Fahlen v. Sutter: Cal. Supreme Court Grants Review in Whistleblower Action

The California Supreme Court on November 14 granted review in Fahlen v. Sutter Central Valley Hospitals (8/14/12) (discussed here), in which the Court of Appeal held that a doctor claiming he lost his hospital privileges as a form of whistleblower retaliation need not exhaust his judicial remedy of pursuing review, via writ of mandate, of the hospital's action before he can file a whistleblower lawsuit under California Health and Safety Code section 1278.5. 

The Court web page for Fahlen is here.  The Court has not yet formally stated the issues on review.  I have added the case to our Watch List of Pending Cases.  

Sorry for the Lack of New Posts

I've got mediations every day this week -- for which I am very grateful, of course.  I will catch up this weekend and have new material for you next week.  

Watch List Webinars on Pending Cases of Interest

Beginning in 2013, the State Bar of California Labor and Employment Law Section will present a series of webinars on the most recent cases of interest to employment lawyers. Organized by mediator Steven G. Pearl, the State Bar will present the webinars as soon as possible – typically within one or two weeks – after a decision is issued.  Speakers will include the attorneys who make the oral arguments and promise to be lively and informative. 

"The Watch List: Pending Cases of Interest" are posted on this blog on the lower right.  To date, seven of these cases have been argued or scheduled for oral argument: 

Amgen, Inc. v. Connecticut Retirement Plans and Trust Funds (SCOTUS) - Argued 11/5/12

Comcast Corp. v. Behrend (SCOTUS) - Argued 11/5/12

Genesis HealthCare Corp. v. Symczyk (SCOTUS)  - To be argued 12/3/12 

Harris v. City of Santa Monica (Cal.) - To be argued 12/4/12 

Ralphs Grocery v. UFCWU (Cal.) - Argued 10/3/12 

U.S. Airways, Inc. v. McCutchen (SCOTUS) - To be argued 11/27/12 

Vance v. Ball State University (SCOTUS) - To be argued 11/26/12 

We likely will have a decision in Ralphs Grocery before the end of the year (it is due no later than 1/3/13).  The others we anticipate in the early Spring.  Watch this space for more information.  

Harris v. City of Santa Monica: Supreme Court Schedules Oral Argument in FEHA "Mixed-Motive" Case

The California Supreme Court today announced that it will hear oral argument in Harris v. Superior Court on Tuesday, December 4, 2012, at 2:00 p.m. in Los Angeles.  Harris presents the following issue: 

Does the "mixed-motive" defense apply to employment discrimination claims under the Fair Employment and Housing Act (Gov. Code, section 12900 et seq.)?

The Court's case summary is here.  

Los Angeles oral arguments are at the Ronald Reagan State Office Building, 300 South Spring Street, 3rd Floor, Los Angeles.  

Steven G. Pearl to Address Employment Round Table of Southern California

I am speaking today at the Employment Round Table of Southern California's Annual Conference entitled, "Tides of Change: Surfing New Waves in the Workplace." I am speaking with Kimchi Bui, District Manager at the United States Department of Labor, and we are addressing emerging trends and new developments in wage and hour law.

Thank you to Paula Pearlman of Loyola Law School and the Disability Rights Legal Center for inviting me to speak.

SCOTUS Hears Oral Argument in Two Class Action Cases

The Supreme Court of the United States yesterday heard oral argument in two cases that address class certification requirements in federal court.  

Comcast Corp. v. Behrend (Case No. 11-864), presents the following issue: 

Whether a district court may certify a class action without resolving whether the plaintiff class has introduced admissible evidence, including expert testimony, to show that the case is susceptible to awarding damages on a class-wide basis.

The Court's docket is available here. Transcripts of the argument are available here. 

Amgen, Inc. v. Connecticut Retirement Plans and Trust Funds (Case No. 11-1085) presents the following issues: 

(1) Whether, in a misrepresentation case under Securities and Exchange Commission Rule 10b-5, the district court must require proof of materiality before certifying a plaintiff class based on the fraud-on-the-market theory; and 

(2) Whether, in such a case, the district court must allow the defendant to present evidence rebutting the applicability of the fraud-on-the-market theory before certifying a plaintiff class based on that theory. 

The Court's docket is here, and transcripts are here. 

The State Bar of California's Labor and Employment Section will present webinars on these decisions within one to two weeks after the Supreme Court issues them.  Stay tuned for more information.  

Grey v. American Management Services: Court of Appeal Holds That Employment Agreement Did Not Compel Arbitration of Discrimination Claims

Just a short note on this arbitration decision, which I missed earlier this year. In Grey v. American Management Services (3/28/12) 204 Cal.App.4th 803, the Court of Appeal reversed a judgment entered on an arbitration award, holding that the trial court should not have compelled the employee/plaintiff to arbitrate his claims for sexual orientation discrimination.

When he applied for a position, the plaintiff had signed an "issue resolution agreement" (IRA), which included an arbitration clause. On being hired, he signed an employment contract, which included a more limited arbitration clause and an integration clause.

The Court first construed the employment agreement's integration clause "to mean that the parties intended the contract to be the final and exclusive embodiment of their agreement." Id. at 807-809. As an integrated agreement, it superseded the earlier IRA.

The Court then held that the employment agreement's limited arbitration clause did not require the plaintiff to arbitrate his discrimination claims, because it applied only to disputes "arising out of the alleged breach of any other provision of this Agreement."

The scope of the arbitration clause in the employment contract only applies to claims arising from a breach of that contract and does not encompass all claims an employee may have against AMS. All of Grey's claims are for statutory violations, and none arises from a breach of the employment contract. We agree with both parties that Grey is not required to arbitrate his claims under these terms.

Id. at 810. The opinion is available here.