Cruel Employer Fires New Mother the First Day She is Back from Maternity Leave – Big Mistake!

October 22, 2012
Maternity 17

Maternity 17 (Photo credit: MakuKulden)

Does it just boil your blood to see such blatant maternity discrimination on the job?  I am a father.  I know what my wife went through.  The whole working versus staying home after a newborn arrives is an emotionally painful process.  Some employers treat this properly, some do not.

When will employers learn?  And when caught making a bad decision, why do employers compound the problem by hiring defense attorneys to needlessly increase the costs, aggravation and burden to the poor mother who only wanted to come back to work and provide for her family?

And when will employers learn that hiring defense attorneys to spend thousands of dollars on a lawsuit trying to beat-down the employee is a poor strategy?  Do they really believe that the fired employee will not want to exact a payment from the employer for the foolish decision to terminate the employee in violation of the law?

When are defense attorneys going to wise up and tell their clients that the better strategy is to settle the case, correct the company policy, and not make it worse by needlessly increasing the costs by spending thousands of dollars on attorneys and court costs?

It is because of so many bad decisions made by employers and their lawyers that cases like this one happen constantly, keeping me, and other worker attorneys gainfully employed.  When are they going to learn?

So, let’s look at this case, and analyze the series of poor decisions that the employer made all along the process.

Think back to the very beginning of this case.  The employee announces her pregnancy <yaaayyy, congratulations!!!>, and asks for maternity leave, which is the law in California.  (It is an unlawful employment practice for an employer “to refuse to allow a female employee disabled by pregnancy, childbirth, or a related medical condition to take a leave for a reasonable period of time not to exceed four months and thereafter return to work,” or “to refuse to grant a request by any [qualifying] employee . . . to take up to a total of 12 workweeks in any 12-month period for family care and medical leave.” (Gov. Code, §§ 12945, subd. (a)(1), 12945.2, subd. (a).)

The employer grants the maternity leave, as is required.  However, secretly, the employer is looking for an excuse to rid themselves of this new mother.  The employer does not want to keep the job open, but cannot hire a new worker to fill it.  So, the employer puts someone else in the position.  All is good, until the new mother wants to come back.  Then what?

Employer should have welcomed the new mother back with open arms.  Instead, the employer wants to dump the new mother.  Why is that?  The employer says it is because of the new mother’s performance and personality issues.  Really?  Does anyone believe that?  Certainly not this jury.

So, think of what the employer could have done.  IF, and I mean IF, the employer had legitimate concerns about the employee before the employee took maternity leave, then there had better have been a documented record in the personnel file.  If not, then there is NO chance that a reasonable jury will believe the employer later.

Look at the emotional impact in these cases when an employer fires a new mother?  I mean, it is hard enough in these times now to find a job, let alone get fired when coming back from maternity leave on the very first day back on the job.  But, that is just what this employer did.

This worker asks for and is granted pregnancy leave, which is the law.  But, the employer decides to terminate the new mother the very day she returns from maternity leave.  Wow!  How would you like working there?  The employer claims that there were some grounds for the termination <cough  bullshi* cough>, and denies that the pregnancy or maternity leave had anything to do with the decision to fire the new mother.  I mean, how cruel is that?  The new mom has to first come to grips with leaving her newborn with a stranger, then has to muster the strength to actually do that, then suit up and come to work.

After all that, the very first day, the new mother is FIRED.  Ouch.

Why would the employer do it that way?  Well, for one, firing the employee who announces the request for maternity leave would be rather coincidental, and illegal, so the employer won’t want to do that.  Firing the employee during maternity leave would be rather slam dunk illegal, too, so the employer naturally wants to avoid that as well.

So that leaves the employer’s option of terminating the employee after the employee returns from maternity.  But terminating a new mother carries the risk that the jury will view the termination as one based on maternity, and reject the employer’s position.  If that happens, then the employer will pay the new mother some money, AND the employer gets to pick up the tab for the new mother’s attorney.  Oh yeah, the employer has ALREADY had to pay for its own attorney, too.  Look at that, the employer gets to pay BOTH attorneys, AND the employee!  What kind of foolish defense attorney advises this strategy?  If there are any employers out there reading this, ask yourself why the defense attorney is giving the advice to reject the settlement?  Ask if that advice is REALLY beneficial to the employer?  Doe$ the $ituation benefit the employer, or the defen$e attorney$?

So, what is the takeaway from this?

What should an EMPLOYEE do?  The employee should ask for a performance review BEFORE the maternity leave starts.  If there is a good review, it needs to go in the file.  Then, once the employee comes back from maternity leave, if the employee should suffer any sort of termination or demotion, or what not, then the employee will have an easy case for pregnancy discrimination.  If the performance review is not so good, then the employee should address the deficiencies at that point, and make sure that ALL negative marks are corrected BEFORE leaving on maternity.  If that is done, then the employer cannot hope to claim that any pre-maternity issues support any later claim for a termination/demotion.

What should the EMPLOYER do?  The employer should implement a policy of strict compliance with California law.  Duh.  When the employer is faced with a claim for maternity discrimination, for goodness sake, do not compound the problem by forcing a lawsuit!!  When the employer seeks a lawyer’s advice on the situation, the employer should ask: “Who benefits from the filing of a lawsuit and the payment of tens of thousands of dollars in attorneys’ fees and court costs?”  For those employers who have an insurance policy that covers the claim, ask: “Why is the insurer dragging the case to court?”  When is an employer benefited from intrusive, disruptive litigation, with depositions, document production, the overhanging worry of the pending lawsuit on morale?  Employers should demand that their insurers pay the claim promptly.  If the insurer delays, then the employer should look for a new insurer!!  Just because an employer has an insurer does not mean it is a good thing!  A quick settlement, for a reduced amount, solves the problem before it gets out of hand.

Imagine what would have happened in this case if the employer would have said sorry, offered reinstatement, or a small severance package to help the new mother out while she looked for a new job?  Instead, the employer ate the costs of its own attorney, the costs of the new mother’s attorney, and endured three years fighting a lawsuit.

Who benefited from that: (1) the new mother, (2) the new mother’s attorney Karl Gerber [I do not know him, but good job, Karl!!], and (3) the defense attorney who got paid at least as much as Karl did, and perhaps multiples more [it is very common for defense attorneys to generate bills that far exceed the bills of the employee’s attorney, because the defense attorney gets paid by the hour, while the employee’s attorney only gets paid if the case settles, or as here, if the defense attorneys are so dumb that they force a jury trial!

Who did NOT benefit from that poor series of decisions: the employer [and the insurance company, if there was an insurance policy].

Lawyers like me will take these cases every time, and the employers will pay every time.  Wise up.

Here is the whole case:

Alamo v. Practice Mgt. Information Corp. (2012) , Cal.App.4th
[No. B230909. Second Dist., Div. Seven. Sept. 24, 2012.]
LORENA ALAMO, Plaintiff and Respondent, v. PRACTICE MANAGEMENT INFORMATION CORPORATION, Defendant and Appellant.

(Superior Court of Los Angeles County, No. BC416196, Rex Heeseman, Judge.)

(Opinion by Zelon, J., with Perluss, P.J., and Woods, J., concurring.)

COUNSEL

Neufeld, Marks & Gralnek and Paul S. Marks for Defendant and Appellant.

Employment Lawyers Group and Karl Gerber for Plaintiff and Respondent. {Slip Opn. Page 2}

OPINION

ZELON, J.-

Appellant Practice Management Information Corporation (PMIC) appeals from a judgment in favor of its former employee, respondent Lorena Alamo, following a jury trial on Alamo’s causes of action for pregnancy discrimination and retaliation in violation of the California Fair Employment and Housing Act (FEHA) and wrongful termination in violation of public policy. On appeal, PMIC argues that the trial court committed prejudicial error in (1) instructing the jury pursuant to CACI Nos. 2430, 2500, 2505, and 2507 that Alamo had to prove her pregnancy-related leave was “a motivating reason” for her discharge, and (2) refusing to instruct the jury pursuant to BAJI No. 12.26 that PMIC could avoid liability under a mixed motive defense by proving it would have made the same discharge decision in the absence of any discriminatory or retaliatory motive. PMIC also argues that the trial court erred in awarding attorney’s fees to Alamo as the prevailing plaintiff under FEHA where the general verdict form failed to specify whether the jury’s verdict was based on the statutory FEHA claim or the common law wrongful discharge claim. For the reasons set forth below, we affirm.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
I. Civil Action

Following the termination of her employment, Alamo filed a civil action against her former employer, PMIC. In her complaint, Alamo alleged three causes of action for pregnancy discrimination in violation of FEHA and the California Constitution, wrongful termination in violation of public policy, and intentional infliction of emotional distress. After the trial court partially granted and partially denied PMIC’s motion for summary adjudication, the case was tried before a jury on Alamo’s statutory FEHA claim and common law wrongful discharge claim.

II. Trial Evidence

PMIC is a small company that publishes medical coding and compliance books. Alamo began her employment with PMIC in July 2006 where she worked as a clerk in the collections department. She was later promoted to the position of lead collections clerk and was primarily responsible for billing and collecting payments from PMIC’s {Slip Opn. Page 3} largest customers. Alamo received regular pay raises during her employment, and as of January 2009, her base rate of pay was $18 per hour. Alamo’s direct supervisor was Michelle Cuevas, the Operations Manager. Cuevas in turn reported to Gregory Trupiano, PMIC’s Executive Vice-President, and to James Davis, PMIC’s founder and President.

On January 15, 2009, Alamo began a pregnancy-related leave of absence. Her baby was born approximately two weeks later on January 27, 2009. On February 18, 2009, Alamo requested an additional six weeks of maternity leave to bond with her baby, which was granted by PMIC. Alamo was scheduled to return to work on April 22, 2009.

While Alamo was on leave from PMIC, Marcell Moran was hired on a part-time temporary basis to fill Alamo’s position. Alamo had recommended that Moran fill in for her during her leave because Moran previously had worked at PMIC and remained good friends with Alamo. Moran began working in Alamo’s position in February 2009 and was paid $14 per hour for her part-time work. At that time, Moran was also pregnant with a due date in September 2009. Moran was planning on moving out of the Los Angeles area before the birth of her baby and only intended to work at PMIC on a temporary basis while Alamo was on leave.

Prior to Alamo’s leave of absence, Cuevas had some concerns about Alamo’s performance, but did not consider any of these problems to be serious enough to warrant formal discipline. Cuevas testified that there were times when Alamo failed to timely contact customers about invoices that were past due and Cuevas had to remind Alamo to follow up on those accounts. Cuevas also testified that Alamo at times had poor working relationships with other employees, some of whom complained that Alamo treated them rudely. In addition to orally counseling Alamo about improving her interpersonal skills, Cuevas sent an email to her subordinates in January 2007 reminding them to treat all PMIC employees in a professional manner. However, Cuevas never felt that it was necessary to issue Alamo any written warnings about her performance prior to her leave.

During Alamo’s leave of absence, Cuevas became aware of other performance problems that caused her more concern. Cuevas specifically testified that she learned Alamo had not taken any action on certain customer accounts with large unpaid invoices {Slip Opn. Page 4} even though Cuevas had requested that Alamo resolve those accounts before her leave. Cuevas also testified that Alamo had told her that PMIC could not collect on two outstanding accounts because the customers were no longer in business, which Cuevas later learned was untrue. According to Cuevas, PMIC had to take a loss on some of Alamo’s accounts because too much time had passed to collect payment from the customer. Cuevas intended to discuss these recently-discovered performance issues with Alamo once she returned from her leave in April 2009. To that end, Cuevas advised Alamo not to return to work until April 22, 2009, when Cuevas would be back in the office from vacation.

Alamo denied that she had any performance problems at PMIC. She testified that the customer accounts that PMIC was claiming Alamo had neglected were actually assigned to Cuevas and that Cuevas merely had asked Alamo to assist her by following up on certain unpaid invoices, which Alamo did. Alamo also testified that she was never counseled by Cuevas, either orally or in writing, about her interpersonal skills in working with other employees.

In mid-April 2009, approximately one week before her scheduled return date, Alamo requested and received permission from Trupiano to come into the office to have lunch with a coworker, Maria Alcocer. Alamo did not ask Cuevas for permission to visit the office at that time because it was her understanding that Cuevas was on vacation. On April 17, 2009, Alamo had lunch with Alcocer in PMIC’s break room. As Alamo was leaving, she had a verbal altercation with Moran, the person filling in for her, in the hallway outside the office. The argument began because Moran wanted to know why Alamo had not given Moran her new cell phone number. According to Moran, Alamo said that she was having a lot of personal problems and did not want to talk to anyone. Alamo also said that she felt Moran was being mean to their coworker, Alcocer. According to Alamo, Moran initiated the argument, yelled at her in an angry manner, and then told Alamo, “Well, that’s good, you’re going to get fired anyways.” Later that day, Alamo contacted both Trupiano and Cuevas by telephone and asked them about Moran’s {Slip Opn. Page 5} statement that Alamo was going to be fired. Cuevas told Alamo that they would discuss the matter when Alamo returned to work the following week.

Shortly after Alamo left the office, Moran had a separate verbal altercation with Alcocer. Alcocer and Moran had been having a personality conflict for several months that escalated into an argument that day. As described by Alcocer, Moran approached her desk and began yelling at her because Alcocer recently had complained to Cuevas that Moran was being rude to her. Moran told Alcocer that she should talk to Moran directly about any problems between them instead of complaining to Cuevas. After the argument with Moran, Alcocer decided to take a stress-related leave of absence because she felt that Moran and another employee named Elaine Rodriguez were being verbally abusive to her. Alcocer began her leave on April 20, 2009, and she did not return to work until four months later in August 2009.

On April 22, 2009, Alamo returned to work from her maternity leave. After working for about three hours, Alamo was called into a meeting with Cuevas and Trupiano and told that her employment was being terminated. According to Alamo, Cuevas said during the meeting that she felt Alamo was not doing her job and specifically mentioned one unpaid account. There was no mention of Alamo’s recent visit to the office for lunch with Alcocer or to her verbal altercation with Moran. There was also no mention of Alamo’s pregnancy or maternity leave. At the end of the meeting, Cuevas explained that if Alamo signed a release waiving any claims she might have against PMIC, Cuevas would be able to provide Alamo with a positive employment reference. Alamo, however, refused to sign the release.

Cuevas testified that, as of April 22, 2009, she believed PMIC should terminate the employment of both Alamo and Moran, and she made that recommendation to her superiors, Trupiano and Davis. Cuevas explained that she did not feel that Alamo’s prior performance problems, standing alone, were serious enough to warrant termination. However, when Alamo’s history of poor performance was considered with her recent act of insubordination in visiting the office without Cuevas’ permission and then having a verbal altercation with a coworker, Cuevas felt that termination was warranted. Cuevas {Slip Opn. Page 6} admitted that she did not talk to Alamo about what happened during the altercation before deciding that Alamo should be discharged. Cuevas further admitted that Alamo had received permission to visit the office from Trupiano, but testified that Alamo nevertheless was insubordinate in ignoring Cuevas’ instruction that Alamo not return to work until the following week. Cuevas also stated that she believed Alamo knew that Cuevas would not have allowed her to come into the office when Cuevas was not there given the ongoing conflict between Alcocer and Moran. Cuevas testified that her recommendation to discharge Alamo had nothing to do with her pregnancy or maternity leave, but rather was based solely on Alamo’s performance and insubordination issues.

Trupiano and Davis were both involved in the final decision to terminate Alamo’s employment. Trupiano testified that he agreed with Cuevas that Alamo should be discharged based on her poor work performance and insubordination, but decided to defer to Davis as to whether Moran also should be discharged given that she had no other disciplinary issues. Davis testified that he made the decision to terminate Alamo’s employment based solely on her performance issues in neglecting her assigned customer accounts, her act of insubordination in visiting the office without Cuevas’s permission, and then engaging in a verbal altercation with a coworker. Davis testified that he decided not to discharge Moran for her involvement in the altercation because it was her first incident of inappropriate conduct. At trial, both Davis and Trupiano denied that Alamo was terminated for any reason related to her pregnancy or maternity leave. Following Alamo’s discharge, PMIC decided to provide her with one month of severance pay not conditioned upon the signing of any release.

III. Jury Verdict and Attorney’s Fees Award

At the conclusion of the trial, the jury returned a general verdict in favor of Alamo and awarded her damages in the amount of $10,000. With respect to Alamo’s request for punitive damages, however, the jury found that she failed to prove by clear and convincing evidence that PMIC acted with malice, oppression, or fraud. Following the verdict, the trial court granted Alamo’s motion for attorney’s fees and costs as the {Slip Opn. Page 7} prevailing plaintiff under FEHA and awarded her counsel attorney’s fees in the amount of $50,858.44. PMIC thereafter filed a timely notice of appeal.
DISCUSSION
PMIC raises two arguments on appeal. First, PMIC contends that the trial court committed prejudicial error in instructing the jury on the proper standard of causation in Alamo’s claims for pregnancy discrimination and retaliation in violation of FEHA and wrongful termination in violation of public policy. Second, PMIC claims that the trial court erred in awarding attorney’s fees to Alamo as the prevailing plaintiff under FEHA based on a general verdict that failed to identify the specific cause of action on which Alamo had prevailed.

I. Alleged Instructional Error

PMIC first asserts that the trial court prejudicially erred in failing to properly instruct the jury on the standard of causation in a FEHA claim. PMIC specifically argues that the trial court erred in instructing the jury pursuant to CACI Nos. 2430, 2500, 2505, and 2507 that Alamo had to prove her pregnancy-related leave was “a motivating reason” for her discharge, rather than the “but for” cause of her discharge. PMIC also contends that the trial court erred in refusing to instruct the jury pursuant to BAJI No. 12.26 that PMIC could avoid liability under a mixed motive defense by proving it would have made the same decision even in the absence of a discriminatory or retaliatory motive. As the parties acknowledge, the question of the proper standard of causation in a FEHA claim, including the availability of a mixed motive defense, is currently pending before the California Supreme Court in Harris v. City of Santa Monica, review granted April 22, 2010, S181004 (Harris). Pending further guidance on this issue by the Supreme Court, we conclude that the trial court did not commit any instructional error in this case.

A. Relevant Jury Instructions

The trial court instructed the jury on the essential elements of Alamo’s causes of action with CACI No. 2430 (wrongful discharge in violation of public policy), CACI No. 2500 (disparate treatment under FEHA), CACI No. 2505 (retaliation under FEHA), and {Slip Opn. Page 8} CACI No. 2527 (failure to prevent discrimination or retaliation under FEHA). With respect to CACI Nos. 2430, 2500, and 2505, the trial court instructed the jury that Alamo had to prove, among other elements, that her pregnancy or taking of a pregnancy-related leave was “a motivating reason” or “a motivating factor” for her discharge. With respect to CACI No. 2527, the trial court instructed the jury that Alamo had to prove, among other elements, that she was subject to discrimination or retaliation “because” she took a pregnancy-related leave. The trial court also instructed the jury on the definition of “a motivating reason” with CACI No. 2507, stating that “[a] motivating reason is a reason that contributed to the decision to take certain actions even though other reasons also would have contributed to the decision.”

The trial court refused PMIC’s request that CACI Nos. 2430, 2500, and 2505 be modified to state that Alamo must prove her pregnancy or taking of a pregnancy-related leave was “a substantial motivating reason,” as opposed to “a motivating reason,” for her discharge. The trial court also refused PMIC’s request that CACI No. 2507 be modified to state that if the same decision would have been made in the absence of any discriminatory or retaliatory motive, then the discrimination or retaliation was not a substantial motivating reason for the decision. Finally, the trial court refused PMIC’s request that the jury be instructed on the mixed motive defense with BAJI No. 12.26, which states, in pertinent part, as follows: “If you find that the employer’s action, which is the subject of the plaintiff’s claim, was actually motivated by both discriminatory and non-discriminatory reasons, the employer is not liable if it can establish by a preponderance of the evidence that its legitimate reason, standing alone, would have induced it to make the same decision.” fn. 1 {Slip Opn. Page 9}

B. Standard of Review

“A party is entitled upon request to correct, nonargumentative instructions on every theory of the case advanced by him or her which is supported by substantial evidence.” (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 572.) A court may refuse a proposed instruction that incorrectly states the law or is argumentative, misleading, or incomplete. (Shaw v. Pacific Greyhound Lines (1958) 50 Cal.2d 153, 158; see also Harris v. Oaks Shopping Center (1999) 70 Cal.App.4th 206, 209 [“[i]rrelevant, confusing, incomplete or misleading instructions need not be given”].) A court also may refuse an instruction requested by a party when the legal point is adequately covered by other instructions given. (Arato v. Avedon (1993) 5 Cal.4th 1172, 1189, fn. 11.)

“The propriety of jury instructions is a question of law that we review de novo. [Citation.]” (Cristler v. Express Messenger Systems (2009) 171 Cal.App.4th 72, 82.) When the contention on appeal is that the trial court failed to give a requested instruction, we review the record in the light most favorable to the party proposing the instruction to determine whether it was warranted by substantial evidence. (Ayala v. Arroyo Vista Family Health Center (2008) 160 Cal.App.4th 1350, 1358.) In the event the trial court erred, “[a] judgment may not be reversed for instructional error in a civil case ‘unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.’ [Citation.]” (Soule v. General Motors Corp., supra, 8 Cal.4th at p. 580.) “A ‘miscarriage of justice’ exists when, after examining all the evidence, we conclude ‘”‘it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of error.'”‘ [Citation.]” (Weaver v. Chavez (2005) 133 Cal.App.4th 1350, 1356.)

C. The trial court did not err in instructing the jury on the standard of causation with CACI Nos. 2430, 2500, 2505, 2507, and 2527.

PMIC contends that the trial court erred in instructing the jury on the element of causation in a FEHA claim because the CACI instructions given to the jury did not express the “but for” standard of causation required under FEHA. According to PMIC, {Slip Opn. Page 10} FEHA requires an employee alleging a discriminatory or retaliatory discharge to prove that his or her protected status or activity was the “but for” cause of the discharge rather than “a motivating factor” in the discharge. A review of the language and legislative purpose of FEHA, as well as the relevant case law, does not support PMIC’s position.

FEHA makes it an unlawful employment practice “[f]or an employer, because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition . . ., marital status, sex, . . . age, or sexual orientation of any person, . . . to discharge the person from employment . . . .” (Gov. Code, § 12940, subd. (a).) FEHA also makes it an unlawful employment practice for an employer “to refuse to allow a female employee disabled by pregnancy, childbirth, or a related medical condition to take a leave for a reasonable period of time not to exceed four months and thereafter return to work,” or “to refuse to grant a request by any [qualifying] employee . . . to take up to a total of 12 workweeks in any 12-month period for family care and medical leave.” (Gov. Code, §§ 12945, subd. (a)(1), 12945.2, subd. (a).)

The express purposes of FEHA are “to provide effective remedies that will both prevent and deter unlawful employment practices and redress the adverse effects of those practices on aggrieved persons.” (Gov. Code, § 12920.5.) The Legislature accordingly has mandated that the provisions of statute “shall be construed liberally” to accomplish its purposes. (Gov. Code, § 12993, subd. (a).) As our Supreme Court has recognized, “[b]ecause the FEHA is remedial legislation, which declares ‘[t]he opportunity to seek, obtain and hold employment without discrimination’ to be a civil right [citation], and expresses a legislative policy that it is necessary to protect and safeguard that right [citation], the court must construe the FEHA broadly, not . . . restrictively.” (Robinson v. Fair Employment & Housing Com. (1992) 2 Cal.4th 226, 243.)

The California Supreme Court has not addressed whether the CACI instructions’ use of the phrase “a motivating reason” accurately describes the standard of causation in a FEHA claim, although this issue ultimately may be decided by the court in Harris. The Supreme Court has suggested in dicta, however, that “a motivating reason” or “a motivating factor” is the proper causation standard under FEHA. Specifically, in {Slip Opn. Page 11} Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, the Supreme Court considered whether a defendant employer was entitled to summary judgment in a FEHA discrimination claim based on evidence that it terminated the plaintiff’s employment due to downsizing. In rejecting the employer’s argument that downsizing alone was a sufficient non-discriminatory reason for the discharge, the court noted that “[i]nvocation of a right to downsize does not resolve whether the employer had a discriminatory motive for cutting back its work force, or engaged in intentional discrimination when deciding which individual workers to retain and release.” (Id. at p. 358, italics added.) As the court further explained, in a FEHA discrimination case, “the ultimate issue is simply whether the employer acted with a motive to discriminate illegally.” (Ibid.)

Over the years, the California appellate courts likewise have used the phrase “a motivating factor” or “a motivating reason” in describing the standard of causation in a FEHA discrimination or retaliation claim. (See, e.g., Green v. Laibco, LLC (2011) 192 Cal.App.4th 441, 443 [concluding that “there was substantial evidence supporting the jury’s finding that plaintiff’s complaint of sexual harassment of a colleague was a motivating reason for her discharge”]; West v. Bechtel Corp. (2002) 96 Cal.App.4th 966, 978 [noting that “[a] discharge is not ‘on the ground of age’ within the meaning of [FEHA’s] prohibition unless age is a ‘motivating factor’ in the decision”]; Caldwell v. Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 205 [stating that once a FEHA discrimination case is submitted to the trier of fact, it “will have only to decide the ultimate issue of whether the employer’s discriminatory intent was a motivating factor in the adverse employment decision”].) As the Court of Appeal explained in Mixon v. Fair Employment & Housing Com. (1987) 192 Cal.App.3d 1306, an employee alleging race discrimination under FEHA “need not prove that racial animus was the sole motivation behind the challenged action,” but rather “must prove by a preponderance of the evidence that there was a ‘causal connection’ between the employee’s protected status and the adverse employment decision.” (Id. at p. 1319; see also Clark v. Claremont University Center (1992) 6 Cal.App.4th 639, 665 [“The employee need not show ‘he would have in any event been rejected or discharged solely on the basis of his race, without regard to {Slip Opn. Page 12} the alleged deficiencies . . . .'”].) The language of the challenged CACI instructions incorporates this element of a “causal connection” by requiring the employee to prove that his or her protected status was “a motivating reason” for the adverse decision.

In support of its argument that FEHA requires the plaintiff to prove “but for” causation, PMIC primarily relies on Gross v. FBL Financial Services, Inc. (2009) 557 U.S. 167 (Gross), a case arising under the federal Age Discrimination in Employment Act (ADEA) (29 U.S.C. § 621 et seq.). In Gross, the United States Supreme Court held in a 5-4 decision that a plaintiff alleging discrimination under the ADEA must prove that age was the “but for” cause of the challenged action. (Gross, supra, at p. 176.) However, the majority in Gross based its decision on the distinct legislative history of the ADEA as compared to that of Title VII of the Civil Rights Act of 1964 (Title VII) (42 U.S.C. § 2000e et seq.). Specifically, in 1991, Congress amended Title VII to provide that “an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice.” (42 U.S.C. § 2000e-2(m).) Because Congress did not make a parallel amendment to the ADEA at that time, the Gross majority reasoned that Congress must have rejected the “motivating factor” standard for claims alleged under the ADEA. (Gross, supra, at pp. 174-175.) Therefore, while both Title VII and the ADEA prohibit discrimination “because of” a person’s membership in a protected class, fn. 2 a plaintiff in an ADEA case must prove that discriminatory animus was the “but for” cause of the adverse {Slip Opn. Page 13} employment action, whereas a plaintiff in a Title VII case merely must establish that discriminatory animus was “a motivating factor” in the challenged decision. Given these conflicting standards of causation that now apply under the federal anti-discrimination statutes, we decline to follow Gross in considering the proper standard of causation under FEHA.

PMIC also relies on a handful of California cases to support its claim that FEHA requires a “but for” standard of causation, but only two of PMIC’s cited cases — Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264 (Lyle) and Reeves v. Safeway Stores, Inc. (2004) 121 Cal.App.4th 95 (Reeves) — involved claims arising under FEHA. In Lyle, the California Supreme Court noted in dicta that “‘[t]o plead a cause of action for [hostile work environment] sexual harassment, it is “only necessary to show that gender is a substantial factor in the discrimination, and that if the plaintiff ‘had been a man she would not have been treated in the same manner.'” [Citation.]'” (Lyle, supra, at p. 280.) However, Lyle did not address the proper standard of causation in a FEHA discrimination or retaliation claim, nor did it state that a plaintiff in a FEHA harassment claim must prove that gender was the sole motivating factor for the hostile work environment. In Reeves, the California Court of Appeal considered whether an employer may be liable for retaliatory discharge under FEHA when the supervisor who initiated disciplinary proceedings that led to the discharge acted with a retaliatory animus, but the ultimate decision-maker had no knowledge of the plaintiff’s protected activity. (Reeves, supra, at p. 100.) The Reeves court held that “so long as the supervisor’s retaliatory motive was an actuating, but-for cause of the dismissal, the employer may be liable for retaliatory discharge.” (Ibid.) Yet elsewhere in the opinion, the Reeves court suggested that an employer may be liable for retaliation under FEHA if the employee presents “sufficient proof to establish that retaliatory animus on the part of one or more contributors to the decision was a substantial contributing factor in bringing about his dismissal.” (Id. at p. 113, italics added.) Thus, when read in their entirety, neither Lyle nor Reeves supports a conclusion that the “because of” language in FEHA means “solely because of” the employee’s protected status or activity. {Slip Opn. Page 14}

PMIC further asserts that FEHA’s use of “a motivating factor” causation standard in its housing discrimination provisions but not its employment discrimination provisions must mean that a different standard applies in an employment case. However, a review of the relevant provisions of FEHA shows that both the employment and housing sections of the statute use the same terminology — “because of” – in defining the prohibited acts of discrimination. fn. 3 In the housing section, FEHA further provides that “[a] person intends to discriminate if [the protected trait] is a motivating factor in committing a discriminatory housing practice even though other factors may have also motivated the practice.” (Gov. Code, § 12955.8, subd. (a).) That same language is not included in FEHA’s employment section. But given that both the employment and housing provisions expressly prohibit discrimination “because of” a person’s membership in a protected class, we reject PMIC’s argument that the Legislature must have intended for a different standard of causation to apply to FEHA’s employment provisions.

PMIC suggests that the CACI instructions’ use of “a motivating reason” standard permits a jury to find in favor of the plaintiff if the challenged employment decision was motivated in the slightest possible way by discrimination without considering whether the employer actually acted upon such motivation. We disagree. The jury was instructed, pursuant to CACI Nos. 2430, 2500, and 2505, that it could only find in favor of Alamo if {Slip Opn. Page 15} she proved by a preponderance of the evidence that her pregnancy or pregnancy-related leave was “a motivating reason” for her discharge. fn. 4 The jury further was instructed, pursuant to CACI No. 2507, that “[a] motivating reason is a reason that contributed to the decision to take certain actions even though other reasons also would have contributed to the decision.” Accordingly, the instructions required Alamo to establish that there was a causal connection between her protected status and the adverse employment decision. The trial court did not err in instructing the jury with CACI Nos. 2430, 2500, 2505, 2507, and 2527.

D. The trial court did not err in refusing to instruct the jury on the mixed motive defense with BAJI No. 12.26.

Alternatively, PMIC contends that the trial court erred in refusing its request to instruct the jury on the mixed motive defense with BAJI No. 12.26. PMIC reasons that had the jury been instructed on the availability of the mixed motive defense under FEHA, it could have found in favor of PMIC based on evidence that PMIC would have made the same decision to terminate Alamo’s employment even in the absence of a discriminatory or retaliatory motive. As discussed, the question of whether a mixed motive defense is available under FEHA is currently pending before the California Supreme Court in Harris. However, we need not decide that issue here. Even if we assume for purposes of this appeal that the mixed motive defense applies to FEHA claims, the trial court did not err in refusing to instruct the jury with BAJI No. 12.26 because this case was tried by both parties as a single motive, not a mixed motive, case.

The mixed motive defense was first articulated by the United States Supreme Court in Price Waterhouse v. Hopkins (1989) 490 U.S. 228 (Price Waterhouse). The {Slip Opn. Page 16} plaintiff in Price Waterhouse filed a Title VII sex discrimination action against her employer after she was refused admission as a partner. The evidence at trial established that the plaintiff was denied partnership based on both permissible factors (her lack of interpersonal skills) and impermissible factors (sexual stereotypes about her lack of femininity). (Id. at pp. 250-252.) In a plurality decision, the Supreme Court rejected the argument that Title VII’s prohibition of discrimination “because of” sex required the plaintiff to prove that her gender was the “but for” cause of the adverse action. (Id. at pp. 240-242.) Rather, the Supreme Court held that the plaintiff had to prove that “her gender played a motivating part in an employment decision.” (Id. at p. 258.) The Supreme Court further held that, where the employment decision was the product of a mixture of legitimate and illegitimate motives, the employer could avoid a finding of liability “only by proving by a preponderance of the evidence that it would have made the same decision even if it had not taken the plaintiff’s gender into account.” (Ibid.) fn. 5

Citing Price Waterhouse, several California Court of Appeal cases have assumed without deciding that the mixed motive defense is also available under FEHA. (See Huffman v. Interstate Brands Corp. (2004) 121 Cal.App.4th 679, 703 (Huffman) [mixed motive defense “limits the employer’s liability, once a plaintiff has established an unlawful motive, if the employer can show that it would have taken the same action absent the unlawful motive”]; Reeves, supra, 121 Cal.App.4th at p. 111, fn. 11 [under a mixed motive analysis, “a case goes to the jury if there is evidence that an impermissible criterion ‘”‘was a motivating factor for any employment practice'”‘”]; Heard v. Lockheed Missiles & Space Co. (1996) 44 Cal.App.4th 1735, 1748 (Heard) [“In some cases, the evidence will establish that the employer had ‘mixed motives’ for its employment {Slip Opn. Page 17} decision. [Citation] In a mixed motive case, both legitimate and illegitimate factors contribute to the employment decision”].) None of these California cases, however, actually applied the mixed motive defense to a FEHA claim. Moreover, in referencing the mixed motive defense, the cases have recognized that there is a critical distinction between a true mixed motive case and a single motive pretext case.

In Reeves, for instance, the Court of Appeal noted that both parties had treated the plaintiff’s FEHA retaliation claim as a pretext case to “be analyzed within the three-step analytical framework adopted by the United States Supreme Court in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, 802-804,” and that the plaintiff “ha[d] not invoked the competing model of ‘”‘mixed motive'”‘ analysis.” (Reeves, supra, 121 Cal.App.4th at p. 111, fn. 11.) Similarly, in Huffman, the Court of Appeal rejected the plaintiff’s argument that the employer in a FEHA discrimination claim had the burden of proof because it was a mixed motive case. (Huffman, supra, 121 Cal.App.4th at p. 702.) As the Huffman court reasoned, “[t]his case was pled and tried as a pretext case, that is, [the employer’s] decision was a pretext for age discrimination. [The employer] never raised mixed-motive as an affirmative defense and it was never presented to the jury as a mixed-motive case. Rather, [the plaintiff] succeeded at trial in convincing the jury that [the employer’s] stated reasons for its decision were not legitimate and the real reason [the plaintiff] was demoted was because of his age . . . . Had this been a true mixed-motive case, the employment decision at issue would have resulted from a mixture of illegitimate and legitimate considerations.” (Ibid.)

The Price Waterhouse decision itself noted the distinction between a mixed motives case and a single motive pretext case. As Justice White explained in his concurrence, “‘mixed-motives’ cases . . . are different from pretext cases . . . . In pretext cases, ‘the issue is whether either illegal or legal motives, but not both, were the “true” motives behind the decision.’ [Citation.] In mixed-motives cases, however, there is no one ‘true’ motive behind the decision. Instead, the decision is a result of multiple factors, at least one of which is legitimate.” (Price Waterhouse, supra, 490 U.S. at p. 260 (conc. opn. of White, J.).) While a case need not “be correctly labeled as either a ‘pretext’ case {Slip Opn. Page 18} or a ‘mixed-motives’ case from the beginning . . ., [a]t some point in the proceedings, of course, the District Court must decide whether a particular case involves mixed motives,” and instruct the jury accordingly. (Id. at p. 247, fn. 12 (plur. opn. of Brennan, J.).) This distinction is consistent with the Use Note to BAJI No. 12.26 which cautions that the instruction “should only be used in a true mixed-motive situation,” and “does not apply to the circumstances where it is claimed that a legitimate reason was in fact a pretext for unlawful action.”

Here, the record reflects that neither Alamo nor PMIC presented the case to the jury as a mixed motive case. Instead, both parties defined the issue before the jury solely as one of pretext. PMIC consistently argued that its decision to terminate Alamo’s employment was based entirely on her performance and insubordination issues, whereas Alamo maintained that PMIC’s proffered reasons were a mere pretext for pregnancy discrimination. Indeed, in its motion in limine requesting a mixed motive instruction, PMIC asserted as follows: “Let us be crystal clear about one thing: defendant PMIC did not have mixed motives. PMIC did not for a moment take into account plaintiff’s status as a recently-pregnant woman returning from maternity leave, in deciding to terminate her employment. Therefore, this case is in fact a ‘single motive’ case, where the motive was lawful and non-discriminatory. . . . Nonetheless, because plaintiff claims discrimination, and because the case survived summary judgment, BAJI’s ‘mixed-motive’ instruction is appropriate.” During trial, PMIC continued to take the position that Alamo’s pregnancy-related leave had nothing to do with her discharge. PMIC’s counsel thus argued to the jury that “Ms. Alamo did not lose her job because of pregnancy discrimination, because of going out on maternity leave, because of anything having to do with the fact that she got pregnant.” Alamo’s counsel, on the other hand, urged the jury to find that the decision-makers were not credible and that PMIC had offered only “false and pretextual reasons” for its discharge decision.

After hearing the evidence presented by both parties, the trial court had to decide what legal theories were reasonably supported by the evidence and to instruct the jury accordingly. To the extent that a mixed motive defense is available under FEHA, the {Slip Opn. Page 19} trial court was not required to instruct the jury on the defense where the only logical findings supported by the evidence were that “‘either illegal or legal motives, but not both, were the “true” motives behind the decision.'” (Price Waterhouse, supra, 490 U.S. at p. 260 (conc. opn. of White, J.).) The trial court reached such a determination in this case, reasonably concluding as follows: “[H]ere’s what this case comes down to. . . . Plaintiff’s arguing she was terminated because of her pregnancy condition. Defendants are arguing no, we terminated her for what I’ll call performance and personality reasons. I mean, it’s an either/or. Both sides are litigating this case on that basis.” Given that both parties consistently treated the case as a single motive pretext case, the trial court did not err in refusing to instruct the jury on the mixed motive defense. fn. 6

II. Alleged Error In Attorney’s Fees Award

On appeal, PMIC also challenges the trial court’s order awarding attorney’s fees to Alamo as the prevailing plaintiff under FEHA. PMIC contends that the general verdict rendered by the jury cannot support an attorney’s fees award under FEHA because the verdict form failed to specify whether Alamo prevailed on the statutory cause of action for violation of FEHA or the common law cause of action for wrongful termination in violation of public policy. We conclude that this claim likewise lacks merit.

First, PMIC’s assertion of error in the attorney’s fees award is barred by the doctrine of invited error. “The ‘doctrine of invited error’ is an ‘application of the estoppel principle’: ‘Where a party by his conduct induces the commission of error, he is estopped from asserting it as a ground for reversal’ on appeal. [Citation.]” (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 403.) The purpose of the doctrine is to “prevent a party from misleading the trial court and then profiting therefrom in the appellate court.” (Ibid.) The doctrine “requires affirmative conduct demonstrating a deliberate tactical {Slip Opn. Page 20} choice on the part of the challenging party.” (Huffman, supra, 121 Cal.App.4th at p. 706.) “[W]here a deliberate trial strategy results in an outcome disappointing to the advocate, the lawyer may not use that tactical decision as the basis to claim prejudicial error.” (Mesecher v. County of San Diego (1992) 9 Cal.App.4th 1677, 1686.)

In this case, it is clear that PMIC invited the purported error as a matter of trial strategy. The record reflects that, after waiting until the end of trial to decide whether it wanted a general or special verdict, PMIC ultimately agreed to a general verdict which its counsel prepared. In opposing Alamo’s posttrial motion for attorney’s fees, PMIC then raised the same argument that it is asserting here, i.e., that the use of a general verdict form precluded the trial court from determining whether Alamo was a prevailing plaintiff under FEHA. At the hearing on the motion for attorney’s fees, PMIC’s counsel elaborated on the basis for this argument, explaining on the record as follows: “There were good reasons for me to do a special verdict, it would make the jury think about things, but I knew about this argument that, you know, maybe you couldn’t intuit a FEHA verdict if there was a wrongful termination result. So that was a tactical reason for me as well.” Therefore, by its counsel’s own admission, PMIC agreed to a general verdict form as a deliberate tactical choice so that it could later challenge any attorney’s fees ordered by the trial court on the basis of an alleged ambiguity in the verdict form itself. Under these circumstances, PMIC has forfeited its claim of error on appeal.

Second, even assuming the claim has not been forfeited, PMIC’s argument fails on the merits. FEHA provides that, “[i]n actions brought under this section, the court, in its discretion, may award to the prevailing party reasonable attorney’s fees and costs . . . .” (Gov. Code, § 12965, subd. (b).) “The basic, underlying purpose of FEHA is to safeguard the right of Californians to seek, obtain, and hold employment without experiencing discrimination on account” of their membership in a protected class. (Flannery v. Prentice (2001) 26 Cal.4th 572, 582-583.) An award of reasonable attorney’s fees accomplishes “the Legislature’s expressly stated purpose of FEHA ‘to provide effective remedies that will eliminate these discriminatory practices.'” (Id. at p. 583.) “Generally, the trial court’s determination of the prevailing party for purposes of {Slip Opn. Page 21} awarding attorney fees is an exercise of discretion, which should not be disturbed on appeal absent a clear showing of abuse of discretion. [Citation.]” (Kim v. Euromotors West/The Auto Gallery (2007) 149 Cal.App.4th 170, 176.) However, “[t]he determination of the legal basis for an award of attorney fees is a question of law that we review de novo.” (Corbett v. Hayward Dodge, Inc. (2004) 119 Cal.App.4th 915, 921.)

The instant case was tried before the jury on two separate, but related causes of action: (1) pregnancy discrimination or retaliation in violation of FEHA; and (2) wrongful termination in violation of the public policy embodied in FEHA. It is well-established that “‘FEHA’s provisions prohibiting discrimination may provide the policy basis for a claim for wrongful discharge in violation of public policy.'” (Estes v. Monroe (2004) 120 Cal.App.4th 1347, 1355; see also Stevenson v. Superior Court (1997) 16 Cal.4th 880, 897 [“FEHA’s policy against . . . discrimination in employment is sufficiently substantial and fundamental to support a tort claim for wrongful discharge”].) Moreover, “when a plaintiff relies upon a statutory prohibition to support a common law cause of action for wrongful termination in violation of public policy, the common law claim is subject to statutory limitations affecting the nature and scope of the statutory prohibition . . . .” (Stevenson v. Superior Court, supra, at p. 904.) “In other words, the viability of [the] plaintiff’s tort claim is tethered to the meaning of the FEHA.” (Estes v. Monroe, supra, at p. 1355.)

Because Alamo’s common law claim for wrongful termination in violation of public policy was derivative of her statutory claim for violation of FEHA, the public policy claim would either rise or fall with the FEHA claim. (See Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 229 [where plaintiff’s “FEHA claim fails, his claim for wrongful termination in violation of public policy fails”].) This means that Alamo could not have prevailed on either cause of action at trial unless she proved by a preponderance of the evidence that PMIC discriminated or retaliated against her in violation of the statutory prohibitions set forth in FEHA. Consequently, if the jury found in favor of Alamo in her claim for wrongful termination in violation of public policy, then it must have found that PMIC’s termination of her employment was in violation of FEHA. {Slip Opn. Page 22}

For these reasons, PMIC’s reliance on the decision in McKenzie v. Kaiser-Aetna (1976) 55 Cal.App.3d 84 (McKenzie) is misplaced. In McKenzie, the jury returned a general verdict in favor of the plaintiff in a case that alleged multiple causes of action for breach of contract, breach of implied warranty, negligent misrepresentation, and restitution. (Id. at p. 87.) The plaintiff thereafter moved for an attorney’s fees award based on a provision in a written contract that allowed for the recovery of such fees in an action on the contract. (Id. at pp. 86-87.) The Court of Appeal held that the plaintiff was not entitled to attorney’s fees under the contract because there was “no way to ascertain, in the absence of special jury findings, on which of the theories of recovery (breach of contract, negligent misrepresentation, or breach of implied warranty) the jury mainly based its award to [the plaintiff].” (Id. at pp. 88-89.) As the Court of Appeal further noted, “[t]hose theories do not all call for identical determinations of fact,” nor do they all constitute “an action to enforce the provisions of a contract.” (Id. at p. 89.)

In this case, however, both the statutory FEHA claim and the common law wrongful discharge claim were based on the same factual and legal theory. To prevail on either cause of action at trial, Alamo had to prove that PMIC terminated her employment in violation of FEHA because of her pregnancy or taking of a pregnancy-related leave. By returning a general verdict in favor of Alamo and against PMIC on this issue of liability, the jury found a violation of FEHA. The trial court accordingly did not abuse its discretion in awarding attorney’s fees to Alamo as the prevailing plaintiff under FEHA.
DISPOSITION
The judgment is affirmed. Alamo shall recover her costs on appeal.

Perluss, P.J., and Woods, J., concurred.

FN 1. PMIC requested that the jury be instructed with BAJI 12.26 in a motion in limine filed prior to trial. Although the record on appeal does not include the trial court’s ruling on the motion, it appears from the court’s discussion with counsel at a pretrial hearing on jury instructions that the court denied PMIC’s request.

FN 2. Title VII specifically states that “[i]t shall be an unlawful employment practice for an employer . . . [¶] to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin . . . .” (42 U.S.C. § 2000e-2(a)(1), italics added.) The ADEA similarly provides that “[i]t shall be unlawful for an employer . . . [¶] to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age . . . .” (29 U.S.C. § 623(a), italics added.)

FN 3. In the employment section, FEHA provides that “[i]t is an unlawful employment practice . . . [¶] (a) For an employer, because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, or sexual orientation of any person, . . . to discriminate against the person in compensation or in terms, conditions, or privileges of employment.” (Gov. Code, § 12940, subd. (a), italics added.) In the housing section, FEHA similarly states that “[i]t shall be unlawful: [¶] (a) For the owner of any housing accommodation to discriminate against or harass any person because of the race, color, religion, sex, gender, gender identity, gender expression, sexual orientation, marital status, national origin, ancestry, familial status, source of income, disability, or genetic information of that person.” (Gov. Code, § 12955, subd. (a), italics added.)

FN 4. CACI No. 2527, which sets forth the essential elements of a claim for failure to prevent discrimination or retaliation, does not use the phrase “a motivating reason” or “a motivating factor.” Rather, the instruction required Alamo to prove she was subject to discrimination or retaliation “because” she took a pregnancy-related leave. This phrase actually mirrors the language of FEHA’s anti-discrimination provision which prohibits discrimination “because of” a person’s protected status. (Gov. Code, § 12940, subd. (a).)

FN 5. In its 1991 amendments to Title VII, Congress partially ratified the Price Waterhouse holding by adopting the “a motivating factor” standard of causation, and partially overruled the decision by providing that the mixed motive defense does not defeat a finding of liability, but merely limits available remedies. (42 U.S.C. § § 2000e-2(m), 2000e-5(g)(2)(B).) Thus, the mixed motive defense has been codified into Title VII, but only as a limitation on remedies rather than a complete defense to liability.

FN 6. In light of this conclusion, we need not address Alamo’s argument that PMIC forfeited its right to assert a mixed motive defense at trial by failing to raise it as an affirmative defense in its answer.

Injured on the Job? Fired as a Result? Tough Cookies. A Violation of California Labor Code Section 132a Insufficient to Support a Tort Action for Wrongful Termination.

September 27, 2012

Fired-apprentice

Ouch.  So, an employer can terminate an employee for the employee’s filing of a workers’ compensation claim, and the fired employee has NO right to sue for violation of section 132a?  How is that fair?  The seminal case from the CA Supremes said this:

City of Moorpark did hold that Labor Code section 132a does not provide an exclusive remedy against disability discrimination and does not preclude an employee from pursuing remedies under the Fair Employment and Housing Act (FEHA) and common law wrongful termination remedies. (City of Moorpark, supra, 18 Cal.4th at p. 1158.)

So, since an employee can still file a “common law wrongful termination” claim, then why did the Third Appellate District get it wrong?  The case opinion, fresh off the presses, is

Dutra v. Mercy Medical Center Mt. Shasta (2012) , Cal.App.4th
[No. C067169. Third Dist. Sept. 26, 2012.]
MICHELLE DUTRA, Plaintiff and Appellant, v. MERCY MEDICAL CENTER MT. SHASTA et al., Defendants and Respondents.

[Opinion Certified For Partial Publication. fn. * ]

(Superior Court of Siskiyou County, No. SCCVCV09-0371, Karen L. Dixon, Judge.)

(Opinion by Nicholson, Acting P.J., with Hull, J., and Duarte, J., concurring.)

COUNSEL

Rebecca E. Moore for Plaintiff and Appellant.

Kenny, Snowden & Norine, Kelly J. Snowden and Margaret Long for Defendants and Respondents. {Slip Opn. Page 2}

Well, I say boo.  I say that because it is patently unfair to require a TERMINATED employee to seek limited remedies from the workers’ compensation system, especially when the supreme court ALREADY said that an employee can seek tort remedies in the civil court system.

So, why did the Third District seem so hell bent on depriving THIS victim her remedy?

My guess: allowing for tort claims to proceed against employers for terminating workers who assert workers’ compensation claims would expose employers to actual, fair scrutiny, in the form of depositions, and cross examination at trial.  Employers cannot have that, no sir.  That would force employers to treat injured victims fairly.  That is, an employer would have to allow the injured worker to recover from the injuries, suffered on the job, then provide the worker with his or her job back instead of just firing them.  Wow, what a concept.  Oh well.

The work around is pretty simple, though.  The employee will now be required to ALSO assert a disability discrimination claim, making the case more complicated, expensive, and ultimately needlessly bog down the courts with unnecessary law and motion, summary judgment motions, while simultaneously bogging the lawyers down with needless claims, discovery and wasteful deposition questions.

Nice job, Third District. I hope and pray that another case comes along that goes to the Supremes so that this horrible ruling can be fixed.

Here is the whole opinion:

OPINION

NICHOLSON, Acting P.J.-

Plaintiff Michelle Dutra sued her former employer, defendant Mercy Medical Center Mt. Shasta (Mercy), for defamation and wrongful termination in violation of public policy. Plaintiff alleged Mercy committed libel per se by communicating to her and others in a private meeting its grounds for terminating her employment. She alleged Mercy discharged her in violation of the public policy codified at Labor Code section 132a, which generally prohibits discharging an employee for filing a workers’ compensation claim.

The trial court granted Mercy’s motion for summary adjudication against the defamation cause of action. It concluded Mercy’s communicating its grounds for terminating plaintiff was a conditionally privileged communication under Civil Code section 47, subdivision (c), and that plaintiff had failed to introduce triable issues of material fact that would defeat the privilege, including showing the publication was motivated by malice.

After selecting the jury for trial on the remaining wrongful termination cause of action, the court granted Mercy’s motion to dismiss the action on the ground the Workers’ Compensation Appeals Board (WCAB) has exclusive jurisdiction to adjudicate claims under Labor Code section 132a. The court gave plaintiff an opportunity to amend her complaint, but she refused.

Plaintiff contends (1) the trial court improperly granted the motion for summary adjudication because, she asserts, the issue of malice can be decided only by a jury and not on summary adjudication; and (2) the trial court has jurisdiction to hear claims for wrongful termination in violation of Labor Code section 132a. {Slip Opn. Page 3}

We conclude the trial court did not err, and we affirm the judgment.

FACTS

Because plaintiff’s appeal raises only issues of law, we will not recite the undisputed facts in detail. Plaintiff worked for Mercy as a housekeeper. She injured her back at work on January 31, 2008, while pulling a linen barrel across a snow-covered alley. She filed a workers’ compensation claim that day.

Mercy terminated plaintiff’s employment on March 19, 2008. Mercy informed plaintiff the grounds for her termination in a confidential meeting attended by plaintiff, a union steward, and Mercy supervisors. Mercy terminated her for (1) continuing to gossip while on duty and after being counseled about it; (2) altering a check that had been issued to her from a discretionary fund provided by a religious order affiliated with the hospital, an action the letter referred to as “check fraud;” and (3) falsifying her timecard and abandoning her post by leaving work without clocking out.

Plaintiff did not include a copy of her complaint in the record. According to the trial court, plaintiff alleged Mercy committed libel per se when it communicated in the confidential meeting with others present she was being terminated for check fraud. She also alleged she was wrongfully terminated in violation of public policy for filing a workers’ compensation claim. {Slip Opn. Page 4}

DISCUSSION

I. Summary Adjudication of Defamation Claim fn. *

Plaintiff asserts the trial court erred by deciding Mercy’s communication of the grounds of her termination was conditionally privileged under Civil Code section 47, subdivision (c), without reserving for the jury the issue of whether Mercy made the communication with malice, a fact that would negate application of the Civil Code section 47 conditional privilege. She claims a jury instruction prepared for addressing the privilege, CACI No. 1723, required the court as a matter of law to reserve the issue of malice for the jury and not decide it on summary adjudication. She asserts the court erred by not following the jury instruction.

We disagree with her contention. Her reliance on a jury instruction as legal authority is misplaced. Jury instructions are not legal precedent. Although the committee that prepared the civil jury instructions sought to provide “legally accurate” instructions that would “clarify the legal principles jurors must consider,” the instructions themselves are not legal authority. (Judicial Council of Cal. Civil Jury Instns. (2012) Preface, p. xvii.)

More significantly, plaintiff misunderstands the nature of the summary judgment remedy. While resolution of the malice issue is normally a question of fact, “where the uncontradicted facts established through discovery are susceptible of only one {Slip Opn. Page 5} legitimate inference, summary judgment is proper. [Citation.]” (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1112.)

This rule applies to the court’s determination of the conditional privilege under Civil Code section 47, subdivision (c). Whether malice exists to preclude the privilege may be decided by a trial court upon undisputed facts on a motion for summary judgment. (See McCunn v. California Teachers Assn. (1970) 3 Cal.App.3d 956, 962-965 [summary judgment against libel complaint upheld where report on which plaintiff’s employment termination was based was conditionally privileged and plaintiff failed to introduce evidence of malice]; Smith v. Pacific Bell Telephone Co. (E.D.Cal 2009) 649 F.Supp.2d 1073, 1100-1101 [summary judgment against slander complaint upheld where communication of reasons for plaintiff’s dismissal from employment were conditionally privileged and plaintiff failed to introduce evidence of malice].) The trial court did not err by resolving the issue of malice on the summary adjudication motion.

In her reply brief, plaintiff for the first time argues she introduced sufficient evidence of malice to defeat Mercy’s summary adjudication motion. We do not consider arguments raised for the first time in a reply brief, and the contention is forfeited. (Prince v. United Nat. Ins. Co. (2006) 142 Cal.App.4th 233, 238.) {Slip Opn. Page 6}

II. Jurisdiction to Hear Wrongful Termination Based on Labor Code Section 132a

Plaintiff claims the trial court had jurisdiction to try her cause of action for wrongful termination in violation of Labor Code section 132a (section 132a). The Supreme Court established in City of Moorpark v. Superior Court (1998) 18 Cal.4th 1143 (City of Moorpark), that section 132a’s vesting of jurisdiction in the WCAB to adjudicate violations of its terms did not establish an exclusive remedy, and that a plaintiff could also pursue common law remedies. Plaintiff asserts her action for wrongful termination in violation of public policy — the policy codified in section 132a — is such a common law remedy. We disagree, as section 132a does not qualify under case authority as the type of policy that can support a common law action for wrongful termination.

Labor Code section 132a extends certain civil rights protections to employees who are injured in the course of their employment. The statute first declares it is the “policy of this state that there should not be discrimination against workers who are injured in the course and scope of their employment.” (Lab. Code, § 132a.) The statute makes it a misdemeanor for an employer to discharge or discriminate against an employee who files a claim for workers’ compensation. It also awards an employee who was subject to such discrimination {Slip Opn. Page 7} reinstatement, reimbursement of lost wages, an increase in compensation, and expenses. (Lab. Code, § 132a, subd. (1).)

The statute grants to the WCAB jurisdiction to remedy violations. To seek reinstatement and recover lost wages, the employee initiates proceedings by filing a petition with the WCAB. The statute vests the WCAB “with full power, authority, and jurisdiction to try and determine finally all matters specified in this section subject only to judicial review, except that the appeals board shall have no jurisdiction to try and determine a misdemeanor charge.” (Lab. Code, § 132a.) Obviously, a trial court has no jurisdiction to hear a civil cause of action for an employer’s breach of Labor Code section 132a.

Plaintiff asserts her cause of action is different. She sought recovery under the common law action of wrongful termination in violation of public policy. She claims Labor Code section 132a is the public policy that was violated, and that City of Moorpark allows her to seek recovery notwithstanding the statute’s vesting of adjudicatory authority in the WCAB.

City of Moorpark does not go as far as plaintiff suggests. City of Moorpark did hold that Labor Code section 132a does not provide an exclusive remedy against disability discrimination and does not preclude an employee from pursuing remedies under the Fair Employment and Housing Act (FEHA) and common law wrongful termination remedies. (City of Moorpark, supra, 18 Cal.4th at p. 1158.) However, the high court noted its {Slip Opn. Page 8} conclusion that section 132a did not provide an exclusive remedy was “only half the analysis.” (City of Moorpark, supra, at p. 1158.) It also had to decide in that case whether a violation of FEHA could serve as a basis for a claim for wrongful termination in violation of public policy.

Thus, we still must decide whether a violation of section 132a can form the basis of a common law action of wrongful termination in violation of public policy — an issue City of Moorpark did not address. We conclude a violation of section 132a cannot be the basis of a tort action for wrongful termination.

City of Moorpark reiterated the high court’s test for determining whether a particular policy can support a common law wrongful termination claim. That test includes a substantive limitation that governs this case. The court stated that for a policy to support a common law cause of action, “[t]he policy ‘must be: (1) delineated in either constitutional or statutory provisions; (2) “public” in the sense that it “inures to the benefit of the public” rather than serving merely the interests of the individual; (3) well established at the time of the discharge; and (4) substantial and fundamental.’ [Citations.] ‘”[P]ublic policy” as a concept is notoriously resistant to precise definition, and . . . courts should venture into this area, if at all, with great care . . . .’ [Citation.] Therefore, when the constitutional provision or statute articulating a public policy also includes certain substantive limitations in scope or remedy, these limitations also {Slip Opn. Page 9}circumscribe the common law wrongful discharge cause of action. Stated another way, the common law cause of action cannot be broader than the constitutional provision or statute on which it depends, and therefore it ‘presents no impediment to employers that operate within the bounds of law.’ [Citation.]” (City of Moorpark, supra, 18 Cal.4th at p. 1159, italics added.)

Section 132a includes limitations on its scope and remedy that prevent it from being the basis of a common law cause of action. The statute establishes a specific procedure and forum for addressing a violation. It also limits the remedies that are available once a violation is established. Allowing plaintiff to pursue a tort cause of action based on a violation of section 132a would impermissibly give her broader remedies and procedures than that provided by the statute. Thus, the statute cannot serve as the basis for a tort claim of wrongful termination in violation of public policy, and the trial court correctly granted Mercy’s motion to dismiss the action.

Plaintiff argues she is entitled to seek recovery for the wrong committed against her because her termination fell outside of the “compensation bargain” of a normal employment relationship, and thus she is not subject to the workers’ compensation exclusivity rule. (See Shoemaker v. Myers (1990) 52 Cal.3d 1, 23.)

The point has no relevance here. We agree in accordance with City of Moorpark that section 132a was not plaintiff’s exclusive remedy for redressing her wrong. There were other remedies she could have pursued for the alleged discrimination {Slip Opn. Page 10} against her, and indeed the court before dismissing the action gave plaintiff the opportunity to amend her complaint to seek those remedies. Plaintiff, however, chose not to amend her complaint. It was plaintiff that through declining to amend her complaint foreclosed all possible remedies except the WCAB.

The trial court correctly dismissed plaintiff’s action.

DISPOSITION

The judgment is affirmed. Costs on appeal are awarded to defendants. (Cal. Rules of Court, rule 8.278(a).)

Hull, J., and Duarte, J., concurred.

FN *. Pursuant to California Rules of Court, rule 8.1110, this opinion is certified for publication with the exception of part I.

FN *. See footnote, ante, page 1.

Desperate Housewife Still Desperate

August 17, 2012
Desperate Housewives (season 4)

Desperate Housewives (season 4) (Photo credit: Wikipedia)

English: Logo for the US television show Despe...

“A cause of action for wrongful termination in violation of public policy does not lie if an employer decides simply not to exercise an option to renew a contract. In that instance, there is no termination of employment but, instead, an expiration of a fixed-term contract.”   Daly v. Exxon Corp. (1997) 55 Cal.App.4th 39, and quoted favorably in the brand-new case just handed down in California’s Second District Court of Appeal.  Touchstone Television Productions v. Superior Court (Sheridan) (2012) , Cal.App.4th [No. B241137. Second Dist., Div. Four. Aug. 16, 2012.]; (Superior Court of Los Angeles County, No. BC435248, Elizabeth Allen White, Judge.)

The case involves Nicollette Sheridan, who sued her employer for wrongful termination after they declined to pick up her contract for another season.  In a written employment agreement, Touchstone Television Productions (Touchstone) hired actress Nicollette Sheridan (Sheridan) to appear in the first season of the television series Desperate Housewives.   The agreement gave Touchstone the exclusive option to renew Sheridan’s services on an annual basis for an additional six seasons.  Touchstone renewed Sheridan’s services up to and including Season 5.  However, during Season 5, Touchstone informed Sheridan it would not renew her contract for Season 6.

Sheridan, dissatisfied with getting dumped, naturally, did what most other aggrieved employees would do: she sued.

Sheridan sued Touchstone for wrongful termination in violation of public policy.  Sheridan alleged that Touchstone had fired her because she had complained about a battery allegedly committed upon her by Desperate Housewives’ creator Marc Cherry (Cherry). After litigating for quite some time, the case went to trial.  After the close of evidence, the jury deliberated, but was unable to reach a verdict.  Because the jury deadlocked, the trial court declared a mistrial.

The producer Touchstone, however, asked the trial court to throw the case out on legal grounds, arguing that it was not “wrongful termination” because the producer never terminated Sheridan.  Instead, the producer simply allowed the passage of time to elapse without exercising the option to renew the contract.  As such, the producer argued that it had not terminated Sheridan, but rather had simply not renewed her contract for an additional season.

The trial court denied the motion, but the producer appealed (it was technically a writ petition, in which the producer petitioned the Second District Court of Appeal for extraordinary relief).

The Second District Appellate Court stayed the pending retrial and issued an alternative writ of mandate.  The Court ruled:

Having reviewed the parties’ pleadings and heard oral argument, we conclude that the trial court erred in denying Touchstone’s motion for a directed verdict.  A cause of action for wrongful termination in violation of public policy does not lie if an employer decides simply not to exercise an option to renew a contract. In that instance, there is no termination of employment but, instead, an expiration of a fixed-term contract. (Daly v. Exxon Corp. (1997) 55 Cal.App.4th 39 (Daly.) To hold otherwise would require the creation of a new tort for nonrenewal of a fixed-term employment contract in violation of public policy. We decline to do so. However, we conclude also that Sheridan should be permitted to file an amended complaint alleging a cause of action under Labor Code section 6310 (section 6310) that {Slip Opn. Page 3} Touchstone retaliated against her for complaining about unsafe working conditions (e.g., Cherry’s conduct) by deciding not to exercise its option to renew her contract. (But see fns. 5 & 6, infra.)

So, what does this mean for others?

Not much to most employees, but it does give the employers of contract labor a solid defense to any claim of wrongful termination, where, as here, the employer simply allows the contract to expire.  In the situation where an employee is hired for contractual term, if the employer believes the employee is not performing properly, then the employer enjoys the peace of mind that no wrongful termination lawsuit will have merit if the employer simply lets the contract term expire.  Even if the employee has some claim that the employer harbored an ill motive in not renewing the contract, the employee basically has no right to then turn that into a tort claim for wrongful termination in violation of public policy.

Hot and Fresh: Domino’s Pizza as Franchisor is Potentially Liable for Sexual Harassment

July 5, 2012

English: Dominos Pizza in Spring Hill Florida

Sure, Employers Can be Held Liable for Sexual Harassment, but What About a Franchisor?

Yes, it sounds simple enough.  An employer can be held liable for sexual harassment.  But, is a franchisor, with a crystal clear franchise agreement that says otherwise, an “employer” for purposes of sexual harassment liability?  Well, maybe.

A recent case found that sexual harassment liability may extend to a franchisor, who, as it happened, exercised substantial control over a franchisee sufficient to create a jury question as to whether the franchisor was in fact the employer for sexual harassment liability.

The Lawsuit

Patterson v. Domino’s Pizza, LLC is a recent case that involved a young lady who claimed she was sexually harassed at work by her male boss, the assistant manager of a Domino’s pizza store.

Ms. Patterson was a teenage employee of Sui Juris, a Domino’s pizza franchisee.  Renee Miranda was the assistant manager of that restaurant.  Ms. Patterson claimed that Mr. Miranda sexually harassed and assaulted her at while she was at work.   Ms. Patterson filed a sexual harassment lawsuit under the FEHA [California Government Code section 12940 et seq.] against the store she worked for [Sui Juris], as well as the franchisor [Domino’s Pizza, LLC, Domino’s Pizza, Inc., and Domino’s Pizza Franchising, LLC (collectively Domino’s)].

In her lawsuit, Ms. Patterson claimed that the franchisor was in fact also the employer of Mr. Miranda, and as such, responsible under the FEHA for sexual harassment liability.

Domino’s disagreed, saying it was merely the franchisor under its franchise agreement with the store, Sui Juris.  Domino’s argued that the store was operating independently on its own.  As such, Domino’s argued, Ms. Patterson could not establish that Domino’s was the employer of the assistant manager, and therefore, that Ms. Patterson could not establish liability upon Dominos at all.

Domino’s then asked the judge to throw the case out, claiming that it could not be held liable for sexual harassment because it was NOT Ms. Patterson’s employer, and was merely the franchisor of the store where Ms. Patterson worked.  The trial judge agreed with Domino’s and threw the case out.

The Appellate Court Decision – Trial Judge Was WRONG

In the written decision of the Second District Court of Appeal, [No. B235099. Second Dist., Div. Six. June 27, 2012], the appellate court ruled that the trial judge Barbara A. Lane got it wrong.

The appellate court found that because Domino’s exercised substantial control over the individual store, that a jury could very well find that Domino’s was indeed the employer, and therefore, liable for sexual harassment by the assistant manager of one of its franchisee stores.  As such, the appellate court reinstated the case sending it back to court for a jury trial.

What is the Lesson?

There are a few, actually.  For Domino’s, the lesson is clear.  Acting with total control over a franchisee exposes Domino’s to employer liability for sexual harassment.  For the store, the lesson is to follow the law and remove problem managers or else face the consequences.  For the courageous victim, Ms. Patterson, the lesson is for all to see: report sexual harassment, and do not be afraid to lawyer-up.  For Ms. Patterson’s attorney, who had the brilliant instinct and tenaciousness to go after the huge franchisor Domino’s, well, what can I say besides: WELL DONE!

For anyone else who faces similar circumstances, pick up the phone and call.  You never know.

The Appellate Court Decision is Here:

“Patterson v. Domino’s Pizza, LLC (2012) , Cal.App.4th
[No. B235099. Second Dist., Div. Six. June 27, 2012.]
TAYLOR PATTERSON, Plaintiff and Appellant, v. DOMINO’S PIZZA, LLC et al., Defendants and Respondents.

(Superior Court of Ventura County, No. 56-2009-00347668-CU-OE-SIM, Barbara A. Lane, Judge.)

(Opinion by Gilbert, P.J., with Yegan, J., and Perren, J., concurring.)

COUNSEL

Winer & McKenna, Alexis S. McKenna, Kelli D. Burritt, Kent F. Lowry, Jr. for Plaintiff and Appellant.

Kolar & Associates, Elizabeth L. Kolar for Defendants and Respondents.

OPINION

GILBERT, P.J.-

Here, for purposes of a summary judgment motion, a franchisor’s actions speak louder than words in the franchise agreement.

Plaintiff Taylor Patterson was an employee of defendant Sui Juris, LLC, dba Domino’s Pizza (Sui Juris). Patterson alleges she was sexually harassed and assaulted at her job. She filed an action pursuant to Government Code section 12940 (FEHA [Fair Employment and Housing Act]) against Sui Juris and Domino’s Pizza, LLC, Domino’s Pizza, Inc., and Domino’s Pizza Franchising, LLC (collectively Domino’s). {Slip Opn. Page 2}

Patterson appeals the summary judgment granted in favor of Domino’s. We reverse.
FACTS
Patterson was a teenage employee of Sui Juris, a Domino’s pizza franchisee. Renee Miranda was the assistant manager of that restaurant. Patterson claimed Miranda sexually harassed and assaulted her at work.

Patterson filed an action against Miranda, Sui Juris, and the franchisor Domino’s, alleging causes of action for sexual harassment in violation of FEHA, failure to prevent discrimination, retaliation for exercise of rights, infliction of emotional distress, assault, battery and constructive wrongful termination. She claimed Sui Juris and Domino’s were Miranda’s employers and were vicariously liable for his actions under the doctrine of respondeat superior.

Domino’s answered the complaint and filed a cross-complaint against Miranda seeking “indemnity” and “apportionment of fault.” Sui Juris filed for bankruptcy relief.

Daniel Poff, the Sui Juris owner, testified at his deposition that Claudia Lee, a Domino’s “area leader,” told him to fire Miranda. He said he had to comply with the instructions of the Domino’s area leaders because “[i]f you didn’t, you were out of business very quickly.” He said Lee also told him to fire another employee because of his performance in handling bags. Poff had no choice; he had to follow Lee’s instructions and fire that employee. His operation was monitored by the Domino’s inspectors, and their decisions determined whether he could maintain his franchise.

Domino’s filed a motion for summary judgment claiming that: 1) Sui Juris was an independent contractor pursuant to the terms of a written franchise agreement, and 2) there was no principal-agency relationship between Sui Juris and Domino’s. The notice of motion indicated that summary judgment on all causes of action was based on the ground that “DOMINO’S was not PATTERSON’S employer and was not involved in the training, supervision or hiring of any employees of Defendant SUI JURIS.”

Patterson opposed the motion and attached, among other things, Poff”s deposition. She claimed Domino’s exercised substantial control over Sui Juris, and consequently there are triable issues of fact relating to Domino’s liability.

The trial court granted summary judgment. It noted that the franchise agreement between Domino’s and Sui Juris provides that Sui Juris is responsible for “supervising and paying the persons who work in the Store.” It ruled there is no triable issue of fact because Domino’s has no role in Sui Juris’s employment decisions. The court also found that even if Domino’s is considered to be the employer, Patterson could not {Slip Opn. Page 3} prevail on the remaining issues. It entered summary judgment in favor of Domino’s on all causes of action.
DISCUSSION
Domino’s Control over Sui Juris

“‘We review a summary judgment motion de novo to determine whether there is a triable issue as to any material fact . . . .'” (Suarez v. Pacific Northstar Mechanical, Inc. (2009) 180 Cal.App.4th 430, 436.) “‘We are not bound by the trial court’s stated reasons or rationales.'” (Ibid.) “‘”In practical effect, we assume the role of a trial court . . . .”‘” (Ibid.) “‘Summary judgment is a drastic remedy to be used sparingly, and any doubts about the propriety of summary judgment must be resolved in favor of the opposing party.'” (Ibid.)

The trial court found that Sui Juris was an independent contractor and that Miranda was “not an employee or agent of . . . Domino’s . . . for purposes of imposing vicarious liability.”

Whether a franchisor is vicariously liable for injuries to a franchisee’s employee depends on the nature of the franchise relationship. “[A] franchisee may be deemed to be the agent of the franchisor.” (Kuchta v. Allied Builders Corp. (1971) 21 Cal.App.3d 541, 547.) “The general rule is where a franchise agreement gives the franchisor the right to complete or substantial control over the franchisee, an agency relationship exists.” (Cislaw v. Southland Corp. (1992) 4 Cal.App.4th 1284, 1288.) “‘[I]t is the right to control the means and manner in which the result is achieved that is significant in determining whether a principal-agency relationship exists.'” (Ibid.) Consequently, a franchisee may be found to be an agent of the franchisor even where the franchise agreement states it is an independent contractor. (Kuchta, at p. 548.) If the franchisor has substantial control over the local operations of the franchisee, it may potentially face liability for the actions of the franchisee’s employees. (Nichols v. Arthur Murray, Inc. (1967) 248 Cal.App.2d 610.)

“[T]he franchisor’s interest in the reputation of its entire system allows it to exercise certain controls over the enterprise without running the risk of transforming its {Slip Opn. Page 4} independent contractor franchisee into an agent.” (Cislaw v. Southland Corp., supra, 4 Cal.App.4th at p. 1292.) Consequently, it may control its trademarks, products and the quality of its services. But the franchisor may be subject to vicarious liability where it assumes substantial control over the franchisee’s local operation, its management-employee relations or employee discipline. (Id. at p. 1296; Kuchta v. Allied Builders Corp., supra, 21 Cal.App.3d at p. 547; Nichols v. Arthur Murray, Inc., supra, “248 Cal.App.2d at p. 615.)

The Franchise Agreement

The franchise agreement provides, in relevant part, that Sui Juris “shall be solely responsible for recruiting, hiring, training, scheduling for work, supervising and paying the persons who work in the Store and those persons shall be your employees, and not [Domino’s] agents or employees.” Domino’s claims this provision, as a matter of law, removes its control over franchisee-employee matters.

Patterson contends the language relied on by Domino’s is limited or qualified by other provisions of the agreement that vest substantial control in Domino’s. The agreement provides that Domino’s sets both the “qualifications” for the franchisee’s employees and the standards for their “demeanor.” Franchisee employees may not operate a store without first disclosing their identities to Domino’s. A violation of this provision may result in termination of the franchise. The franchisee is required to install a “PULSE,” or another computer system designated by Domino’s, for training employees. The type of training is determined by Domino’s.

Domino’s Manager’s Reference Guide (MRG) describes the specific employment hiring requirements for all “personnel involved in product delivery,” and it describes the documents that must be included in their personnel files. It requires all employees to submit “[t]ime cards and daily time reports.” It specifies standards for employee hair, facial hair, “[d]yed hair,” jewelry, tattoos, fingernails, nail polish, shoes, socks, jackets, belts, gloves, watches, hats, skirts, visors, body piercings, earrings, necklaces, wedding rings, “[t]ongue rings,” “clear tongue” retainers, and undershirts. {Slip Opn. Page 5}

Domino’s claims the franchise agreement grants Sui Juris the freedom to conduct its own independent business. But provisions of the agreement substantially limit franchisee independence in areas that go beyond food preparation standards. The franchisee’s computer system is not within its exclusive control. Domino’s has “independent access” to its data. Domino’s has the right to audit the franchisee’s tax returns and financial statements. (Kuchta v. Allied Builders Corp., supra, 21 Cal.App.3d at p. 547 [franchisor’s right to audit franchisee’s books is a factor supporting a finding of agency].) Domino’s also determines the franchisee’s store hours, its advertising, the handling of customer complaints, signage, the e-mail capabilities, the equipment, the furniture, the fixtures, the décor, and the “method and manner of payment” by customers. Domino’s regulates the pricing of items at the counter and home delivery, and it sets the standards for liability insurance. A franchisee’s liability insurance policies must name Domino’s as “additional insureds.”

Domino’s also decides the franchisee’s book and record keeping methods. It may determine the franchisee’s location and right to re-locate and may send inspectors to monitor its operations. (Kuchta v. Allied Builders Corp., supra, 21 Cal.App.3d at p. 547 [franchisor’s “right to control the location of the franchisee’s place of business” and the right to send inspectors are factors supporting a finding that the franchisee is an agent].) It also controls whether the franchisee may “engage, or own any interest, in any other business activity” or “be employed by any other business.” Domino’s requires franchisees to report “weekly” on sales, and to provide it with their state and local business tax returns “for any period” and “such other information as [Domino’s] may reasonably require . . . .”

Domino’s MRG specifies the standards a franchisee is expected to maintain as “minimum guidelines for the operation of all Domino’s Pizza stores . . . .” These include a variety of requirements in a variety of areas, which include: bank deposits, safes, “front till” cash limits, type of credit cards that must be accepted, mobile phone use, store closing procedures, store records, refuse removal, radar detectors, phone caller identification requirements, security, delivery staffing, holiday closings, stereos, tape decks, wall displays, franchisee web sites, “in-store conversations,” and literature that is {Slip Opn. Page 6} “allowed in a store.” (Miller v. McDonald’s Corp. (Or.Ct.App. 1997) 945 P.2d 1107, 1111 [manual describing how “the franchisee was to carry out its responsibilities in considerable detail” supported claim of agency]; see also Parker v. Domino’s Pizza Inc, (Fla.Ct.App. 1993) 629 So.2d 1026, 1029 [“manual which Domino’s provides to its franchisees is a veritable bible for overseeing a Domino’s operation”].)

These requirements raise reasonable inferences supporting Patterson’s claim that Sui Juris is not an independent contractor. (Kuchta v. Allied Builders Corp., supra, 21 Cal.App.3d at p. 547; see also Parker v. Domino’s Pizza, Inc., supra, 629 So.2d at p. 1029 [triable issue of fact whether Domino’s franchisee was an independent contractor as stated in the franchise agreement because other provisions in the agreement gave Domino’s control over “every conceivable facet of the business”]; see also Font v. Stanley Steemer International, Inc. (Fla.Ct.App. 2003) 849 So.2d 1214, 1219 [Domino’s and other franchisors use franchise agreements with provisions stating franchisees are independent contractors, but “other contractual provisions” may “reflect otherwise”].)

Other Evidence of Control

Domino’s relies on foreign state decisions that suggest the language of the franchise agreement is dispositive on control. But California courts have concluded that the provisions of the agreement are relevant, but not the exclusive evidence of the relationship. (Postal Instant Press, Inc. v. Sealy (1996) 43 Cal.App.4th 1704, 1716 [some franchise agreements have unenforceable “one-sided” provisions purporting to place “all the obligations on the franchisee”].) Consequently, “the provisions of franchise agreements are not necessarily controlling.” (Wickham v. Southland Corp. (1985) 168 Cal.App.3d 49, 59.) Instead, we look to the totality of the circumstances to determine who actually exercises the ultimate control. (Kuchta v. Allied Builders Corp., supra, 21 Cal.App.3d at p. 547 [“the question of whether the franchisee is an independent contractor or an agent is ordinarily one of fact”].)

Domino’s suggests that the evidence shows: 1) Sui Juris made all the decisions regarding the employees of that franchise; 2) Domino’s assumed no role and {Slip Opn. Page 7} exercised no actual control over employee discipline; and 3) Poff, the owner of Sui Juris, made his own voluntary decision to terminate Miranda.

Patterson responds that she presented evidence supporting reasonable inferences that, apart from the provisions of the franchise agreement: 1) Domino’s exercised extensive local management control over Sui Juris, 2) it had control over employee conduct and discipline, 3) a Domino’s area leader was deciding which Sui Juris employees should be fired, 4) Domino’s ordered Poff to terminate Miranda, and 5) Poff complied as he had no choice given the extensive control Domino’s exercised over his franchise. Patterson claims there are triable issues of fact about the extent of Domino’s control.

At his deposition, Poff said when he “signed with Domino’s, . . . [he] was told, in no uncertain terms, that if [he] did not play ball the way they wanted [him] to play ball, that [his franchise] would be in jeopardy.” Poff said he had no control about the food supplies he could purchase for his store, because Domino’s made those determinations, with an exception for Coca-Cola products.

Poff said Domino’s provided guidelines about the employees he could hire. They had to “look and act a certain way,” and he implemented those policies when he hired applicants. Domino’s guidelines also included policies on employee “attendance” and sexual harassment. Poff”s testimony suggests that Domino’s oversight of his franchise was extensive. Domino’s sent inspectors to verify compliance, “called the store on the sly,” and used “mystery shoppers” to determine whether Sui Juris was following its procedures. Poff said, “I was getting ticky-tacked to death by inspectors. . . . [T]he way they changed the operating agreement made it easier for them to put you out of business by how they could write you up and how they graded their inspections.”

Poff said he was also under the direction of Domino’s area leader Claudia Lee. He indicated that Lee told him which of his employees should be terminated, and he had no choice but to comply. He said Lee told him to fire one Sui Juris employee who was not following procedures relating to the use of bags. He said, “I had to pull the trigger on the termination, [and] it was very strongly hinted that there would be problems if I did not {Slip Opn. Page 8} do so. [Domino’s] area leaders would pull you into your office . . . and tell you what they wanted. If they did not get what they wanted, they would say you would be in trouble. . . . I never said ‘no’ intentionally to an area leader.”

Lee told Poff to terminate Miranda. She said, “‘You’ve got to get rid of this guy.'” She instructed him to “re-train” his employees. Poff said he had to follow directions of the Domino’s area leaders. He said, “If you didn’t, you were out of business very quickly.”

Domino’s points to contrary evidence. But in reviewing a summary judgment, we do not resolve factual disputes. We must “‘view the evidence in the light most favorable to the opposing party [i.e., the plaintiff] and accept all inferences reasonably drawn therefrom.'” (Suarez v. Pacific Northstar Mechanical, Inc., supra, 180 Cal.App.4th at p. 436.) Poff’s testimony, if believed by a trier of fact, supports reasonable inferences that there was a lack of local franchisee management independence. Patterson met her burden to show triable issues of fact involving the extent of Domino’s control over Sui Juris.

Other Issues

The trial court found that even if Domino’s is considered the employer, there are no triable issues of fact showing it had notice of, ratified, or condoned Miranda’s conduct. It ruled that there are no facts showing prior incidents of sexual harassment at the restaurant. It concluded Patterson could not prevail. These issues are relevant where an employee claims harassment by another employee.

But a different standard applies where the harasser is the employee’s supervisor. (Dee v. Vintage Petroleum, Inc. (2003) 106 Cal.App.4th 30, 36.) The trial court found that Miranda was the restaurant “manager.” Consequently, Miranda was not merely another coworker. Patterson was a 16-year-old employee, a minor, subject to his control and supervision on the job.

The trial court erred by applying a negligence standard. It did not consider the issue of the employer’s strict liability for a supervisor’s sexual harassment of a child employee. (State Dept. of Health Services v. Superior Court (2003) 31 Cal.4th 1026, {Slip Opn. Page 9} 1042.) As stated by our Supreme Court, “[U]nder the FEHA, an employer is strictly liable for all acts of sexual harassment by a supervisor.” (Ibid.) Domino’s did not present sufficient facts in its motion to show its entitlement to summary judgment based on a claim involving a supervisor’s sexual harassment of an employee. (See Myers v. Trendwest Resorts, Inc. (2007) 148 Cal.App.4th 1403, 1421 [discussing the strong evidentiary burden the employer must meet to obtain summary judgment on this issue].)

A single sexually offensive act by one employee against another usually is not sufficient to establish employer liability. (Dee v. Vintage Petroleum, Inc., supra, 106 Cal.App.4th at p. 36.) But “where the act is committed by a supervisor, the result may be different.” (Ibid.) “‘Because the employer cloaks the supervisor with authority, we ordinarily attribute the supervisor’s conduct directly to the employer.'” (Ibid.) “‘Thus, a sexual assault by a supervisor, even on a single occasion, may well be sufficiently severe so as to alter the conditions of employment and give rise to a hostile work environment claim.'” (Ibid., italics added.)

The trial court’s finding that Domino’s made a sufficient evidentiary showing to support its motion is not supported by the record. We have reviewed Domino’s remaining contentions and conclude they will not change the result we have reached.

The judgment is reversed. Costs on appeal are awarded to Patterson.

Yegan, J., and Perren, J., concurred.”

Sexual Harassment In the Air Force

June 26, 2012
English: Four military training instructors ke...

Lackland Drill Instructors Keep Eyes on Cadets.

Unfortunately, sexual harassment happens everywhere, even within the confines of a highly structured environment that should be free from this:

“[A] widening sex scandal that has rocked the base, one of the nation’s busiest military training centers. Allegations that male instructors had sex with, and in one case raped, female trainees have led to criminal charges against four men. Charges against others are possible.”

http://hosted.ap.org/dynamic/stories/U/US_AIRMEN_SEX_SCANDAL?SITE=AP&SECTION=HOME&TEMPLATE=DEFAULT&CTIME=2012-06-25-18-56-55

Sexual harassment can happen anywhere.  Human beings, for all their foibles, are flawed, and some will make poor choices.  It is tragic that sexual harassment occurs at all, but, when it does, it may seem impossible to believe, especially when it happens at a place where it should not at all.

The consequences of this scandal will create lasting change.  Think about the heroic victims who stood up to the harasser, and reported it.  Think of the disbelief that must have occurred.  Think of the ramifications to the victim, first, from being sexually harassed, or sexually assaulted, then second, from having to report it and then dealing with the fallout.  Now, think of every single person who goes through that Air Force base in the future will be able to thank the selfless victims for standing up to the harassment and the aftermath.  Powerful, huh?

Remember, it may not be easy to resist, or to report sexual harassment.  But it is the right thing to do.

On-Line Right-to-Sue Letters – California’s DFEH and FEHA Claims

June 20, 2012
English: Trailer parked on Fay St adjacent to ...

(Photo credit: Wikipedia)

Administrative Claim Requirement:

In California, before an employee can sue an employer for discrimination, harassment, etc., the employee must first present an administrative claim to the Department of Fair Employment and Housing [DFEH].  The DFEH will then undertake an investigation.  When the investigation closes, and the employee desires to file a lawsuit, then the employee must request, and be given a “Right-to-Sue letter” from the DFEH.  If the employee files a lawsuit without first obtaining the Right-to-Sue letter, then the employer can ask the Court to dismiss the lawsuit, on the grounds that the employee failed to exhaust the administrative remedies.  In short, the lawsuit is thrown out of court, and the employee loses.

What makes this problematic for employees who have been terminated is the statute of limitations: generally, the employee has only one year from the last adverse job action [the termination] to request a right-to-sue letter, or else the employee loses the right to assert claims under the Fair Employment and Housing Act [FEHA] at all.  This is a big deal, because claims under FEHA, if proven, require the employer to pay for the employee’s attorneys’ fees.  It is often the fear of employers having to pay the employee’s attorneys’ fees which drives the case towards settlement, and vice versa.  If the claims are meritless, though, the Court can order that the employee pay for the employer’s attorneys’ fees.  So claims brought under FEHA are taken seriously, and have consequences, win or lose.

So understand, by the time the lawsuit is filed, and the Court makes a ruling, it is far too late for the terminated employee to request a right-to-sue letter, and the employee’s claims under FEHA, even if meritorious, are lost forever.

So, it is simple: the employee needs to get a right-to-sue letter from the DFEH before filing a lawsuit, or else the lawsuit will be dismissed.  What does that entail?

The DFEH used to require that the employee actually submit a hard copy of the employee’s discrimination/harassment complaint, on the DFEH form, with a signature of the employee, under oath, to the DFEH in order to obtain the Right-to-Sue letter.  The DFEH changed that a while back by creating an on-line process which would result in an electronic Right-to-Sue letter being issued without the formality of preparing a physical hard copy form with an actual signature on it and then submitting it, by mail to the DFEH.

The DFEH website http://www.dfeh.ca.gov/ now allows for an on-line request for an immediate Right-to-Sue letter.  Completing the on-line process results in the issuance, electronically, in pdf format, of a  Right-to-Sue letter, which bears no signatures from either the employee or the employee’s attorney.

Some employers took the position that an unsigned, electronically-issued right-to-sue letter did not comply with the requirements since it was unsigned.  Employees and their attorneys said otherwise.

The question has definitively been answered.  An electronically-issued right-to-sue letter is perfectly acceptable, and satisfies the requirement that an employee first obtain a Right-to-Sue letter before filing a lawsuit.

The case is set out in full, below.

Also note that the Court frowned upon the employee’s attorney’s decision to keep the supervisor in the case to avoid Federal Court.  Oops.

Rickards v. United Parcel Service, Inc. (2012) , Cal.App.4th
[No. B234192. Second Dist., Div. Four. June 19, 2012.]
GEORGE RICKARDS, Plaintiff and Appellant, v. UNITED PARCEL SERVICE, INC. et al., Defendants and Respondents.

[Opinion Certified For Partial Publication. fn. * ]

(Superior Court of Los Angeles County, No. BC441150, William F. Fahey, Judge.)

(Opinion by Epstein, P.J., with Willhite, J., and Manella, J., concurring.)

COUNSEL

Shegerian & Associates, Inc., Carney R. Shegerian, for Plaintiff and Appellant.

Paul Hastings, George W. Abele, Michele A. Freedenthal, and Kelly Hsu, for Defendant and Respondent United Parcel Service, Inc.

Ross & Silverman and Melanie C. Ross, for Defendant and Respondent Bob Esqueda. {Slip Opn. Page 2}

OPINION

EPSTEIN, P.J.-

Appellant George Rickards sued respondent United Parcel Service, Inc. (UPS) for violating the Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.). The trial court granted UPS’s summary judgment motion on the sole ground that Rickards did not file a verified complaint with the Department of Fair Employment and Housing (DFEH) and thus failed to satisfy this jurisdictional prerequisite for filing a lawsuit under FEHA (Gov. Code, § 12960, subd. (b)). In the published portion of this opinion, we conclude that the complaint Rickards’ attorney filed through DFEH’s online automated system was sufficient under FEHA. In the unpublished portion of the opinion, we affirm the summary judgment because Rickards failed to raise a triable issue of material fact on his FEHA claims against UPS. We also conclude in the unpublished portion of the opinion that the trial court did not abuse its discretion in awarding respondent Bob Esqueda $40,000 in attorney fees upon granting Esqueda’s unopposed summary judgment motion and finding that Richards’ refusal to dismiss the age and disability harassment claims against Esqueda was unreasonable.
FACTUAL AND PROCEDURAL SUMMARY fn. *
Rickards worked as a full-time package driver for UPS. On March 18, 2008, he was diagnosed with a lumbar sprain and a muscle spasm after injuring his back on the job. He was released back to work with the medical restriction that his daily shift be limited to eight hours. Two days later, on March 20, the restriction was changed to no lifting, pulling or pushing more than 10 pounds.

According to Rickards, Esqueda, who managed the UPS center where Rickards worked, reacted angrily when he learned of Rickards’ back injury and did not take him to see a doctor immediately. He insisted that Rickards take online safety tests first. Esqueda did not comply with Rickards’ medical restrictions, assigning him to long routes and to a pre-load shift at 3:30 a.m. that required lifting packages. Rickards overheard Esqueda telling someone in the UPS human resources office that Rickards was feigning his injury and making a false worker’s compensation claim, and that Esqueda wanted to fire him. Esqueda also told Rickards he could not work as a driver any longer and {Slip Opn. Page 3} offered to transfer him to another position within the company. When Rickards refused to sign the paperwork, Esqueda placed him on a worker’s compensation leave of absence from March 21 to April 10. On April 10, Rickards returned to work in his regular position with no restrictions.

After Rickards returned from his leave of absence, his truck was audited daily for at least a month or two. Supervisor Lam Phaykaisorn followed him five or six times over a few weeks looking for infractions, and Rickards was written up for not wearing a seat belt, not closing his truck door, calling in sick, and misdelivering a package. He was assigned extra work and had to work longer shifts. fn. 1

More than a year later, on the morning of August 28, 2009, Rickards received an award for 20 years of safe driving. That same morning, he asked Phaykaisorn, his acting on-road supervisor for the day, to relieve him of some of the delivery stops at schools on his route because they interfered with the number of stops per hour he was expected to make. Phaykaisorn refused to do so and ordered Rickards to start his route.

Instead, Rickards went to the company office to check on his new uniform. He was talking to another driver when Phaykaisorn came into the office and confronted him about not having left for his route. Rickards headed toward his truck and did not stop when Phaykaisorn called him back into the office. Raising his voice, Phaykaisorn followed Rickards, got in front of him, and placed a hand on Rickards’ chest to stop him. In response, Rickards told Phaykaisorn, “Get out of my face or I’ll hit you.” Rickards agreed to return to the office after Phaykaisorn threatened to fire him if he drove off. {Slip Opn. Page 4}

Esqueda interviewed Rickards and Phaykaisorn about the incident and terminated Rickards for unprofessional conduct and unprovoked assault on a supervisor. Rickards’ grievance of his termination was arbitrated, and on December 12, 2009, the arbitrator found that UPS had had just cause to terminate him.

On February 26, 2010, Rickards’ attorney filed a FEHA complaint on Rickards’ behalf through DFEH’s automated online system. The system required that information be verified under penalty of perjury but did not require an actual signature. Rickards’ attorney clicked the “CONTINUE” prompt on a screen containing a declaration under penalty of perjury about the truth of the complaint he was submitting. As we explain later, he thus verified the complaint. DFEH’s automated system issued an automatic right-to-sue letter.

Rickards then filed a lawsuit against UPS, Esqueda, and Doug Sherman (his regular on-road supervisor), alleging six causes of action under FEHA: (1) disability discrimination, (2) age discrimination, (3) harassment on the basis of disability, (4) harassment on the basis of age, (5) retaliation for complaining about disability discrimination and harassment, and (6) retaliation for complaining about age discrimination and harassment. The individual defendants were named on the causes of actions for harassment based on disability and age. Sherman was dismissed from the suit in December 2010.

In January 2011, Esqueda’s counsel demanded that Rickards dismiss Esqueda because Esqueda’s personnel management actions were not evidence of harassment. She received no immediate response. In February, UPS and Esqueda filed separate summary judgment motions. In April, Rickards’ counsel conditioned Esqueda’s dismissal on a waiver of fees and costs and an agreement from UPS that the case would not be removed to federal court. UPS did not agree to the latter condition, and Esqueda was not dismissed from the suit. The court granted Esqueda’s unopposed summary judgment motion. Esqueda then filed a motion for attorney fees, which Rickards opposed. The court awarded Esqueda fees in the amount of $40,000, finding that the lawsuit against {Slip Opn. Page 5} him was groundless and unreasonable and was maintained in subjective bad faith to avoid removal of the lawsuit against UPS to federal court.

The court granted summary judgment for UPS based on Rickards’ failure to file a verified DFEH complaint. After his motion for a new trial against UPS was denied, Rickards appealed from the judgment in favor of UPS, the order denying his motion for a new trial, and the order awarding attorney fees to Esqueda.
DISCUSSIONI
A. Standard of Review

Summary judgment is proper when no triable issue exists as to any material fact, and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) A moving defendant meets its burden by showing one or more essential elements of the cause of action cannot be established, or by establishing a complete defense to the cause of action. (Id., § 437c, subd. (p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849.) The burden then shifts to the plaintiff to show that a triable issue of one or more material facts exists as to the cause of action or defense. (Ibid.; Code Civ. Proc., § 437c, subd. (p)(2).)

We review the trial court’s decision on a summary judgment motion de novo, viewing the evidence in the light most favorable to the nonmoving party. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768.) We consider all of the evidence the parties offered in connection with the motion, except that which the court properly excluded. (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476.) If the trial court did not expressly rule on specific evidentiary objections, “it is presumed that the objections have been overruled, the trial court considered the evidence in ruling on the merits of the {Slip Opn. Page 6} summary judgment motion, and the objections are preserved on appeal.” (Reid v. Google, Inc. (2010) 50 Cal.4th 512, 534 (Reid).) fn. 2

B. The DFEH Complaint

The trial court granted UPS’s summary judgment motion on the ground that Rickards’ failure to file a verified DFEH complaint was a jurisdictional defect. It is undisputed that Rickards’ attorney filed a form complaint through DFEH’s automated online system on Rickards’ behalf and received an immediate right-to-sue letter. At his deposition, Rickards testified he did not know anything about the DFEH complaint. In declarations, Rickards and his attorney stated that the attorney was authorized to file the complaint on Rickards’ behalf. The parties disagree whether the complaint was properly verified under the circumstances. We conclude that it was.

Before suing under FEHA, a plaintiff must exhaust his or her administrative remedies by filing a verified complaint with the DFEH and obtaining a right-to-sue letter. (Blum v. Superior Court (2006) 141 Cal.App.4th 418, 422 (Blum); Gov. Code, §§ 12960, subd. (b), 12965, subd. (b).) Specifically, Government Code section 12960, subdivision (b) provides: “Any person claiming to be aggrieved by an alleged unlawful practice may file with the department a verified complaint, in writing, that shall state the name and address of the person, employer, labor organization, or employment agency alleged to have committed the unlawful practice complained of, and that shall set forth the particulars thereof and contain other information as may be required by the department.”

The question of who may verify a DFEH complaint was addressed in Blum, supra, 141 Cal.App.4th 418. The DFEH form complaint filed on the plaintiff’s behalf in that case contained the following printed statement: “I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct of my own knowledge except as to matters stated on my information and belief, and as to those matter[s] I believe it to be true.” (Id. at p. 425.) The form contained a line for {Slip Opn. Page 7} “COMPLAINANT’S SIGNATURE.” (Ibid.) The attorney subscribed his own name and wrote beneath the signature line, “LAW OFFICES OF MARK WEIDMANN ON BEHALF OF BARRY BLUM.” (Ibid.)

The Blum court reasoned that Government Code section 12960, subdivision (b) does not expressly require that the complainant personally verify the information in the complaint, nor does DFEH require complaints to be filed only on personal knowledge. (Blum, supra, 141 Cal.App.4th at pp. 422, 425.) It approved the practice of attorney verification of a DFEH complaint for a client, so long as the attorney signs the complaint with his or her own name, rather than the client’s name. (Id. at p. 428.) The court cautioned attorneys “about verifying such complaints unless they believe the allegations made therein to be true and they are acting in good faith as they are subject to penalties for perjury if they sign their name to DFEH complaints.” (Ibid.)

In 2008, DFEH announced its online automated system for issuing right-to-sue letters, “designed for complainants with private counsel who wish to proceed directly to court on employment discrimination, harassment and retaliation complaints.” fn. 3 The automated system required input of the name of the complainant, address, telephone number, as well as information about the employer and other defendants. A screen titled “Signing under Penalty of Perjury” contained the statement, “[b]y submitting this complaint, I am declaring under penalty of perjury under the laws of the State of California that the foregoing is true and correct of my own knowledge except as to matters stated on my information and belief, and as to those matters I believe it to be true.” Rickards’ attorney clicked “CONTINUE” on this screen. The same declaration appeared on the electronically generated complaint that the attorney printed out. The automated system did not prompt input of the attorney’s name on the complaint, nor did it provide for a physical signature.

With the exception of the introductory phrase, “[b]y submitting this complaint I am declaring,” the declaration on the electronically filed complaint in this case was the {Slip Opn. Page 8} same as the one printed on the paper form used in Blum. But unlike the paper complaint in Blum, the online complaint did not have a line for “COMPLAINANT’S SIGNATURE.”

In 2010, DFEH proposed regulations designed to replace its procedures of general application for processing discrimination complaints, known as DFEH Directives. (California Reg. Notice Register 2010, No. 8-Z, pp. 269–270.) The regulations became effective in 2011. Several of them make clear that an online verified complaint need not be signed. (Cal. Code Regs., tit. 2, §§ 10001(u) [“‘Verified complaint’ means a complaint submitted to the department with the complainant’s oath or affidavit stating that to the best of his or her knowledge, all information contained in the complaint is true and correct, except matters stated on information and belief, which the complainant declares he or she believes to be true. To be ‘verified’ a complaint filed with the department need not be signed; verification need only confirm the truth of the allegations submitted, including by submitting the allegations under penalty of perjury”]; 10002(a)(9) [“complaints filed electronically need not be signed; complaints filed electronically shall state that by submitting the complaint, the complainant declares under penalty of perjury under the laws of the State of California that to the best of his or her knowledge, all information stated in the complaint is true and correct, except matters stated on information and belief, which the complainant declares he or she believes to be true”]; 10005(d)(9) [same].)

UPS does not challenge the holding in Blum, the validity of DFEH’s online complaint procedure, or the 2011 regulations. It only argues the regulations do not dispense with the requirement that an attorney may verify a DFEH complaint only by signing his or her own name, and if the regulations do dispense with the signature requirement for online complaints, they do not apply retroactively. The 2011 regulations confirm what DFEH’s automated system for online complaints has permitted since 2008–that verification of online complaints is permissible without a physical signature. {Slip Opn. Page 9} Under Blum, attorneys may verify DFEH complaints so long as they personally are subject to penalties for perjury. (Blum, supra, 141 Cal.App.4th at p. 428.) Since online complaints were not at issue in that case, the court did not address how an attorney goes about verifying such a complaint.

Under the Uniform Electronic Transactions Act (Civ. Code, § 1633.1 et seq.), an electronic record satisfies the requirement that a record be in writing. (Id., § 1633.7, subd. (c).) “An electronic record or electronic signature is attributable to a person if it was the act of the person. The act of the person may be shown in any manner . . . .” (Id., § 1633.9, subd. (a).) In the same way, the attorney’s verification of an online complaint is the act of the attorney.

The instructions on DFEH’s automated system make clear that requests for an immediate right-to-sue letter are accepted from complainants who have decided to go directly to court without an investigation by DFEH, and such a decision is advisable only if the complainant has an attorney. The right-to-sue letter that can be immediately printed after inputting information into the automated system is accompanied by a notice to complainant’s attorney. Since the system is essentially intended to be used by complainants who have counsel, such complainants should not be penalized for retaining counsel. (Blum, supra, 141 Cal.App.4th at p. 428.) fn. 4

We conclude that the attorney verification of the online DFEH complaint in this case was sufficient. UPS is not entitled to summary judgment on the ground that Rickards failed to fulfill a jurisdictional prerequisite to filing a FEHA lawsuit.

C. fn. * The FEHA Disability Claims

Although we disagree with the trial court’s stated reason for granting UPS’s summary judgment motion, we may affirm the summary judgment if it is correct on any ground properly offered in the trial court, regardless of the reasons stated by the court in {Slip Opn. Page 10} its ruling. (Committee to Save the Beverly Highlands Homes Assn. v. Beverly Highlands Homes Assn. (2001) 92 Cal.App.4th 1247, 1261.)

Code of Civil Procedure section 437c, subdivision (m)(2) provides: “Before a reviewing court affirms an order granting summary judgment or summary adjudication on a ground not relied upon by the trial court, the reviewing court shall afford the parties an opportunity to present their views on the issue by submitting supplemental briefs.” In this case, the parties have fully briefed the merits of the summary judgment in the trial court and on appeal. Supplemental briefing is not required. (Syngenta Crop Protection, Inc. v. Helliker (2006) 138 Cal.App.4th 1135, 1175, fn. 16.)

Rickards did not oppose UPS’s summary judgment motion as to his three age-related claims. The question on appeal comes down to whether there is a triable issue of material fact as to any of his disability-related claims: disability discrimination, retaliation for complaining about disability discrimination and harassment, and harassment based on disability. We conclude that there is not.

1. Disability Discrimination

Employment discrimination claims under FEHA are subject to a three-step burden-shifting analysis. (Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 355 (Guz).) The employee must first make a prima facie case of wrongful discrimination. (Id. at pp. 354–355.) The burden then shifts to the employer to rebut the prima facie case by producing admissible evidence that its action was taken for a legitimate, nondiscriminatory reason. (Id. at pp. 355–356.) It then shifts back to the employee to raise a triable issue of material fact that the employer’s proffered reason was pretextual. (Id. at p. 356.)

FEHA prohibits discharge or discrimination of any person on account of physical disability. (Gov. Code, § 12940, subd. (a).) A prima facie case for disability discrimination requires the plaintiff to show that he or she suffers from a disability, is otherwise qualified to do the job, and suffered an adverse employment action because of {Slip Opn. Page 11} the disability. (Faust v. California Portland Cement Co. (2007) 150 Cal.App.4th 864, 886.)

UPS argues that at the time of his termination Rickards was not disabled. Physical disability under FEHA includes a physiological condition that affects the musculoskeletal body system and limits a major life activity, including working. (Gov. Code, § 12926, subd. (k)(1)(A), (B).) fn. 5 Disability also includes “[h]aving a record or history” of such a condition, “which is known to the employer.” (Id., § 12926, subd. (k)(3).) In the trial court, Rickards claimed that he was disabled and had a record of disability. He repeats that claim on appeal. But his own testimony indicates that after April 10, 2008, he returned to work with no restrictions and was able to perform all his job duties until his termination. We have been cited to no evidence indicating he had any existing disability in August 2009.

Neither side has adequately addressed whether Rickards was disabled between March 18 and April 10, 2008, in order to claim that he had a record or history of disability. UPS exclusively relies on Arteaga v. Brink’s, Inc. (2008) 163 Cal.App.4th 327 (Arteaga). The employee in that case was diagnosed with carpal tunnel syndrome only after he was discharged by his employer. (Id. at p. 349.) While employed, he had been given a clean bill of health with no restrictions. (Id. at p. 347.) In contrast, the evidence here indicates that Rickards was diagnosed with a lumbar sprain and placed under medical restrictions, of which UPS was aware. A temporary, non-chronic condition may be a disability under FEHA. (See Avila v. Continental Airlines, Inc. (2008) 165 Cal.App.4th 1237, 1249, fn. 5.) Assuming that this showing is sufficient to raise an issue of material fact whether Rickards had a record of previous disability, the question is whether Rickards was terminated because of it.

Rickards argues that he has direct evidence of Esqueda’s discriminatory animus, claiming Esqueda wanted to fire him because of his medical restrictions. The record indicates that this claim is based on comments Esqueda made more than a year before {Slip Opn. Page 12} Rickards was terminated. Rickards testified that, during the time when he was under actual medical restrictions, he overheard Esqueda saying that Rickards was feigning injury and that Esqueda wanted to fire him. fn. 6 Around the same time, Esqueda said Rickards could not do his job. Esqueda’s alleged comments were made before April 10, 2008. Since they were not made in the context of Rickards’ actual termination in August 2009, more than a year later, they are not evidence that Rickards was terminated because of a disability he no longer had.

Comments made by a decisionmaker outside of the decisional process are known as “stray remarks.” (Reid, supra, 50 Cal.4th at p. 537.) “Although stray remarks may not have strong probative value when viewed in isolation, they may corroborate direct evidence of discrimination or gain significance in conjunction with other circumstantial evidence. Certainly, who made the comments, when they were made in relation to the adverse employment decision, and in what context they were made are all factors that should be considered.” (Id. at p. 541.)

Considering Esqueda’s remarks in the context of the record, we note that Esqueda’s conduct between March 18 and March 20, 2008 is Rickards’ only evidence of disability discrimination. Rickards worked at UPS for more than a year after April 10, 2008 with no medical restrictions and no actual disability. He has identified no disability-related comments after his return to work or in relation to his termination.

Temporal proximity between a disclosure of a medical condition and a subsequent termination may satisfy the employee’s prima facie causation requirement. (Arteaga, supra, 163 Cal.App.4th at p. 353.) But there is no such temporal proximity between Rickards’ back injury and his termination. Esqueda’s 2008 remarks, when viewed in the context of the entire record, do not corroborate the claim of disability-based discrimination or gain significance in conjunction with other circumstantial evidence. {Slip Opn. Page 13} Rickards has thus failed to raise a triable issue of material fact that he was terminated because of a disability.

In addition, UPS has identified a legitimate reason for Rickards’ termination–his threat to hit a supervisor. Misconduct involving a threat against a coworker is a legitimate, nondiscriminatory reason for terminating an employee. (Wills v. Superior Court (2011) 195 Cal.App.4th 143, 168.) This satisfies the second step of the burden-shifting analysis.

Under the third step, Rickards has failed to raise an issue of material fact that the proffered reason for his termination was pretextual. Rickards insists that during their August 2009 argument Phaykaisorn provoked him by stepping in front of him and placing his hands on Rickards’ chest. Rickards argues that Esqueda failed to adequately investigate because he did not speak to a driver who witnessed part of the incident. But the record does not show that the witness saw the relevant part of the incident or had any exculpatory information. Rickards’ own declaration indicates that Esqueda interviewed both him and Phaykaisorn and chose to side with Phaykaisorn because “he had to ‘support’ his ‘management team.'” Esqueda was not required to adopt Rickards’ subjective perception that Phaykaisorn’s actions amounted to provocation, and Esqueda’s reason for terminating Rickards “need not necessarily have been wise or correct.” (Guz, supra, 24 Cal.4th at p. 358.)

Rickards contends that UPS gave inconsistent or contradictory reasons for his termination because Esqueda identified an additional reason for terminating Rickards–his use of profanity in prior incidents. The discharge form cited unprofessional conduct in addition to the assault on the supervisor, and Rickards had been written up for unprofessional conduct for using profanity in the past. This additional reason for his termination does not establish pretext since it does not contradict or make less credible the main reason cited on the discharge form–Rickards’ threat to hit a supervisor. (See {Slip Opn. Page 14} Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1005 [to be pretextual, employer’s reasons must be so weak, contradictory, inconsistent, or implausible as to be “unworthy of credence”].) Rickards claims that termination was a grossly disproportionate punishment in light of his 20-year employment with UPS. But termination based on threats of violence is legitimate and not discriminatory. (Wills v. Superior Court, supra, 195 Cal.App.4th at p. 168.) And in this case, termination for an unprovoked assault on a supervisor was indisputably appropriate under Rickards’ union contract.

The claim that disability discrimination was a likely basis for Rickards’ discharge is speculative, and UPS has presented a legitimate reason for his termination. Rickards has failed to raise a triable issue that UPS’s proffered reason was pretextual. UPS is therefore entitled to summary judgment on this claim.

2. Retaliation

Retaliation claims under FEHA are subject to the same burden-shifting analysis as discrimination claims. (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042 (Yanowitz).) The employee must first establish a prima facie case of retaliation by showing “(1) he or she engaged in a ‘protected activity,’ (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer’s action. [Citations.]” (Ibid.)

Government Code, section 12940, subdivision (h) provides that retaliation claims can be based on the employee’s opposition to any practice forbidden under FEHA. A causal link may be established with evidence of the employer’s knowledge that the employee engaged in a protected activity and the proximity in time between that activity and the allegedly retaliatory employment action. (Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 69.) Conversely, a lack of proximity may support an inference that the two events are not causally linked, unless the employer’s pattern of conduct is consistent with a retaliatory intent. (Wysinger v. Automobile Club of Southern California (2007) 157 Cal.App.4th 413, 421.) {Slip Opn. Page 15}

Rickards claims to have engaged in protected activity when he complained about “various problems he had at work with Esqueda and Phaykaisorn, such as his increased hours, despite his restrictions.” The record indicates that Rickards was under medical restrictions that limited his shift to eight hours on March 18 and 19, 2008. He claims to have voiced concerns about his workload in light of this restriction to Esqueda himself and to Phaykaisorn. Assuming that Esqueda failed to reasonably accommodate Rickards’ medical restrictions in violation of FEHA (Gov. Code, § 12940, subd. (m)), Rickards has raised an issue of material fact that he engaged in a protected activity when he complained about his hours on the days when the restrictions were in place. But his continuous complaints about his hours or his general problems with Esqueda and Phaykaisorn, both before his injury and after his return to work with no restrictions, were not protected activities under FEHA unless Rickards apprised UPS of his belief that he was treated unfairly for a prohibited reason. (See Yanowitz, supra, 36 Cal.4th at 1046 [no protected conduct without evidence employer knew employee’s opposition based on reasonable belief employer was violating FEHA].) We have been cited to no such evidence.

Because Rickards’ only protected activity occurred in March 2008 and he was not terminated until August 2009, the causal connection between these events is tenuous. Rickards claims that his supervisors retaliated against him in the meantime by following his truck and writing him up, or subjecting him to daily audits. His own testimony indicates that this conduct occurred in the months immediately after his return to work in April 2008. We are cited to no evidence that the daily audits, surveillance of his truck, or unfair write-ups continued through 2009 in order to establish any systematic pattern of retaliatory conduct leading up to his termination. Nor are Rickards’ long-standing complaints about his workload and hours such evidence. Even before he was injured, Rickards already had filed a grievance based on many of the same managerial actions about which he later continued to complain. He admitted that a number of drivers complained about having to work longer shifts, and that these drivers were targeted for supervisor ride-alongs. {Slip Opn. Page 16}

If Rickards had established a prima facie case of retaliation, it would take him to the second and third steps of the same burden-shifting analysis that applies to his disability discrimination claim. As to that, we have concluded that he did not raise a triable issue of material fact that UPS’s proffered legitimate reason for his termination was pretextual.

3. Disability Harassment

Government Code section 12940, subdivision (j)(1) prohibits harassment of an employee based on a physical disability or a medical condition. “[H]arassment focuses on situations in which the social environment of the workplace becomes intolerable because the harassment (whether verbal, physical, or visual) communicates an offensive message to the harassed employee.” (Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 706 (Roby).) Because harassment is generally concerned with the message conveyed to an employee, “in some cases, the hostile message that constitutes the harassment is conveyed through official employment actions, and therefore evidence that would otherwise be associated with a discrimination claim can form the basis of a harassment claim.” (Id. at p. 708.) Relying on Roby, Rickards contends that all management actions that he found objectionable after his return to work constituted harassment based on disability because Esqueda already had exhibited discriminatory bias for wanting to fire Rickards after his back injury.

Roby is distinguishable. The employee in that case was frequently and unexpectedly absent due to panic attacks. (Roby, supra, 47 Cal.4th at p. 694.) She also suffered from excessive sweating, an unpleasant body odor caused by medication, and a concomitant nervous disorder that caused her to dig her fingernails into her skin, leaving open sores on her arms. (Id. at p. 695.) Her supervisor made daily negative comments about her condition, shunned her in the office and at social gatherings, belittled and reprimanded her in front of others. (Ibid.) The employee eventually was terminated for absenteeism under the company’s attendance policy, even though her supervisor was aware of her medical condition. (Id. at p. 696.) The Supreme Court held that the supervisor’s actions may have contributed to the hostile message that she was expressing {Slip Opn. Page 17} explicitly on a daily basis. The supervisor’s hostility also could be inferred from her discriminatory application of the company’s absence policy without regard for accommodating the employee’s known medical condition. (Id. at pp. 710–711.)

The evidence of the supervisor’s express hostility based on the employee’s medical condition in Roby was pervasive. The same hostility was clearly implicated in the discriminatory reason for the employee’s termination. In contrast, Rickards was terminated for a legitimate reason that had nothing to do with his earlier back injury. Thus, his termination did not amount to a hostile message. The evidence of any allegedly hostile messages based on disability is limited to three days in March 2008, a time outside the one-year statutory period under Government Code section 12960, subdivision (d). (Cucuzza v. City of Santa Clara (2002) 104 Cal.App.4th 1031, 1040.) Liability cannot be based on such evidence unless conduct sufficiently similar in kind occurred within the statutory period in order to bring Rickards’ claims under the continuing violation doctrine. (Id. at p. 1041.)

In a conclusory fashion, Rickards claims that doctrine applies in this case. But he cites no evidence that conduct sufficiently similar to Esqueda’s express hostility to Rickards’ claim of injury and medical restrictions occurred any time after March 20, 2008, or within a year of his February 2010 DFEH complaint. Under Roby, personnel management actions must be relevant to prove the communication of a hostile message based on disability. (Roby, supra, 47 Cal.4th at p. 708.) The personnel management actions in this case, even if perceived as unfair by Rickards, sent no particular hostile message based on a disability.

UPS is entitled to summary judgment on the disability harassment claim.
II fn. *
Government Code section 12965, subdivision (b) authorizes an award of reasonable attorney fees and costs to the prevailing party in a FEHA case. A trial court has discretion to award attorney fees to a prevailing defendant in such a case only “upon a finding that the plaintiff’s action was frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith.” (Cummings v. Benco Building Services {Slip Opn. Page 18} (1992) 11 Cal.App.4th 1383, 1387 (Cummings), quoting Christiansburg Garment Co. v. EEOC (1978) 434 U.S. 412, 421 (Christiansburg).) “[I]f a plaintiff is found to have brought or continued such a claim in bad faith, there will be an even stronger basis for charging him with the attorney’s fees incurred by the defense.” (Christiansburg, at p. 422.) In awarding fees, the court must consider the plaintiff’s ability to pay. (Villanueva v. City of Colton (2008) 160 Cal.App.4th 1188, 1202–1203 (Villanueva).) The award is reviewed for abuse of discretion. (Cummings, at p. 1387.)

The trial court found that the harassment claims against Esqueda were groundless and unreasonable and that Esqueda was kept in the case in bad faith to avoid removal to the federal court. The court considered Rickards’ claim that he could not afford to pay attorney fees but was not persuaded because Rickards had been warned that he might be liable for fees. The court awarded $40,000 in attorney fees, incurred after the January 2011 written demand for Esqueda’s dismissal.

Rickards does not attempt to justify the age-related harassment claim against Esqueda, but he argues that the disability harassment claim against Esqueda was warranted. Under Government Code section 12940, subdivision (j)(3), Esqueda may have been personally liable for any prohibited harassment he perpetrated, but he was not personally liable for discrimination or retaliation. (Jones v. Lodge at Torrey Pines Partnership (2008) 42 Cal.4th 1158, 1164, 1167.) As we already explained, Rickards has proffered no evidence of disability-based harassment in the statutory period and no evidence of a continuing violation.

The lack of merit of the harassment claims was made clear by Esqueda’s counsel in her January 2011 letter, in which she summarized Rickards’ deposition testimony and demanded Esqueda’s dismissal. Esqueda’s counsel warned that otherwise she would file a summary judgment motion and seek attorney fees and costs under FEHA. In response, Rickards’ counsel conditioned Esqueda’s dismissal on an agreement by UPS that the case remain in state court. Rickards neither dismissed Esqueda nor opposed his summary judgment motion. In opposition to the motion for attorney fees, Rickards presented a {Slip Opn. Page 19} declaration that his monthly gross income was $3,480, his monthly mortgage payment was $1,400, his family’s monthly living expenses were $600, and he was $20,000 in debt.

We find no abuse of discretion in the trial court’s decision to award Esqueda attorney fees incurred after the January 2011 letter. The letter placed Rickards on notice that he could be liable for attorney fees for continuing to prosecute what was clearly a frivolous lawsuit against Esqueda. The condition Rickards’ counsel placed on Esqueda’s dismissal–that UPS agree not to transfer the case to federal court–supports the inference that Esqueda was kept in the case as an individual defendant solely for tactical reasons and without regard to the merits of the claims against him. fn. 7

Esqueda requests that we consider holding Rickards’ attorney of record jointly liable for the fee award on the ground that the decision not to dismiss Rickards was probably that of counsel. We cannot do so since the motion for attorney fees under FEHA was filed only against Rickards. In a footnote, the brief accompanying the motion asked the trial court to consider sanctioning Rickards’ counsel sua sponte under Code of Civil Procedure section 128.7, subdivision (c)(2). The trial court did not address this request, but the safe harbor provisions in that section preclude the court from initiating {Slip Opn. Page 20} sanctions on its own motion after rendering a dispositive ruling on a challenged pleading. (Malovec v. Hamrell (1999) 70 Cal.App.4th 434, 444.)

The issue of counsel’s liability for fees under FEHA was not raised at all, and Esqueda cites no authority that fees can be assessed against Rickards’ counsel. In Guthrey v. State of California (1998) 63 Cal.App.4th 1108, on which Esqueda incorrectly relies, the court did not suggest that attorney fees under FEHA should run jointly against counsel. It only noted that sanctions for filing a frivolous appeal could be requested or granted against counsel sua sponte. (Id. at p. 1111.) The court considered whether to initiate sanctions against the plaintiff’s counsel for various transgressions on appeal but ultimately declined to do so. (Id. at p. 1127.) Sanctions on appeal are governed by California Rules of Court, rule 8.276. Esqueda has not filed a motion for sanctions under this rule, and we decline to initiate sanctions on our own motion. {Slip Opn. Page 21}
DISPOSITION
The summary judgment in favor of UPS and the order awarding Esqueda attorney fees are affirmed. Esqueda is entitled to his costs on appeal. Rickards and UPS are to bear their own costs.

Willhite, J., and Manella, J., concurred.

FN *. Pursuant to California Rules of Court, rules 8.1100 and 8.1110, this opinion is certified for partial publication with the exception of the Factual and Procedural Summary and sections I-C. and II of the Discussion.

FN *. See footnote, ante, page 1.

FN 1. On March 5, 2008, two weeks before his back injury, Rickards already had filed a grievance against Esqueda and Phaykaisorn, requesting that they “stop any future harassment and threats.” At his deposition, Rickards explained that he filed the grievance because they had been following him, giving him extra work, and auditing his truck. Specifically, Rickards claimed he felt threatened during an incident when Esqueda and Phaykaisorn opened Rickards’ locked truck and took out his computer board. When confronted, Esqueda told Rickards, “You’ll trip up so many times I’ll have you fired in two weeks.” A few days later, Rickards was written up for “unprofessional conduct” for using profanity during this incident.

FN 2. The trial court did not rule on the parties’ evidentiary objections, but no one argues on appeal that any of the evidentiary objections should have been sustained.

FN 3. The evidence and arguments regarding DFEH’s online automated complaint system were first presented in relation to Rickards’ motion for a new trial.

FN 4. We suggest that, to remove any confusion, DFEH consider modifying its automated system to allow input of the name of complainant’s counsel on the online form complaint.

FN *. See footnote, ante, page 1.

FN 5. Effective January 1, 2012, Government Code section 12926, subdivision (k) has been redesignated subdivision (l).

FN 6. Rickards also relies on his declaration that, “[a]round the time” of Rickards’ back injury, Esqueda threatened to have Rickards fired within two weeks. The record indicates that this threat preceded the back injury.

FN *. See footnote, ante, page 1.

FN 7. Rickards argues that the claim against Esqueda must be evaluated together with his claims against UPS. He relies on caselaw holding that the frivolousness of claims under FEHA must be determined in relation to non-FEHA legal theories asserted in the complaint. (See e.g. Jersey v. John Muir Medical Center (2002) 97 Cal.App.4th 814, 832.) He cites no authority for the proposition that the claims against all defendants must be found frivolous, unreasonable, or without foundation if only one defendant seeks attorney fees under FEHA. Rickards notes in passing that Esqueda’s attorney fees have been paid by UPS, but makes no argument regarding the materiality of this fact.

In Young v. Exxon Mobil Corp. (2008) 168 Cal.App.4th 1467, the employee sued a supervisor along with the employer. The employer’s counsel represented the supervisor, who then sought an award of attorney fees under FEHA that would benefit the employer. (Id. at p. 1473.) Under the circumstances, the denial of attorney fees was held not to be an abuse of discretion because the employer did not seek attorney fees and “did not show it incurred any significant fees on [the supervisor]’s behalf that it would not have incurred in any event . . . .” (Id. at p. 1477.) Here, in contrast, Esqueda was represented by separate counsel and was liable for his counsel’s attorney fees if UPS did not pay them. Thus, the fees paid to Esqueda’s counsel were in addition to fees UPS incurred in its own defense.

Misconduct Found For Employee’s Failure to Sign Disciplinary Notice

June 15, 2012
Fired red stamp

Fired red stamp (Photo credit: Wikipedia)

Be Careful What You Sign!

We represent regular folks who have found themselves unemployed.  Some times, the termination is justified.  Often, it is not.  The basic rule in California is that one who is terminated is entitled to apply for unemployment from the Employment Development Department (EDD).  But, the employee is NOT entitled to collect unemployment benefits if the employee was terminated for misconduct.

Here is the law, as restated from a recent case hot off the presses:

Unemployment Insurance Code section 1256 disqualifies an employee from receiving unemployment compensation benefits if he or she has been discharged for misconduct. Misconduct within the meaning of section 1256 involves a willful or wanton disregard of an employer’s interests or such carelessness or negligence as to manifest equal culpability. It does not include, among other things, good faith errors in judgment. (Amador v. Unemployment Ins. Appeals Bd. (1984) 35 Cal.3d 671, 678).

Paratransit, Inc. v. Unemployment Ins. Appeals Bd. (2012) Cal.App.4th [No. C063863. Third Dist. May 31, 2012]. (The full opinion is below.)

Well, What Does That Mean?

If the employee is terminated for misconduct, the former employee can apply for unemployment benefits, but the employer need only claim that the former employee was terminated for misconduct.  The EDD will then deny benefits to the former employee.

The fired worker can then appeal the EDD decision, have an administrative hearing, and perhaps change the outcome.  But, like in the Paratransit, Inc. case above, it does not end there.  The appeal process can keep going.

There are pitfalls along the way, so the employee should always consider the ramifications of signing or not signing disciplinary documents from the employer, because sometimes the simple fact of not signing a document can result in denial of unemployment benefits.

Paratransit, Inc. is a case where an employee refused to sign a disciplinary document, which turned out to be a notice only, and not an admission of misconduct.  The employee refused to sign the document, and was informed that the document was notice only, and not an admission of misconduct.  The employee refused to sign, relying upon his union’s warning to not sign anything unless a union representative was present.  The employer informed the employee that refusal to sign would be ground for termination based on insubordination.  The employee still did not sign the document, and the employer terminated the employee.

In Paratransit, Inc., it seems totally unfair for the employee [and the dissenting opinion makes clear], who was told by his union rep NOT to sign anything, in fact did what he believed was right, only to find that BECAUSE he did not sign the document, that fact alone presented sufficient grounds for termination even justifying denial of benefits.  Bummer.

How hard would it have been for the employer to allow the employee to reschedule the meeting to allow the employee time to speak with his union rep?  There sure seems to be more to the story, but oh well, the rule is now crystal clear.

Even though every situation is unique, generally, if the employer hands a document to an employee and asks the employee to sign it, the employee should carefully read it, and ask to have time to consult with a lawyer or union rep before signing the document.  If the employer insists that the document be signed then and there, or else face termination for the failure to sign the document then and there, the employee should sign, but only IF the document is clearly marked “Employee signature as to receipt only” or something similar.

Of course, the best course would be to consult a lawyer ANYTIME one believes that their job may be in jeopardy.  Don’t wait until it is too late.

Here is the case, including the dissenting opinion, showing what is truly an unfair result.

Paratransit, Inc. v. Unemployment Ins. Appeals Bd. (2012) Cal.App.4th [No. C063863. Third Dist. May 31, 2012].

“OPINION

HULL, J.-

Unemployment Insurance Code section 1256 (section 1256) disqualifies an employee from receiving unemployment compensation benefits if he or she has been discharged for misconduct. Misconduct within the meaning of section 1256 involves a willful or wanton disregard of an employer’s interests or such carelessness or negligence as to manifest equal culpability. It does not include, among other things, good faith errors in judgment. (Amador v. Unemployment Ins. Appeals Bd. (1984) 35 Cal.3d 671, 678 (Amador).)

Real party in interest Craig Medeiros (Claimant) appeals from a judgment of the trial court granting a writ of administrative mandamus to his former employer, petitioner Paratransit, Inc. (Employer), on Claimant’s claim for unemployment insurance benefits. Claimant had been terminated by Employer for refusing to sign a disciplinary memorandum in connection with a prior incident of misconduct. Respondent Unemployment Insurance Appeals Board (Board) determined Claimant’s refusal to sign the memorandum was, at most, a good faith error in judgment that did not disqualify him from receiving unemployment benefits. The trial court disagreed and directed the Board to set aside its decision and to enter a new one finding Claimant disqualified from receiving unemployment benefits. We affirm the judgment of the trial court.
FACTS AND PROCEEDINGS
Employer is a private, nonprofit corporation engaged in the business of providing transportation services for the elderly and disabled. Prior to his termination, Claimant had been employed by Employer as a driver for approximately six years.

As a condition of his employment, Claimant was required to join a union. The union was party to a collective bargaining agreement (CBA) with Employer that included the following provision: “The Employer shall provide a Vehicle Operator with {Slip Opn. Page 3} copies of complimentary letters received regarding his or her job performance and with copies of disciplinary notices, including verbal warnings that have been put in writing. All disciplinary notices must be signed by a Vehicle Operator when presented to him or her provided that the notice states that by signing, the Vehicle Operator is only acknowledging receipt of said notice and is not admitting to any fault or to the truth of any statement in the notice.”

In February 2008, a passenger lodged a complaint against Claimant with Employer. Employer’s human resources manager investigated the matter and concluded the alleged misconduct had occurred. This was not the first incident of alleged misconduct involving Claimant. On his application for employment in 2002, Claimant indicated he had not been convicted of any offenses. After Claimant was hired, a fingerprint search with the Department of Justice revealed a prior conviction. Claimant was terminated, but that termination was later rescinded based on Claimant’s representations that the conviction arose from a domestic dispute. In September 2004, Claimant was issued a memorandum of discipline in connection with another incident.

On May 2, 2008, Claimant was called into a meeting with Employer’s human resources manager and its director of administrative services and told he was being disciplined for the February 2008 incident. Claimant disagreed the incident had occurred as alleged, requested that a union representative be present at the meeting, and indicated he was tired from having just finished a full day of work and was confused because the {Slip Opn. Page 4} others at the meeting “had additionally brought up matters that had occurred when he had been hired six years earlier.” Claimant was informed he was not entitled to union representation because the meeting did not involve discussions that could lead to discipline but was merely to inform him of discipline that had already been determined.

Employer’s representatives had previously prepared a memorandum advising Claimant that he was being assessed discipline for the February 2008 incident, including suspension for two days without pay. They gave the memorandum to Claimant, explained its substance, and asked him to sign it. Below the signature line, the document read: “Employee Signature as to Receipt.”

Claimant refused to sign the memo because he believed he should not sign anything without a union representative present. The union president had previously provided Claimant a card advising him “not to sign anything without a union representative which could in any way lead to him being disciplined because once a document was signed the employer could use it as an admission of guilt and the union would not be able to defend him.”

When Claimant was given the disciplinary memorandum in 2004, he was also told to sign it. That document read under the signature line, “‘Employee Signature (as to receipt only).'” Claimant was told if he refused to sign the memo he would be terminated. Claimant signed that document “‘so [he] wouldn’t get fired.'” {Slip Opn. Page 5}

In the May 2, 2008, meeting, Employer’s representatives informed Claimant the CBA required him to sign the disciplinary memorandum and that, if he did not, this would be treated as insubordination and his employment would be terminated. Claimant complained that, if he signed the document, he would be admitting the truth of what was stated in it. The representatives assured Claimant his signature would only signify receipt of the document. Claimant stated he had been informed by the union president not to sign anything and he was not going to sign anything. Claimant did not believe he would be fired for failing to sign the memorandum. He thought instead that the meeting would be rescheduled to give him an opportunity to consult with the union. He also believed Employer’s representations that his signature would not be an admission of anything were lies. Claimant departed the meeting without signing the disciplinary memorandum and without asking that the meeting be rescheduled. However, he did indicate he would be consulting with the union. Claimant was thereafter informed his employment had been terminated.

Claimant applied for unemployment insurance benefits, but the Employment Development Department (EDD) denied his request. Claimant appealed, but an administrative law judge (ALJ) upheld EDD’s decision. After conducting an evidentiary hearing at which both Claimant and the two Employer supervisors testified, the ALJ concluded Claimant’s “deliberate disobedience of a reasonable and lawful directive of the employer, to sign the memorandum notifying him of disciplinary action, where obedience {Slip Opn. Page 6} was not impossible or unlawful and did not impose new or additional burdens upon [him], constituted misconduct . . . .” The ALJ further concluded that, because Claimant had been terminated for misconduct, he was disqualified from receiving unemployment benefits.

Claimant appealed to the Board, and the Board reversed. The Board concluded: “In this case, the claimant was compelled to meet with the employer and his request for union representation was denied despite the fact that the discussion led to a threat of and actual termination. Furthermore, the employer’s disciplinary form appears to be in noncompliance with the language of its own rules in that there is no written notice on the form that, by signing, the employer [sic] is not admitting to any fault in the conduct resulting in discipline. Give[n] the admonition given to claimant by the union president not to sign, the lack of clarifying language near the signature line, and the denial of the claimant’s request for union representation, we find that the claimant’s failure to sign at the moment was, at most, a simple mistake or an instance of poor judgment.”

Following the Board’s decision, Employer filed the instant petition for writ of administrative mandamus. The trial court granted the petition, concluding Claimant deliberately disobeyed a lawful and reasonable directive of his employer and this amounted to misconduct rather than a good faith error in judgment. The court explained Claimant was not entitled to union representation at the meeting because it was not {Slip Opn. Page 7} investigatory in nature. As for Claimant’s reliance on advice of the union president, the court indicated it did not believe the president “actually told [Claimant] not to sign anything without first obtaining union representation.” The court further concluded that, even if the president did, Claimant could not in good faith have relied on such incorrect advice under the circumstances of this case.

Regarding the language of the disciplinary memorandum, the court determined this did not violate the CBA. The court explained the CBA did not require the exact language indicated therein and, while the CBA required both a statement that the signature is only an acknowledgement of receipt and a statement that the employee is not admitting guilt, the court concluded “these ‘two requirements’ are just different sides of the same coin.” The court concluded “the memorandum was sufficiently clear that it was reasonable for [Employer] to demand that [Claimant] sign.” Furthermore, even if it was not sufficiently clear, “[Employer] expressly advised [Claimant] that he was not entitled to a union representative and that signing the memorandum was merely an acknowledgement of receipt and not an admission of the truth of the statements.”

The court did agree the discrepancies between the language of the memorandum and the language of the CBA must be considered in determining whether Claimant’s refusal to sign was a good faith error in judgment. Nevertheless, the court concluded Claimant deliberately disobeyed a lawful and reasonable instruction of his employer and, under the totality of the {Slip Opn. Page 8} circumstances, this was misconduct rather than a good faith error in judgment.
DISCUSSION
I. Standard of Review

Claimant contends the trial court erred in concluding he engaged in misconduct within the meaning of section 1256 when he refused to sign the disciplinary memorandum. He argues he was not required to sign the memo, because it did not comply with the CBA. He further argues that, even if he was required to sign it, his failure to do so was, at most, a good faith error in judgment.

In reviewing a decision of the Board on a petition for writ of administrative mandate, “the superior court exercises its independent judgment on the evidentiary record of the administrative proceedings and inquires whether the findings of the administrative agency are supported by the weight of the evidence.” (Lozano v. Unemployment Ins. Appeals Bd. (1982) 130 Cal.App.3d 749, 754.) We in turn review the decision of the superior court to determine whether it is supported by “substantial, credible and competent evidence.” (Ibid.) “[A]ll conflicts must be resolved in favor of the respondent and all legitimate and reasonable inferences made to uphold the superior court’s findings; moreover, when two or more inferences can be reasonably deduced from the facts, the appellate court may not substitute its deductions for those of the superior court.” {Slip Opn. Page 9} (Lacy v. California Unemployment Ins. Appeals Bd. (1971) 17 Cal.App.3d 1128, 1134.) “However, ‘where the probative facts are not in dispute, and those facts clearly require a conclusion different from that reached by the trial court, . . . the latter’s conclusions may be disregarded.'” (Amador, supra, 35 Cal.3d at p. 679.)

II. The Disciplinary Memorandum

Section 1256 provides in relevant part: “An individual is disqualified for unemployment compensation benefits if . . . he or she has been discharged for misconduct connected with his or her most recent work.” Misconduct within the meaning of section 1256 is “limited to ‘”conduct evincing such willful or wanton disregard of an employer’s interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer’s interests or the employee’s duties and obligations to his employer. On the other hand mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies or ordinary negligence in isolated instances, or good faith errors in judgment or discretion are not to be deemed ‘misconduct’ within {Slip Opn. Page 10} the meaning of the statute.”‘ [Citations.]” (Amador, supra, 35 Cal.3d at p. 678, italics added.)

Title 22 of the California Code of Regulations, section 1256-30, subdivision (b), identifies four factors for establishing misconduct: “(1) The claimant owes a material duty to the employer under the contract of employment. [¶] (2) There is a substantial breach of that duty. [¶] (3) The breach is a willful or wanton disregard of that duty. [¶] (4) The breach disregards the employer’s interests and injures or tends to injure the employer’s interests.”

Labor Code section 2856 states: “An employee shall substantially comply with all the directions of his employer concerning the service on which he is engaged, except where such obedience is impossible or unlawful, or would impose new and unreasonable burdens upon the employee.” Title 22 of the California Code of Regulations, section 1256-36, subdivision (b), provides: “Implicit in the agreement of hire is the concept that an employee is subject to some degree of authority exercised by the employer or the employer’s representative. An employee is insubordinate if he or she intentionally disregards the employer’s interest and willfully violates the standard of behavior which the employer may rightfully expect of employees in any of the following ways: [¶] (1) Refuses, without justification, to comply with the lawful and reasonable orders of the employer or the employer’s representative.”

Claimant contends that where an employer’s demand is “unlawful or unreasonable,” disobedience by the employee is not {Slip Opn. Page 11} misconduct for purposes of unemployment insurance benefits. He further argues the lawfulness or reasonableness of an employer’s directive is a question of law subject to de novo review, “when the determination rests on undisputed facts or where the inferences from the found facts point in one direction.” Claimant argues this is such a case, because the lawfulness of Employer’s demand that he sign the disciplinary memo depends solely on whether that memo complied with the CBA. Claimant asserts the memo at issue here did not do so.

Employer responds that the disciplinary memo adequately satisfied the terms of the CBA. It argues the CBA does not require any specific language and, as the trial court found, the two requirements that the memo state the employee is only acknowledging receipt and is not admitting any fault or the truth of the allegations are just two sides of the same coin. Finally, Employer argues, even if the memo did not comply with the CBA, that did not excuse Claimant’s failure to sign it. According to Employer, Claimant’s proper course of action was to sign the document and then file a grievance.

The question whether the disciplinary memorandum satisfied the requirements of the CBA is a red herring. At no time during the May 2 meeting did Claimant assert he would not sign the document because it failed to comply with the CBA. There is no indication he was even aware of the terms of the CBA. After being informed he was being disciplined, Claimant immediately requested union representation. He was told he was not entitled to such representation, and Claimant does not challenge that {Slip Opn. Page 12} point on appeal. When presented with the disciplinary memo, Claimant refused to sign it because “[h]e believed he should not sign anything without a representative present.” (Italics added.) Thus, there is no reason to believe Claimant would have signed the document even if it had been in a form more in line with the requirements of the CBA.

When told the CBA required him to sign the memo, Claimant complained that his signature would be an admission of the truth of what was stated in the memo. Employer’s representatives assured Claimant that was not the case and that his signature would only signify receipt. Claimant declared “he had been informed by the president of the union not to sign anything, and that he was not going to sign anything.” Claimant did not believe Employer would go through with its threat to fire him if he did not sign the document. He also believed the assertions by Employer’s representatives that his signature would not be an admission of anything were lies.

Thus, the question here is not whether Claimant was relieved of the requirement to sign the memo because it did not comply with the CBA. Claimant refused to sign “anything” presented to him by Employer. Claimant does not argue on appeal that signing the disciplinary memo would have imposed a new and unreasonable burden on him, except insofar as it failed to comply with the CBA. He argues he was afraid signing the memo would be an admission of guilt, but the language under the signature line and the assurances of the Employer representatives should have dispelled any such concern. {Slip Opn. Page 13} Although Claimant asserts he believed the representatives were lying, he cannot so easily sidestep his obligations to his employer. Claimant presented no evidence to warrant such belief.

Under the circumstances presented, we conclude Claimant’s failure to sign the disciplinary memo violated his obligations to Employer under Labor Code section 2856. (See Lacy v. California Unemployment Ins. Appeals Bd., supra, 17 Cal.App.3d at p. 1133 [employee must comply unless the employer’s directive imposes a duty that is both new and unreasonable].) The remaining question is whether such insubordination was misconduct under section 1256 or a good faith error in judgment.

III. Good faith Error in Judgment

As described above, an intentional refusal to obey an employer’s lawful and reasonable directive qualifies as misconduct. But where an employee, in good faith, fails to recognize the employer’s directive is reasonable and lawful or otherwise reasonably believes he is not required to comply, one might conclude his refusal to obey is no more than a good faith error in judgment. “Section 1256 must be read in light of section 100 of the Unemployment Insurance Code which was included in the code as a guide to interpretation and application of other sections of the code.” (Drysdale v. Department of Human Resources Development (1978) 77 Cal.App.3d 345, 352.) This latter section reads, in relevant part: “The {Slip Opn. Page 14} Legislature . . . declares that in its considered judgment the public good and the general welfare of the citizens of the State require the enactment of this measure under the police power of the State, for the compulsory setting aside of funds to be used for a system of unemployment insurance providing benefits for persons unemployed through no fault of their own, and to reduce involuntary unemployment and the suffering caused thereby to a minimum.” (Italics added.) Fault is therefore the basic element for considering and interpreting the Unemployment Insurance Code. (Drysdale at p. 353; Evenson v. Unemployment Ins. Appeals Bd. (1976) 62 Cal.App.3d 1005, 1015-1016.)

Claimant argues it was reasonable for him to have been mistaken, if indeed he was, about his obligation to sign the disciplinary memo and, therefore, his failure to do so was, at most, a good faith error in judgment. He points to the fact the three entities who have considered the issue–EDD, the Board and the trial court–“reached different conclusions about whether or not [Employer’s] requirement that [Claimant] sign the disciplinary notice without a union representative was lawful and reasonable.”

Claimant misreads the record. There is nothing therein as to what prompted EDD to reject Claimant’s claim. The next decision maker to consider the issue was the ALJ, who is not mentioned by Claimant. The ALJ concluded Claimant deliberately disobeyed a reasonable and lawful directive of Employer. The Board reversed the ALJ’s decision. However, the Board did not reach any specific conclusion on whether Employer’s instruction {Slip Opn. Page 15} to sign the memo was lawful and reasonable. Instead, the Board concluded “[a]n employee’s refusal to comply with a reasonable rule or direction is not misconduct if the employee has good cause for his or her action” and, in this case, Claimant’s failure to sign “was, at most, a simple mistake or an instance of poor judgment.” Finally, the trial court agreed with the ALJ that Claimant deliberately disobeyed a lawful and reasonable directive of Employer.

Claimant next argues that, in finding as a matter of law the disciplinary memo did not violate the CBA, the trial court “failed to consider [Claimant’s] testimony regarding his confusion about the affect [sic] of signing the notice, absent the ‘no admission’ language, and whether or not that testimony showed [Claimant’s] decision not to sign the notice was a good faith error in judgment.” However, absent contrary evidence, we presume official duty has been regularly performed and that the court considered all relevant evidence in reaching its conclusions. (See Evid. Code, § 664; People v. Frye (1994) 21 Cal.App.4th 1483, 1486.) Claimant has made no attempt to demonstrate otherwise. Furthermore, Claimant never testified he was confused about the effect of signing the memo because of the absence of specific language on it. He testified he was reluctant to sign because of what he had been told by the union.

Claimant contends the evidence nevertheless does not support the trial court’s conclusion his refusal to sign the memo was not a good faith error in judgment. He asserts the circumstances of the May 2 meeting demonstrate he “was confused {Slip Opn. Page 16} and troubled by the notice’s lack of the ‘no admission’ language.” He points to the fact he “was tired at the end of his shift, called into a meeting with two senior employees of [Employer], confronted with serious allegations he refuted, asked about lying on his employment application six years prior, faced with demands that he sign the disciplinary notice that confirmed the allegations, and was threatened with termination if he did not sign the notice.” Claimant argues he was concerned that signing the memo would be an admission of guilt and would bar him from obtaining union assistance in defending the matter, in light of statements to him by the union president and Claimant’s understanding that “the union had previously refused to assist employees who had signed disciplinary notices.” Claimant argues the trial court failed to consider any of the foregoing in determining his failure to sign the memo was not a good faith error in judgment and, therefore, we must consider the issue de novo.

As mentioned above, absent contrary evidence, we presume official duty has been regularly performed and that the trial court considered all relevant evidence. Claimant has not demonstrated otherwise here. He merely assumes that, because the court ruled against him, it must not have considered these matters.

Furthermore, Claimant’s argument is based on a false narrative that he refused to sign the memo because he was confused by the absence of specific language on it. {Slip Opn. Page 17}

Claimant also misstates the facts in asserting he was “confronted with serious allegations” at the meeting.

We note the record of the hearing before the Board reflects the following, McHugh being the representative of the employer and Brown being a witness for Paratransit:

“Ms. McHugh: . . . Ms. Brown, during your investigation of the underlying matter that resulted in the document the Claimant refused to sign, at any time did he ask for union representation during the investigation?

“Ms. Brown: No.

“Ms McHugh: Had he asked during the investigation would you have allowed a union rep to participate in the investigation?

“Ms. Brown: Yes.

“Ms. McHugh: That rule that you told us about as far as a union rep is not allowed to be present during meetings when the discipline has already been decided and its merely being delivered to the–the employee, is that a Paratransit rule or is that something else?

“Ms. Brown: No. Those are Weingarten rights and that’s coming from the National Labor Relations Board.”

Thus, the record demonstrates the investigation of the prior misconduct had already taken place, during which Claimant was, as far as the record shows, confronted with the serious allegations made by one of his riders. He never asked for union representation during that investigation. The only thing Claimant was confronted with at the May 2 meeting was his {Slip Opn. Page 18} employer’s decision to discipline him at which time he did not have a right to union representation. The trial court could reasonably conclude that defendant’s claims as to why he acted in good faith in refusing to sign the disciplinary notice were arrived at after the fact of his receipt of the notice.

As for the fact Claimant was instructed to sign the memo and was told that, if he did not, he would be terminated, this obviously cannot excuse his actions. Claimant was directed to sign the memo and was told he would be subject to termination if he failed to do so. If these facts were enough to make a refusal to obey an employer’s directive a good faith error in judgment, no employee would ever have to obey an employer’s directive.

Finally, while Claimant may well have been tired at the end of his shift and may have been reminded at the meeting about his earlier lie on his employment application, these matters were known to the trial court, who nevertheless concluded they were not sufficient to establish a good faith error in judgment. We cannot say on this record the court erred in this regard.

Claimant’s reliance on the advice of the union fairs no better. The trial court made a credibility determination that the union president did not in fact say what Claimant testified he said. Claimant argues this credibility determination is not entitled to any weight, because the portions of the transcript to which the trial court referred support Claimant’s testimony. Not so. Although Claimant testified the union president told him not to sign anything, Claimant repeatedly referred to a {Slip Opn. Page 19} card, Exhibit 8E, as support. That card read: “STATING YOUR WEINGARTEN RIGHTS TO THE EMPLOYER: ‘If this discussion could in any way lead to my being disciplined or terminated or have any effect on my personal working conditions, I respectfully request that my union representative, officer, or steward be present at this meeting. Without union representation, I choose not to participate in the discussion.'” The court could readily have concluded from the totality of Claimant’s testimony that he was told only that, if the meeting could lead to discipline, he should demand union representation and not participate without such representation. The court could also reasonably presume the union president would not have misstated that Claimant should not sign anything without union representation.

The trial court also concluded that, even if the union president had told Claimant not to sign anything without union representation, Claimant was not entitled to rely on such erroneous advice. We agree. Were it otherwise, a union could insulate members from adverse employment action simply by giving them bad advice that they need not comply with an employer’s orders. If the union gave Claimant bad advice that resulted in his termination, Claimant’s recourse may be against his union, not a claim for unemployment insurance funds.

Claimant also takes issue with the following statement in the trial court’s decision: “Moreover, regardless of whether the memorandum’s signature block was, by itself, clear, [Employer] expressly advised [Claimant] . . . that signing the memorandum was merely an acknowledgement of receipt and not an {Slip Opn. Page 20} admission of the truth of the statements.” Claimant argues he was not required to accept Employer’s representations. He further asserts prior Board precedent establishes that, if an employee doubts the reasonableness or legality of a supervisor’s instructions, he should seek redress through avenues other than disobedience. Claimant argues he complied with this duty by “request[ing] a union representative” and indicating he wanted to talk with the union before signing.

We have previously explained an employee cannot so easily sidestep his obligations to his employer by a bald assertion that he did not believe what the employer’s representatives told him. Claimant has presented no evidence to warrant such disbelief.

As to Claimant’s argument that he sought redress through means other than disobedience, this is based on a misconception of the situation presented. Claimant was told to sign the disciplinary memo and that, if he did not, he would be subject to termination. Instead, Claimant requested union representation. He was then told he had no right to union representation at the meeting. Claimant was then instructed to sign the memorandum without union representation. By refusing to do so, Claimant was not seeking redress by other means. He was directly disobeying the employer’s command.

The trial court concluded Claimant had no reasonable basis to believe he had a right to union representation at the disciplinary hearing. The record supports this conclusion. The card provided to Claimant by his union explained he had a right {Slip Opn. Page 21} to union representation only where the meeting could lead to discipline. Claimant was informed at the outset that Employer had already settled on the discipline to be imposed for the prior incident and that the meeting was solely for the purpose of notifying him of such discipline. The Employer representatives also told Claimant he had no right to union representation at the meeting. Under these circumstances, Claimant could have had no reasonable belief that he was entitled to union representation.

Claimant counters that he reasonably believed the May 2 meeting was investigatory in nature, thereby entitling him to union representation. Claimant asserts the fact the Employer representatives brought up the matter of the six-year-old lie on his employment application and the threat that further discipline would be imposed if he failed to sign the memo gave rise to a reasonable belief that the meeting was for more than just informing him of predetermined discipline.

The trial court concluded Claimant could not have reasonably believed the meeting was investigatory in nature simply because of the reference to his six-year-old lie. The court pointed out the lie was discovered soon after it was made and Claimant was disciplined for it. There was no reason for Claimant to believe he might be further disciplined for that falsehood. The trial court indicated that, while the reference might not have been necessary to inform claimant of the discipline for the February 2008 incident, it “did not transform the disciplinary meeting into an investigatory interview.” {Slip Opn. Page 22}

We agree. A single, stray reference to a prior lie by Claimant for which he had already been disciplined could have served no purpose other than to remind him that his credibility might be suspect. The obvious purpose of the meeting was to inform Claimant of the discipline that was about to be imposed following a full investigation. Claimant could not reasonably have believed the stray comment changed that fact.

As for Claimant being informed if he did not sign the memo he could be further disciplined, this too did not change the nature of the meeting. Claimant was under a continuing obligation to comply with lawful and reasonable orders of his employer and otherwise not to engage in misconduct. This included during the meeting. If Claimant had assaulted the Employer representatives during the meeting, he would not be able to avoid discipline by claiming he did not have union representation. Likewise, if Claimant refused to sign a document he was required to sign, he cannot escape punishment by claiming he did not have union representation at the meeting. The Employer representatives were just reminding Claimant of what he should already know, i.e., that insubordination can result in discipline. Such advice did not change the underlying nature of the meeting.

We conclude substantial evidence supports the trial court’s determination that Claimant’s refusal to sign the disciplinary memorandum was misconduct under section 1256 and not a good faith error in judgment. Claimant is therefore not entitled to unemployment benefits. {Slip Opn. Page 23}
DISPOSITION
The judgment of the trial court is affirmed.

Nicholson, J., concurred.

BLEASE, Acting P.J., dissenting: {Slip Opn. Page 1}

I respectfully dissent.

Craig Medeiros was fired from his job as a Paratransit employee for refusal to sign a receipt, required by a provision in a collective bargaining agreement, stating that he had received a notice of disciplinary action and that by signing the receipt he did not admit to the truth of any statement in the notice. The Unemployment Insurance Appeals Board determined that the refusal was at most a good faith error in judgment that did not disqualify him from receiving unemployment benefits. My colleagues would reverse the administrative judgment. I disagree.

The provision requiring a signed notice was obviously meant to benefit the employee and I find it perverse that a refusal to sign can be seized upon by the employer as a pretext to fire the employee when the penalty to be imposed for the disciplinary violation was two days’ pay. The Unemployment Insurance Code (§ 1256) provides that an employee may be disqualified for benefits for misconduct evincing a “willful . . . disregard of an employer’s interests”, but the employer’s interests were manifestly not involved in the violation of a union provision designed to protect the employee. (Italics added.)

Moreover, the disciplinary notice given Mr. Madeiros – “Employee Signature as to Receipt” – did not comply with the bargaining agreement requirement that he was “only acknowledging receipt of said notice and is not admitting to any fault or to the truth of any statement in the notice.” My colleagues, following the trial court, say that the notice given and the {Slip Opn. Page 2} notice required are but “just different sides of the same coin” and in any event Madeiros was orally informed that no adverse inference was to be drawn. But the explicit written notice required by the collective bargaining provision is there for a reason, to negate any adverse inference, an inference not ruled out by the statement “Employee Signature as to Receipt.” And the employer’s oral statement negating the inference manifestly did not comply with the written requirement.

I would affirm the judgment of the Unemployment Insurance Appeals Board.”

Construction Job Site Injury Cases

June 13, 2012
Ironworkers surprised by photographer, while e...

Ironworkers surprised by photographer, while erecting the steel frame of a new building, at the Massachusetts General Hospital, USA. (Photo credit: Wikipedia)

Job Site Injury Cases are DIFFICULT

Lawyers who try to get their injured construction worker clients money to pay for their medical bills and what not have a difficult, uphill climb.  The rule is one of non liability, subject to a narrow exception.  It is not impossible to win these cases, but certainly, the playing field tips heavily in favor of the job site general contractor.

One recent case highlights the serious legal difficulties injured workers and their attorneys face when they try to recover against the general contractor for job site injuries.  It is critical that injured workers have experienced counsel in these types of cases.

One new case just decided which highlights this type of case is entitled Brannan v. Lathrop Construction Associates, Inc. (2012) , Cal.App.4th [No. A129695. First Dist., Div. One. May 21, 2012.] BRIAN BRANNAN et al., Plaintiffs and Appellants, v. LATHROP CONSTRUCTION ASSOCIATES, INC., Defendant and Respondent.

Let’s put this new case in context of a recent Hannemann Law Firm case in which the Pit Bull Trial Attorney Brian G. Hannemann obtained a six figure recovery for the client, despite the uphill battle.

Hannemann Law Firm is Victorious for Iron Worker Injured on Job Site

At a job site, work was being done to construct a large underground vault to house a water valve.  A 30 deep hole was dug and shored.  Then, iron workers began their task of assembling rebar into “mats,” which were then lowered into the hole, and fastened to the concrete inside the hole.  At the start of the work, the iron workers complained about improper equipment and rigging that the general contractor was using at the job site.  The general contractor should have provided a crane–not an excavator–to lower the assembled mats into the hole.  The general contractor should have used proper rigging equipment, too, but the general contractor did not want to slow the job down, and basically told the iron worker subcontractor to get the job done using the equipment on site.  You know this goes, “time is money, find a way, get it done, stop complaining.”

The problem was that the excavator did not allow enough clearance such that the mat could be lowered into the hole without the mat snagging on the shoring.  Once the mat snagged, the rebar loosened up, got out of alignment, and would not fit into place inside the hole properly.  These rebar mats weighed in at over a thousand pounds, and the iron workers could not just hand manipulate the mats once they were in the hole. ” Oh well”, the general contractor said: “too bad, get the job done.”

So, the iron worker was down in the hole, while the general contractor’s employee operated the excavator and lowered the mat into the hole.  Sure enough, while being lowered into the hole, the mat snagged on the shoring.  The general contractor’s employees unsnagged the mat, and the general contractor lowered the mat into place.  But, the mat was out of alignment, and still snagged on another piece of rebar.  No one knew what to do.  The iron worker down in the hole saw the snag, and asked the excavator operator to lower the mat all the way down to the bottom, to take the load off the rigging, so that the iron worker could cut the wire on the piece of rebar that was snaggged.  The excavator operator gave a thumbs up.  The iron worker reached over to cut the wire.

It turns out that the mat was not all the way down on the ground, it was still being held up by the rigging and excavator.  The iron worker did not know that, nor did anyone else, because there was no load meter inside the excavator that would have shown a load like there would have been had a crane been used.

So, the iron worker, believing the load was down, reached up and cut the wire.  A piece of rebar snapped up violently, crushing the tip of the iron worker’s left thumb.

The iron worker received medical treatment, paid for by his employer’s worker’s compensation insurance.  That still did not pay the worker for his lost wages, pain and suffering, and what not.

So, the iron worker hired Hannemann Law Firm to take the case, and the Pit Bull Trial Attorney was on it.  After a year of working the case, investigating, taking depositions, and right before trial, the general contractor asked the court to throw out the case.  The general contractor argued that the law prevented the injured worker from recovering against the general contractor, on the grounds that the iron worker’s employer, not the general contractor, was responsible for the iron worker’s injuries.  The general contractor argued that the rule of Privette applied, and asked the court to find in favor of the general contractor.

Brian argued that it was not proper for the court to summarily dismiss the case, because there were many facts proving that the general contractor played an active role in bringing about the client’s injuries, such as that the general contractor provided the excavator, the rigging, and also the general contractor’s employees were the ones lowering the mat inside the hole when it got snagged.

The court rejected the general contractor’s arguments, finding that a jury should make the decision. The case ended up getting settled shortly after that.  The case went from the general contractor offering ZERO to the injured worker, to the case settling for a confidential six figure amount just before trial.

But, the lesson is crystal clear.  There must be something more than the general contractor’s passive failure to do something.  The general contractor must have affirmatively contributed to the injuries.  Making such a showing is critical, and without such, the case may be thrown out.

Brannan v. Lathrop Construction Associates, Inc.

Summary: The trial judge threw the case out, saying that injured worker did not show that the injuries were the fault of the general contractor.  The injured worker appealed, and lost.  The decision, below, highlights the law, and demonstrates that it is NOT ENOUGH that a worker was injured on the job.  There must ALSO be a showing that the general contractor affirmatively contributed to the injuries.

Here is the opinion, from the Court of Appeal, First District [all emphasis below is ADDED]:

“(Superior Court of Contra Costa County, No. MSC08-02730, Cheryl Mills, Judge.)

(Opinion by Margulies, J., with Marchiano, P.J., and Banke, J., concurring.)

COUNSEL

Rouda Feder Tietjen & McGuinn and Miles B. Cooper for Plaintiff and Appellant.

Jenkins Goodman Neuman & Hamilton, Joshua S. Goodman and Zachary S. Tolson for Defendant and Respondent. {Slip Opn. Page 2}

OPINION

MARGULIES, J.-

While working for a masonry subcontractor at a school construction site, Brian Brannan slipped on wet scaffolding and injured his back. He sued the general contractor, Lathrop Construction Associates, Inc. (Lathrop), alleging his injuries were caused by Lathrop’s negligence in sequencing and coordinating construction work at the site, and failing to call a “rain day” to protect workers from dangerous conditions caused by slippery surfaces. Lathrop moved successfully for summary judgment under the Privette-Toland doctrine. (Privette v. Superior Court (1993) 5 Cal.4th 689 (Privette); Toland v. Sunland Housing Group, Inc. (1998) 18 Cal.4th 253 (Toland).) Brannan contends the trial court erred in finding there were no triable issues of material fact. We affirm.
I. INTRODUCTION
A. Pleadings

Brannan filed a complaint on October 29, 2008 alleging Lathrop was actively negligent in failing to carry out its duties of care as the general contractor on a construction project at El Cerrito High School. He alleged Lathrop’s negligence caused him to suffer personal injury when he slipped on wet scaffolding and injured his back while working at the site as a journeyman bricklayer employed by a masonry subcontractor.

Brannan pled causes of action for negligence and premises liability. His negligence cause of action alleged, among other things, Lathrop failed to coordinate and control the work being performed on the job site in a safe and proper manner, thereby creating a risk of injury to workers. Brannan alleged he was forced to work in and around scaffolding that prevented and blocked his access to his work, causing him to fall. Brannan’s premises liability claim was based on essentially the same facts.

B. Summary Judgment Motion

By motion for summary judgment, Lathrop asserted it was entitled to judgment as a matter of law under the Privette-Toland line of cases, based in substance on the following undisputed facts:

Brannan was employed by Bratton Masonry (Bratton) as a journeyman bricklayer and was working at the El Cerrito High School construction site at the time of the accident. Lathrop was the general contractor. Lathrop hired Bratton as a subcontractor to perform masonry work at the site. Bratton’s subcontract required it to ” ‘comply with all State and Federal Health and Safety requirements,’ ” as well as Bratton’s and Lathrop’s safety procedures and to ” ‘maintain a safety program’ ” on the site. Lathrop also hired M. Perez Company, Inc. dba Henley & Company (Henley) as a subcontractor to perform plaster work. Henley’s subcontract required Henley to ” ‘comply with all State and Federal Health and Safety requirements,’ ” as well as Bratton’s and Lathrop’s safety procedures, and to maintain a safety program at the site.

Tom Kennon was Lathrop’s onsite project manager at the time of the accident, and was in charge of managing safety on the site for Lathrop. Lathrop had the final say on coordination of the work at the site and had authority to stop a subcontractor’s work for a safety issue. Before beginning the project, Kennon discussed sequencing with Bratton and Henley. It was discussed at the meeting Henley would do the plastering first, and remove the plaster scaffold before Bratton started the masonry work. There was {Slip Opn. Page 3} agreement Bratton would not use Henley’s plaster scaffold. However, when Henley completed its plastering work, Henley left a section of plaster scaffolding up at the request of framer Advanced Interiors (AI) so AI could finish framing on a bridge between buildings C and D. Henley’s foreman believed he told Kennon that Henley was leaving the plaster scaffold for AI to use, and Kennon agreed to this. Bratton never requested Henley to remove the plaster scaffold.

Bratton employees were working at ground level laying brick veneer in the area of the bridge between buildings C and D on the day of the accident. Peter Garcia was the Bratton foreman that day. Part of his job was to make sure the site was safe for Bratton employees. Garcia did not need authority from Lathrop to call off work if he saw something was unsafe. He was aware of the plaster scaffolding in the area where Bratton employees were working. They were not using the scaffolding on the day of the accident, but were working around it. Garcia did not have safety concerns about his workers working around the scaffolding, but he did feel the scaffolding would slow down their work. He asked Lathrop before the accident when the plaster scaffold would be removed. Garcia had the authority to call work off if he believed rain (or any other condition) made conditions unsafe, but had no concerns about the rain or wetness on the day of the accident other than that it slowed down the work. Garcia believed his crews could work around the plaster scaffold, and had no safety concerns about them stepping onto the scaffold rungs to get to the other side. Lathrop did not direct Garcia or Brannan on how the masonry was to be laid.

At the time of the accident, Brannan was trying to cross over the plaster scaffold to gain access so he could lay masonry in an area underneath it. Brannan alleges he stepped up onto the second rung of the scaffold believing there was no other way to access the area in which he was working. No one told Brannan to gain access the way he did. Brannan alleges he slipped off the rung because it was wet and his feet were muddy. He filed a workers’ compensation claim shortly after the accident.

The trial court granted summary judgment to Lathrop, and this appeal followed. {Slip Opn. Page 4}
II. DISCUSSION
A. Standard of Review

On appeal after a trial court has granted summary judgment, we review the record de novo to determine whether the evidence submitted for and against the motion discloses material factual issues warranting a trial. (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476; Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334–335 & fn. 7.)

Summary judgment is properly granted when no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) A defendant moving for summary judgment bears the initial burden of showing a cause of action has no merit by showing one or more of its elements cannot be established or there is a complete defense. (Code Civ. Proc., § 437c, subds. (a), (o).) Once the defendant has met that burden, the burden shifts to the plaintiff “to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(2).) “There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850, fn. omitted.)

B. The Privette-Toland Doctrine

Our Supreme Court recently summarized the Privette-Toland doctrine as follows: “Generally, when employees of independent contractors are injured in the workplace, they cannot sue the party that hired the contractor to do the work. . . . [¶] By hiring an independent contractor, the hirer implicitly delegates to the contractor any tort law duty it owes to the contractor’s employees to ensure the safety of the specific workplace that is the subject of the contract.” (SeaBright Ins. Co. v. US Airways, Inc. (2011) 52 Cal.4th 590, 594, italics omitted.) One of the doctrine’s underpinnings is the availability of workers’ compensation to the injured employee: “[W]hen the person injured by negligently performed contracted work is one of the contractor’s own employees, the injury is already compensable under the workers’ compensation scheme and therefore the {Slip Opn. Page 5} [law] should provide no tort remedy, for those same injuries, against the person who hired the independent contractor.” (Privette, supra, 5 Cal.4th at p. 696.) Because the workers’ compensation scheme shields an independent contractor from tort liability to its employees, “applying the peculiar risk doctrine [allowing suit against the hirer] to the independent contractor’s employees would illogically and unfairly subject the hiring person, who did nothing to create the risk that caused the injury, to greater liability than that faced by the independent contractor whose negligence caused the employee’s injury.” (Toland, supra, 18 Cal.4th at p. 256 [summarizing the holding of Privette].)

Thus, subject to certain exceptions, when a general contractor hires a subcontractor, the general contractor is not liable for injuries that occur to the subcontractor’s employees. (See, e.g., Millard v. Biosources, Inc. (2007) 156 Cal.App.4th 1338.) The exception in issue here is described in Hooker v. Department of Transportation (2002) 27 Cal.4th 198 (Hooker).

In Hooker, the court considered whether the hirer of an independent contractor could be held liable for injuries to the contractor’s employee resulting from the contractor’s negligence under the theory the hirer retained control of the work but negligently exercised that control. The high court held in Hooker “a hirer of an independent contractor was not liable to an employee of the contractor merely because the hirer retained control over safety conditions at a worksite, but was liable to such an employee insofar as its exercise of retained control affirmatively contributed to the employee’s injuries.” (Millard v. Biosources, Inc., supra, 156 Cal.App.4th at p. 1348 [summarizing Hooker].) In such cases, the liability of the hirer is not “vicarious” or “derivative” in the sense that it derives from the act or omission of the hired contractor, but is direct. (Hooker, supra, 27 Cal.4th at p. 212; see also McKown v. Wal-Mart Stores, Inc. (2002) 27 Cal.4th 219, 222, 225 [hirer is directly liable to an employee of an independent contractor when hirer’s provision of unsafe equipment affirmatively contributes to the employee’s injury].)

In Hooker, the widow of a deceased crane operator who had been employed by a general contractor hired by the California Department of Transportation (Caltrans) to {Slip Opn. Page 6} construct an overpass, sued Caltrans for negligently exercising its retained control over jobsite safety. (Hooker, supra, 27 Cal.4th at p. 202.) The Caltrans construction manual provided Caltrans was responsible for obtaining the contractor’s compliance with all safety laws and regulations, and Caltrans’s onsite engineer had the power to shut the project down because of safety conditions and to remove employees of the contractor for failing to comply with safety regulations. (Id. at pp. 202–203.) The plaintiff’s husband died after the crane tipped over when he attempted to operate it without reextending the crane’s outriggers. (Id. at p. 202.) He had retracted the outriggers in order to allow Caltrans vehicles and other construction vehicles to use the narrow overpass. (Id. at p. 214.) The plaintiff alleged Caltrans was negligent in permitting this traffic to use the overpass while the crane was being operated. (Id. at pp. 202, 214–215.)

Although the court found the plaintiff in Hooker had raised triable issues of material fact as to whether Caltrans retained control over safety conditions at the worksite, she failed to raise triable issues of material fact as to whether Caltrans actually exercised its retained control so as to affirmatively contribute to the death of her husband. (Hooker, supra, 27 Cal.4th at p. 202.) The court stated: “ ‘[A] general contractor owes no duty of care to an employee of a subcontractor to prevent or correct unsafe procedures or practices to which the contractor did not contribute by direction, induced reliance, or other affirmative conduct. The mere failure to exercise a power to compel the subcontractor to adopt safer procedures does not, without more, violate any duty owed to the plaintiff.’ ” (Id. at p. 209.) Under the standard approved in Hooker, a general contractor contributes to an unsafe procedure or practice by its affirmative conduct where the general contractor ” ‘is actively involved in, or asserts control over, the manner of performance of the contracted work. [Citation.] Such an assertion of control occurs, for example, when the principal employer directs that the contracted work be done by use of a certain mode or otherwise interferes with the means and methods by which the work is to be accomplished.’ ” (Id. at p. 215, italics omitted.)

Hooker also states an omission may constitute an affirmative contribution in some circumstances: “[A]ffirmative contribution need not always be in the form of actively {Slip Opn. Page 7} directing a contractor or contractor’s employee. There will be times when a hirer will be liable for its omissions. For example, if the hirer promises to undertake a particular safety measure, then the hirer’s negligent failure to do so should result in liability if such negligence leads to an employee injury.” (Hooker, supra, 27 Cal.4th at p. 212, fn. 3.)

Applying these standards to the facts before it, the Hooker court held: “While the evidence suggests that the crane tipped over because the crane operator swung the boom while the outriggers were retracted, and that the crane operator had a practice of retracting the outriggers to permit construction traffic to pass the crane on the overpass, there was no evidence Caltrans’s exercise of retained control over safety conditions at the worksite affirmatively contributed to the adoption of that practice by the crane operator. There was, at most, evidence that Caltrans’s safety personnel were aware of an unsafe practice and failed to exercise the authority they retained to correct it.” (Hooker, supra, 27 Cal.4th at p. 215, italics added.)

C. Trial Court Decision

The trial court explained its decision to grant summary judgment to Lathrop as follows: “Defendant has shown that it did not exercise control in a way that affirmatively contributed to Plaintiff’s injuries. [Citation to Hooker.] . . . Plaintiffs’ evidence shows that Defendant was responsible for coordinating and scheduling the work of subcontractors on the project, that Defendant had the authority to direct that the plastering scaffold be removed, and that it ‘agreed’ the scaffold could remain at the area where Plaintiff was working. . . . However, this is insufficient to raise any issue of fact as to whether Defendant affirmatively contributed to Plaintiff’s injuries.”

D. Analysis of Issues on Appeal

Brannan contends he did raise triable issues of fact as to whether Lathrop’s negligent exercise of control over the jobsite affirmatively contributed to his injuries. In particular, he maintains there are fact issues with respect to whether Lathrop negligently scheduled bricklayers to work in an area it knew was obstructed by a scaffold. According to a declaration submitted by Brannan’s expert, the presence of the scaffold was hazardous because it required the masons to repetitively climb over and through the {Slip Opn. Page 8} scaffold to perform their work, presenting an unnecessary tripping, slipping, and falling hazard. Proximate causation was established because if Lathrop had not (1) scheduled the masons to work before the framers had finished and (2) permitted the scaffold to remain on the jobsite, Brannan would not have been injured. According to Brannan, Lathrop’s acts of scheduling the work and permitting the scaffold to remain are “affirmative acts . . . by Lathrop that affirmatively contributed to the incident.” Lathrop’s contribution to the accident was compounded by the fact it allowed the masonry work to continue despite rain conditions.

We do not agree Lathrop’s act of scheduling the work can subject it to liability under Hooker. The plaintiff in Hooker alleged Caltrans was negligent in permitting its own vehicles and other construction vehicles to use the overpass where the accident occurred while the crane was being operated. (Hooker, supra, 27 Cal.4th at pp. 202, 214–215.) There is no material difference between that claim and Brannan’s position in this lawsuit. The plaintiff in Hooker could have just as easily blamed the accident on Caltrans’s negligence in scheduling and coordinating the work being done on the overpass, yet there is no reason to expect the result of the case would have been any different if she had. The critical factor in Hooker was that although the crane operator was required to repetitively retract the outriggers to permit construction-related traffic to pass, Caltrans never affirmatively directed him to engage in that practice nor did it otherwise interfere with the means and methods by which his work was to be accomplished. (Id. at pp. 214–215.) Put another way, since Caltrans exercised no control over how the crane operator performed his work, it could not be held liable for the accident that resulted. Here, it was undisputed Lathrop did not direct Brannan’s work, and did not tell Brannan to gain access under the plaster scaffold the way he did. Although Brannan contends he was left with no other option than to climb over the rungs of the scaffold, that fact does not distinguish this case from Hooker. As stated, the crane operator in Hooker was required to retract the outriggers to let traffic pass. Lathrop’s exercise of retained control over safety conditions no more affirmatively contributed to the accident than Caltrans affirmatively contributed to the crane accident in Hooker. {Slip Opn. Page 9}

If anything, Caltrans was in a better position to prevent the crane accident than Lathrop was to prevent Brannan’s slip and fall. Caltrans knew before the accident occurred the crane operator was retracting the outriggers to let its construction traffic pass, and knew the crane would be unstable if its boom were extended over its side when the outriggers were retracted. (Hooker, supra, 27 Cal.4th at pp. 202–203, 215.) Here, there was no evidence Lathrop knew before Brannan’s fall he or other Bratton employees were climbing over the scaffolding in the manner they did, or that this practice posed a safety hazard. Bratton’s own foreman, who did know about the practice and was responsible for the safety of Bratton’s employees, stated he had no safety concerns about it.

Sheeler v. Greystone Homes, Inc. (2003) 113 Cal.App.4th 908 (Sheeler) directly addresses the question of whether a general contractor’s allegedly negligent scheduling of work to be performed at the jobsite can subject it to liability on the theory its exercise of retained control over safety conditions affirmatively contributed to the injury of a subcontractor’s employee. (Id. at pp. 919–921.) In Sheeler, an employee of a masonry subcontractor was injured when he slipped on construction debris allegedly left on a stair case by a cleaning subcontractor. (Id. at pp. 911, 916.) In response to Greystone’s motion for summary judgment under Privette, Sheeler contended there were triable issues regarding whether “Greystone retained control over a facet of safety operations, namely, the scheduling of cleanups[, whether] Greystone negligently scheduled a cleanup at the same time that . . . Sheeler was to work in the unit, rather than before he commenced this work[,] and [whether] Greystone’s cleanup contractor negligently swept debris onto the stairs, thereby causing . . . Sheeler’s injuries.” (Sheeler, at pp. 919–920.)

The Court of Appeal rejected Sheeler’s argument based in part on the fact that even though one purpose of scheduling the cleanups was to enhance safety, the undisputed evidence showed guaranteeing safety was not the sole purpose of the scheduling. (Sheeler, supra, 113 Cal.App.4th at pp. 917–918, 920.) Since Greystone never promised to schedule cleanups to guarantee safety or established a practice of doing so, the court found there was no triable issue of fact as to whether Greystone was {Slip Opn. Page 10} exercising retained control over safety when it scheduled the sweeps. (Id. at p. 920.) As in Sheeler, there is no evidence here the sole or predominant purpose of scheduling the masonry and framing work was to guarantee jobsite safety, and therefore no triable issue of fact as to whether the scheduling constituted a negligent exercise of retained control over safety.

Equally, Lathrop’s act of allowing the scaffolding to remain in place while the masonry work proceeded was no more an exercise of retained control over safety than was Caltrans’s decision in Hooker to allow construction traffic to access the overpass while the crane was being used, or Greystone’s decision in Sheeler to allow sweeping operations while masonry work was being performed. This would be a different case if Bratton’s foreman or one of its employees had asked Lathrop to remove the scaffolding for safety reasons, Lathrop had promised to do so, and then it negligently failed to follow through. (See Hooker, supra, 27 Cal.4th at p. 212, fn. 3.) Brannan came forward with no such evidence here.

Lathrop’s failure to call a rain day is also unavailing. The undisputed evidence showed Bratton’s foreman, Garcia, had the authority to call a rain day himself without Lathrop’s approval if he thought the conditions made the masonry work unsafe. Garcia testified he had no concerns about the rain or wetness in the work area the day of the accident other than that it slowed down the work. He did not have any safety concerns about his workers stepping onto the rungs of the scaffold to gain access to where they were working.

Ray v. Silverado Constructors (2002) 98 Cal.App.4th 1120, cited by Brannan, is distinguishable. In Ray, an employee of a bridge construction subcontractor was killed by construction debris blown by the wind from a bridge under construction onto a public roadway, as he was attempting to clear other debris from the roadway. (Id. at p. 1124.) The Court of Appeal found there was a triable issue of fact regarding the exercise of retained control over safety, and distinguished Hooker, because the general contractor in Ray had contractually reserved exclusive control over whether to close the roadway in order to protect motorists from potential construction-related hazards, and barred the {Slip Opn. Page 11} subcontractor from closing it without the general’s written consent. (Id. at pp. 1133–1134.) Here, there was no dispute either Bratton or Lathrop could have called a rain day and Bratton’s subcontract expressly delegated Lathrop’s workplace safety responsibilities to Bratton without reservation. Lathrop’s failure to exercise retained control in that circumstance is not a negligent exercise of control. (Hooker, supra, 27 Cal.4th at pp. 214–215; Ruiz v. Herman Weissker, Inc. (2005) 130 Cal.App.4th 52, 65–67.)

Summary judgment was properly granted to Lathrop.
III. DISPOSITION
The judgment is affirmed.

Marchiano, P.J., and Banke, J., concurred.”

Secrets Exposed! Ten Shockingly Simple Ways to Avoid Being Sued for Sexual Harassment

June 7, 2012

(“The Office”- Photo credit: Wikipedia)

Secrets Exposed! Ten Shockingly Simple Ways to Avoid Being Sued for Sexual Harassment

  1. Act like a professional
  2. Follow the Golden Rule
  3. Socialize outside of work
  4. Abstain from mixing alcohol and work
  5. Understand that are NOT private
  6. Recognize that web browsing history is NOT private
  7. Remember that what seems funny at work will not seem so funny in front of a judge and jury
  8. Know that Facebook, Twitter and other social media can get you in trouble
  9. Report EVERYTHING
  10. Document EVERYTHING

Welcome!

May 15, 2012

Welcome to the Hannemann Law Firm blog.  Someone said that we should start a blog, to tell the stories of how we have helped regular people in their legal struggles.  Some of the cases we have worked on are just too unbelievable.  Others are   different.  The cases all share a common theme: they happened to real people, they are real life, and we helped the people  overcome their legal challenges and get their lives back in order.  Not all cases ended up how we all hoped they would.  Some cases ended up way better.  That is the way it goes.  But, we wanted to share, and tell stories, so that maybe we can help others who may have come here to learn.

Everyone likes real life stories.  Here, from time to time, we will tell them, about real cases, with real clients,  who have struggled with the same issues that face a lot of other folks.  Almost all of the cases that get settled short of a jury trial to verdict involve a confidentiality provision, or a “gag order.”  As much as we would like to share all the details, we just are not able to say the names, or the amounts of the settlements.  We will share the basic details, and will tell the stories as best we can.

From time to time, we will also weigh in with analysis of recent cases that influence our law practice.  So scroll away, read, leave a comment if you want.  Ask a question.  We will try to help.