Posts Tagged ‘California’

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

October 22, 2012
Maternity 17

Maternity 17 (Photo credit: MakuKulden)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

So, what is the takeaway from this?

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

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

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

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

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

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

Here is the whole case:

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

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

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

COUNSEL

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

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

OPINION

ZELON, J.-

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

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

II. Trial Evidence

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

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

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

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

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

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

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

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

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

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

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

III. Jury Verdict and Attorney’s Fees Award

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

I. Alleged Instructional Error

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

A. Relevant Jury Instructions

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

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

B. Standard of Review

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

II. Alleged Error In Attorney’s Fees Award

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Misconduct Found For Employee’s Failure to Sign Disciplinary Notice

June 15, 2012
Fired red stamp

Fired red stamp (Photo credit: Wikipedia)

Be Careful What You Sign!

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

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

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

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

Well, What Does That Mean?

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

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

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

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

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

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

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

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

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

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

“OPINION

HULL, J.-

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

II. The Disciplinary Memorandum

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

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

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

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

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

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

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

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

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

III. Good faith Error in Judgment

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

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

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

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

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

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

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

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

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

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

“Ms. Brown: No.

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

“Ms. Brown: Yes.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Nicholson, J., concurred.

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

I respectfully dissent.

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

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

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

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