Fitzsimons v. California Emergency Physicians: Partner May Sue Partnership for Retaliation for Opposing Sexual Harassment of Employee

In Fitzsimons v. California Emergency Physicians Medical Group (5/16/12) --- Cal.Ap.4th ----, the Court of Appeal has held that a partner has standing to assert a claim for retaliation under the FEHA against his or her partnership.

Plaintiff Mary Fitzsimons was a partner in defendant California Emergency Physicians Medical Group ("CEP"). She alleged that CEP retaliated against her because she she reported to her supervisors that certain officers and agents of CEP had sexually harassed female employees of CEP‘s management and billing subsidiaries. The trial court (Alameda County Superior, Judge Yvonne Gonzalez Rogers) granted summary judgment on grounds that a partner does not have standing to sue her partnership under the FEHA.

The trial court, relying largely on the decision in Jones v. Lodge at Torrey Pines Partnership (2008) 42 Cal.4th 1158, 1163-1164 (Torrey Pines), agreed with CEP that section 12940, subdivision (h) does not apply to retaliation by a partnership against a partner, because partners are not in an employer-employee relationship.

Slip op. at 3. The Court of Appeal reversed. It explained:

[S]ection 12940, subdivision (h) uses the word "person" repeatedly, with two different referents. The subdivision states that it is an unlawful employment practice for "any employer, labor organization, employment agency, or person" to engage in proscribed activity which includes discriminating against "any person because the person has opposed any practices forbidden under this part." The subdivision first prohibits a person from retaliating, and secondly states the retaliation must not be against a person who opposes discrimination or harassment of other employees. Torrey Pines held that the first reference to a "person" does not include nonemployer individuals. It did not hold that the second reference excludes partners or other persons who are not themselves the victim of the harassment. 

While CEP is not in an employment relationship with plaintiff, CEP is the employer of those persons who are the victims of the alleged harassment that plaintiff reported, for which she allegedly became the subject of CEP's retaliation. The harassment of CEP employees, if proven, is an unlawful practice for which CEP is liable under section 12940, subdivision (j). And subdivision (h) makes it an unlawful practice for CEP to retaliate against "any person" for opposing that harassment. Interpreting "person" in the context of those against whom the employer may not retaliate to include a partner gives the word its normal meaning and is consistent with the definition in section 12925, subdivision (d). This interpretation does not contravene any of the reasons explained in Torrey Pines for excluding supervisors from the scope of liability. Plaintiff‘s claim does not seek to impose liability on any "nonemployer individual" but only upon the employer—the partnership. Upholding plaintiff‘s claim here does not imply that a partner would have a valid claim for harassment or discrimination against himself or herself by the partnership. As CEP urges, the alleged sexual harassment of a partner by a fellow partner is not a "practice[] forbidden under this part," but harassment of the partnership's employees is an unlawful employment practice forbidden under "this part." Plaintiff, although a partner, is a person whom section 12940, subdivision (h) protects from retaliation for opposing the partnership-employer's harassment against those employees.

Slip op. at 5-6.

The opinion is available here.