Levy v. American Film Institute

Filed 8/10/09 Levy v. American Film Institute CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

APPEAL from a judgment of the Superior Court of Los Angeles County, Rolf M. Treu, Judge. Affirmed in part, reversed in part and remanded with directions.

Landegger, Baron & Lavenant, Larry C. Baron and Christopher L. Moriarty for Plaintiff and Appellant.

Van Vleck Turner & Zaller, Brian F. Van Vleck and Daniel J. Turner for Defendant and Respondent.

______________________

Rochelle Levy appeals from the judgment entered after the trial court granted summary judgment in favor of her former employer, American Film Institute (AFI),^[1]in her action alleging retaliatory discharge and wage and hour violations. Levy contends triable issues of material fact exist as to whether AFI terminated her employment in retaliation for her testimony in a separate case by a coworker brought under Californias Fair Employment and Housing Act (FEHA) (Gov. Code, 12940 et seq.). Levy also contends triable issues of material fact permeate her wage and hour claims. We agree a triable issue of material fact exists as to whether Levy was properly classified as an administratively exempt employee. Accordingly, we reverse the judgment and direct the trial court to grant in part and deny in part AFIs alternative motion for summary adjudication.

FACTUAL AND PROCEDURAL HISTORY

1. Levys Employment with AFI

Levy began working at AFI in February 1999 as an assistant/consultant. She was promoted in July 1999 to the position of senior writer and again in July 2000 to the position of editorial director. As editorial director Levy edited AFIs publications, including its tribute book for its lifetime achievement award and its annual reports. In this capacity, Levy worked in close collaboration with AFIs director of creative services, Patti Johnson, who was responsible for the artistic design and layout of AFI publications. Johnson was also responsible for ensuring AFIs publications were timely delivered to the printer. According to Jean Firstenberg, AFIs chief executive officer and Levys initial supervisor, coordination between Johnson and Levy was essential to ensuring successful production of AFIs written publications. Throughout her tenure at AFI, Levy was an at-will employee.

2. Levys Conflicts with Johnson

In 2003 Levy began complaining to Firstenberg about Johnsons abilities. Levy found Johnson unprofessional, lazy and careless with her work. Levy believed Johnson made errors in AFI publications that cost AFI money and reflected badly on the editorial team. Although Firstenberg agreed Johnson had made some mistakes, she did not share Levys negative assessment of Johnson.

In October 2004 Firstenberg hired Jonathan Estrin as AFIs executive vice president to manage the organizations day-to-day operations, including supervising Levy and other employees. When Estrin was hired, Levy shared with him, at his request, her low opinion of Johnsons capabilities.

3. Levys Deposition Testimony in a Former Employees FEHA Lawsuit

On June 27, 2005 Levy was served with a third-party witness deposition subpoena in a wrongful discharge and wage and hour lawsuit filed by former AFI employee Sterling Davis against AFI (Los Angeles Superior Court No. BC327298) (the Davis case). The case included claims of race discrimination by AFI in violation of FEHA. The deposition, initially scheduled for July 2005, was continued to August 18, 2005. During her August 18, 2005 deposition, Levy was critical of Johnsons skills as an artistic director, reiterating her belief that Johnson was careless and incompetent.

4. Levys Refusal to Report to Johnson

In July 2005, before Levys deposition in the Davis case, Estrin informed Levy he intended to implement an administrative restructuring plan but had not worked out the details yet. On August 11, 2005 Estrin told Levy that under his new restructuring plan she would report administratively to Johnson: Levy would submit her bi-weekly reports to Johnson instead of to him and attend creative services meetings with Johnson.

Levy complained to the human resources department about Estrins restructuring plan, stating, After years of my complaining about [Johnsons] performance, the company now sees fit to make her my supervisor. Since her performance does not merit this elevation, I am convinced I am being discriminated against on the basis of my age in relation to [Johnsons] age.

Levy refused to comply with Estrins restructuring plan, continuing to submit her bi-weekly reports to Estrin instead of to Johnson and refusing to attend meetings with Johnson. Levys refusal to adhere to Estrins directive caused problems for AFI. Johnson complained to Estrin, Its really hard for me to do my job and integrate editorial into our daily operation when there is no communication or response from [Levy] to any of my e-mails or phone calls.

In October 2005 Roschoune Franklin, AFIs human resources director, told Levy she had investigated her complaint of discrimination and concluded Estrins directive that she submit her reports to Johnson was part of AFIs efforts to increase its efficiency.

5. AFIs Termination of Levys Employment

On November 21, 2005 Estrin advised Levy she would be terminated if she continued to refuse to comply with the job duties he had assigned to her, including the submission of her bi-weekly reports to Johnson and her attendance at creative service meetings. On November 22, 2005 Levy responded by informing AFI she had been misclassified as an exempt employee under state law and claimed overtime payments had been improperly withheld in violation of various provisions of the Labor Code. On November 23, 2005 Levy also filed a complaint with the California Department of Fair Employment and Housing (DFEH) claiming AFI was retaliating against her for providing adverse deposition testimony in the Daviscase and for claiming she has been misclassified as an exempt employee. AFI terminated Levys employment in December 2005.

6. Levys Lawsuit against AFI

In June 2006 Levy filed this lawsuit against AFI, asserting claims for wrongful termination in violation of public policy; failure to pay all wages and overtime due; failure to provide accurate itemized statements of wages and deductions; failure to provide meal and rest periods; breach of an implied-in-fact employment contract; and unfair competition.

7. AFIs Motion for Summary Judgment or, in the Alternative, Summary Adjudication

On March 2, 2007 AFI filed a motion for summary judgment or, in the alternative, summary adjudication. AFI argued it had a legitimate business reason for terminating Levys employment, namely, her violation of Estrins orders and refusal to report administratively to Johnson. In his declaration accompanying AFIs motion, Estrin explained he had wanted Levy to report to Johnson to eliminate confusion over individual responsibilities and provide one consolidated point of contact on administrative publication issues. Johnson was the logical person to fulfill this role because she was the point person for putting the publication together and ensuring the timely physical delivery of AFI publications to the printer. Estrin also denied his motive for terminating Levys employment was retaliatory: He had not been employed by AFI when Davis had worked there, had no knowledge of the substance of Levys deposition testimony in that case and no concern about it. Estrin fired Levy because she flagrantly violated his managerial authority by refusing to report to Johnson.

As for the remaining causes of action, AFI argued Levys second cause of action for unpaid overtime, her third cause of action for failure to provide accurate itemized wage statements and her fourth cause of action for failure to provide meal and rest periods also failed as a matter of law because Levy was properly classified as an administrative employee who was exempt from overtime wage and hour requirements under California law. AFI also asserted Levys fourth cause of action failed as a matter of law for the additional reason that AFI did not prohibit her from taking meal and rest breaks at her discretion. Finally, because Levy could not establish a violation of any labor laws, AFI argued, her claim for unfair practices under Business and Professions Code section 17200 also failed.

8. Levys First Amended Complaint and Opposition to the Motion for Summary Judgment or, in the Alternative, Summary Adjudication

a. The first amended complaint

On March 26, 2007, before her opposition to AFIs motion was due, Levy filed a motion for leave to file a first amended complaint that included two new causes of action: The eighth cause of action alleged AFIs failure to pay wages pursuant to a retroactive salary increase; the ninth cause of action alleged negligent supervision and negligent retention of Johnson. The court permitted Levy to file the amended complaint and allowed AFI to file a supplemental summary judgment motion directed solely to the new causes of action.

b. Levys opposition to AFIs motion

On May 4, 2007 Levy filed her opposition to AFIs motion, arguing triable issues of material fact existed with respect to each of her causes of action. In her declaration accompanying the opposition, Levy explained she had received exemplary performance reviews throughout her tenure at AFI. Then, on August 11, 2005, one week before her deposition in the Davis case, Estrin informed Levy he had decided to make Johnson her supervisor, even though Estrin knew Levys low opinion of Johnson. Levy argued Estrins articulated reasons for requiring her to report to Johnson were pretextual and AFI, in fact, had attempted to intimidate her into giving favorable testimony and then retaliated against her for giving critical testimony of Johnson and Firstenberg in the Davis case. Levy also argued triable issues of material fact existed as to whether she was properly classified as an administratively exempt employee not subject to Californias wage and hour provisions.

c. AFIs supplemental motion

On May 14, 2007 AFI filed a supplement to its motion for summary judgment directed to Levys new causes of action, including the eighth cause of action seeking wages in connection with a retroactive salary increase. In her eighth cause of action Levy alleged she was awarded a 3.5 percent merit salary increase in July 2005 and another 3.5 percent increase in October 2005 that was intended to be retroactive to July 2005, but she never received the second merit increase. In its supplemental motion directed to this claim, AFI contended Levy was not entitled to the second 2005 merit increase. Patty Smith, assistant to Franklin in the human resources department, and Tanya Quan, AFIs payroll coordinator, explained in their accompanying declarations that each AFI employee was eligible to receive one annual merit increase per year. In July 2005 Estrin had recommended a standard 3.5 percent merit increase for Levy and that increase was processed. Another payroll advise form was filled out in October 2005 in response to a concern that Levy had not received her 3.5 percent merit increase, but that form was not processed because a review of electronic records showed Levy had received her 3.5 percent increase. AFI never intended to provide Levy with a 7 percent merit increase in salary in 2005.

In her opposition to this supplemental motion filed May 24, 2007, Levy declared that, notwithstanding AFIs claim of clerical error discovered in October 2005, as late as May 2006 AFI had informed one of Levys prospective employers that her ending salary was $63,848.23, an amount that necessarily included a 7 percent increase in 2005.

The trial court granted summary judgment in favor of AFI. Levy filed a timely notice of appeal from the judgment.

CONTENTIONS

Levy contends the trial court erred in granting AFI summary judgment because triable issues of material fact exist as to whether AFIs purported legitimate business reason for discharging her was a pretext for retaliatory discharge. She also contends triable issues of material fact exist as to whether she was an administrative employee exempt from Californias wage and hour regulations governing overtime pay, meal and rest periods and itemized wage statements and whether she was entitled to additional wages based on an October 2005 merit pay increase.^[2]

DISCUSSION

1. Standard of Review

We review the trial courts grant of summary judgment de novo and decide independently whether the parties have met their respective burdens and whether facts not subject to triable dispute warrant judgment for the moving party as a matter of law. (Intel Corp. v. Hamidi (2003) 30 Cal.4th 1342, 1348; Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334 (Guz); Code Civ. Proc., 437c, subd. (c).) We liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party. (Yanowitz v. LOreal USA, Inc. (2005) 36 Cal.4th 1028, 1037 (Yanowitz).)

2. The Trial Court Properly Granted AFIs Motion as to Levys Cause of Action for Wrongful Discharge

a. Governing law on wrongful termination in violation of FEHAs prohibitions

The cause of action for wrongful termination in violation of public policy is an exception to the general rule that an employer has an unfettered right to terminate an at-will employee: Although an employer has the right to terminate at-will employees for any or no reason, even an arbitrary or irrational reason, the employer does not have the right to terminate an employee in violation of a substantial and fundamental public policy. (Guz,supra, 24 Cal.4th at p. 335; Stevenson v. Superior Court (1997) 16 Cal.4th 880, 889-890; Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167, 169-170.) To support a claim for wrongful termination in violation of public policy, the policy allegedly violated must be articulated, at the time of the discharge, in a constitutional or statutory provision. This requirement ensures, among other things, the employer has adequate notice of the conduct that will subject it to liability. (Stevenson, at pp. 889-890; Green v. Ralee Engineering Co. (1998) 19 Cal.4th 66, 79.)

Levy contends her discharge by AFI violated the public policy set forth in Government Code section 12940, subdivision (h), the FEHA provision prohibiting employers from discharging, expelling or otherwise discriminating against an employee on the ground the employee opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part. (See Rojo v. Kliger (1990) 52 Cal.3d 65, 90-91 [cause of action for wrongful discharge in violation of public policy may be based on employers actions that violate FEHA].)

To establish a prima facie case of retaliation, a plaintiff must show that she engaged in protected activity, that she was thereafter subjected to an adverse employment action by her employer, and there was a causal link between the two. (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 287-288; see Yanowitz, supra, 36 Cal.4th at p. 1042 [plaintiff establishes a prima facie case for retaliation under FEHA by showing he or she engaged in a protected activity, the employee suffered an adverse employment action and a causal link exists between the protected activity and the employers action].)

Once an employee establishes a prima facie case, the burden shifts to the employer to offer a legitimate, nonretaliatory reason for the adverse employment action. (Yanowitz, at p. 1042) [adopting the burden-shifting analysis of McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, 802-805 [93 S.Ct. 1817, 36 L.Ed.2d 668] in retaliation cases].) If the employer produces a legitimate business reason for the adverse employment action, the presumption of retaliation drops out of the picture, and the burden shifts back to the employee to prove intentional retaliation. (Yanowitz, at p. 1042; see also Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1004.)

The plaintiff meets this burden on summary judgment only by producing substantial responsible evidence that the employers showing was untrue or pretextual. (Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal.App.4th 1718, 1735, Slatkin v. University of Redlands (2001) 88 Cal.App.4th 1147, 1156; see also Guz, supra, 24 Cal.4th at p. 357.) [A]n employer is entitled to summary judgment if, considering the employers innocent explanation for its actions, the evidence as a whole is insufficient to permit a rational inference that the employers actual motive was discriminatory. (Guz, at p. 361.)

b. The trial court properly concluded Levy could not establish her discharge was motivated by unlawful retaliation

In her complaint Levy alleged a campaign of retaliation that began immediately following her testimony in the Davis case and culminated with her termination in December 2005. Levy contends she established her prima facie case for wrongful discharge/retaliation by supplying evidence she engaged in various protected activitiesgiving testimony in the Davis case in August 2005, complaining to AFI about wage and hour violations in November 2005 and filing a DFEH claim the same monthand that her termination soon followed. (See, e.g., McRae v. Department of Corrections and Rehabilitation (2006) 142 Cal.App.4th 377, 388 (McRae) [plaintiff can establish a prima facie case of retaliation by producing evidence of nothing more than the employers knowledge that the employee engaged in protected activities and the proximity in time between the protected action and the allegedly retaliatory employment decision]; Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 69.)

The trial court did not rule Levy was unable to prove a prima facie case of retaliation as a basis for her claim of wrongful discharge. Rather, even if she could satisfy her initial burden, the court concluded Levy had not presented substantial responsive evidence that would allow a trier of fact to find, more likely than not, that AFIs proffered reason for discharging her was pretext for retaliation. Indeed, neither in her opposition to the motion nor on appeal has Levy advanced substantial evidence to support her claim AFIs articulated reasons for terminating Levy were pretext for retaliation.

Levy insists the temporal proximity between her deposition in the Daviscase and her termination shows retaliatory motive. The proffered causal link is somewhat questionable since Estrins decision to have Levy report to Johnson preceded Levys testimony in the Davis case. (Levy does suggest AFI was attempting to intimidate her prior to her testimony.) Even accepting the significance of the testimony as a critical event, however, timing alone, while sufficient to establish a prima facie case, is not sufficient evidence of pretext to preclude summary judgment. (See, e.g., Loggins v. Kaiser Permanente Intern. (2007) 151 Cal.App.4th 1102, 1112-1113 [evidence of temporal proximity between the protected action and the allegedly retaliatory employment decision only satisfies the plaintiffs initial burden of proving a prima facie case of retaliation; once employer proffers legitimate, nonretaliatory reason for the adverse employment action, the presumption of retaliation is eviscerated and the burden is the employees to show intentional discrimination]; McRae, supra, 142 Cal.App.4th at p. 388 [same]; see also Yanowitz, supra, 36 Cal.4th at p. 1042 [once employer produces legitimate reason for adverse employment decision, presumption of retaliation drops out of the picture, and burden shifts back to employee to prove intentional retaliation].)

The undisputed evidence, on the other hand, established Levy was resistant to Estrins efforts to make administrative changes and created problems that justified AFIs strong reaction. She flatly refused to submit her reports to Johnson as Estrin had directed and refused to attend meetings he believed necessary. Levy was told that continued violations of Estrins directive would result in her termination.

That Levy responded to this threat of termination by making wage and hour complaints and filing a DFEH complaint in no way vitiates AFIs evidence that Levys termination was based on a legitimate, nonretaliatory business decision. Although the filing of such administrative complaints is an activity protected under FEHA (see Iwekaogwu v. City of Los Angeles (1999) 75 Cal.App.4th 803, 818), Levy made both complaints only after Estrin threatened to terminate her unless she complied with his directives, undermining her assertion the filing of the complaints motivated her termination. (See, e.g., Clark County School District v. Breeden (2001) 532 U.S. 268, 273 [121 S.Ct. 1508, 149 L.Ed.2d 509] [plaintiffs filing of administrative complaint with Equal Employment Opportunity Commission could not serve as sufficient evidence of retaliation case when complaint was made after adverse employment action was communicated to her by employer].) As Justice Sills observed in Chen v. County of Orange (2002) 96 Cal.App.4th 926, 948, the job protection afforded to employees who file a DFEH claim was never intended to protect employees whose complaint is generated merely to manipulate the system. (See ibid. [Ax about to fall? Never fear: file a discrimination claim, no matter how meritless. Your employer will be afraid to take any action because now you can sue for retaliation.].)

Levy cites evidence she had received numerous accolades throughout her tenure at AFI to suggest the only motive for her termination must have been retaliation. There is little question that Levy was a skilled and valued employee who was displeased by having to report to Johnson, a colleague whose abilities she plainly did not respect. That alone, however, does not support a retaliation claim. (See Villanueva v. City of Colton (2008) 160 Cal.App.4th 1188, 1195 [employers decision may be wrong, mistaken, or unwise but it does not follow the decision is pretext for unlawful discrimination or retaliation]; see also McRae, supra, 142 Cal.App.4th at p. 387 [Workplaces are rarely idyllic retreats, and the mere fact that an employee is displeased by an employers act or omission does not elevate that act or omission to the level of a materially adverse employment action. [Citation.] If every minor change in working conditions or trivial action were materially adverse action then any action that an irritable, chip-on-the-shoulder employee did not like would form the basis of a discrimination suit. [Citation.]].)^[3]

4. The Trial Court Erred in Granting Summary Judgment on Levys Second and Third Causes of Action Because Triable Issues of Material Fact Exist Concerning Whether Levy Was Properly Classified as an Exempt Administrative Employee

a. Governing law on overtime pay in California

Labor Code section 510, subdivision (a), provides in part, Any work in excess of eight hours in one workday and any work in excess of 40 hours in any one workweek . . . shall be compensated at the rate of no less than one and one-half times the regular rate of pay for an employee. However, [t]he Industrial Welfare Commission may establish exemptions from this requirement for executive, administrative and professional employees, provided that the employee is primarily engaged in the duties that meet the test of the exemption, customarily and regularly exercises discretion and independent judgment in performing those duties, and earns a monthly salary equivalent to no less than two times the state minimum wage for full-time employment. (Lab. Code, 515, subd. (a).)

Pursuant to the authority granted by to it to establish exemptions to the overtime pay provisions in the Labor Code, the Industrial Welfare Commission (IWC) issued wage order No. 4-2001, applicable to professional, technical, clerical and other similar occupations. Codified in title 8, section 11040 of the California Code of Regulations, Wage Order No. 4-2001 essentially provides a five-part test to determine whether the administrative employee exemption applies.^[[4]] The employee must (1) perform office or non-manual work directly related to management policies or general business operations of the employer or its customers, (2) customarily and regularly exercise[] discretion and independent judgment, (3) perform[] under only general supervision work along specialized or technical lines requiring special training or execute[] under only general supervision special assignments and tasks, (4) be engaged in activities meeting the test for the exemption at least 50 percent of the time,^[[5]] and (5) earn twice the states minimum wage.^[6] (Eicher v. Advanced Business Integrators, Inc. (2007) 151 Cal.App.4th 1363, 1371-1372.) [E]ach of the five elements must be satisfied to find the employee exempt as an administrative employee. (Id. at p. 1372; see Cal. Code Regs., tit. 8,  11011.)

b. Levy raised a triable issue of material fact whether she spent more than 50 percent of her time on exempt duties

In its motion for summary judgment AFI asserted Levy met all five criteria to qualify as an administrative exempt employee: According to AFIs 2001 written announcement of Levys promotion to editorial director, Levy was responsible for setting the overall tone and style of all AFI editorial content and editing all text published on AFIs Website in collaboration with the on-line staff. Levy herself testified in the Davis case that, as editorial director, she was responsible for the writing of, the editing of, the gathering of the information, all the text, all the content. Although Levy did not write the articlesthey were submitted to hershe was responsible for synthesizing all the material and putting it together in publication form. According to AFI, Levy enjoyed an enormous amount of discretion in her editorial responsibilities. AFI also established, through undisputed evidence, that Levys salary was more than twice the minimum wage.

In support of its argument that Levy is an exempt employee as a matter of law, AFI points to Shaw v. Prentice Hall Computer Publishing (7th Cir. 1998) 151 F.3d 640 (Shaw), a federal appellate decision affirming the district courts findings, following a bench trial, that an employee who worked as a production editor for a publishing company fell within the Fair Labor and Standards Acts (FLSAs) administrative exemption (see 29 C.F.R.  541.201 et seq.).^[7] According to the evidence presented at the trial in Shaw, the plaintiff/employees position as production editor involved two parts, an editorial component and a project management component. As an editor, the plaintiff/employee reviewed and edited the companys publications for clarity and readability as well as for grammar, word choice and spelling. As a project manager, the plaintiff/employee delegated work to copy editors and proofreaders and set and monitored deadlines so that the publication would be completed in accord with the schedule set by the managing editor. Emphasizing the plaintiff/employees role as project manager, the district court found Shaws duties were directly related to the companys major operations. The appellate court affirmed, concluding substantial evidence supported the district courts findings. (See Shaw,at pp. 643-645.)

Although Shaw, supra, 151 F.3d 640,is factually similar to the instant case in many respects, it does not justify the courts conclusion Levy is an exempt employee as a matter of law. In her opposition papers, Levy described her duties far differently than AFI had: Despite the lofty sounding title of editorial director, according to Levy, her job was actually nothing more than a glorified copy editor. (See Ramirez v. Yosemite Water Co. (1999) 20 Cal.4th 785, 802 [if hours worked [on exempt activities] were determined through an employers job description, then the employer could make an employee exempt from overtime laws solely by fashioning an idealized job description that had little basis in reality].) In her declaration Levy stated approximately 85 percent of her time was spent proofreading and copy-editing documents to ensure they conformed [to] the AFIs style guide. Unlike the project manager in Shaw, she declared, she had no discretion to choose assignments or set deadlines, no supervisorial responsibilities and no role in deciding substantive content.

AFI insists Levys testimony characterizing herself, in effect, as a titled proofreader does not defeat summary judgment because work that is directly and closely related to exempt work also falls within the exemption. (See Cal. Code Regs., tit. 8,  11010, subd. (2)(f) [The activities constituting exempt work and non-exempt work shall be construed in the same manner as they are under the FLSA and shall include . . . all work that is directly and closely related to exempt work and work which is properly viewed as a means for carrying out exempt functions.].) If Levy had other, significant responsibilities that related directly to the organizations management or the general business operations, as AFI contends, the fact that her position included nondiscretionary proofreading functions might not be a bar to summary judgment.^[8] However, Levys declaration denies she had any such responsibilities, and nothing in her prior testimony is directly in conflict with this characterization.^[9] Accordingly, on this disputed factual record, the actual nature of Levys position and the determination whether she is an exempt employee is one properly left to the factfinder at trial. (See Dalheim v. KDFW-TV(5th Cir. 1990) 918 F.2d 1220, 1226 [the inquiry into exempt status under FLSA remains intensely fact bound and case specific].) At this stage, Levy has raised a sufficient issue of material fact to preclude summary judgment.^[10]

c. Fourth cause of action for meal and rest periods

Every employer shall provide nonexempt employees with a 10 minute rest period for every four hours worked and a 30 minute meal period for every six hours worked. (Lab. Code, 226.7, subd. (a), 512, subd. (a); see also Cal. Code Regs., tit. 8,  11011, subds. 11 & 12.) If an employer fails to provide an employee a meal period or rest period in accordance with an applicable order of the [IWC], the employer shall pay the employee one additional hour of pay at the employees regular rate of compensation for each work day that the meal or rest period is not provided. (Lab. Code, 226.7, subd. (b); Cal. Code Regs., tit 8, 11010, subd. 11(D) [meal periods] &12(B) [rest periods]; see generally Murphy v. Kenneth Cole Productions, Inc., (2007) 40 Cal.4th 1094, 1113-1114 [[a]n employee forced to forgo his or her meal period . . . has been deprived of the right to be free of the employers control during the meal period].)

In her complaint Levy alleged she was never informed about rest and meal breaks and did not always take them because she felt compelled to complete her assigned tasks. The trial court ruled Levys rest-and-meal breaks claims, like her overtime wage claim, failed because she was an exempt administrative employee. Citing Levys deposition testimony acknowledging she, in fact, took some breaks when she needed them, including one-hour lunch breaks, AFI argues, even if Levy were not an exempt employee, this claim fails as a matter of law. Relying on Brown v. Federal Express Corp. (C.D. Cal. 2008) 249 F.R.D. 580, 585 and White v. Starbucks Corp. (N.D. Cal. 2007) 497 F.Supp.2d 1080 1088, AFI insists its only duty as the employer was to allow rest and meal breaks, not to ensure the employee actually took them.

The proper interpretation of Californias statutes and regulations governing an employers duties to provide meal and rest breaks to hourly workers is currently before the California Supreme Court. (See Brinker Restaurant Corp. v. Superior Court (Hohmbaum), review granted Oct. 22, 2008, S166350; Brinkley v. Public Storage, review granted Jan. 14, 2009, S168806.) The Supreme Courts decision, of course, will control the ultimate resolution of Levys claim. In the interim, however, particularly since we are returning the case to the superior court for trial of other wage-and-hour claims, we adopt the analysis of our colleagues from the Third District in Cicairos v. Summit Logistics, Inc. (2005) 133 Cal.App.4th 949 (Cicairos), which held an employers obligation under the Labor Code and IWC wage orders is to do more than simply provide rest breaks in theory; it must also permit them as a practical matter. That is, if the employer pressures employees to fulfill other work requirements without correspondingly ensuring compliance with meal and rest period requirements, such behavior violates the Labor Code and corresponding wage orders. (See Cicairos, at p. 963 [when employer aware that employee truck drivers were not taking breaks in order to comply with employers scheduling and did nothing to ensure drivers could take the mandated rest breaks, employer liable for failure to provide off-duty time].)

Although Levy testified that AFI did not affirmatively prevent her from taking breaks, she also explained she was not advised she could take breaks and her work schedule did not always permit it. On this factual record, and in light of our holding that triable issues of material fact exist concerning whether Levy is an administratively exempt employee, summary adjudication of this claim in favor of AFI was error.

5. The Trial Court Did Not Err in Concluding Levy Could Not Prove Her Claim for Additional Wages

In her eighth cause of action Levy alleged she had been awarded a 3.5 percent merit pay increase in October 2005, retroactive to July 1, 2005, increasing her annual salary from $61,689.11 to $63,848.23. Levy also alleged AFIs failure to pay her wages in accordance with that merit increase was willful, entitling her not only to the wages improperly withheld, but also to additional penalties. (See Lab. Code, 203, subd. (a) [[i]f an employer willfully fails to pay [wages due], without abatement or reduction, in accordance with Sections 201, 201.3, 201.5, 202, and 205.5 . . . the wages of the employee shall continue as a penalty from the due date thereof at the same rate until paid or until an action is therefor commenced; but the wages shall not continue for more than 30 days].)

In its motion AFI established Levy was eligible for one merit salary increase in 2005. Levy received a standard 3.5 percent increase in July 2005 based on her June 2005 performance review, increasing her annual salary at that time from $59,603.00 to $61,689.11. In October 2005 a payroll advise form to process a 3.5 percent increase was completed in the mistaken belief Levy had not yet received her 3.5 percent increase awarded in July. When AFI discovered Levy had received her July 2005 merit increase, it did not process the October 2005 payroll advise form, noting on the face of the form review already done. AFI intended to increase Levys salary by the standard 3.5 percent in 2005, not by 7 percent.

In her declaration in opposition to the motion, Levy testified AFI had notified her in writing in October 2005 she would receive a 3.5 percent merit increase retroactive to July 1, 2005, increasing her annual salary from $61,689.11 to $63,848.23. Later, after her termination, an AFI employee informed one of Levys prospective employers Levy had made $63,848.23 a year (a number that would have only been correct if it included the second 3.5 percent increase).

None of Levys evidence conflicts with AFIs proof its policy was to afford one merit increase per year and that AFIs notification of a second 3.5 percent increase in October 2005 was a clerical error. Because Levy failed to raise a triable issue of material fact that any wages were actually due her (Lab. Code, 201), the trial court properly adjudicated this claim in favor of AFI as a matter of law.

DISPOSITION

The judgment is reversed. On remand the trial court shall enter a new order denying AFIs motion for summary judgment, denying its alternative motion for summary adjudication as to Levys second, third, fourth and seventh causes of action relating to wage and hour violations and Business and Professions Code section 17200 and granting AFIs alternative motion for summary adjudication as to Levys first, fifth, sixth, eighth and ninth causes of action. The court shall conduct further proceedings not inconsistent with this opinion. Each party is to bear her and its own costs on appeal.

PERLUSS, P. J.

We concur:

ZELON, J.

JACKSON, J.

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^[1] AFI is an independent nonprofit organization established in 1967 as part of the National Foundation on the Arts and Humanities Act (see 20 U.S.C. 951 et seq.).According to its mission statement, AFIs objective is to provide leadership in screen education and recognize and celebrate excellence in the art of film, television and digital media.

^[2] Levy has expressly abandoned in this appeal any arguments relating to her claims for breach of an implied-in-fact contract and negligent retention and supervision of Johnson.

^[3] As support for her pretext argument, Levy cites Estrins e-mail insisting she comply with her new written job description and evidence no newly revised job description existed. This evidence is simply too thin a reed to support her retaliation claim. Whether or not there was a formal job description, the evidence is undisputed Estrin had asked her to submit her reports to Johnson and Levy refused. Moreover, although she does not allege it directly, the change in reporting structure (rather than the termination) was not itself an adverse employment action that can support Levys retaliation allegation. (See Yanowitz, supra, 36 Cal.4th at p. 1054 [adverse employment action must be reasonably likely to impair employees job performance or prospects for advancement; [m]inor or relatively trivial adverse actions or conduct by employers or fellow employees that, from an objective perspective, are reasonably likely to do no more than anger or upset an employee cannot properly be viewed as materially affecting the terms, conditions, or privileges of employment]; see also Akers v. County of San Diego (2002) 95 Cal.App.4th 1441, 1455 [[a] change that is merely contrary to the employees interests or not to the employees liking is insufficient to constitute adverse employment action].)

^[4] Wage Order 4-2001 provides, A person employed in an administrative capacity means any employee: [] (a) Whose duties and responsibilities involve either: [] (I) The performance of office or non-manual work directly related to management policies or general business operations of his/her employer or his employers customers; or [] (II) The performance of functions in the administration of a school system, or educational establishment or institution, or of a department or subdivision thereof, in work directly related to the academic instruction or training carried on therein; and [] (b)  Who customarily and regularly exercises discretion and independent judgment; and []  (c) Who regularly and directly assists a proprietor, or an employee employed in a bona fide executive or administrative capacity (as such terms are defined for purposes of this section); or [] (d) Who performs under only general supervision work along specialized or technical lines requiring special training, experience, or knowledge; or [] (e)  Who executes under only general supervision special assignments and tasks; and [] (f)  Who is primarily engaged in duties that meet the test of the exemption. The activities constituting exempt work and non-exempt work shall be construed in the same manner as such terms are construed in the following regulations under the Fair Labor Standards Act effective as of the date of this order: 29 C.F.R. Sections 541.201-205, 541.207-208, 541.210, and 541.215. Exempt work shall include, for example, all work that is directly and closely related to exempt work and work which is properly viewed as a means for carrying out exempt functions. The work actually performed by the employee during the course of the workweek must, first and foremost, be examined and the amount of time the employee spends on such work, together with the employers realistic expectations and the realistic requirements of the job, shall be considered in determining whether the employee satisfies this requirement. [] (g) Such employee must also earn a monthly salary equivalent to no less than two (2) times the state minimum wage for full-time employment. Full-time employment is defined in California Labor Code section 515(c) as 40 hours per week.

^[5] See Labor Code section 515, subdivision (e) ([[f]or the purposes of this section primarily means more than one-half of the employees worktime]; Ramirez v. Yosemite Water Co., Inc. (1999)20 Cal.4th 785, 798, fn. 4 [employee must spend 50 percent or more of his or her work time engaged in exempt activity in order to be exempt from overtime under California law]).

^[6] Although the IWS was defunded effective July 1, 2004, its wage orders remain in effect. (Murphy v. Kenneth Cole Productions, Inc. (2007) 40 Cal.4th 1094, 1102; Bearden v. U.S. Borax, Inc. (2006) 138 Cal.App.4th 429, 434, fn. 2.)

^[7] See Eicher v. Advaned Business Integrators, Inc., supra, 151 Cal.App.4th at page 1372, footnote 4 (California courts regularly look to federal authorities for guidance in determining whether an employee is exempt, keeping in mind that state statutes and regulations, through different wording, may provide greater protection to workers in some instances).

^[8] AFI provided little evidence as to the nature of its general business operations to support its claim Levys duties were directly related to those responsibilities.

^[9] Although AFI argues Levys description of her job duties should be disregarded because it contradicts her testimony in the Daviscase, that testimony and her declaration are not in conflict. In the Daviscase Levy testified she oversaw the production of editorial content, meaning that she was responsible for the writing, editing of, fathering the information, all the text, all the content. Later, she explained she was not involved in determining content and had no supervisorial authority. She did not discuss in her deposition testimony (presumably because it was not an issue in the Daviscase) the amount of time she spent on the tasks comprising her position. Thus, this is not a situation in which Levy is using her declaration to create a triable issue of fact by contradicting her own discovery responses in this lawsuit (cf. Shin v. Ahn (2007) 42 Cal.4th 482, 500, fn. 12 [a party cannot create an issue of fact by a declaration which contradicts his prior discovery responses]). Rather, she appropriately provided in her declaration a more complete explanation of her duties than the general description given in the Davislawsuit.

^[10] In light of our holding triable issues of fact remain in connection with Levys wage-and-hour claims, the unfair competition claim (Bus. & Prof. Code, 17200), which is predicated on those alleged wage-and-hour violations, also survives.