t:ompany") on the terms.set forth betcw. As a
Software l:ngineer, you wUi perform the duties customerdy essoctaDsd with this position. You w1li report
to Mike Klclnski. Your duties, nssponslbiSies, job tille, and viiork tocatton may be changed at any ttme
by Tesia.
Your annualized salary will be $96,000.00 per year; subject to etendard payioll d®ductions and
wUhholdings. Ae in exempt employee, you wUl not be entitled to overtime: You will be eligibte for
iracatlon and sk;k leave aocording to Testa's standard poli.cy. Subject to the tules oFthe ibplicable pten
documents, you wilt also be:ellgb!e to recehre other beneflts Tosla may provide to Bs employeea (e.g.,
heaitir and dental insurance eoverege) (ieginning on your date of hire. Ta.sla may onnsider you for
bon:ises. although the amount of such bonuses, if any, and the cfiteria for detenmtning the award of such
bonuses, iF any, stu911 be in the sote disanetion of Teate. Of eourse, Teste re.serves the dght to modify
your compensalion and benefita from time to time, as it deems necessary.
Testa otfers e oompetitive benet3ts package. Ntore deta:led intorinatlon about the beiter:t plans and
lnstnùctions on how to enroll will be provided during your onboarding process.
SotarCity tequlty Awards: Equtty awards previously granted to you by SotatCl(y have alrady been
exchanged into Tesla eqully awards. and will not be affected by your transfer from SolarCity to Tes1a
While you remain empioyad by Tesla, you will cornttnue to vest pursuant to the terms and eandldons of
the stock plans and egneements4hat govern your awards.
401K Program: You.+ndll be eligibie to patticipate in Tosle"s 401K progrefin. The Tesia 401K pro8rarn is
admintstsrsd by FideNty Investments and yau wili reçelve ennollmertt lnstruations during your onboaiding
process.
SolarClty 401K Plan Aeoount Transfer: If you currently have a retirement acaount balance in the
SolarCity 401k pJan. your acoount will be transferred on a tax-free basis to the Tesla 401k ptan. You will
receive lnformation reger+ding the transler in the corriing v,reeke. The transfer is sdiedu!ed to octur Aptil
2017. In the fneantime, should yau have any questions, please contact Fidefity at 8o0•8S5•5097.
PTO Program: Under Tesla's PTO po6cy. regular full time emptoyees and part-time employees who
PDF Page 63
r@gulady woak at least 20 hours per wesk are eiigible far PTO Uuaediatety and acaue PTO at 1.25 days
(10 hours) per month for a totai of 16 days (120 hours) per ealarniar year, You rnay maintain a PTO
balance of up to 240 hours. PTO may be used for vacation or paid sick ieave, ae provided under Tes1a's
PTO policy, and consistent w6h applhmbie tew.
Vacation Transfer Actatowtedgmentc B.y signing thle amployee transferagreement, you agree to
treesfer your vested, unused vacation hours from SolarCity to Tesle. and convert them to PTO hours
under Tesis's pogcy.
It your transferred SotarCtty vaemtlon ts less than 240 hours, you will also be credited with PTO for your
SoiarCity vested, unused sick leave hours, up to the 240 hour PTO cap under Tesle's policy.
These PTO hours wlll be avallable for you to use immediatteiy, oonsistent with Tesla pollcy.
Service Oate: Ae a transferdng employee, your Service Date with Tesla w+11 be September 08, 2015.
Dfrect Deposlt Authortzation: (f, as ofthe date of this (elter, you elected to be patd via Dir®rd t7eposit
at SolarCity. Tesla wlN continue to pay you via Dinect0eposD unless you adjust your Tesla payment
elections. By stSning this empioyse trensfer agneement, you authorize SolarCity to share your cunrent
Difect Deposit.inforrrbation. if app6cable, with Tea1a. You elso tauthor'iae Tesla to pay you directty to your
acoount designated in your SolerCtly Direct Deposit Information.
The Company is excited about your joining end tooks fonNard to a beneflolai and fruitfui reiationship.
Nevertheless, you should be aware that your ®mptoyment with the Company Is for no speraped pedod
and constltutes at.will emptoyment. As a result, you are free to nesign at any tlrne, ior any reason orfor
no reeson, whh or wittiout notit;e. S6nitarly, the Coinpany Ia frae to conclude its emptoyment nelattonship
witth you at any tUne, with or witfaut cause, and with or wlthout notke.
We ask that. If you have notatready done so, you disciose to Tesla any and all agreemente retating to
your prior efiptoyment that may affect your ellg~b8ity to be employed by Testa or Gmb the manner ln
which you may be employed. It is T.esla's understanding tliat eny such agredtnenls wiii not prevent yoir
from performing the duttes Qf your posltion aind you represent that such Is the case. We want to
emp},asïze that we do not wish you to bring any eonRdentlai or proprietary ineteriels of'any tormer
emptoyer which would violate any obligations you mey have to your former emptoyec. You agree not to
make any uneuthori,zed disclosure to Tesie or.u'se on belmiPof Teela any contidential infomretion
betonging to any of your former empioyers (exaept in .eonordanee wtth agneeriments between 7esla and
any such former employer). You also warrant thet you do not posaess any property conte.irting a third
. information. Of course. during.your empioynient with Tesla, you may
partys confidential end propdetery
rnake use of intormdtlon genereliy, knowrierid used by peraons with training and experoence comparable
to your own, and irrformation whfeh is comrnon lmowledge In the induatry or Js otherwLse legally avaftable
in the public dornsin. Moreover, you agner that; durin8 the term of your employnrent with the Company,
you wilt not engege in any other ernployment. occupetlon, oonsuRing or othor business activity din:otay
retated to the business In which Tesfa iä now invoived or becomes irivohred during the term of your
ernployment, nor wlil you engage li1 any other acthdties thatoonttict with your obligetions to Tesla.
As a Testa errrptoyee, you wfil be expectad to abide by ell Tesia poltc+esand procedures, end, as a
condition of youi empioyment, you wip sign and cornpiy, with Tesla's standard cpntTdentiatity agieement
which prohibits uneuthorized uss or disciosure of Tesis.confidentlai. infonnaliomor tlse coMidential
infonnationaf7esta'a cAents.
PDF Page 64
tn addilion, to ensure the rapid and economical resoiution of disputes that may adse in connection with
your emptoyment with 7esta, you arid Testa agree that eny and all disputes, clalnis, or causes of action,
in law or equity, adsing from or refating to your employment, or the tennination of your employment, will
be resolvad; to the fullest exdent parmltted by law by Anal, titnd(ng and oonddential artdtradon In your clqr
snd atate of employment cpnduded by the Judiclal Arbftrallon and pAedfation SenriceaiEndispute, tnc.
("JAMS°), or its suooessors, under the then current iulees of JAMS for empioyment dispuUes; provided that:
•
•
•
•
•
•
•
•
Any claim, dispute, or cause of aetion must be brought M a parqls IndNiduat capadly, and not as a
ptaintiff or dass m,ember in any purported class or rppresentative prooeeding; end
The erbitrstor shall have the authority to compel adequate disoovery t'or the resotutlon of the dlsptde
and to dward such refief as would otherwise be pennitted by leuV; .and
The arbttratorshell not have the.aulhortqr.to conso8date the: ctairme; of other employees and shall not
heve fhe authorlt,r to fashion a proceeding as e dass or cotlective adion or to ewani relief to a group
or class of emptoyees In one arblt+atlon proceedin8; and
The arbitrator she11 issue a witttsn arbitnstion deciston lncluding the, arbitratos's sssentiel tntdings and
conclusions arid a staternent of the award; and
t3oth you and Tesle shatl be enUUed to ait rights and rerredlea that you or Tesla would be ei►titled to
pursue 1ft a court of 1aw; end
Tesia shall pay all fees in exiess of tFiose which would be requlred it the dispute was decided tn a
court of law
Nothing in thk emp.loyea transfer agreement is intended to pr.evant eNher you or T.esia from obtaining
in)unctive relief in cdurt to prevent irreparablae hann pending the concluusloa of any such artiE
PDF Page 65
organization at any ttme any Confldentta) Inforntetlon and Business Related Infomtiation, whether or ta>t
developed by you; (111) keep in striatest oonfidence any ConfldenfMt Infomretlon or Buslness Releted
Information; (tv) not dfsdose or ditruige, or atlow to be disdosed or d'nni(ged by any person within your
control; to sinypereon, dnn, or corporatlon, or use directly or htdliecliy, for your own l;enefit or the benefit
of others, any Conhdenttal lnformartion or Business Releted Infomtation; and (v) upon the tenninatbn of
your emptoyment. retum e11 Conridentiat InformaUon and Businees Revonis and not maite or relein any
coples or exects thereof.
Thts employea transferagnjement eonstkutas the complete, flnal and exctustve en.tbodltrtent ot the enWe
agreement between yop and.Tesle with resped to the hemie and condl8ons of your ernpbyment, and h
supensedas any other e8reements ofprwntses made to .you by anyone, whetherorat or wittten. Thie
employee tnsnsfer ag'reement cannot be changed, amended, or modi8ed except in a wrtttert agreement
eigned.by an ofttcer of Tesla. Thle emptoyee transfer egreement ehall be oortstrued and Interpreted ln
aocordanoe vriLh the laws oi the State of Califomle.
As reQuired by Irnmigration law, thts otTer of empfoymerrt ¿s condilioned upon satistaetory pnoaf of yow
right to work In the United•Stetee. •
We laok forward to a pioductive antl enjoyable work retatbnship.
Vey lruly yours,
Elan Musk
Chairman of the Board and CEO
Slgn Here:
oate:
eC,
w1•Re'w•l . r.'
Jun 2, 2017
i
TO THE ARBITRATOR A.ND TO ALL COITÑSEL OF RECORD:
2
Clainiant DAVID WYER (."Claimaiit"), by and through liis counsel of record and
3
I Respondents TESLA, INC. ("Tesla"), CHRISTOPHER ROLLINS ("Rollins"), and CARSON'
4
l SCHAFER ("Schafer°') (collectively "Respondents°'), b.y and througli ttteir counsel of record, do
5
l hereby submit their Joint Discovery Plan •as set forth°below.
6
A.
The Parties have participated in the JAMS Rule 17 Exchange.
7
8
RULE 17 EhCHANGE
B.
PROTECTIVE ORDER
The:Parties agreed to a.Stipulat.ed Protective Order to govern this matter. On May 18,
9
10 ~ 2021, Arbitrator~Aragaki entered the Stipulated Protective Order
11
12
C.
WRITTEN DISCOVERY
•'The Parties agree .that the anticipated written discover;► inay ahange upon fiuther
13'
iriformation and discovery
. . However, presently the'Parties' ant.icipated discovery is as follows:
14
Form Interrogatories — General, Form Interr.ogatories — Employmeilt, Special Inter.rogatories,
15
Requests:for Adniission, and Requests forProductiori of Docunieiits. Tlie Parties will limit each
. may
.set of diseovery requests to no more than 20 interrogatories or requests per set. Either Party
'17
18~
1•9~
seek leave to issue filrther requests. but only upon a showing of good cause.
D.
DEPOSITIONS
The Parties agree to the following liriiit on deposition duration: (1) Claimant —,8 hours; (2)
20.
C1ristopher Rollins ("Rollius") and C.arson Schafe,r (s'Scliafer") — 6liours; and (3) all r.emaining
21
witnesses — 4 hours. The depositions of Plaintiff,'Rollins, atid Schafer n;ay be continued to a
22.
secoiid deposition date as needed.
.23~
The Parties are liniited to 5 depositions eacli. Either Party ina.y seek leave to take further
24
depositions but only upon a slrowing of good cause.
25
.Respondents antioipated deponents:
26
1 j David Wyer
27
2) Dr. Pauline Sacks
28. ~
3) Dr. Nathan Ford
BLRI.E, WSLt:iAn45 BF
SoRaNse•.Y., LL P
A7ScqtCLls A LAtiC
LOS A\Ctt0f
LA #4823-21S7-1718 v2
-~JQI_NT ~ISCOVERY PLAN
PDF Page 69
1
4) Dr. Maria Ruby Leynes
2
Claimant's anticipated deponents:
3
1) Chris Rollins;
4
2) Carson Schafer;
5
3) Maliadevan Virudhagiri;
6
4) Travis Wilson;
7
5) Irene Kucherova;
8
6) Maria Malik;
.~
7) Son Dang;
8) Tesla Person Most Knowledgeable.
10
11
E:
DISCOVERY CUTOFF DATES
12
The Parties agree to conduct discovery• and related discovery cutoff. dates in accordance
• 13
~.vith the California Code of Civil Proc.edure and Report'of Preliminaiy Hearing and Scheduling
14
Order No. 1.
15
_, 2021
Dated: May,
BURKE; WILLIAMS & S0RENSEN, LLP
16.,
By: .
`Cl~ery,l• Jolurson-Hartwell
Susan V. •Ardueugo
Attofne.ys for Respondents TESLA, INC.,
CHRISTOPHER.itOLLINS, and
CARSON
.
.
.. SCHAi?ER
17
18
19
20.
21•
Dated: 1Vlay
, 202•1
EMPLOYEE JUSTICE LEGAL.: GR0LJP, PC
22
B.y:
Kaveh SïElihu
Christopl~er J. .DeClue
Att.orneys for C1aimant DAVID WYER
23'
24
•25
26
SO ORDERED
Dated: June 4, 2021
i .
Hiro. N. Aragalci, Arbitrator
27
28
BLsxs,. Wiciiax['s &
SORsseN, LLP
nnoox:rr ar tAW
i cs A+euss
Z,A?;4823-9187-1718 vQ
- 3 JOI~
-.1T`D.ISCOVERI PL•A1V'
PDF Page 70
PROOF OF SERVICE
2.
3
4
5
6
7
8
9
1.0
11
12
13
I, Theresa Nevarez, declare:
.I am a citizen of the United States and emplo.yed i•n Los Angeles County, California. I am
over the age of eighteen years and not a party to the within-entitled action. My liusiness address
is 444 South Flower Street, Suite.2400, Los Angeles,. Califomia 9007.1=2953. On June 4,
2021Apri12, 2021, I served a copy. of the within document(s):
JOINT DISCOVlRY PLAN
o bq transmitting via e-mail or electronic transmission the document(s) listed above to the
p•erson(s) •at the e-mail address('es) set forth below.
o by placing the documeiit(s) listed above in a sealed envelo:.pe with postage thereon full.y
prepaid; in the United States mail at Los Angeles;•California addressed as set forth below.
envelope and affixing a preo.by placing the docuient(s) listed above in a sealed
be
to
a
agent for delivery.
paid air bill, and causing tlie enveiop:e to delivered
..
BY E-MAIL•: Based dn.a court order oi an agreEirleitt of the palties to accept service by evnail or electronic transmission, I caused the document(s) to be sent ftonm e-lnail address
.znèvarer@liwslaw.coni to the persôns at the e-mail addresses listed in the below Service
List. I did not receive, within a reasonable tirue after the transmissior. any electronic
iaessage or othei indication that the transmission was upsuccessful
1.4~
15
16~
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•7ames G.. Bohm; Esq.
Sheriy Giaybehl D'Antony
Joanne P. Freeman
695 Town Center Drive, Suite 700
Costa Mesa, CA 92626
•Tel: 714138.4-G500;. Pax: 7141384=65:0 Y
Email: •ifreeman,bohmwildi;
sdantona.bohinvvildish:coin
jb.olmlCa~b.ohmR►ildish.com
lrivaia6'bolilnwildish.com cc
1.8.
1.9
~20
21..
22.
.I am readily fanuliar with .the firm's practice of •co.11.ection and processing correspondence.
for niailing. Under that pr.ac.tice.it would be deposited with the U.S. Postal Service on that :same
day with postage thereon fiilly prepaid• iri the ordinary course• of business. I aiii aware•that oii
motion of tfie party served, service is presumed invaiid if postal cancellation date or postage
mete'r :date is more thali one day after .date .of deposit:for mailuig in ãffldavit.
.I declare uuder penaity of pei7uiy, urider flie laws.of t•he .State of California that the above
i•s true and cor•rect.
.23
24
Executed on June 4.,. 2021, •at Los Angeles, Califoraia.
~25
26
Ther.esa Nevarez
27
LA f{Q823-9,187-1718 vZ
-1,PROOF OF SERVICE
PDF Page 71
EXHIBIT 4
PDF Page 72
Gladis Gomez
From:
Sent:
To:
Christopher DeClue [cdeclue@ejlglaw.com]
Wednesday, February 16, 2022 5:50 PM
'Ricardo Juarez'; 'Johnson-Hartwell, Cheryl'; 'Arduengo, Susan V.'
Cc:
ggomez@ejlglaw.com; spanosian@ejlglaw.com; 'Ashworth, Barbara'; 'Valadez, Olga';
Subject:
'Ashworth, Barbara'; dfriedman@ejlglaw.com; kelihuc~iejlglaw.com
Re: Wyer v. Tesla - Claimant's Request for Expidited Conference Re: Clairnant's Need for
Additional Depositions
Mr. Juarez,
Claimant requested an expedited hearing regarding the following matter. Claimant requests that Arbitrator Aragaki
permit claimant to take additional depositions in this case. Claimant requests additional depositions because they are
highly relevant, and they are required to address Respondent's unsubstantiated and allegedly false reasons for
terminating Claimant.
As this point, Claimant has taken 3 of the 5 depositions initially permitted by Arbitrator Aragaki. Respondent delayed
the deposition dates for Claimant's final 2 depositions, including the alleged manager who terminated Claimant and the
PMK regarding the categories regarding Claimant's termination, including the alleged Reduction in Forces that took
place in 2018 and allegedly Jan. 2019. Currently, a conference is set for Feb. 23, 2022, to discuss another matter.
However, Claimant cannot wait until Feb. 23, 2022 because Respondent will likely not produce these necessary
witnesses prior to the discovery cut-off in this case. Time is of the essence, and Claimant needs an order to produce
these witnesses prior to the discovery cutoff.
Discovery obtained in this case warrants the following depositions, as follows:
1. Mahadevan Virudhagiri (aka Maha) — this witness allegedly made the decision to terminate Claimant's
employment. Claimant has been requesting his depositon since December 2021, and Respodent only provided
dates in March 2022.
2. PMK regarding the following topics:
a. The 2018 RIF (Reduction in force)
b. The 2019 RIF (Reduction in force)
c. Policies and procedures in place regarding the termination of employees under the 2018 and 2019 RIFS,
and how those policies and procedures were applied to Mr. Wyer
d. Policies and procedures regarding addressing employee complaints of workplace injuries, including
referring employees to medical care through Tesla's workers' compensation medical provider network,
accommodating employees with work related stress or other work-related injuries/medical conditions,
and engaging the interactive process to address employees with work-related injuries/medical
conditions, and the application of those policies and procedures to Mr. Wyer.
3. Palaneeswar Chittoor (aka Palanee) - this witness replaced Claimant after an alleged reduction in force. This
employee was not subject to Claimant's protected characteristics that Clalmant was protected by under the
FEHA)
4. Alex Poniz —this witness worked with Claimant on a daily basis, on Claimant's team. This witness's will recall
personal accounts of Claimant's performance and this witness's performance ranking compared to Claimant are
highly relevant, considering Claimant's termination was based on Claimant ranking lower than this witness on
Defendant Rollin's "Stack and Rank List" — which has only been produced as a scratch-excel-table that was never
finalized.
5. Dayana Hijaz - this witness worked with Claimant on a daily basis, on Claimant's team. This witness's will recall
personal accounts of Claimant's performance and this witness's performance ranking compared to Claimant are
highly relevant, considering Claimant's termination was based on Claimant ranking lowerthan this witness on
Defendant Rollin's "Stack and Rank List" — which has only been produced as a scratch-excel-table that was never
finalized.
PDF Page 73
6. Maira Malik - this witness worked with Claimant on a daily basis, on Claimant's team. This witness's will recall
personal accounts of Claimant's performance and this witness's performance ranking compared to Claimant are
highly relevant, considering Claimant's termination was based on Claimant ranking lower than this witness on
Defendant Rollin's "Stack and Rank List" — which has only been produced as a scratch-excel-table that was never
finaiized.
7. Marc Artigas-Sanchez - this witness worked with Claimant on a daily basis, on Claimant's team. This witness's
will recall personal accounts of Claimant's performance and this witness's performance ranking compared to
Clairnant are highly relevant, considering Claimant's termination was based on Ciaimant ranking lower than this
witness on Defendant Rollin's "Stack and Rank List" — which has only been produced as a scratch-excel-table that
was never finalized.
Moreover, Defendant has noticed depositions for Claimant's treating physicians. However, at this point, only one of
three of those treating physicians has agreed to and/or will appear. Claimant requests the opportunity to depose those
physicians via agreement or subpoena.
is Arbitrator Aragaki available to discuss these issues on Friday of this week or early next week?
Warm regards,
Christopher J. DeClue
Senior Litigatiort Attorney
Employee Justice Legal Group, P.C.
1001 Wf[shire Blvd.
Los Angeles, California 90017
Ph: (213) 382-2222
Fax: (213) 382-2230
Email: cdeclue'Crìeilelaw.com
This transmission is intended for the sole use of the individual or entity to whom it is addressed. Said transmission may
contain information that is privileged, confidential or otherwise protected by both FEDERAL and STATE Iaw. Any
dissemination, distribution or transmission of this information is strictiy prohibited. If you received this e-mail
communication in error, please notify our office immediately by telephone so that remedial measures may be taken to
properly direct this correspondence. Nothing in this email creates an attorney-client relationship or is intended to do so.
Additionally nothing in this emaii should be construed as legal advice.
PDF Page 74
EXHIBIT 5
PDF Page 75
Hearing
February 23, 2022
1
2
3
4
5
6
7
JAMS ARBITRATION SERVICES
DAVID WYER, an individual,
Claimant,
v.
TESLA, INC. WHICH WILL DO
BUSINESS IN CALIFORNIA AS TESLA
MOTORS INC., a Delaware
corporation; CHRISTOPHER,
ROLLINS, an individual; CARSON,
SCHAFER, an individual; and DOES
1 through 20, inclusive,
Respondents.
JAMS Case No.
1220067183
8
9
10
11
12
13
14
15
16
Via Videoconferencing Meeting
Wednesday, February 23, 2022
17
18
19
20
21
22
ATKINSON-BAKER, A VERITEXT COMPANY
(800) 288-3376
23
24
Reported by:
25
File
No.:
EILEEN ELDRIDGE, Notary Public
AB 5107614
Page 1
Atkinson-Baker, A Veritext Company
(818) 551-7300
www.veritext.com
PDF Page 76
Hearing
February 23, 2022
JAMS ARBITRATION SERVICES
1
DAVID WYER, an individual,
Claimant,
v.
3
TESLA, INC. WHICH WILL DO
4
BUSINESS IN CALIFORNIA AS TESLA
MOTORS INC., a Delaware
5
corporation; CHRISTOPHER,
ROLLINS, an individual; CARSON,
6 : SCHAFER, an individual; and DOES
1 through'20, inclusive,
7
Respondents.
2
JAMS Case No.
1220067183
8
9
10
11
12
13
14
15
Hearing held via videoconferencing
equipment, commencing at 4:02 p.m., on
Wednesday, February 23, 2022, taken before
Eileen Eldridge, Notary Public.
16
17
18
19
20
21
22
ATKINSON-BAKER, INC.
(800) 288-3376
23
24
25
Reported by: EILEEN ELDRIDGE, Notary Public
File No.: AB 5107614
Page 2
Atkinson-Baker, A Veritext Company
(818) 551-7300
www.veritext.com
PDF Page 77
Hearing
February 23, 2022
1
2
3
4
5
APPEARANCES
ON BEHALF OF CLAIMANT DAVID WYER, AN INDIVIDUAL:
CHRISTOPHER J. DECLUE, ESQ.
Employee Justice Legal Group
1001 Wilshire Boulevard
Los Angeles, California 90017-2415
cedeclue@ejlglaw.com
(213) 382-2222
6
7
8
ON BEHALF OF RESPONDENTS TESLA, INC. WHICH WILL DO
BUSINESS IN CALIFORNIA AS TESLA MOTORS, INC., A DELAWARE
CORPORATION; CHRISTOPHER ROLLINS, AN INDIVIDUAL; AND
CARSON SCHAFER, AN INDIVIDUAL:
9
10
11
12
13
14
15
16
17
18
19
SUSAN V. ARDUENGO, ESQ.
Burke, Williams & Sorensen, LLP
444 South Flower Street, Suite 2400
Los Angeles, California 90071-2953
sarduengo@bwslaw.com
(213) 236-0600
20
21
22
23
24
25
Page 3
Atkinson-Baker, A Veritext Company
(818) 551-7300
www.veritext.com
PDF Page 78
Hearing
February 23, 2022
1
Los Angeles, California, Wednesday, February 23, 2022
4:02 p.m.
2
3
4
ARBITRATOR ARAGAKI:
5
6
7
•
BY MR. DE CLUE:
Okay.
(Audio distortion.)
ARBITRATOR ARAGAKI:
You are kind of cutting.
8
Mr. DeClue, are you on a mobile phone?
9
way you can improve your phone, the quality of your
10
11
12
transmission?
MR. DE CLUE:
Yes.
For the moment.
THE REPORTER:
14
ARBITRATOR ARAGAKI:
15
Okay.
17
18
19
Ms.
I think so.
Eldridge, do you need him to repeat
anything?
THE REPORTER:
Yes.
If Mr. DeClue could repeat
what he said.
MR. DE CLUE:
My apologies.
20
in through my computer.
21
distortion).
22
Does this sound better
right now?
13
16
Is there some
I did try to call
I guess I was (audio
So counsel and I have discussed a number of
I think we're moving towards a -- if
23
collateral issues.
24
for some reason Ms. Arduengo would like to discuss
25
those, I am happy to, if Arbitrator Aragaki is open to
Page 4
Atkinson-Baker, A Veritext Company
(818) 551-7300
www.veritext.com
PDF Page 79
Hearing
February 23, 2022
1
discussing limited collateral issues.
MS. ARDUENGO:
2
I
This is Susan Arduengo.
3
believe the only collateral issue currently is the issue
4
of the Claimant's IME.
5
point to involve you Arbitrator Aragaki.
I think it's premature at this
6
I hope -- I would like to make further effort
7
to resolve the issues •with counsel about your =- about
8
waiting for your assistance.
9
ARBITRATOR ARAGAKI:
A11 right.
So let's put
10
this on the agenda list for the time being, but let's
11
focus on the first two issues, because those are the
12
ones that you've been waiting to have addressed.
So why don't we start with the deposition
13
So my understanding, Mr. DeClue, is that you've
14
issue.
15
taken three out of the five depositions; is that right?
16
And you're thinking that you need more than just the
17
five?
That's correct.
18
MR. DE CLUE:
19
ARBITRATOR ARAGAKI:
Okay.
And say more about
20
how much more you think you need, and what is the reason
21
for needing more at this stage?
22
MR. DE CLUE:
Yes, of course, thank you,
At this point, I would like to
23
Arbitrator Aragaki.
24
remind the Arbitrator that two of three depositions we
25
have taken are two of the named Defendants.
So,
Page 5
Atkinson-Baker, A Veritext Company
(818) 551-7300
www.veritext.com
PDF Page 80
Hearing
February 23, 2022
1
obviously, we can't learn things about Mr. Wyer's
2
employment in relationship with those particular
3
individual Defendants, as the claims are --
4
individually.
5
But as far as the bulk of the lawsuit, it
6
really is -- most of the claims are against Tesla.
7
it's really•limited on what we can find and limited to
8
who we can talk to about termination, about --
9
apparently, we learned there was a reduction in force,
10
11
So
which we learned through one of the depositions.
And we learned that there is an individual much
12
younger, much less experienced than Mr. Wyer, that
13
replaced Mr. Wyer after Mr. Wyer was terminated after an
14
alleged reduction in force.
15
And we learned -- we think we know the person
16
that made the decision to terminate Mr. Wyer.
17
just'Mr. Rollins, direct supervisor, his first name for
18
short is Maha.
19
It wasn't
And we've been working since December to get a
20
deposition date for that individual, trying to carve out
21
the PMK categories that cover, not'only the termination
22
policies, but procedures of the two different alleged
23
reduction of forces that Tesla had, but also how they
24
handle accommodating people with Asperger's, people with
25
high blood pressure, people that had to go to the
Page 6
- Atkinson-Baker, A Veritext Company
(818)551-7300
www.veritext.com
PDF Page 81
Hearing
February 23, 2022
1
hospital for emergencies and taking time off of work.
2
This case is unfortunately not a simple
3
straightforward single-claimant employment case.
4
involves a lot of working parts.
5
information that we need, and every time we have a
6
deposition or get another 1,000 or 2- pages of
7
documents, it raises more questions and answers.
It
And we don't have the
And so we're trying go through all of these
8
9
thousands of pages of documents and thousands of pages
10
of printed spreadsheets and we think we carved out the
11
PMKs.
12
it's more than five people.
I think we know who we need, but; unfortunately,
13
We need the -- we need the person that, at this
14
point, we hope is the one that made the decision to fire
15
Mr. Wyer.
16
might not be the same person. •We.need to take the
17
deposition of the person who replaced our client, a
18
younger person that didn't have the condition our client
19
had.
We need the PMKs on multiple categories that
And given the fact that we've recently learned
20
21 •
that our client was terminated and excused out of -- you
22
know, he went from the middle of the road on the ra.nking
23
list of his department; he's dead last within one
24
quarter.
25
And it requires an imperative amount on the
Page 7
Atkinson-Baker, A Veritext Company
(818) 551-7300
www.veritext.com
PDF Page 82
Hearing
February 23, 2022
1
other individuals who didn't end up last; that went from
2
last to the middle of the back and switched spots with
3
Mr. Wyer.
4
talk to and they're working every day.
5
So those are the people that we wanted to
ARBITRATOR ARAGAKI:
6
sure I'm understanding.
7
understanding you.
Okay.
So let me just make
Let me make sure that I'm
8
So you're saying you disclosed Mr. Maha, you
9
requested PMK depositions for the person who replaced
10
Mr. Wyer, and on the comparative evals is there just one
11 '
or some group of people that you are hoping to dispose?
12
MR. DE CLUE:
Yes.
We have a list of four
13
individuals that work closely with our client.
14
see one or two things.
15
comparative analysis with how they were ranked, whether
16
or not they were actually ever ranked and --
17
18
I can
0ne that can help us would be
(Reporter clarification.)
MR. DE CLUE:
-- whether or not there was a
19
reduction in force, reduction of force, reduction in
20
force of -- that they were considered on the ranking
21
list, and the fact that these individuals who worked
22
with Mr. Wyer on a daily basis, who didn't have the
23
necessary background and training and experience to give
24
an opinion on his work quality.
25
But, apparently, went from a very solid to at
Page 8
Atkinson-Baker, A Veritext Company
(818) 551-7300
www.veritext.com
PDF Page 83
Hearing
February 23, 2022
1
least average to this absolute last on the list within
KI
one quarter after he whistle blew for some kind of
3
disability requiring accommodations.
4
important for an understanding of their opinion on his
5
work product, so we don't have to go into the
6
arbitration and call all these witnesses.
7
We can -- it's
Now, I want to make it very clear the
8
comparative analysis coworker depositions, we can
9
probably do all those in one day or a couple of days,
We're not asking for days
10
short two-hour depositions.
11
and days, but we would like to have a chance to talk to
12
these individuals, so that the first time we talk to
13
them is at arbitration.
14
15
ARBITRATOR ARAGAKI:
Okay.
Thank vou,
Mr. DeClue.
16
Ms. Arduengo?
17
MS. ARDUENGO:
This is Susan Arduengo.
First
18
of all, the reduction in force, it's not,new knowledge
19
that was gained during the course of this arbitration.
20
Claimant was well aware of the fact that he was
21
subjected to the reduction of force.
22
Pre-litigation, pre-arbitration, it was
23
national news because 15 percent of Tesla's workforce
24
was unfortunately subjected to a reduction in force in
25
2018, 2019.
So the reduction of force, in and of
Page 9
Atkinson-Baker, A Veritext Company
(818) 551-7300
www.veritext.com
PDF Page 84
Hearing
February 23, 2022
1
itself, doesn't provide good cause for any additional
2
depositions.
So far Claimant has deposed both individual
3
4
Respondents and a coworker of Claimant, so in terms of
5
comparative data, there have been two depositions of
6
Claimant's coworkers and the deposition of Claimant's
7
direct supervisor.
8
9
10
ARBITRATOR ARAGAKI:
And who was -- who was the
coworker, Ms. Arduengo.
MS. ARDUENGO:
One of the coworkers was named
11
Travis Wilson, and he other coworker was Carson Schafer,
12
who was also an individual Respondent, who was also
13
subjected to the same reduction in force as the
14
Claimant.
15
ARBITRATOR ARAGAKI:
16
MS. ARDUENGO:
Got it.
And then Claimant's direct
17
supervisor is an individual Respondent, Chris Rollins.
18
He's been deposed twice.
19
Claimant's replacement, it's Tesla's position that there
20
was no one hired to replace Claimant.
21
And then, finally, in terms of
His position was eliminated through the
I believe the individuals that
22
reduction in force.
23
Claimant will claim replaced him, had different job
24
duties, a different job title, a different•experience,
25
you-know, it's -- Tesla will contest that there
Page 10
Atkinson-Baker, A Veritext Company
(818) 551-7300
www.veritext.com
PDF Page 85
Hearing
February 23, 2022
1
was anyone that was hired to replace Claimant, let alone
2
this particular.individual that I believe Claimant will
3
claim replaced him.
It's merely conjecture at this point.
4
There is
5
no -- there's no testimony or evidence that anyone
6
replaced Claimant.
ARBITRATOR ARAGAKI:
7
Okay.
And you're saying
8
that a lot of the other reasons why additional
9
depositions might be needed were known or should have
10
been known before the joint discovery plan was put
11
together?
Is that part of what you're saying?
MS. ARDUENGO:
12
Right.
Arbitrator Aragaki, the
13
discovery plan limited each party to five depositions
14
each.
15
to the discovery plan to extend the scope of the
16
deposition.
17
disagree with what my opposing counsel states.
18
There has to be a showing of good cause pursuant
At this point, you know, I'm going to
This is a traditional discrimination
There so nothing
19
single-plaintiff arbitration matter.
20
about this case that makes it any more complex or
21
complicated than any other single-plaintiff case where
22
in arbitration Claimant has two additional depositions
23
that they can take.
24
25
And we are -- we have been, you know,
exceedingly cooperative in terms of helping to figure
Page 11
Atkinson-Baker, A Ventext Company
(818) 551-7300
www.veritext.com
PDF Page 86
Hearing
February 23, 2022
1
out which additional deponents Claimant would like to
2
take.
Part of the frustration in this process has
3
4
been over the past few months Claimant has brought up
5
ten different names of deponents that they want to
6
depose.
7
okay, which of these ten witnesses do you want?
8
us know, we'11 produce them.
And so there's been some frustration with,
Let's
But we can't really come to a consensus on
9
10
which of these additional ten depositions -- witnesses
11
are necessary?
12
point.
So that's kind of where we stand at this
13
ARBITRATOR ARAGAKI:
Got it.
Got it.
14
So, Mr. DeClue, I guess, I would ask you -- so
15
the parties did come together and file a joint discovery
16
plan.
17
hearing anything so far that suggests that you have
18
discovered new information that would warrant rnore than
19
the five that you agreed to.
I'm not
Can you explain that a little bit better to me?
20
21
You agreed on five depositions each.
•
MR. DE CLUE:
Of course, Your Honor.
I want to
22
make it very clear, Arbitrator Aragaki, our client had
23
no idea why he was fired, and we learned that through
24
discovery.
25
about a reduction in force by Tesla, doesn't have any
Just because something was on nationally
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Atkinson-Baker, A Veritext Company
(818) 551-7300
www.veritext.com
PDF Page 87
Hearing
February 23, 2022
1
2
play here.
That being said, the first reduction in force
3
that happened in 2018, our client survived that one.
4
That was a full analysis that they showed us all their
5
breakdown of the reduction in force in 2018 in
6
discovery, we saw that.
7
He was not a part of that.
He made it through the first alleged round.
8
The second alleged round of reduction in force in 2019,
9
we don't have any comparative analysis or breakdown, we
10
just have a little list by his supervisor and the same
11
that he was fired under for reduction of force that we
12
don't have any assurances or evidence that there was
13
actually a reduction in force, except for our client and
14
his coworker.
That being
15
So this is -- we don't know why.
16
said, we didn't know that Maha, which we have been
17
trying to depose since December, was the one that
18
allegedly made the call after Mr. Rollins, the
19
Defendant, our client's supervisor, gave him a list
20
saying that David Wyer is now lapsed.
21
And now (audio distortion) -- you have some
22
part of it or made decisions or maybe, again, if he
23
comes in a deposition and says I was told by my hirer,
24
you know --
25
(Simultaneous crosstalk.)
Page 13
Atkinson-Baker, A Veritext Company
(818) 551-7300
www.veritext.com
PDF Page 88
Hearing
February 23,2022
ARBITRATOR ARAGAKI:
1
Part of what -- some of
It's just the
2
this, Mr. DeClue, is inevitable; right?
3
nature of the beast.
4
trying to notice the deposition of Mr. -- I think it's
5
Mr. Maha, and the witness has not been produced.
I think also that you've been
6
Are you having difficulty getting the
7
deposition scheduled,•is that part of what you're also
8
saying?
9
10
MR. DE CLUE:
Yes.
ARBITRATOR ARAGAKI:
I see.
Can you address
Is there some problem getting the
11
that issue?
12
deposition on file or on notice of scheduled or...
13
MS. ARDUENGO:
So we had the deposition of Maha
14
set for deposition, I believe it was March 2nd, and the
15
same day that we set that deposition, or maybe the day
16
after, counsel for Claimant had to reschedule Claimant's
17
continued deposition.
18
And because of Claimant's counsel having to
19
reschedule Claimant's deposition, it prevented us from
20
being able to prepare Maha for deposition on March 2nd.
21
And so probably three to four times I have reached out
22
to Claimant counsel's office.
us
23
And to ease the scheduling, I said let
know
24
all dates that you're available in March and we'll reset
25
Maha's deposition.. I have not heard back.
I've asked
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two to three times.
2
incorrect.
3
So I believe that's entirely
They've actually had a date set for Maha's
4
deposition, due to Claimant's counsel's.unavailability
5
for their client's deposition, we had to take Maha's
C:i
deposition off.
7
8
9
And they've been unresponsive at my many
attempts to get it back on schedule.
ARBITRATOR ARAGAKI:
So, Mr. DeClue, do you
10
agree that there was a date set for Maha's deposition
11
but that had to be taken off?
12
MR. DE CLUE:
They were trying to get it in
13
January; we were trying to get it in February.
14
offered dates in March.
15
they took Maha's off calendar.
They
We had to reschedule it and
ARBITRATOR ARAGAKI:. Got it.
17
So, you know, so looking at joint discovery
18
plan, so Maha was clearly a known entity to when you
19
agreed to five depositions; right?
20
Okay.
A11 right.
16
And PMK is something that you would have
Well,
21
factored into your calculus of five depositions.
22
it does not appear to me that now you realize that you
23
one or more PMK depositions that you need to take, you
24
know, that that justifies additional depositions.
25
And then the comparative analysis, I guess, I'm
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trying to get my head around that a little bit.
So
2
you're thinking if you depose all these other people who
3
might have moved up the ranking, that that's going to
4
give you more information?
Why isn't that kind of comparative analysis
5
6
something that could be obtained through other modes of
7
discovery?
8
forms of documentary evidence.
9
MR. DE CLUE:
It actually might be better obtained through
Arbitrator Aragaki, if you are
10
having Ms. Arduengo to produce the personnel files of
11
these other coworkers with their rankings and their
12
performance•reviews, that might be able to resolve the
13
issues.
14
15
16
But my understanding of the privacy objection
that they don't think they're going to be producing it.
ARBITRATOR ARAGAKI:
Well, okay.
Is there any
17
way to get you that•information without disclosing the
18
entire personnel file?
19
20
21
BY MR. DE CLUE:
The rankings and the
performance reviews of the individuals?
ARBITRATOR ARAGAKI:
So, Ms. Arduengo, what
22
about the rankings, is that something that you would be
23
willing to produce?
24
25
MS. ARDUENGO:
Oh, we've already produced that.
Yes, we've already produced the ranking information, and
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individual Respondent, Christopher Rollins, that was
2
Claimant's direct supervisor, he was the one who
3
actually created the ranking.
He was just disposed within the last month and
4
5
he was'questioned about why he ranked employees in the
6
manner he did.
7
already been obtained through written discovery and
8
through deposition as well.
So I mean this is discovery that has
ARBITRATOR ARAGAKI:
9
Okay.
And then, I guess,
10
it sounds like, Ms. Arduengo, asking for the reviews
11
themselves, is that something -- so the reviews of these
12
other employees, is that something that you consider
13
confidential and not discoverable without an order?
MS. ARDUENGO:
14
Correct, Arbitrator Aragaki.
We
15
would consider that third-party privacy information, and
16
we would object to producing that information.
ARBITRATOR ARAGAKI:
17
Okay.
So I think we've
18
exhausted the discovery issue, unless either one of you
19
has any more comments on that.
I --
20
MS. ARDUENGO:
21
MR. DE CLUE:
22
ARBITRATOR ARAGAKI:
23
24
25
We -- go ahead, Ms. Arduengo.
Mr. DeClue, why don't you
go first.
MR. DE CLUE:
Yes, Arbitrator Aragaki.
I want
to make it very•clear at the scheduling conference, the
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joint discovery plan was proposed and we talked about
2
the discovery plan at the scheduling conference.
We sought more depositions at the very outset.
3
4
Arbitrator Aragaki's decision was we were going to start
5
with five.
6
could talk about it, if he agreed to it.
7
wanted more knowing that the case is not a normal
8
single-plaintiff case.
If we have a reason, we could take more, we
•
We always
There's a lot of working parts.
9
And there's a lot of information that we're
10
trying to get, and it's been a good deal of avoiding
11
providing any information on Tesla's behalf.
12
13
14
ARBITRATOR ARAGAKI:
So let -- so let me ask
you a little bit more about •that, Mr. DeClue.
You said many times, and I think we also
15•
discussed it, that the original AMT, this exhibit, an
16
unusually complicated case involving moving parts.
17
Can you maybe describe that a little bit more
18
to me, so that I can get my head around what makes •this
19
more unusual than the typical single-plaintiff
20
employment discrimination case.
21
MR. DE CLUE:
Of course.
Normally, we're able
22
to find the right people quickly before depositions.
23
a case like this, we commonly take five or six
24
depositions.
25
(audio distortion).
We were limited to five.
In
Two of them
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(Reporter clarification.)
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MR. DE CLUE:
2
Okay.
There's a lot of moving
Our client whistle blew, told them about a
3
parts.
4
Asperger's, had a health issue from high blood pressure
5
from the stress of Mr. Rollins, and having to go to the
6
hospital and taking time off work, all in the span of
♦
about two months.
7
And then right after that, he was fired.
8
9 •
this also includes issues about Asperger's.
But
So, again,
10
an expert that was able to handle the emotional distress
11
and take into account how that affected -- how that was
12
affected by his Asperger's.
We have issues about the economic damages or
13
14
client loss, possibly over a $1,000,000 in stock options
15
that were lost at his termination getting pulled from
16
his 401(k).
And not only that, his -- his -- he went from a
17
18
very above average to a not-exceeded-expectations
19
employee.
He's been working in this industry for over
20
30 years.
A11 of a sudden was last on the list, and no
21
one was able to explain except for he just wasn't doing
22
that good on a project all of a sudden.
23
Which our client completely has a different
24
position on it and was trying to get help on it and was
25
doing a good job on.
And no one is willing to come out
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and explain how he all of a sudden he fell to the bottom
2
of the list, that we don't even know existed, because we
3
don't have a rough draft to the guy who wrote it.
And someone has to explain it.
4
And,
5
unfortunately, we have to ask around to figure this out
6
because we are having to put all the pieces together.
7
It's a big burden on our side, and they have all the
8
information.
ARBITRATOR ARAGAKI:
9
10
Ms. Arduengo?
11
MS. ARDUENGO:
A11 right.
I mean, if the person that made
12
the decision as to where Claimant was ranked was just
13
deposed and he testified as to his reasons for why he
14
ranked Claimant as he did, I think this is really a
15
situation where Claimant doesn't like what he heard in
16
that testimony and it sort of, you know, a hunt for a
17
witnesses that will depose in his favor.
I mean, nothing that opposing counsel has said
18
19
shows good cause for why they need more than two
20 I
additional depositions.
21
exerts and economic damages, but that's irrelevant too,
22
you know, the need for additional depositions at this
23
point.
24
25
They mentioned issues with
There are two additional depositions that
they're entitled to and we will work with them to secure
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the right witness if it's a current Tesla employee.
2
we can't get a consensus out to who those witnesses are,
3
those two additional witnesses that they want to
4
dispose.
ARBITRATOR ARAGAKI:
5
Uh-huh.
But
And then what
6
about this -- the point about this being more than an
7
ordinary single-plaintiff employment discrimination
8
case?
9
number of hearing days, which I think currently, we have
10
11
12
I suppose that ties in with the issue of the
ten days; is that right?
MR. DE CLUE:
That's correct,
Arbitrator Aragaki.
13
MS. ARDUENGO:
Yes.
14
ARBITRATOR ARAGAKI:
Now, so what's -- (audio
15
distortion) of why this is more than a single plaintiff
16
kind of traditional kind of case.
17
18
19
.
Ms. Arduengo, could you give me your read on
this, your thoughts?
MS. ARDUENGO:
Sure.
So this is a case where
20
the Plaintiff was subjected to a reduction in force.
21
was not a long-time Tesla employee.
22
company, I believe, less than three years.
23
communicate that he had Asperger's during his
24
employment.
25
He
He worked for the
He did
This notion that he was a whistleblower is
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greatly exaggerated.
2
described -- I don't mean to lesson Claimant's case, but
3
this is a run-of-the-mill single-plaintiff employment
4
case.
5
6
7
I mean other than what I just
ARBITRATOR ARAGAKI:
And how many days,
Ms. Arduengo, do you think this case needs?
It's Respondent's position that•
MS. ARDUENGO:
8
only four to five days will be needed for this -- to
9
conduct the arbitration hearing.
When we initially met
10
with you, Arbitrator Aragaki, we discussed the fact that
11
a full ten days for the arbitration hearing was highly
12
unlikely.
13
We set the ten days knowing that it was
14
unlikely to be necessary, but just so we could reserve
15
the dates.
16
we would further reduce those dates.
17
we're asking you to do and to reduce the days from ten
18
to four to five max.
19
And'I think there was'every intention that
ARBITRATOR ARAGAKI:
And so that's what
Let me ask you,
20
Ms. Arduengo, do you have sense of how many witnesses
21
you're planning to call?
22
MS. ARDUENGO:
I believe it would just be our
23
individual Respondents, so that would be two.
24
I would say five, five to -- five to seven.
25
an estimate at this point, maybe not even that many.
Perhaps,
It's just
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ARBITRATOR ARAGAKI:
Does that include experts?
2
MS. ARDUENGO:
Yes, that would include
3
Yes.
experts.
ARBITRATOR ARAGAKI:
4
I see.
And would -- do
5
you know who -- so it's two individual Respondents,
6
obviously.
7
percipient witnesses might be?
8
9
10
11
12
13
14
Are you prepared to say now who the others
MS. ARDUENGO:
me off guard.
Arbitrator Aragaki, you caught
I have not.
I have not -Okay.
ARBITRATOR ARAGAKI:
you knew.
I just wondered if
Okay.
MS. ARDUENGO:
And I think five -- I think five
I'm sorry.
to seven is -- oh, I'm sorry.
I think five to seven is very generous.
I'm
15
sort of expanding on that, so I don'•t tell you too low
16
of a number.. I don't know if it will be that high.
17
18
19
20
21
ARBITRATOR ARAGAKI:
Got it.
Okay.
All right.
So and let me ask you this, Ms. Arduengo:
Did you actually submit a Notice of Deposition
for the PMKs?
MR. DE CLUE:
Chris DeClue for Plaintiff.
We
22
have provided PMK categories and we're trying to get
23
dates for them.
24
25
ARBITRATOR ARAGAKI:
I see.
So you guys have
sort of started discussing it.
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So, Ms. Arduengo, do you think that one person
2
can satisfy all those PMK categories or what are your
3
thoughts about that?
MS. ARDUENGO:
categories.
So they have four proposed PMK
We have agreed to produce a witness as to
6
the fourth category.
7
twice on the remaining three categories.
8
9
We've attempted to meet and confer
At this point, the categories are so broad,
we're trying to figure out what exactly it is that
10
Claimant is looking for.
11
unable to properly designate the right witness.
12
an example, one of the PMK categories is simply the 2018
13
reduction in force.
Because at this point, we are
And as
So, you know, there were probably thousands of
14
15
employees involved in that massive reduction in force in
16
2018.
17
completely unable to designate anyone for that category
18
or the other -- the other two as well.
So without narrowing that category, we're just
ARBITRATOR ARAGAKI:
19
Got it.
Okay.
So I think
20
that getting and preparing a list, you know, is a good
21
idea.
22
assistance in that process, you know, we can have
23
another phone call.
24
25
And to the extent, you know, you need my
But I encourage you both do try to continue
that process.
And, I guess, my thought would be, you
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know, you know, it might be that there's rnore than one
2
person that, you know, that's best suited to respond to
3
these categories.
And I'm wondering, Ms. Arduengo, if you would
4
5
be amenable to, if there's two or possibly three, if
6
they could all be completed within the number of hours
7
that you agreed to in one sitting, in one day, that's
8
four hours.
Would you be willing to finish more than one
9
10
11
PMK?
Do you mean go over the
MS. ARDUENGO:
12
additional -- I guess, I'm unclear as to what you're
13
asking, Arbitrator Aragaki.
14
ARBITRATOR ARAGAKI:
In other words, if you
15
would -- you reviewed now -- that the PMK categories
16
went to four, let's say.
17
And it turns out you that one person could not
18
testify to all four categories, would you be amenable to
19
a situation where you might have more than one PMK on
20
the condition that they all get done within the same
21
day, within the same limits that you have, I think it's
22
four hours per day?
23
MS. ARDUENGO:
We would be okay with producing
24
two PMKs as long as we're within the five depositions
25
for each party.
You know, we don't see any need -Page 25
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there's no -- there's been no showing of good cause to
2
exceed that five deposition count.
3
And that's really the whole point, have them
4
move to arbitrate this matter if it lessons discovery
5
costs?
6
ARBITRATOR ARAGAKI:
I guess what I'm
Right.
7
saying is if we could just -- if we could use one of
8
those spots with more than one PMK deponents.
9
words, I think it's a four-hour period for each day of
10
11
In other
depositions, for each deposition.
But if it turns out that one person could not
12
adequately respond to all categories that you went down
13
to, what if we did a situation where more than one PMK
14
witness would be able to testify in that one slot, if
15
that makes sense.
16
MS. ARDUENGO:
I understand.
I think it's
It's possible we can get one
17
premature at this point.
18
PMK witness to testify to all four categories.
19
ARBITRATOR ARAGAKI:
20
MS. ARDUENGO:
21
Yes.
We just can'.t get to that point
yet, because the categories are so vague.
22
ARBITRATOR ARAGAKI:
23
MS. ARDUENGO:
.
Yeah.
My clients are firmly committed
24
to sticking with the five deponents limitation that you
25
set pursuant to the discovery plan.
You know, even if
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we have two PMK witnesses that are presented both for
2
deposition within the four hours, you know, it doubles
3
the prep time that has to go into preparing them to be
4
an adequate PMK.
So at this point, I think it's premature
5
6
because it's possible we can get all these categories
7
completed with one PMK witness.
ARBITRATOR ARAGAKI:
8
9
10
the hope.
Yeah, for sure.
Yes.
Okay.
Well, that would be
So I think I've asked
all the questions that I needed to.
And I think on the IME, maybe Mr. DeClue just
11
What you think the issue is
12
briefly outline that dates.
13
that you would want me to determine today about the IME
14
or would you agree that it can be deferred to a later
15
date?
16
MR. DE CLUE:
I think it can be deferred to a
The one matter regarding IME
17
later date, if necessary.
18
evaluations that I brought to Ms. Arduengo's attention
19
today, is that our client is in Orange County.
20
Traveling and being in public for him is something that
21
he is very uncomfortable with right now.
22
He's presented not vaxxed and he would like to
23
take the IME evaluation remotely, if possible, or if
24
anything closer to his house in Orange County, so that
25
his travel is very limited.
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ARBITRATOR ARAGAKI:
2
MR. DE CLUE:
I see.
That's the worse case scenario.
3
He's very uncomfortable, even going out in public right
4
now.
ARBITRATOR ARAGAKI:
5
Yes.
Totally
I would not want to put any witness in
6
understandable.
7
an uncomfortable or potentially life-threatening
8
situation.
9
analysis.
10
Of course, I think it's a case-by-case
So I think•your raising an important point,
Mr. DeClue.
11
But I just think at this time, I can't impress
12
that the two of you can work something out, but that we
13
don't necessarily have to address it today.
Understood.
14
MR. DE CLUE:
15
ARBITRATOR ARAGAKI:
16
ahead, Mr. DeClue.
So I think there are two issues.
17
MR. DE CLUE:
18
ARBITRATOR ARAGAKI:
19
MR. DE CLUE:
20
The two issues -- go
Go ahead, Mr. DeClue.
I just wanted to raise a few
points before we get into the deposition issue.
21
ARBITRATOR ARAGAKI:
22
MR. DE CLUE:
Yes.
One of the things that,
23
Your Honor, Arbitrator Aragaki, had -- was the
24
scheduling conference is that when I pushing for more
25
depositions, but a lot of forums, you know, it's just
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one or two, and then you, you know, you bring up more in
2
and sometimes you might hear testimony for the first
3
time at arbitration.
4
I was hoping to avoid that situation in this
We're calling in 12 people that we've never had
5
case.
6
an opportunity other than -- and it just -- the whole
7
process, you don't know what they're going to say.
8
we're able to get through, you know, rapid speed
9
depositions of some of the comparative coworkers, have a
10
few -- an hour or two with the person we beiieve
11
replaced our client.
12
if
And then with four -- officers who can --
13
(audio distortion) -- Mr. Maha and get through as many
14
categories in one day on the PMKs, we will never be able
15
to cover all the PMKs that we need.
16
And, again, we're happy to learn about it for
17
the first time in arbitration, but no one wants a big
18.
surprise, when we find out that they're not going to be
19
helpful.
20
it seems like it's easier to ask that way to take the
21
depositions at the arbitration.
22
Maybe Respondent calls thenn,, maybe it's the --
ARBITRATOR ARAGAKI:
Yeah, I mean, I hear what
23
you're saying.
24
cultural too; right?
25
the world that does prehearing depositions, everyone
I think a lot of this is, you know,
I mean, we're the only country in
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else responds to the witness for the first time at a
2
trial.
But I hear you, what you're saying.
3
I think
4
the that problems that I'm having is that you both
5
agreed to a particular deposition limit.
6
to really figure out whether there is good cause to
7
change that.
8
up against at this point.
And so I need
And that's really what I'm kind of running
There's no reason why you couldn't, you know,
9
10
negotiate some kind of arrangement like that,
11
Mr. DeClue, if your opponent is amenable.
12
it's a six-hour slot, you know, to have two deponents
13
for three hours or even three deponents for two hours
14
each in exchange for, maybe, reducing the total
15
number of hours allotted the for that day.
I don't know.
16
That's up to you.
So, you know,
But in terms
17
of my decision, I think I should follow your
18
instructions which is that you agreed to limit it to
19
five each unless there is showing of good cause.
MR. DE CLUE:
20
We never agreed to that.
We
21
asked for 10 or 12 and came there was a compromise at
22
five at the hearing.
23
Arbitrator Aragaki kind of met in the middle and ordered
24
five.
25
And it wasn't an agreement,
ARBITRATOR ARAGAKI:
Yes.
But the agreement
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was'five each upon a showing of good cause to be
2
increased.
MR. DE CLUE:
3
4
We would submit that there's good
cause to move -- opposed person to replace their client.
ARBITRATOR ARAGAKI:
5
Any other point people
6
would like to make, any issues that we need discuss?
7
How about the hearing you mentioned coming up right
8
around the corner?
9
have done three depositions.
12
How many -- I guess, the Claimants
Respondent, how many deposition have you taken
10
11
already.
MS. ARDUENGO:
We've taken the deposition of
13
the Claimant, we•were unable to finish, so we're
14
continuing that deposition to the first week of March.
15
We've taken -- we've have attempted to subpoena three of
16
the Claimant's treating physicians.
17
One failed to appear.
We're rescheduling that
18
deposition, and we have another treater set for
19
deposition for next Friday.
20
we've been unable to serve.
21
And then another treater
And we've only taken one deposition so far..
22
are -- we don't anticipate any more than five
23
depositions.
24
25
-
We
,
ARBITRATOR ARAGAKI:
Got it.
But it sounds
like you're having trouble with some.of these
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Hearing
February 23, 2022
1
third-party witnesses.
MS. ARDUENGO:
Right.. There's one of
3
Claimant's treaters, we believe she's retired now.
4
have had trouble serving her.
5
ARBITRATOR ARAGAKI:
Okay.
Right.
We
So it does
6
seem to me that since we are really coming up on March
7
now, that time is reallyof the essence.
8
extent, you know, we can try and speed things up to the
9
extent, you know, you need my intervention especially
10
with third parties, do feel free to speak up, contact
11
the case manager.
12
13
I would like to really make sure we're on track
at least for the hearing in late April, early May.
Arbitrator Aragaki --
14
MS. ARDUENGO:
15
ARBITRATOR ARAGAKI:
16
MS. ARDUENGO:
17
So to the
to bring up.
Yeah.
I have two more points I wanted
I guess now is the right time.
18
ARBITRATOR ARAGAKI:
19
MS. ARDUENGO:
Sure.
Could -So I wanted to clarify
Like I said, you caught me
20
our arbitration witnesses.
21
off guard when you first asked, but I did some thinking
22
during the call.-
23
that Respondents will present at arbitration.
I think no more than five witnesses
24
ARBITRATOR ARAGAKI:
25
MS. ARDUENGO:
Got it.
And there was one -- the other
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. Hearing
February 23, 2022
1
issue is the issue of the JAMS payment, the payment for
2
the arbitration hearing.
3
for February 24th, and I know that we've had
4
difficulty -- there's been a couple weeks' delay between
5
trying to seek this conference.
The date for payment is set
6
ARBITRATOR ARAGAKI:
7
MS. ARDUENGO:
And --
Yes.
-- actually having the
8
conference, so I wanted to see if you would be amenable
9
to extending payment date?
10
ARBITRATOR ARAGAKI:
11
MS. ARDUENGO:
12
Yes.
So we know exactly -- we don't
want to pay for it if it's --
13
ARBITRATOR ARAGAKI:
14
MS. ARDUENGO:
15
ARBITRATOR ARAGAKI:
Of course.
Of course.
-- agreed to -- okay.
Yeah, of course.
Of
So tell me what would you like to extend that
16
course.
17
to?
18
give you a ruling on these issues today or tomorrow,
19
when would you issue the payment date.
What time would you need?
MS. ARDUENGO:
20
So assuming that I can
So the payment comes directly
21
from Tesla, and so there's hoops to go trough in terms
22
of --
'
23
ARBITRATOR ARAGAKI:
24
MS. ARDUENGO:
25
Yes.
-- getting that payment -- me to
get it from our firm and then to Tesla and then a check
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Hearing
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If at.all possible, if
1
being issued from Tesla to JAMS.
2
we can get an extension until March 18th, that would be
3
a deal.
4
ARBITRATOR ARAGAKI:
5
MS. ARDUENGO:
6
ARBITRATOR ARAGAKI:
March 1-8?
Yes.
Okay.
7
take that under consideration.
8
down.
Okay.
Great.
MR. DE CLUE:
10
11
Arbitrator Aragaki.
12
thing.
14
Let me just write that
Anything else on either side?
9
13
Let me -- let me
No objection•to that,
I was going to propose the same
I just would like to address the number of
witnesses if Arbitrator Aragaki would like to.
15
ARBITRATOR ARAGAKI:
16
MR. DE CLUE:
Sure.
At this point, we're looking at,
17
if we have to, bring them in for the first time at the
18 ~
arbitration.
19
So witnesses -- three experts.
20
21
We're looking it over (audio distortion).
ARBITRATOR ARAGAKI:
MR. DE CLUE:
23
ARBITRATOR ARAGAKI:
25
I think
you said on the value of the stock?
22
24
So three experts.
Yeah.
Yeah.
On his damages and then
Asperger's; is that right?
MR. DE CLUE:
Correct.
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Hearing
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ARBITRATOR ARAGAKI:
1
That's about 12 other
I don't even see 12 people listed in the
2
witnesses.
3
complaint, but who -- who besides Rollins and Schafer,
4
and I take it the coworker that you deposed, I guess,
5
you're going to address Mr. Maha -- who else?
Palanee who replaced M.r. Wyer.
6
MR. DE CLUE:
7
ARBITRATOR ARAGAKI:
8
MR. DE CLUE:
9
Uh-huh.
The four individuals listed on
our request to have a hearing on comparative coworkers.
10
And they don't make up the whole list of coworkers, I
11
was just trying to narrow it down what we thought would
12
be the most important and rapid fire.
13
more.
14
But there are
There are two or three percipient witnesses
15
that are related to Mr. Wyer that were in the apartment
16
when Mr. Wyer had any of these conversations there with
17
his supervisor.
18
19
(Reporter clarification.)
MR. DE CLUE:
Where Mr. Wyer had conversations
20
with his supervisors, with his coworkers.
21
percipient witnesses that heard these conversations.
22
The praise that he was given for the project, negative
23
(audio distortion).
24
25
There are
There are people that were terminated before
Mr. Wyer that have some insight into their termination
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Hearing
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1
and the similarities between their termination and
F~
Mr. Wyer's termination.
ARBITRATOR ARAGAKI:
3
Got it.
Okay.
So, you
4
know, I think we can cross that bridge when we get to
5
it.
6
is, you know, sometimes less is more.
I guess, the thought that I would leave.you with
7
So if you think about that, I think if we also
8
have, you know, to kind of use up the timethat you've
9
been given.
10
You were given a whole lot of time, I need
you to fill that out.
If you are given a shorter period of time,
11
12
sometimes it just focuses the presentation and you can
13
get pretty much the same out, but in a more targeted
14
fashion.
15
So I think that a lot of these concerns we can
16
deal with once I decide the threshold issue about the
17
depositions and number of days.
18
about that.
19
to the hearing, at which point, many of these issues can
20
also be resolved.
21
li
I'm not too concerned
But we will have a final conference prior
So let me take these issues under
I hope to get back to you no later than
22
consideration.
23
tomorrow about that.
24
confer and other efforts to try and wrap up the
25
discovery as soon as possible given that we are now into
And good luck with your meet and
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Hearing
February 23, 2022
1
2
March, almost, next week.
I do hope that we are on track for the hearing
To the extent you see any obstacles or
3
as scheduled.
4
issues, let me know and let's see if we can all
5
troubleshoot and try to get things back on track.
6
MS. ARDUENGO:
7
MR. DE CLUE:
8
9
10
11
Thank you.
Very well.
Thank you,
Arbitrator Aragaki.
ARBITRATOR ARAGAKI:
Take care.
All right.
Thank you.
Thank you for your time.
(Arbitration adjourned at 4:50 p.m.)
12
13
14
15
16
17
18
19
20
21
22
23
24
25
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Hearing
February 23, 2022
1
HEARING REPORTER'S CERTIFICATE
2
3
I, EILEEN ELDRIDGE, HEARING REPORTER, IN
4
AND FOR THE STATE OF CALIFORNIA, DO HEREBY
5
CERTIFY:
6
THAT THE FOREGOING TRANSCRIPT OF
7
PROCEEDINGS WERE LATER TRANSCRIBED BY
8
COMPUTER-AIDED TRANSCRIPTION UNDER MY DIRECTION
9
AND SUPERVISION; THAT THE FOREGOING IS A TRUE
10
RECORD OF THE TESTIMONY AND PROCEEDINGS TAKEN AT
11
THAT TIME.
12
13
14
15
I FURTHER CERTIFY THAT I AM IN NO WAY
INTERESTED IN THE OUTCOME OF SAID ACTION.
I HAVE HEREUNTO SUBSCRIBED MY NAME THIS
9TH DAY OF MARCH 2022.
16
17
18
19
20
21
22
23
EILEEN ELDRIDGE
24
25
HEARING REPORTER
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Hearing
February 23, 2022
[warrant - younger]
warrant 12:18
way 4:9 16:17
29:20 38:12
we've 6:19 7:20
16:24,25 17:17
24:6 29:5 31:12
31:15,15,20,21
33:3
wednesday 1:15
2:14 4:1
week 31:14 37:1
weeks 33:4
went 7:22 8:1,25
19:17 25:16 26:12
whistle 9:2 19:3
whistleblower
21:25
williams 3:10
willing 16:23
world 29:25
worse 28:2
wrap 36:24
write 34:7
written 17:7
wrote 20:3
wyer 1:2 2:2 3:2
6:12,13,13,16
7:15 8:3,10,22
13:20 35:6,15,16
35:19,25
wver's 6:136:2
yeah 26:22 27:9
29:22 32:15 3315
34:22,22
years 19:20 21:22
younger 6:12 7:18
19:25 25:9
wilshire 3:4
~ wilson 10:11
witness 14:5 21:1
24:5,1126:14,18
27:7 28:6 30:1
witnesses 9:6 12:7
12:10 20:17 21:2
21:3 22:20 23:7
27:1 32:1,20,22
34:14,19 35:2,14
35:21
wondered 23:10
wondering 25:4
words 25:14 26:9
work 7:18:13,24
9:5 19:6 20:25
28:12
worked 8:2121:21
workforce 9:23
working 6:19 7:4
8:4 18:8 19:19
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EXHIBIT 6
PDF Page 124
JAMS ARBITRATION
CASE REFEREÑCE NO.1220067183
DAVID WYER
Clafmant,
and
i TC., CIiRISTOP.HER ROLLINS, and CARSON
TESLA, INC. dba TESLA MOTORS;11
SCHAFER
Responclents.
•ORDER.NO. 2 RE: DEPOSITIONS A1VD LENGTH OF HEARING
A telephonic hearing was conducted iti tliis matter on Febivary ?3, .2022, 'to discuss
Glaim_ant's request to take further depositions and Respandent's tequest'to shorten the nuinber of
hearing days. Having considered the parties' argunient:s during the heaiing, the Arbitrator
ORDERS as follows:
De9ositions
The Parties executed a Joint Discovery P1an and agreed to a linut of 5 depositions each,
with the proviso that eitlier party may seek leave to take furthei depositions but only upon a
showing of good cause. The JAMS l;.mplaymerit Arbitration Rules pr.ovide one deposition as of
right to each party. (See Ritle 17.) The number of any remain~ 'depositions to be taken is
subject to the sound disci:etion of the.Arbitrator.
The Arbitrator sees no good cause for increasing the nuinber of.depositions at this late
stage. To the extent Claimant seeks the deposition of a'PMK and there is no one individual who
can addtess all topics, however, Claimant. ay depose mofe than one PMK so long as all 'of those
depositions can be completed: (1) within the time period:allo,tted for one :deposition and (2) all in
one sittttirig.
HearinQ .lenath
During, the AMC, the Arbitrator re..served 10 days of hearing time but suggested that 10
days was probably inore than necessary. He agreed to allow the Parties to revisit tttis issue after
the contouis of the case became clearer.. Respondents now renew their request to sliorten the
heanng to 4-5 days. Claimant cont,ends that this case is more coinplex than the ordinary sirigle
plaintiff discriinination case and requires 10 days of hearing time. .
Page 1of 2
PDF Page 125
.The Arbitrator sees no reason why this •case. cannot be,tried in .5 days. The Parties are
urged tb be selective:about the witnesse's they present, to introduce evidence through oral
testimon:y when there is no other tnore effective mearis of doing. so, and to stipulate as niucli as
possible to uncontested facts:
.
The Parties may stipulate to five (5) hearing days during the period Apri125-IVIay 6; 2022
and inform the Case Manager oftheir selectioii by .1Vlarcli Z, 2022: If the.y, are. unable to so
stipulate, the hearing sha11 ccur May 2-6,'2022.
Dated: February 24,
2022
Eira N. Aragaki
Arbitrator
Page2of2
PDF Page 126
tiectronicany ruea oy aupenor our[ or '.aurornia, i.ounry or urange, u u i~lcuð.s i i:oo:uu rnn.
1118759-CU-OE-WJC - ROA # 102 - DAVID H. YAMASAKI, Clerk of the Court By M. Johnson, Deputy
30-201
5
Kaveh S. Elihu, Esq. (SBN 268249)
kelihu@EJLG1aw.com
Christopher J. DeClue, Esq. (SBN 282807)
cdec1ueä,EJLG1aw.com
EMPLOYEE JUSTICE LEGAL GROUP, PC
1001 Wilshire Boulevard,
Los Angeles, California 90017
Telephone: (213) 382-2222
Facsimile: (213) 382-2230
6
Attorneys for Claimant,
DAVID WYER
1
2
3
4
7
8
SUPERIOR COURT OF THE STATE OF CALIFORNIA,
9
FOR THE COUNTY OF ORANGE, CENTRAL JUSTICE CENTER
;
10
11
12
13
14
15
16
VID WYER, an individual,
Case No.: 30-2019-01118759-CU-OE-CJC
■!
Claimant,
vs.
~LA, INC. WHICH WILL DO
SINESS IN CALIFORNIA AS TESLA
ITORS, INC., a Delaware corporation;
RISTOPHER ROLLINS, an individual;
RSON SCHAFER, an individual; and
ES 1 through 20, inclusive,
Respondents
17
18
19
Assigned to the Hon. Richard Lee in Dept.
W1S
MEMORANDUM OF POII\TTS AND
AUTHORITIES IN SUPPORT PF
PLAINTIFF'S MOTION TO VACATE
ARBITRATOR'S AWARD AND TO
RETURN THE CASE TO THE CIVIL
ACTIVE LIST; DECLARATION OF
CHRISTOPHER J. DECLUE AND
COMPENDEUM OF EVIDENCE IN
SUPPORT THEREOF
(Filed concurrently with [Proposed] Order)
20
22
Date: April 20, 2023
Time: 1:30 P.M.
Dept: W15
23
Reservation: 73928424
21
24
25
26
TO THIS HONORABLE COURT AND ALL PARTIES AND THEIR ATTORNEYS
RECORD:
27
PLEASE TAKE NOTICE that on March 23, 2022 at 1:30 p.m., or as soon thereafter as the
28
ter may be heard, before the Honorable Richard Lee, in Department W15 of this Court, at 700
1
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT (
MOTION TO VACATE ARBITRATOR'S AWARD
PDF Page 127
1
Civic Center Drive West, Santa Ana, CA 92701, Plaintiff David Wyer will move the Court for an
2
order vacating the Arbitrator's Award.
3
This motion is based on Code of Civil Procedure sections 1285, and 1286.2(4)- (5),
4
the following Memorandum of Points and Authorities, Declaration of Christopher J. DeClue,
5
Exhibits, and such other evidence as may be presented at the hearing on the motion.
6
7
DATED: January 12, 2023
EMPLOYEE JUSTICE LEGAL GROUP, PC
8
9
.
By
Kaveh S. Elihu, Esq.
Christopher J. DeClue, Esq.
Attorneys for Plaintiff
DAVID WYER
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
2
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT (
MOTION TO VACATE ARBITRATOR'S AWARD
PDF Page 128
MEMORANDUM OF POINTS AND AUTHORITIES
1
2
INTRODUCTION
3
California Code of Civil Procedure § 1286.2(5) provides this Court with the authority to
4
the arbitrator's award and issue an order that this case be reheard in arbitration. The
5
refused to hear evidence that was material to Plaintiff Wyer's case. The Arbitrator
6
to allow Plaintiff Wyer to obtain evidence that was essential to the case. Despite the fact
7
the evidence supporting Plaintiff Wyer's case was clearly available, the Arbitrator forced
8
lJ
Wyer to present his case in a vacuum. There were countless, important questions and
9
that were left unasked and unanswered because the Arbitrator refused to allow Plaintiff
10
aiscovery that was requested. After Plaintiff requested additional discovery based on newly
11
discovered information, the Arbitrator denied the request and, sua sponte, reduced Plaintiffs
12
evidentiary hearing from ten days to five and limited Plaintiff to only 15 hours of total examination.
13
The Arbitrator refused to allow Plaintiff Wyer to depose the individual who replaced
14
lainta; ff Wyer the day after Plaintiff was terminated as a result of an alleged "reduction in force."
15
A reduction in force means that a position is eliminated. If Plaintiff Wyer was truly terminated
16
subject to a reduction in force, then Defendant would not have replaced him the next day.
17
However, the Arbitrator opined that there was not good cause to depose the individual who replaced
18
Plaintiff after his termination, despite the fact that Plaintiff . requested this additional deposition
19
immediately after learning about Plaintiff's replacement.
-
20
The Arbitrator refused to allow Plaintiff Wyer the opportunity to depose the individual that
21
was nearly twenty-five years younger than Mr. Wyer who replaced Plaintiff Wyer the day after
22 Plaintiff Wyer was terminated. The arbitrator refused to allow Plaintiff Wyer the opportunity to
23
obtain discovery regarding the younger, non-disabled, and healthier software engineers, that were
24
not subject to the reduction in force
25
The arbitrator shortened the evidentiary hearing from ten days to five days, sua sponte, over
26
Plaintiff's objections, even though it was clear that Plaintiff needed the originally scheduled ten
27
days to present the evidence in support of Plaintiff's case. The Arbitrator did not allow Plaintiff to
28
take additional, necessary depositions. The Arbitrator's rationale was that Plaintiff could call the
3
~I OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF'S
MOTION TO VACATE ARBJTRATOR'S AWARD
Nr
,
PDF Page 129
1
witnesses that Plaintiff wanted •to depose to testify at the evidentiary hearing, even if the
2
examinations were more like depositions, i.e, took longer to complete than an exaxnination.
3
However, the Arbitrator, thereafter, and sua sponte, reduced the arbitration from ten days to five
4
days and limited Plaintiff to fifteen hours of examination, including cross examination of
5
Defendants witnesses. There was no way for Plaintiff Wyer to meet Defendants' alleged defenses
6
and sift through the new information acquired for the first time during the evidentiary hearing with
7
the time limitations that the arbitrator placed on this case. The arbitrator's discovery limitations and
8
time limitations on the evidentiary hearing significantly prejudiced Plaintiff at the outset. The
9
reduced-time, five-day evidentiary hearing resulted in undeniable evidentiary and procedural
10
linutations that were highly prejudicial to Plaintiff Wyer.
11
This Court should vacate the Arbitrator's award because Plaintiff was not allowed to take
12
depositions that were absolutely necessary to PlaintifPs case. The arbitrator also reduced Plaintiffs
13
evidentiary hearing which significantly prejudiced Plaintiffs ability to present his case and the
14
necessary evidence to support his case. The Arbitrator's award was an abuse of discretion and
15
substantially prejudiced Plaintiff's rights and should be vacated.
16
U.
.
STATEMENTS OF FACTS
17
Around January 18, 2019 Plaintiff David Wyer was wrongfully terminated from his
18
employment with Tesla, Inc. The termination was based on Plaintiff s age (early 62), disability
19
(autism spectrum disorder), and medical conditions (high blood pressure and hypertensive
20
episodes). The termination was unlawfully in retaliation against Plaintiff because he requested
21
accommodations for his disabilities and medical conditions and reported that his supervisor,
22
Defendant Rollins was harassing him (whistle blowing)
23
On December 17, 2019, Plaintiff timely filed a complaint for damages against Defendants
24
Tesla, Inc, Christopher Rollins, and Carson Schafer, in the Superior Court of the State of Califomia,
25
County of Orange, alleging claims of discrimination, retaliation, harassment, failure to provide
26
reasonable accommodations, failure to engage in a good faith interactive process under the
27
California Fair Employment and Housing Act (FEHA) pursuant to Government Code Sections
28
12900 et seq. and wrongful termination in violation of public policy.
4
-
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF'S
MOTION TO VACATE ARBITRATOR'S AWARD
PDF Page 130
1
On March 27, 2020, Defendant Tesla filed its motion to compel arbitration and stay
2
litigation pending Arbitration. Defendants presented two, separate arbitration agreements to the
3
Court in support of their Motion to Compel Arbitration. One of the arbitration agreements was an
4
agreement between Plaintiff and his prior employer. (CEO, Exhs. 1& 2) On October 1, 2020,
5
Plaintiff opposed Defendant's motion to compel arbitration and stay litigation pending Arbitration.
6
Dn October 15, 2020, the court ordered the matter to binding arbitration pursuant to the arbitration
7
agreements. The Court never specified which arbitration agreement govemed the arbitration. At
8
the arbitration, the arbitrator never made a fmding as to which arbitration agreement governed the
9
10
On February 25, 2021, Arbitrator Hiro Aragaki, Esq. was appointed as the Arbitrator for this
11
ter. On April 28, 2021, a preliminary hearing was conducted and a scheduling order was issued
12
ring Arbitration over ten days between April 25, 2022 and May 6, 2022.
13
On June 2, 2021, the parties submitted a discovery plan in which the parties agreed to limit
14
depositions to five (5) each side and the agreement that either party may seek leave to take
15
her depositions upon showing of good cause. (COE, Exh. 3) The Joint Discovery Plan made it
16
clear that Plaintiff intended to call at least 8 witnesses at that early stage of the litigation.
17
By February 2022, it became abundantly clear that Plaintiff needed to take additional
18
~sitions that were necessary to support Plaintiff s claims. Through discovery, Plaintiff leamed
19
an individual twenty years younger than Plaintiff was hired to replace Plaintiff the day after
20
ntiff was fired. Telsa argued that Plaintiff was fired because there was a reduction in force,
21
which meant that Plaintiff's position was eliminated. However, Plaintiff's position could not have
22
been eliminated if someone began working for Telsa, perfornung Plaintiffls job duties the day after
23
Plaintiff was ten:ninated. It became clear that Plaintiff needed to depose the individual who
24 'replaced Plaintiff the day after Plaintiff was terminated. Moreover, it became clear that Plaintiff
25
needed to depose other co-workers in Plaintiffs group who were suddenly ranked higher than
26
Plaintiff after Plaintiff reported his disability and medical conditions, requested reasonable
27
accommodations, reported harassment in the workplace, and requested medical attention through
28
Tesla's workers' compensation medical provider network.
5
MEMORANDUM OF POINTS AND AUTHORIT'IES IN SUPPORT OF PLAINTIFF'S
MOTION TO VACATE ARBITRATOR'S AWARD .
PDF Page 131
On February 16 2022, Plaintiff requested an expedited conference with the Parties and the
2
3
4
5
6
A
tor to request that the Arbitrator allow Plaintiff to take additional depositions. Plaintiff
d a detailed brief setting forth the additional depositions requested and the reasons why they
were necessary for Plaintiff's case. (COE, Exh. 4)
On February 23, 2022, a telephonic hearing was conducted to discuss Plaintiff's request to
take further depositions.
A court reporter was present for the conference.
(COE, Exh. 5)
7
after referred to as "RT"). At the hearing, the Arbitrator represented the following:
8
1. In response to Plaintiff s request for additional depositions, the Arbitrator said
.9
10
11
fl
"sometimes less is more." (RT 36:3-6).
2. The Arbitrator endorsed shortening the evidentiary hearings to force the parties to target
the issues to be decided. (RT, 36:11-14)
fl
12
3. The Arbitrator recognized that Plaintiff intended to call at least 12 witnesses, despite the
13
fact that he later reduced the evidentiary hearing from ten days to five days, which
14
resulted in Plaintiffs inability to call at least six witnesses that Plaintiff intended to call
15
because PlaintifP's "time" had run out. (RT, 35:1-5).
16
4. The Arbitrator recognized that Plaintiff would need to call witnesses for the first time at
17
the evidentiary hearing, despite the not knowing if their testimony was helpful or,
18
relevant. (RT:35:1-36:5.) Thereafter, the Arbitrator reduced the evidentiary hearing from
19
ten days to five days, making it prejudicial for Plaintiffto call the witnesses that Plaintiff,
20
sought to depose but was not permitted to. Knowing what these witnesses would say
21
would have targeted any questions during examination at the evidentiary hearing.
22
5. The Arbitrator's position that pre-trial depositions are not necessary was clearly
The Arbitrator stated, as he also stated during several case management
23
prejudicial.
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conference, "we're the only country in the world that does prehearing depositions,
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everyone else responds to the witness for the first time at a trial." (RT 29:3-30:2)
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Having considered the parties' arguments during the hearing, the Arbitrator ordered that
27
was not good cause for increasing the number of depositions. Moreover, the Arbitrator
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:d the evidentiary hearing be shortened from ten days to five days. (COE, Exh. 6)
6
d OF POINTS AND AUTHORITIES lAT SUPPORT OF
MOTION TO VACATE ARBITRATOR'S AWARD
The
PDF Page 132
■ rl
1
Arbitrator said at the February 23, 2022 hearing that "less is more" and he made is clear that he
2
would prefer to give the parties less time for the evidentiary hearing so that the parties "targeted"
3
their examinations. (See RT, 36:3-14)
4
Plaintiff was significantly prejudiced by the Arbitrator's refusal to allow additional,
5
necessary discovery and order reducing Plaintiffs evidentiary hearing from ten days to five days.,
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Not only was Plaintiff deprived of the ability to obtain necessary discovery, but Plaintiff was also
7
deprived of the time needed to present his case to the arbitrator.
8
Plaintiff now timely files this Motion to Vacate the Arbitrator's Ruling pursuant to
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California Code of Civil Procedure § 1286.2, subsections 4 and 5. The Court should vacate the
10
award and order a rehearing in arbitration or, in the alternative, order that this care be heard before
11 I the Superior Court.
;
12 III. ARGUMENT
.
This Court has Authority to Vacate the Arbitrator's Award
13
A.
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This Court has authority to vacate the arbitrator's award. Pursuant to Code of Civil
15
Procedure § 1285, "[a]ny party to an arbitration in which an award has been made may petition the
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court to confirm, correct or vacate the award." Furthermore, pursuant to Code of Cival Procedure §
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1286.2 the court shall vacate the award if the court determines either of the following:
;
The rights of the party were substantially prejudiced by the refusal
of the arbitrators to postpone the hearing upon sufficient cause
being shown therefor or by the refusal of the arbitrators to hear
evidence material to the controversy or by other conduct of the
arbitrators contrary to the provisions of this title.
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of Civil Procedure § 1286(5) (emphasis added).
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Here, the Arbitrator's award must be vacated pursuant to § 1286.2 (5). The arbitrator denied
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iff the ability to conduct reasonable discovery. The Arbitrator reduced Plaintiff s evidentiary
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tg to further deny Plaintiff the ability to conduct reasonable discovery during the hearing.
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B.
The Arbitrator Abused His Discretion When He Refused Plaintiff's Request to
Conduct Necessary Discovery.
7
MEMORANDUM OF POINTS AND AUTHORITiES IN SUPPORT (
MOTION TO VACATE ARBITRATOR'S AWARD
PDF Page 133
1
Defendants presented two arbitration agreements before the Court and the Arbitrator. The ~
2
Arbitrator appeared to rely on the Tesla Arbitration Agreement. Plaintiff maintains that there was ~
3
decision as to which arbitration agreement govemed this arbitration, either by the Court or the ~
4
Arbitrator. Notwithstanding, the Tesla was used by the arbitrator and relied on by Defendant in
5
their motion to confirm the award. The arbitration agreement that Defendants rely on states that
6
"the arbitrator shall have the authority to compel adequate discovery for resolve of the dispute."
7
(COE, Exh. 2, pg. 3). Plaintiff begged for adequate discovery. The arbitrator denied Plaintiffs
8
request. Plaintiff told the arbitrator that the discovery would have to develop during the evidentiary
9
hearing. The arbitrator reduced the hearing from ten days to five days to prevent Plaintiff from
10
obtaining important discovery to meet the defenses that Defendants raised in this case. This was
11
unfair and prejudicial.
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To find substantial prejudice, the court must first accept the arbitrator's theory and conclude
13
the arbitrator niight well have made a different award had the evidence been allowed." Malek
14, t'Iedia Group LLC v. AXQG Corp. (2020) 58 Ca1.App.5th 817, review denied, (Mar. 30, 2021).
15
Agreeing to arbitrate a claim is not a waiver of rights afforded by law. It is merely an
16
agreement that such rights be determined by an arbitrator, instead of a judicial forum. See
17
t'fitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc. (1985) 473 US 614, 628, 105 S.Ct. 3346,
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3355. The Arbitrator initially limited the Parties to five depositions per side, despite the fact that
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Plaintiff asked for more depositions at the outset of arbitration and later when more information
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was uncovered. (See COE, Exhs., 3& 4). After initial discovery and initial depositions of the two
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individual defendants and a relevant co-worker, Plaintiff learned of additional, individual witnesses
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that were necessary.
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Defendant refused to produce additional witnesses and started an unprofessional and strategic game
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of "gotcha." (COE, Exh. 4.)
Plaintiff met and conferred with Defendants to resolve the issue, but
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By February 2022, it became abundantly clear that Plaintiff needed to take additional
26
depositions that were necessary to support Plaintiffs claims. Through discovery, Plaintiff learned
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that an individual twenty years younger than Plaintiff was hired to replace Plaintiff the day after
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Plaintiff was fired. Telsa argued that Plaintiff was fired because there was a reduction in force,
8
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF'S
MOTION TO VACATE ARBITRATOR'S AWARD
PDF Page 134
1
which meant that Plaintiff s position was eliminated. However, Plaintiff's position could not have
2
been eliminated if someone began working for Telsa, performing Plaintiff's job duties the day after
3
Plaintiff was terminated. It became clear that Plaintiff needed to depose the individual who
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Plaintiff the day after Plaintiff was terminated. Moreover, it became clear that Plaintiff
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to depose other co-workers in Plaintiff's group who were suddenly ranked higher than
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after Plaintiff reported his disability and medical conditions, requested reasonable
7
dations, reported harassment in the workplace, and requested medical attention through
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9
10
.'s workers' compensation medical provider network.
On February 23, 2022, a telephonic hearing was conducted to discuss Plaintiffs request to,
further depositions. ' A court reporter was present for the conference.
(COE, Exh. 5),
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,after referred to as "RT"). At the hearing, the Arbitrator represented the following:
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6. In response to Plaintiff's request for additional depositions, the Arbitrator said
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14
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"sometimes less is more." (RT 36:3-6).
7. The Arbitrator endorsed shortening the evidentiary hearings to force the parties to target
the issues to be decided. (RT, 36:11-14)
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8. The Arbitrator recognized that Plaintiff intended to call at least 12 witnesses, despite the
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fact that he later reduced the evidentiary hearing from ten days to five days, which
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resulted in Plaintiffs inability to call at least six witnesses that Plaintiff intended to call
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because Plaintiff's "time" had run out. (RT, 35:1-5).
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9. The Arbitrator recognized that Plaintiff would need to call witnesses for the first time at
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the evidentiary hearing, despite the not knowing if their testimony was helpful or
22
relevant. (RT:35:1-36:5.) Thereafter, the Arbitrator reduced the evidentiary hearing from
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ten days to five days, making it prejudicial for Plaintiff to call the witnesses that Plaintifl
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sought to depose but was not pennitted to. Knowing what these witnesses would say
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would have targetcd any questions during examination at the evidentiary hearing.
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10. The Arbitrator's position that pre-trial depositions are not necessary was clearly
prejudicial.
The Arbitrator stated, as he also stated during several case management
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9
4 OF POINTS AND AUTHORITIES TN SUPPORT OF PLAINTIFF'S
MOTTON TO VACATE ARBITRATOR'S AWARD
PDF Page 135
1
conference, "we're the only country in the world that does prehearing depositions,
2
everyone else responds to the witness for the first time at a trial." (RT 29:3-30:2)
3
Having considered the parties' arguments during the hcaring, the Arbitrator ordered that
4
there was not good cause for increasing the number of depositions. Moreover, the Arbitrator
5
ordered the evidentiary hearing be shortened from ten days to five days. (COE, Exh. 6)
6
Arbitrator said at the February 23, 2022 hearing that "less is more" and he made is clear that he
7
would prefer to give the parties less time for the evidentiary hearing so that the parties "targeted"
8
their examinations. (See RT, 36:3-14)
The
9
Plaintiff was significantly prejudiced by the Arbitrator's refusal to allow additional,
10
~sary discovery and the Arbitrator's order reducing Plaintiff's evidentiary hearing from ten
11
to five days. Not only was Plaintiff deprived of the ability to obtain necessary discovery, but
12
tiff was also deprived of the time needed to present his case to the arbitrator.
C.
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The Arbitrator Abused His Discretion When He Reduced Plaintiff's
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Evidentiary Hearing from 10 Days to 5 Days, Despite Plaintiff's Need and
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Reauest for 10 Daws to Comoensate for the Arbitrator's Refusal to Allow
16
Additional Discoverv.
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The Arbitrator prejudiced Plaintiff be denying Plaintiff the opportunity for necessary
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,scovery and sufficient time to present his case at the evidentiary hearing. The Arbitrator reduced
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~aintiff's evidentiary hearing from 10 days to 5 days, despite knowing that there were various
20
■u
itnesses that Plaintiff would need to call for the first time at the hearing because the arbitrator
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fused to allow Plaintiff to depose those witnesses. The Arbitrator told Plaintiff that "less is more"
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hen Plaintiff represented that he would need to spend more time examining the witnesses that he
23 •
unable to depose. (RT, 36:6).
24
When considering prejudice, the question before this Court is whether the arbitrator
25
ented Plaintiff from fairly presenting her case and prejudiced her rights as a result. Royal
26
«ce Associates, Inc. v. Liebhaber (2016) 2 Cal.App.5th 1092. To find prejudice, the court must
27
accept the arbitrator's theory and conclude the arbitrator might well have made a different
28
10
d OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF'S
MOTION TO VACATE ARBITRATOR'S AWARD
PDF Page 136
1 l laward had the evidence been allowed." Malek Media Group LLC v. AXQG Corp. (2020) 58
2
Ca1.App.5th 817, review denied, (Mar. 30, 2021).
3
In this case, the arbitrator initially set the evidentiary hearing in this case for a 10-days.
4
Plaintiff always made it clear that this case required dozens of witnesses, including experts, which
5
is why a 10-day evidentiary hearing was set. However, two months before the evidentiary hearing,
6
the Arbitrator, sua sponte, reduced the evidentiaixhearing from 10 days to 5 days. The Arbitrator
7
later limited Plaintiff to a mere 15 hours of examination. Plaintiff needed the originally scheduled
8
10-da.ys because the Arbitrator would not permit Plaintiff to take necessary depositions and would
to examine witnesses for the very first time during arbitration.
9
D.
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There is No Clarity as to Which of the TWO Arbitration Agreements
Governing the Arbitration or the Arbitration Award.
11
At no point did this Court or the Arbitrator decide which arbitration agreement governed the
12
13.
ration. Indeed, the arbitrator asked the parties one month before issuing the award which of the
14
arbitration agreements governed.
15
led and reserved his objection that the arbitration agreement issue was never resolved. This was
16
ly prejudicial to Plaintiff and made the whole process arbitrary and nomadic. Nonetheless, the
17
trator still issued an award. Which arbitration agreement the arbitrator relied on is still unclear.
18
Court must vacate the award because the award is not based on any governing arbitration ~
Plaintiff made it clear that the issue was not agreed to or '
19
20
.
CONCLUSION
21
Based on the arguments above, Plaintiffs respectfully request that the Arbitrator's award be
22
;d because Plaintiff was not allowed to take depositions that were absolutely necessary to
23
iff°s case. The arbitrator also reduced Plaintiff's evidentiary hearing which significantly
24
liced Plaintiff s ability to present his case and the necessary evidence to support his case. The
25
ator's award was an abuse of discretion and substantially prejudiced Plaintiif's rights and
26
should be vacated.
27
28
11
MEIVIORANDUM OF POINTS AND AUTH0RITIES IN SUPPORT OF PLAINTIFF'S
MOTiOn' TO VACATE ARBITRATOR'S AWARD
PDF Page 137
1
DATED: January 12, 2023
EMPLOYEE JUSTICE LEGAL GROUP, PC
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B
c~
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. Elihu, Esq.
K
Christopher J. DeClue, Esq.
Attorneys for Plaintiff
DAVID WYER
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MEMORANDUM OF POI\rTS AND AliTHORTTIES IN SUPPORT OF PLAINTiF'F'S
MOTION TO VACATE ARBITRATOR'S AWARD
PDF Page 138
n
PROOF OF SERVICE
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STATE OF CALIFORNIA, COUNTY OF LOS ANGELES
I am employed in the County of Los Angeles, State of California. I am over the age of 18
not a party to the within action. My business address is 1001 Wilshire Boulevard, Los Angeles,
fornia 90017.
January 12, 2023, I served the foregoing document described as MEMORANDUM OF
INTS AND AUTHORITIES IN SUPPORT PF PLAINTIFF'S MOTION TO VACATE
BITRATOR'S AWARD AND TO RETURN TIiE CASE TO THE CIVIL ACTIVE LIST;
CLARATION OF CHRISTOPHER J. DECLUE AND COMPEl\'DEUM OF EVIDENCE
SUPPORT THEREOF
on the interested parties in this action as follows:
®
By placing true copies enclosed in a sealed envelope addressed to each addressee as
follows:
Cheryl Johnson-Hartwell, Esq.
BURKE, WILLIAMS & SORENSEN, LLP
444 South Flower Street, Suite 2400
Los Angeles, CA _ 90071
cjohnson-harttivell(2
a bwslaw.com
Attorney for Defendants
14.
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®
BY E-MAIL: I transmitted a copy of the foregoing document(s) via e-mail' to the
individual(s) indicated above. I did not receive, within a reasonable time after transmission, any
electronic message or other indication that the transmission was unsuccessful. The e-mail address
the person who served the document(s) is: ggomez(äejlglaw.com
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Executed on January 12, 2023, at Los Angeles, California.
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STATE
I declare under penalty of perjury under the laws of the State of
California that the foregoing is true and correct.
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❑
FEDERAL I declare that I am employed in the office of a member of the bar of
this Court at whose direction the service was made.
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IUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF
MOTION TO VACATE ARBITRATOR'S AWARD
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