Castro-Ramirez v. Dependable Highway Express: FEHA Requires Reasonable Accommodation of Employee's Need to Adjust Schedule to Care for Disabled Minor Child

In Castro-Ramirez v. Dependable Highway Express, Inc. (Cal.App. 4/4/16), the plaintiff sued his former employer, DHE, alleging disability discrimination, failure to prevent discrimination, retaliation, and wrongful termination in violation of public policy. Plaintiff, a truck driver, alleged as follows: 

Plaintiff’s son requires daily dialysis, and according to the evidence, plaintiff must be the one to administer the dialysis. For several years, plaintiff’s supervisors scheduled him so that he could be home at night for his son’s dialysis. That schedule accommodation changed when a new supervisor took over and ultimately terminated plaintiff for refusing to work a shift that did not permit him to be home in time for his son’s dialysis. The trial court granted defendant’s motion for summary judgment and denied plaintiff’s motion to tax costs.

The Court of Appeal reversed, holding as follows: 

The trial court erred in summarily adjudicating the disability discrimination cause of action. On an issue of first impression, employers have a duty under FEHA to provide reasonable accommodations to an applicant or employee who is associated with a disabled person. Association with a disabled person constitutes a disability under Government Code section 12926(o). Less stringent standards under the Americans with Disabilities Act do not control and should be distinguished. Rope v. Auto-Clor System of Washington, Inc. (2013) 220 Cal.App.4th 635 (discussed here and here) also should be distinguished because it relied on a gender and race discrimination case for its statement of the elements of a FEHA case, rather than a disability discrimination cause of action. 

On standards for discriminatory motive and pretext, Rope again is distinguishable because it relied on authority under the ADA, rather than the FEHA. Under the facts here, a jury could infer reasonably that plaintiff's association with his son was a substantial motivating factor in the decision to terminate and that DHE's reason for termination was pretextual. 

The trial court also erred in summarily adjudicating the disability discrimination cause of action. The law does not require employees to state that an employer's conduct constitutes discrimination or violates the FEHA. Employees need not use any legal terms or buzz words. Evidence that plaintiff complained to his supervisor -- and his supervisor -- about changes to his schedule and his need to give his son dialysis constituted opposition to the denial of a reasonable accommodation, a practice forbidden under the FEHA. 

The evidence also would permit a trier of fact to infer a causal link between plaintiff’s complaints and his termination. The temporal proximity between the two were enough to permit a trier of fact to infer causation. Rope is no longer good authority on this issue under amended section 12940(m)(2) (discussed here). 

The court erred in summarily adjudicating plaintiff's failure to prevent discrimination and wrongful termination causes of action for the reasons stated above. 

Because the trial court should not have granted DHE's motion, it also should not have denied plaintiff's motion to tax costs. 

Plaintiff was entitled to recover his costs on appeal. 

The opinion is available here.  

Wallace v. County of Stanislaus: Disability Discrimination Plaintiff Need not Prove Employer's Animus or Ill Will

Wallace v. County of Stanislaus (Cal.App. 2/25/16) considers "how to instruct a jury on the employer’s intent to discriminate against a disabled employee and, more specifically, what role 'animus' plays in defining that intent." 

Sheriff's Deputy Dennis Wallace sued the County of Stanislaus for disability discrimination after it placed him on an unpaid leave of absence based on its belief that he could not safely perform his duties as a bailiff with or without accommodation. 

The case went to trial prior to the California Supreme Court's decision in Harris v. City of Santa Monica (2013) 56 Cal.4th 203. The trial court modified the then-current version of California Civil Jury Instruction (CACI) No. 2540 to include a requirement that Wallace prove the County regarded or treated him “as having a disability in order to discriminate.” They jury found as follows: (1) the County treated Wallace as disabled; (2) Wallace was able to perform his essential job functions with or without reasonable accommodation; and (3) the County failed to prove Wallace could not safely perform those functions; but (4) County did not regard or treat Wallace as disabled "in order to discriminate." The trial court entered judgment for the County, and Wallace appealed. 

The Court of Appeal reversed, holding as follows: 

Where there is only circumstantial evidence of an employer's discriminatory motive, proof of motive follows the three-step burden-shifting McDonnell Douglas test. However, disability discrimination cases often involve "direct evidence of the role of the employee’s actual or perceived disability in the employer’s decision to implement an adverse employment action." In disability discrimination cases, courts should not "automatically apply" McDonnell Douglas, but should "determine whether there is direct evidence that the motive for the employer’s conduct was related to the employee’s physical or mental condition." 

Disability cases differ from other discrimination cases because California's definitions of physical disability, mental disability, and medical condition are broad and are intended to protect employees from discrimination based on actual or perceived disability. Further, the law protects employees "erroneously or mistakenly believed" to have a disability. 

Under Harris, an employer discriminates against an employee because of a disability when the disability is a substantial motivating reason for the employer’s decision to subject the employer to an adverse employment action. An employee need not demonstrate that the employer had any discriminatory animus; only that the employee's disability was a substantial motivating factor in the adverse employment action decision. 

A plaintiff who meets the substantial motivating factor test need not show any additional animus. The Court emphasized that the term "animus" is vague and should not be used in disability discrimination cases with "direct evidence that the employer’s motive for taking an adverse employment decision was the plaintiff’s actual or perceived disability." 

The trial court's erroneous instruction prejudiced Wallace. There was no dispute that the County's mistaken perception that Wallace could not perform the essential functions of the job was a substantial motivating factor for its decision to place him on unpaid leave. There also was no dispute that this decision caused Wallace economic harm. 

The Court remanded for a limited trial on the amount of Wallace's economic damages and the existence and amount, if any, of his non-economic damages. 

The opinion is available here. 

DFEH Issues FAQ for Employers on Transgender Rights in the Workplace

The California Department of Fair Employment and Housing (DFEH) has issued an "FAQ for Employers" on transgender rights in the workplace. Among other things, the FAQ provides:

Employers should not ask questions designed to detect a person’s sexual orientation or gender identity or questions about an employee's plans to have surgery.

If an employer has a dress code, it should apply it a non-discriminatory manner. For example, an employee who identifies as a female should be held to the same standards as other females.

Employers should allow employees to use restrooms that correspond with their gender identities. Where possible, employers should provide private restrooms for use by any employee who wants greater privacy, including those who do not want to share facilities with transgender coworkers.

The FAQ is available here.

Prue v. Brady Company: Plaintiff Sufficiently Alleged Wrongful Termination in Violation of the Public Policy against Disability Discrimination

In Prue v. Brady Company/San Diego, Inc. (Cal.App. 11/17/15), the plaintiff sued the defendant for wrongful termination in violation of public policy, alleging that the defendant terminated him after he suffered a work-related injury. The trial court granted summary judgment for the defendant, and the Court of Appeal reversed, holding as follows:

"Because the gist of Brady's motion was not the absence of disputed material facts but was instead whether Prue's complaint alleged sufficient facts to state a cause of action, its motion for summary judgment was, in effect, a motion for judgment on the pleadings."

The complaint "sufficiently alleged essential facts to inform Brady that [Prue] was alleging a common law cause of action for wrongful termination in violation of FEHA's public policy against disability discrimination." The complaint alleged: "(1) Prue suffered from a disability (i.e., a musculoskeletal injury); (2) he was capable of performing the essential functions of his position; (3) he was subjected to an adverse employment action (i.e., termination of his employment) because of his disability; and (4) Brady knew of his disability when it decided to terminate his employment."

The complaint did not allege only a violation of Labor Code section 132a, which prohibits retaliation against an employee who files a worker's compensation claim.

The one-year statute of limitations for violations of the Fair Employment and Housing Act (FEHA) does not apply to a common law claim for wrongful termination. Instead, the two-year limitations period under Code of Civil Procedure section 335.1 applies.

If the complaint had not adequately alleged the wrongful termination claim, the trial court would have abused its discretion in rejecting Prue's request for leave to amend.

The opinion is available here. 

Decambre v. Rady Children's Hospital: Court Affirms in Part and Reverses in Part Order Granting Anti-SLAPP Motion in Doctor's Action for Discrimination, Harassment, Retaliation, and Defamation

Over the last month, we have seen two cases dealing with anti-SLAPP motions in the employment law context. In Park v. Board of Trustees (8/27/15) --- Cal.App.4th --- (discussed here), a discrimination action, the Court held that a University's decision to deny tenure arose from protected communicative activity. The Court then remanded to the trial court for a determination of the plaintiff's likelihood of success on the merits. In Barker v. Fox & Associates (9/10/15) --- Cal.App.4th --- (discussed here), a defamation action, the court reversed an order denying the defendant's anti-SLAPP motion, finding that the plaintiff had waived his argument that the alleged statements were not privileged, and that the plaintiff had failed to show a reasonable probability of success on the merits.

Decambre v. Rady Children's Hospital (3/11/15, mod. 4/2/15) --- Cal.App.4th ---, is a third such case, which I missed when it came down earlier this year. The plaintiff was a doctor who sued several defendants, including the hospital where she worked, alleging discrimination, harassment, retaliation, wrongful termination, defamation, intentional infliction of emotional distress (IIED), and other causes of action. The trial court granted the defendants' anti-SLAPP motion to strike, finding that the defendants' decision not to renew the plaintiff's contract arose from the hospital's peer review process, which was protected as an official proceeding. The Court of Appeal affirmed in part and reversed in part, holding as follows:

Under the anti-SLAPP statute, Code of Civil Procedure section 425.16, and Kibler v. Northern Inyo County Local Hospital Dist. (2006) 39 Cal.4th 192, hospital peer review proceedings constitute protected "official proceeding[s] authorized by law," and the defendants' decision not to renew the plaintiff's contract was the result of that process. The Court rejected the plaintiff's contention that there was no peer review because the defendants did not report their non-renewal to the Medical Board of California. The behavior that led to the decision not to renew did not involve a "medical disciplinary cause or reason," and no such report was required.

The defendants failed to meet their burden to show that the plaintiff's harassment, IIED, and defamation claims arose from protected activity. "The 'principal thrust or gravamen' of the plaintiff's claim determines whether section 425.16 applies," and the court must examine the alleged wrongful conduct, rather than the alleged damages, to determine that issue. Here, the trial court erred in looking to the plaintiff's alleged damages, rather than the defendants' conduct. Some of the conduct underlying the harassment and IIED claims occurred before the peer review process even began, and none of that conduct "occurred within the context of, or in furtherance of, the peer review proceedings." Similarly, the conduct underlying her defamation claim arose after the non-renewal decision and was not part of the peer review proceedings.

In contrast, the defendants did show that the plaintiff's discrimination, failure to prevent discrimination, retaliation, and wrongful termination claims all arose from the peer review process. The wrongful termination claim cannot succeed absent a termination -- the Court did not distinguish between a termination and a non-renewal -- and the FEHA claims cannot succeed absent an adverse employment action. The only adverse employment action alleged here was the non-renewal decision. The defendants' motive, even if discriminatory, did not change the fact that the alleged conduct arose from protected activity.

The defendant having shown that the conduct at issue arose from protected activity, the burden shifted to the plaintiff to show probable success on the merits. The plaintiff failed show that defendants' asserted reasons for the non-renewal were pretextual. She did not refute the defendants' reasons for non-renewal. Instead, she asserted that she "could establish sufficient facts" to prove her claims, and this was not sufficient to meet her burden. 

The plaintiff also asserted claims for violation of the Unfair Competition Law and the Cartwright Act, but I will not address those claims here. I also will not address the Court's holding on the trial court's order sustaining the defendants' demurrer to certain causes of action.

The opinion is available here. 

New Law: Requesting Accommodation Constitutes Protected Activity Under Fair Employment and Housing Act

In Rope v. Auto-Clor System of Washington, Inc. (2013) 220 Cal.App.4th 635 (discussed here), the plaintiff sued his former employer, alleging that it violated the Fair Employment and Housing Act (FEHA) by terminating him after he requested leave from work so that he could donate a kidney to his sister. The Court of Appeal held, among other things, that he could not state a retaliation cause of action under the FEHA because his request for leave did not constitute protected activity. 

On July 15, Governor Brown signed AB 987, reversing this holding. AB 987 adds sub-sections (l)(4) and (m)(2) to Government Code sections 12940, providing that a request for reasonable accommodation on the basis of religion or disability constitutes protected activity, regardless of whether the request was granted. 

AB 987 leaves the remainder of Rope intact.

The text of AB 987 is available here. 

Nigro v. Sears: District Court Erred in Disregarding Plaintiff's Self-Serving Testimony on Summary Judgment

In Nigro v. Sears, Roebuck & Co., ___F.3d ___ (9th Cir. 2/25/15), the plaintiff sued the defendant, Sears, for disability discrimination under the FEHA and wrongful termination. The district court granted Sears's motion for summary judgment, and Nigro appealed.

The Ninth Circuit reversed, holding that Nigro's deposition and declaration testimony, while self-serving, stated more than mere conclusions, and the district court should not have disregarded them.

Here, Nigro's declaration and deposition testimony, albeit uncorroborated and self-serving, were sufficient to establish a genuine dispute of material fact on Sears's discriminatory animus. He related statements made to him both in person and over the telephone. His testimony was based on personal knowledge, legally relevant, and internally consistent. We conclude that the district court erred in disregarding Nigro's testimony in granting Sears's motion for summary judgment.

The opinion is available here. 

DeSaulles v. Community Hospital of the Monterey Peninsula: Supreme Court will Decide Right to Recover Costs after Settlement

In DeSaulles v. Community Hospital of the Monterey Peninsula (2014) 225 Cal.App.4th 1427 (available here), the Court of Appeal held that when an employer pays an employee in settlement, the employee obtains a "net monetary recovery" from the employer and is the prevailing party in the action. As such, where the settlement agreement is silent as to the recovery of costs, the employee is entitled to recover his or her costs as a matter of right. The employer is not entitled to recover its costs in this situation, even though it obtained a judgment denying the plaintiff any relief, which ordinarily would make the defendant the prevailing party.

The California Supreme Court granted review on July 23, 2014. The Court's web site lists the issue presented as follows:

When plaintiff dismissed her action in exchange for the defendant's payment of a monetary settlement, was she the prevailing party for purposes of an award of costs under Code of Civil Procedure section 1032, subdivision (a)(4), because she was "the party with a net monetary recovery," or was defendant the prevailing party because it was "a defendant in whose favor a dismissal is entered"?

DeSaulles is case number S219236, and the Court's web site for it is here. As always, you can sign up for automatic notices regarding the proceedings on the case web site. Or you can watch this space. I'll post the result once it comes down. 

Higgins-Williams v. Sutter Medical: Employee's Inability to Work under Particular Supervisor Because of Stress Related to Standard Oversight Does Not Constitute Disability under FEHA

In Higgins-Williams v. Sutter Medical Foundation (5/26/15) --- Cal.App.4th ---, the plaintiff, Higgins-Williams, complained to her employer, Sutter, that she suffered stress from interactions with her supervisor and Sutter's HR department. Her physician diagnosed her with adjustment disorder with anxiety, placed her on intermittent leave, and stated that she could return to work without limitation if transferred to a different department. After several months of leave, Sutter advised Higgins-Williams that it would terminate her, unless she provided information as to (1) when she could return to work and (2) whether additional leave as an accommodation would effectuate her return to work. She did not supply the information, and Sutter terminated her.

Higgins-Williams sued, alleging disability discrimination, CFRA, and wrongful termination claims. The trial court granted Sutter's motion for summary judgment on all claims, and the Court of Appeal affirmed, holding as follows:

Higgins-Williams did not suffer from a disability as defined in the FEHA and could not prevail on her FEHA or wrongful termination claims. "An employee's inability to work under a particular supervisor because of anxiety and stress related to the supervisor's standard oversight of the employee's job performance does not constitute a disability under FEHA."

Higgins-Williams also could not prevail on her CFRA claims because she exhausted her available CFRA and FMLA leave, and Sutter granted her an additional five months of leave thereafter. Higgins-Williams's testimony that she didn't think she could have returned to work but would have tried failed to raise a genuine issue of material fact that Sutter failed to reinstate her following leave.

Finally, Higgins-Williams also could not prevail on her claim that Sutter wrongfully terminated her for asserting her CFRA rights. The evidence showed that Sutter had a legitimate business reason for terminating Higgins-Williams, and Higgins-Williams failed to raise a genuine issue of material fact as to whether that reason was pretextual.

The opinion is available here. 

Hirst v. City of Oceanside: Court Examines Scope of FEHA Harassment Protection for Persons Providing Contract Services

In Hirst v. City of Oceanside (5/8/15) --- Cal.App.4th ---, the plaintiff, Kimberli Hirst, worked as a phlebotomist for American Forensic Nurses, Inc. (AFN). AFN contracted with San Diego County to provide phlebotomy services for local law enforcement agencies, including the Oceanside Police Department (OPD).

Hirst sued the City of Oceanside under FEHA, alleging that an OPD officer sexually harassed her while she was providing phlebotomy services to OPD under AFN's contract with the County. Hirst prevailed at trial, and the City moved for judgment notwithstanding the verdict, arguing that Hirst lacked standing to bring a FEHA claim against the City. The trial court denied the motion, and the City appealed. The Court of Appeal affirmed, holding that Hirst had standing to sue as a "person providing services pursuant to a contract." The Court reasoned as follows:

At the relevant time, Government Code section 12940(j) provided that an employer may be held liable for its employee's harassment of an "employee, an applicant, or a person providing services pursuant to a contract." [In 2014, the Legislature broadened this provision to encompass interns and volunteers as well.] Section 12940(j)(5) defines "a person providing services pursuant to a contract" as one who (1) "has the right to control the performance of the contract for services and discretion as to the manner of performance"; (2) "is customarily engaged in an independently established business"; and (3) "has control over the time and place the work is performed, supplies the tools and instruments used in the work, and performs work that requires a particular skill not ordinarily used in the course of the employer's work."

Hirst met all three of these requirements. First, she exercised professional judgment in implementing the blood drawing services. Although law enforcement officers secured the environment in which she worked, they did not exercise authority over her in any other manner. Second, she was engaged in the profession of a phlebotomist, which was not a usual part of the City's public duties. Third, she brought her own equipment to provide these services and did not use the City's property or rely on its expertise.

Interestingly, Hirst apparently did not argue at trial that she was a "person providing services pursuant to a contract." Instead, she argued that AFN was such a person, and that she was protected as AFN's employee. The City did not deny that AFN was such a person, but argued that FEHA protection did not extend to AFN's employees. The Court rejected this argument, holding that the Legislature could not have intended to cover a business entity such as AFN, but not the people through whom such an entity provides contractual services.

The opinion is available here. 

Williams v. Chino Valley Independent Fire District: Supreme Court Rules on Cost Awards to Prevailing Defendants in FEHA Actions

Williams v. Chino Valley Independent Fire District (5/4/15) --- Cal.4th --- concerns whether a prevailing defendant in a FEHA action may recover its ordinary costs absent a finding that the plaintiff brought or continued the litigation without an objective basis for believing that it had merit.

Plaintiff Loring Winn Williams sued defendant Chino Valley Independent Fire District for disability discrimination. The trial court granted summary judgment for the defendant and awarded it $5,368.88 in costs. The Court of Appeal affirmed, but the Supreme Court reversed, holding as follows:

CCP section 1032(b) mandates that prevailing parties recover their costs as a matter of right, "except as otherwise expressly provided by statute." Government Code section 12965(b) allows courts, in their discretion, to award attorney fees and costs to prevailing parties in FEHA actions. Section 12965(b) thus constitutes an express exception to section 1032(b) and as a result, trial courts have discretion to award ordinary costs to prevailing defendants, but need not do so.

In exercising this discretion, courts must follow the rule set forth in Christiansburg Garment Co. v. EEOC (1978) 434 U.S. 412. In Christiansburg, the U.S. Supreme Court held that a prevailing plaintiff in a Title VII action ordinarily should be awarded his or her fees but should not be assessed his or her opponent's fees unless a court finds that the claim was "frivolous, unreasonable, or groundless, or that the plaintiff continued to litigate after it clearly became so."

Christiansburg applies equally to awards of attorney fees and costs in FEHA actions: a prevailing plaintiff ordinarily should recover his or her fees and costs unless special circumstances would render such an award unjust, but a prevailing defendant should not recover its fees or costs unless the court finds the action was "objectively without foundation when brought, or the plaintiff continued to litigate after it clearly became so."

The opinion is available here. 

Nealy v. City of Santa Monica: Court of Appeal Affirms Summary Judgment in Disability Discrimination Case

In Nealy v. City of Santa Monica (1/1/15) --- Cal.App.4th ---, the plaintiff, Tony Nealy, worked for the City of Santa Monica as a "solid waste equipment operator" in the City's recycling facility. Nealy injured his right knee on the job in 2003. He underwent two knee surgeries and did not return to work until May, 2005. In July, 2005, Nealy met with the City's accommodations committee and was assigned to work as a groundskeeper. 

Nealy suffered additional on-the-job injuries in August, 2006. Two weeks later, his doctor cleared him to perform "light duty, semi-sedentary office work," but stated that if no such work was available, Nealy should be considered temporarily totally disabled. The City had no such position available, and Nealy did not return to work. 

Nealy met with the City's accommodations committee in 2008 and again in 2010 and asked to be moved back to his old job of solid waste equipment operator. The City declined, stating that Nealy could not perform the essential functions of the position, with or without accommodation. 

The City told Nealy that it would consider him for any vacant position for which he was qualified that was not a promotion. It told him of three such positions and told him how to find additional open positions. Nealy applied for one such position, but did not qualify. Later in 2010, the City told Nealy that it could not provide him with an accommodation into an alternative position because he was not qualified for the only available position that would not be a promotion. 

Nealy filed his complaint with the DFEH and obtained his right-to-sue notice in January, 2011. He filed suit in February, 2011, alleging disability discrimination, failure to provide reasonable accommodation, failure to engage in the interactive process, and retaliation. The Superior Court granted the City's motion for summary judgment, and the Court of Appeal affirmed, holding as follows: 

The trial court properly held that the statute of limitations prevented Nealy from recovering for acts prior to January, 2010, and Nealy failed to show that the continuing violation doctrine applied:

He makes no attempt to show how the City's acts from August 2006 to 2010 were "sufficiently similar in kind," that they "occurred with reasonable frequency," or that the pre-2010 acts did not "acquire[] a degree of permanence" before 2010.

Nealy could not prevail on his cause of action for failure to provide reasonable accommodation because the undisputed evidence showed that he could not perform all of the essential functions of a solid waste equipment operator, with or without reasonable accommodation. Even if Nealy were correct that one of the essential functions identified by the City was not in fact "essential," he did not show that he could perform a number of other essential functions, with or without accommodation.

Nealy could not request that the City accommodate his disability by removing one or more of these essential functions from his responsibility. Removing an essential function from a position would not be a reasonable accommodation.

While Nealy could have requested that the City move him to a comparable position as a reasonable accommodation, Nealy presented no evidence that the City had any comparable positions for which he was qualified during the statutory time period at issue. Further, the City had no duty to provide Nealy with an indefinite leave of absence until such a position became available.

Because Nealy could not perform the essential functions of the operator position, he was not a qualified individual and could not prevail on his disability discrimination cause of action.

Nealy could not prevail on his cause of action for failure to engage in the interactive process because he failed to identify any reasonable accommodation that would have allowed him to do his job. His argument that the City should have retrained him failed because he did not detail what type of retraining would have allowed him to perform the essential functions of his job or a comparable available position. 

Finally, Nealy could not prevail on his retaliation cause of action because requesting reasonable accommodation does not constitute protected activity under the FEHA, and Nealy did not show that he engaged in any other protected activity. 

The opinion is available here.

Kao v. University of San Francisco: Employer Not Required to Enter into Interactive Process before Requiring Fitness-for-Duty Exam

In Kao v. University of San Francisco (8/2/14, pub. 9/2/14) --- Cal.App.4th ---, plaintiff John S. Kao alleged that the University of San Francisco (USF) violated the Fair Employment and Housing Act (FEHA) and other California laws by directing him to have a fitness-for-duty exam (FFD) after faculty members and school administrators reported that his behavior was frightening them, and then terminating his employment when he refused to participate in the examination. He appealed from a judgment against him after jury trial, and the Court of Appeal affirmed, holding as follows:

The law did not require USF to engage in the interactive process because Kao never acknowledged having a disability or sought any accommodation for one.

Unless a disability is obvious, it is the employee’s burden to initiate the interactive process. (Gelfo v. Lockheed Martin Corp (2006) 140 Cal.App.4th 34, 62, fn. 22; 2 Wilcox, Cal. Employment Law (2013) § 41.51[3][b], p. 41-278.) Kao cannot plausibly claim it should have been obvious to USF that he was disabled because he never admitted any disability in the workplace. When a disability is not obvious, the employee must submit “reasonable medical documentation confirm[ing] [its] existence.” (Cal. Code Regs., tit. 2, § 11069, subd. (d)(2).) Kao did nothing of the sort. He provided no information to USF after learning of the university’s concerns other than documents at the October 2008 meeting with [a USF administrator], which were aimed at showing that those concerns were illusory.

Slip op. at 14-15.

USF presented substantial evidence that the FFD was "job related and consistent with business necessity" as required by FEHA, particularly evidence that the FFD was necessary to determine whether Kao posed a danger to others in the workplace. Slip op. at 15-16.

USF did not violate the Unruh Act's prohibition against disability discrimination because "[t]he evidence did not as a matter of law establish that USF had a discriminatory motive in keeping Kao away from campus." Slip op. at 16-17. 

The opinion is available here.

Patterson v. Domino's Pizza: Franchisor Not Responsible for Acts of Franchisee's Employee

In Patterson v. Domino's Pizza, --- Cal.4th --- (8/28/14), an employee, Patterson, alleged that her supervisor subjected her to sexual harassment. She sued her direct employer, a franchisee of Domino's Pizza, as well as Domino's itself, the franchisor. Patterson alleged that Domino's was liable because it was her joint employer and because the franchisee was its agent. The trial court granted summary judgment for Domino's, the Court of Appeal reversed, and the California Supreme Court reversed the judgment of the Court of Appeal, holding as follows:

Potential liability of a franchisor depends upon whether it has "retained or assumed a general right of control over factors such as hiring, direction, supervision, discipline, discharge, and relevant day-to-day aspects of the workplace behavior of the franchisee‘s employees." Slip op. at 30-31.

Although Domino's "vigorously enforced" standards for general operations, it "lacked the general control of an 'employer' or 'principal' over relevant day-to-day aspects of the employment and workplace behavior" of the franchisee's employees. Slip op. at 33.

According to the testimonial evidence, [the franchisee] exercised sole control over selecting the individuals who worked in his store. He did not include Domino's in the application, interview, or hiring process. Nor did anyone attempt to intervene on Domino's behalf. It was [the franchisee's] decision to hire Patterson as a new employee and to otherwise retain the existing staff when he bought the franchise.

Slip op. at 35-36. The franchisee also controlled its own sexual harassment policies and training. Slip op. at 36. Evidence that Domino's told the franchisee to "get rid of" the alleged harasser did not raise an inference that Domino's was in charge of employment decisions. Slip op. at 38.

The opinion is available here.

Serri v. Santa Clara University: Court of Appeal Affirms Summary Judgment in Discrimination, Wrongful Termination Action

In Serri v. Santa Clara University (5/28/14) --- Cal.App.4th ---, Conchita Franco Serri sued Santa Clara University and a number of individuals for discrimination, retaliation, wrongful termination in violation of public policy, and other employment-related claims. The trial court granted the defendants' motions for summary judgment, and Serri appealed. 

The primary issue on appeal was whether Serri raised a triable issue of material fact as to whether the University had a legitimate, nondiscriminatory reason to terminate her employment or whether its reasons for doing so were untrue or pretextual. The Court framed the issue and its holding as follows: 

We are asked to determine whether an employee who is terminated for failing to perform an important job function can avoid summary judgment by arguing, based on expert evidence obtained for the purpose of opposing a motion for summary judgment or summary adjudication, years after the employee’s termination, that the failure to perform did not and would not result in any adverse consequences to the employer. We hold that after-acquired expert evidence that there were no adverse consequences from an employee’s failure to perform does not create a triable issue of fact on the question whether the employee failed to perform his or her job duties and thus has limited relevance, if any, to the question of discrimination. 

In this case, expert evidence that the failure of performance did not harm the University, acquired years after Serri was terminated, did not create a triable issue of material fact on the question whether the University’s stated reasons for terminating Serri were untrue or pretextual such that a reasonable trier of fact could conclude that the employer engaged in discrimination. Before she was terminated, Serri told the University her failure to prepare an Affirmative Action Plan could have adverse consequences, including the loss of federal grants. That the University ultimately suffered no adverse consequences did not create a triable issue on the questions whether the University had a legitimate, nondiscriminatory reason to terminate her employment or whether its reasons for doing so were untrue or pretextual. 

Slip op. at 2.  

The opinion is available here. 

Salas v. Sierra Chemical: Federal Immigration Law Preempts -- In Part -- FEHA Action By Unauthorized Worker; After-Acquired Evidence and Unclean Hands Are Not Complete Defenses in Such Actions

Salas v. Sierra Chemical Co. considers the impact of an employee using false documents to obtain employment in the context of an action for violation of the Fair Employment and Housing Act (FEHA).

Plaintiff Vicente Salas applied for work with defendant Sierra Chemical in 2003, providing Sierra with a social security number (SSN). In late 2004 or early 2005, Sierra received a "no match" letter from the Social Security Administration (SSA), stating that Salas's name and number did not match SSA's records. Sierra continued to employ Salas. In 2006, after injuring his back twice at work, Salas filed for workers compensation benefits. Later that year, he was laid off.

Salas sued Sierra for disability discrimination and retaliation in violation of FEHA. After Salas filed a motion in limine stating that he would not answer questions regarding his immigration status, Sierra investigated and found that Salas had used another person's SSN to obtain employment. The trial court granted summary judgment for Sierra, and Salas appealed. The Court of Appeal held that both the doctrine of after-acquired evidence and the doctrine of unclean hands barred Salas's claims. (Court of Appeal decision discussed here.)

On review, the California Supreme Court held as follows: 

Federal Preemption

The federal Immigration Reform and Control Act (IRCA) does not preempt the FEHA generally, nor does it preempt California's Senate Bill No. 1818, which provides in part: 

All protections, rights, and remedies available under state law, except any reinstatement remedy prohibited by federal law, are available to all individuals regardless of immigration status who have applied for employment, or who are or who have been employed, in this state. 

Government Code section 7285 (emphasis added). However, the IRCA does bar an award of lost pay damages for any period of time after an employer discovers that an employee is not eligible for employment under the IRCA.  

Hoffman Plastic Compounds, Inc. v. NLRB (2002) 535 U.S. 127 (NLRB could not “award backpay to an illegal alien for years of work not performed, for wages that could not lawfully have been earned, and for a job obtained in the first instance by a criminal fraud”) does not answer the preemption question here because it does not address federal preemption of state antidiscrimination laws. Slip op. at 9-11. 

Express preemption does not apply because IRCA does not expressly preempt FEHA or Senate Bill 1818. Slip op. at 12-13. 

Field preemption also does not apply because the federal interest in regulating employment of unauthorized aliens is "not so dominant as to preclude state laws on the same subject," and the federal regulation imposed by IRCA "is not so pervasive as to leave no room for any state law on the same subject." Slip op. at 13-14. 

However, conflict preemption -- "which occurs when state law conflicts with federal law either because compliance with both laws is impossible or because state law is an obstacle to 

achieving the federal law's objectives" -- does apply, at least in part. Slip op. at 15-19. 

IRCA preempts "any state law award that compensates an unauthorized alien worker for loss of employment during the [period after an employer discovers that an employee is ineligible to work] because such an award would "impose liability on an employer for not performing an act (continuing to employ a worker known to be an unauthorized alien) expressly prohibited by federal law." Slip op. at 15. Not answered is whether this analysis applies to situations where an employer knowingly hires an unauthorized alien. Slip op. at 15-16 fn. 3. 

IRCA does not preempt an award that compensates an unauthorized alien worker for loss of employment during the period before an employer discovers that an employee is ineligible to work. Slip op. 16. 

After-Acquired Evidence

The after-acquired evidence doctrine "refers to an employer's discovery, after an allegedly wrongful termination of employment or refusal to hire, of information that would have justified a lawful termination or refusal to hire." Slip op. at 21. 

The after-acquired evidence doctrine is not "a complete defense to claims of retaliation and disability discrimination brought under the FEHA." Slip op. at 24. Instead, application of the after-acquired evidence doctrine requires courts to take into account "both the employee's rights and the employer's prerogatives" on a case-by-case basis. Slip op. at 25. 

Generally, the employee's remedies should not afford compensation for loss of employment during the period after the employer's discovery of the evidence relating to the employee's wrongdoing. When the employer shows that information acquired after the employee's claim has been made would have led to a lawful discharge or other employment action, remedies such as reinstatement, promotion, and pay for periods after the employer learned of such information would be “inequitable and pointless,” as they grant remedial relief for a period during which the plaintiff employee was no longer in the defendant's employment and had no right to such employment. 

The remedial relief generally should compensate the employee for loss of employment from the date of wrongful discharge or refusal to hire to the date on which the employer acquired information of the employee's wrongdoing or ineligibility for employment. Fashioning remedies based on the relative equities of the parties prevents the employer from violating California's FEHA with impunity while also preventing an employee or job applicant from obtaining lost wages compensation for a period during which the employee or applicant would not in any event have been employed by the employer. In an appropriate case, it would also prevent an employee from recovering any lost wages when the employee's wrongdoing is particularly egregious. 

Slip op. at 25-26. 

Applying the after-acquired evidence doctrine to the present case, the Supreme Court reversed the trial court's grant of summary judgment in favor of Sierra because the evidence could support a finding that Sierra continued to employ Salas after being put on notice of his immigration status. Slip op. at 26. "Such a finding could affect application of the after-acquired evidence doctrine and thus the remedies available to plaintiff employee." Slip op. at 27. 

Unclean Hands

The unclean hands doctrine -- which applies when a plaintiff has acted unconscionably, in bad faith, or inequitably in the matter in which he seeks relief -- is not a complete defense to a claim "based on a public policy expressed by the Legislature in a statute" such as the FEHA. Slip op. at 27. "Nevertheless, equitable considerations may guide the court in fashioning relief in cases involving a legislatively expressed public policy." Ibid.

Salas v. Sierra Chemical Co. is available here. 

Rosenfeld v. Heschel Day School: Where Plaintiff Only Puts Defendant on Notice of Disparate Treatment Claim, No Error in Precluding Plaintiff from Pursuing Disparate Impact Claim at Trial

In Rosenfeld v. Abraham Joshua Heschel Day School, Inc. (5/28/14) --- Cal.App.4th ---, the plaintiff, Ruth Rosenfeld, filed an age discrimination action against her former employer, Heschel, and Heschel prevailed at trial. On appeal, Rosenfeld argued that the trial court erred in precluding her from pursuing a disparate impact theory of liability at trial, in addition to her disparate treatment theory. She also argued that the court should not have allowed Heschel to introduce evidence that Rosenfeld did not  pursue Heschel’s internal grievance procedure before filing suit. The Court of Appeal affirmed, holding as follows: 

The trial court properly precluded Rosenfeld from pursuing a disparate impact theory of liability at trial because she failed to advise Heschel in a timely manner that she would be proceeding on such a theory. Slip op. at 5-10. The Court explained that a disparate treatment theory depends on the defendant's intent to discriminate, while a disparate impact theory does not. Slip op. at 6. "Disparate impact exists where, 'regardless of motive, a facially neutral employer practice or policy, bearing no manifest relationship to job requirements, in fact had a disproportionate adverse effect on members of the protected class.'" Slip op. at 7. Because Rosenfeld's complaint only alleged disparate treatment, the trial court properly precluded her from pursuing a disparate impact theory at trial. Slip op. at 10. 

The trial court did not err in admitting evidence to explain the meaning of "tenure" in Rosenfeld's written employment agreement. Slip op. at 11-13. In any case, because Rosenfeld sued for age discrimination in violation of FEHA, rather than breach of contract, her status as a tenured employee was irrelevant. Slip op. at 12. 

The trial court also did not err in refusing to instruct the jury that it could infer the ultimate fact of age discrimination as long as they disbelieved Heschel's evidence of age-neutral reasons for reducing Rosenfeld's hours. Slip op. at 13-14.

Finally, the trial court did not err in allowing Heschel to introduce evidence that Rosenfeld did not engage in Heschel's internal grievance procedure before filing suit. Slip op. at 15-16. Under the avoidable consequences doctrine, the evidence was relevant to show that Rosenfeld would not have suffered at least some of her alleged damages if she had followed the grievance procedure. Slip op. at 16. In any case, because the jury found that Rosenfeld's age was not a motivating reason for the reduction in her hours of work, any error was harmless. Slip op. at 16. 

The opinion is available here. 

Salas v. Sierra Chemical: Supreme Court Decision Due Today

In Salas v. Sierra Chemical Co. (Supreme Court Case No. S196568, docket here) (appellate decision discussed here) the California Supreme Court will consider whether an employee's use of a false social security number to obtain employment prevents the employee from later suing his employer for disability discrimination. The issues stated:

Did the trial court err in dismissing plaintiff's claims under the Fair Employment and Housing Act (Gov. Code § 12900 et seq.) on grounds of after-acquired evidence and unclean hands, based on plaintiff's use of false documentation to obtain employment in the first instance?  

Did Senate Bill No. 1818 (2001-2002 Reg. Session) preclude application of those doctrines in this case? (See Civ. Code § 3339; Gov. Code § 7285; Health & Saf. Code § 24000; Lab. Code § 1171.5.) 

On February 27, the Court asked the parties to address an additional issue:

Does federal immigration law preempt state law and thereby preclude an undocumented worker from obtaining, as a remedy for a violation of "state labor and employment laws" (Lab. Code § 1171.5; Civ. Code § 3339; Gov. Code § 7285; Health & Saf. Code § 24000), an award of compensatory remedies, including backpay? (See Hoffman Plastic Compounds, Inc. v. NLRB (2002) 535 U.S. 137.)

The Supreme Court will announce its decision at 10:00 am. As always, watch this space for details. 

Kim v. Konad USA: Exhaustion of FEHA Remedies Need Not Be Proven at Trial

In Kim v. Konad USA Distribution, Inc. (June 12, 2014) --- Cal.App.4th ---, the plaintiff prevailed in a bench trial on claims of quid pro quo sexual harassment, hostile work environment harassment, and wrongful termination. After trial, the defendants objected to the court's statement of decision, arguing that the court lacked subject matter jurisdiction because the plaintiff had failed to prove that she exhausted her remedies under FEHA and that the defendant had at least fie employees at the time of the alleged acts. The trial court entered judgment, and the defendants appealed.

The Court of Appeal affirmed, holding as follows:

Exhaustion of administrative remedies does not affect the fundamental subject matter jurisdiction of the trial court. Further, the defendants forfeited any right to a judgment of dismissal on the FEHA causes of action by failing to request dismissal of the FEHA causes of action before submitting the matter for decision. Slip op. at 12-13.

Although FEHA applies only to employers with five or more employees, a sexual harassment plaintiff need not prove that the defendant had five or more employees in order to prevail on a claim for wrongful termination in violation of public policy. Slip op. at 14-17. 

Even if the employee references FEHA as one source of the public policy at issue, the employer need not have five or more employees because "all employers (not just those with five or more employees) accused of harassment (based on sex or some other classification listed in Gov. Code, § 12940, subd. (j)(1)) are subject to a FEHA harassment claim." Slip op. at 16. Further, the plaintiff here based her claim on policies found in both FEHA and the California Constitution. Ibid.

Finally, the individual defendant could not be held liable for wrongful termination because he was not the plaintiff's employer. Slip op. at 17-18.

The opinion is available here.

Stockwell v. San Francisco: District Court Improperly Denied Certification on Basis of Merits Questions

In Stockwell v. City and County of San Francisco, ___ F.3d ___ (9th Cir. 4/24/14), the plaintiffs filed an ADEA and FEHA disparate impact age discrimination class action against the City and County of San Francisco (the "City"). The district court denied certification for want of commonality under Federal Rule of Civil Procedure 23(a)(2). The Ninth Circuit reversed, holding that the district court improperly relied on merits questions, rather than examining the commonality question. 

The Court first reviewed general class certification principles, including the principle that demonstrating commonality "does not require proof that the putative class will prevail on whatever common questions it identifies." Slip op. at 7-12. 

The Court then considered "the only question properly before [it] — whether the district court’s denial of the [plaintiffss'] motion for class certification was an abuse of discretion." The Court held that the district court abused its discretion by evaluating merits issues in denying certification "rather than focusing on whether the questions presented, whether meritorious or not, were common to the members of the putative class." Slip op. at 13-19. Here, the plaintiffs identified a "single, well-enunciated, uniform policy" that allegedly generated the alleged disparate impact. 

In short, the officers are all challenging a single policy they contend has adversely affected them. The question whether the policy has an impermissible disparate impact on the basis of age necessarily has a single answer. To so recognize is in no way to approve of the statistical showing the officers have made as adequate to make out their merits case. Nor does identifying a common question sufficient for Rule 23(a)(2) purposes entail any disagreement with the City’s contention that proper statistical analysis would negate any disparate impact traceable to age — or, for that matter, to prejudge any other argument or defense the City may offer. The defects the City has identified may well exist, but they go to the merits of this case, or to the predominance question.... Given the interlocutory nature of this appeal, and its consequent limitation to class certification factors only, we may not consider the merits questions, even as an alternative ground for affirmance. 

Slip op. at 18-19. The Court declined to address predominance because the district court did not rule on it, and the parties did not brief it on appeal. Slip op. at 19-20. 

Stockwell v. City and County of San Francisco is available here.