Archive for June, 2012

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.”

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 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.)


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}



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.
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.
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}
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].



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.
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.
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}
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.)


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}



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.
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}
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.
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