Worker fails to raise triable issue of fact for retaliation claim

A Trader Joe’s employee failed to raise a triable issue of fact about whether she reported a workplace injury or unsafe condition before she was fired, a California appeals court said Wednesday in affirming a lower court decision dismissing a retaliation claim.

Luz Ortiz alleged that Trader Joe’s fired her after she told a supervisor in September 2019 that another worker had hit her brother, also a store employee, with a produce cart. A couple of days later, she was fired for what the company called unprofessional conduct, according to Luz Ortiz v. Trader Joe’s Co., filed in the 2nd District Court of Appeal.

In a 2021 complaint, Ms. Ortiz claimed that the company’s justification was pretextual and that she was fired in violation of state law that prohibits employers from firing workers for reporting job-related injuries.

Trader Joe’s moved for summary judgment in July 2022, arguing that Mrs. Ortiz failed to establish the elements of a retaliation claim in that there was no evidence that she reported a workplace injury or an unsafe working condition. Trader Joe’s also argued that Ms. Ortiz was fired for repeated violations of the company’s conduct policy and that she had failed to make the necessary changes recommended in five performance reviews in her personnel file documenting a need for improved work.

The trial court in 2023 found no evidence that Ms. Ortiz’s brother was injured or that any condition at the store was fundamentally unsafe and entered judgment in the company’s favor.

The appeals court affirmed, writing that state law requires a plaintiff to establish that he or she engaged in a protected activity, was subjected to an adverse employment action and that there is a causal link between the protected activity and the employer’s action. Once Trader Joe’s met its burden by showing that she hadn’t reported a qualifying injury or condition, the burden shifted to Ms. Ortiz to raise a factual dispute, which she didn’t do.

The appellate court said the only evidence supporting Ms. Ortiz’s argument that she was fired for reporting a work-related injury was her own declaration, which is typically insufficient to create a fact dispute. The court also agreed that Ms. Ortiz’s brother was not injured within the meaning of state law.

“Here, Ortiz testified that (her brother) did not break any bones, that she could not recall any bruising or limping and that she did not know if (her brother) sought medical attention,” the court said. “There is no evidence that he lost time or required medical treatment of any sort.”

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