Alamo v. Practice Management Info. Corp.: Court of Appeal Rules On Causation and Mixed Motive Defense

While we're all waiting for the California Supreme Court to rule in Harris v. City of Santa Monica, I wanted to note (briefly) Alamo v. Practice Management Information Corporation (9/24/12) --- Cal.App.4th ---, which also addresses the mixed motive defense.  

The plaintiff sued for pregnancy discrimination, retaliation, and wrongful termination.  The trial court instructed the jury that the plaintiff had to show that her pregnancy leave was "a motivating reason" for her discharge and refused to instruct the jury that the defendant would not be liable if it showed that it would have made the same decision in the absence of any discriminatory or retaliatory motive.  The jury found in the plaintiff's favor, and the trial court awarded prevailing party attorney fees to the plaintiff.  

The Court of Appeal affirmed, holding: 

• The language and legislative purposes of FEHA do not support a requirement of "but for" causation, and the court's use of the CACI "motivating factor" instructions was proper.  Slip op. at 9-15.  
• The Court did not have to determine whether the mixed motive defense applied, and the trial court did not err in refusing to give a mixed motive instruction, because both sides tried the case as a single motive, not a mixed motive, case.  Slip op. at 15-19.  
• The trial court did not err in awarding attorney fees to the plaintiff, even though the verdict form failed to specify whether she prevailed on the statutory FEHA cause of action or the common law wrongful termination cause of action. Slip op. at 19-22.  

The defendant filed a petition for review in the Supreme Court on November 28.  The Supreme Court has not ruled on the petition.  The Court's docket is here.  

At Tuesday's oral argument in Harris, none of the Justices sounded very unenthusiastic about either "motivating factor" standard or "but for" causation. I am assuming that the Court will grant review in Alamo and remand after it issues Harris.  

The full text of the opinion is available here.