FILED
NOT FOR PUBLICATION
MAR 23 2021
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
THOMAS HUGH WAGNER, No. 19-56190
Plaintiff-Appellant, D.C. No.
2:16-cv-06259-ODW-PLA
v.
SOUTHERN CALIFORNIA EDISON MEMORANDUM*
COMPANY,
Defendant-Appellee,
and
ALICIA PILLADO; MICHAEL DIAZ;
DOES,
Defendants.
Appeal from the United States District Court
for the Central District of California
Otis D. Wright II, District Judge, Presiding
Submitted March 19, 2021**
San Francisco, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
Before: FERNANDEZ, SILVERMAN, and N.R. SMITH, Circuit Judges.
Thomas Wagner appeals pro se from the district court’s judgment following
a jury trial in his action against Southern California Edison Company (SCE).
Wagner brought a wide variety of claims for discrimination, retaliation, and
defamation against SCE, his former employer. We affirm in part and vacate and
remand in part.
(1) Reviewing de novo, we conclude that the district court properly granted
summary judgment to SCE on Wagner’s Sarbanes-Oxley1 retaliation claim. See
White v. City of Sparks, 500 F.3d 953, 955 (9th Cir. 2007). Reviewing the facts
and circumstances in the record, a reasonable person would not have formed a
good faith belief that he was reporting a Sarbanes-Oxley violation. See Van Asdale
v. Int’l Game Tech., 577 F.3d 989, 1000–01 (9th Cir. 2009). Wagner failed to
submit sufficient evidence that he had an objectively reasonable belief that one of
the specific violations listed in 18 U.S.C. § 1514A(a)(1) had occurred. See Van
Asdale, 577 F.3d at 996–97, 1000. His vague references to his supervisor’s
purported violations of Sarbanes-Oxley and unspecified accounting controls do not
amount to the requisite reasonable belief that the supervisor violated a “‘rule or
1
Sarbanes-Oxley Act of 2002, Pub. L. No. 107-204, § 1, 116 Stat. 745.
2
regulation of the [SEC].’” Wadler v. Bio-Rad Labs., Inc., 916 F.3d 1176, 1186
(9th Cir. 2019); cf. id. at 1187–88.2
(2) On our de novo review, we conclude that the district court erred in
granting SCE’s anti-SLAPP motion to strike Wagner’s defamation claim to the
extent it was based on statements made by another supervisor to SCE’s workers’
compensation representative. See Sarver v. Chartier, 813 F.3d 891, 897 n.1, 901
(9th Cir. 2016); see also Cal. Civ. Proc. Code § 425.16(e)(2). Although statements
made in connection with workers’ compensation proceedings are absolutely
privileged in some circumstances,3 extending that privilege to statements made by
Wagner’s supervisor before Wagner had filed—or indicated any desire to file—a
workers’ compensation claim was unwarranted. See Edwards v. Centex Real
Estate Corp., 53 Cal. App. 4th 15, 36 (1997); see also Olaes v. Nationwide Mut.
Ins. Co., 135 Cal. App. 4th 1501, 1509–10 (2006); Pettus v. Cole, 49 Cal. App. 4th
402, 437 (1996). We therefore vacate the order striking a portion of the
defamation claim and the judgment as to that claim.
2
Because Wagner’s Dodd-Frank claim is dependent on his Sarbanes-Oxley
claim, the district court properly entered judgment as a matter of law on that claim.
See 15 U.S.C. § 78u-6(h)(1)(A).
3
Harris v. King, 60 Cal. App. 4th 1185, 1187 (1998); see also Cal. Civ.
Code § 47(b)(2); Briggs v. Eden Council for Hope & Opportunity, 969 P.2d 564,
569 (Cal. 1999).
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(3) The district court erred in entering judgment as a matter of law on
Wagner’s fourth claim for California FEHA4 retaliation at the close of Wagner’s
case-in-chief. SCE does not dispute that there was some evidence that Wagner had
engaged in protected activity and suffered adverse employment actions short of
termination. See Yanowitz v. L’Oreal USA, Inc., 116 P.3d 1123, 1130–31,
1138–39 (Cal. 2005). We conclude that Wagner adduced sufficient evidence
during his case-in-chief of a causal link between those actions and his allegedly-
protected activity to establish a prima facie case of retaliation. See Loggins v.
Kaiser Permanente Int’l, 151 Cal. App. 4th 1102, 1112 (2007); McRae v. Dep’t of
Corr. & Rehab., 142 Cal. App. 4th 377, 388 (2006); see also Morgan v. Regents of
the Univ. of Cal., 88 Cal. App. 4th 52, 69–70 (2000). We therefore vacate the
judgment as to Wagner’s fourth claim for FEHA retaliation.
(4) Wagner stipulated to the voluntary dismissal of his claim for retaliation
in violation of California Labor Code section 1102.5. We perceive no error in the
district court’s implementing that stipulated dismissal. Likewise, we perceive no
error in the jury’s verdict in favor of SCE on Wagner’s Tameny v. Atlantic
Richfield Co., 610 P.2d 1330, 1332–33 (Cal. 1980), claim.
4
California Fair Employment and Housing Act. See Cal. Gov’t Code
§ 12940(h).
4
(5) In light of our decision vacating the judgment in part, we likewise vacate
the district court’s award of fees and costs. The parties shall bear their own costs
on this appeal.
AFFIRMED in part, VACATED in part, and REMANDED.
5