UPDATE: Atkins v. City of Los Angeles

Remember the Atkins v. City of Los Angeles case? I wrote about it three weeks ago. Well, the Court of Appeals modified its opinion as follows:

The opinion filed February 14, 2017 and certified for publication is modified as follows:

1.  On page 63, in the first sentence of the first paragraph the word “ever” is deleted, and the words “until retirement” are inserted after Department before the end of the sentence.

As modified, the sentence reads:

Although Smith opined on the value of the plaintiffs’ future economic damages, she provided or cited to no testimony, other evidence, or opinion on the likelihood that the plaintiffs would receive future earnings from the Department until retirement.

2.  On page 66, the entire first paragraph including footnote 18 is deleted and replaced with the following two paragraphs:

“An expert’s opinion is only as good as the facts on which it is built.”  (Shiffer v. CBS Corp. (2015) 240 Cal.App.4th 246, 253.)  Here, there were no facts on which to build Smith’s opinion that the plaintiffs were entitled to recover future economic damages to retirement.  Even giving deference to the trial court’s ruling denying the City’s motion for a new trial and drawing all inferences in favor of it, the evidence is too speculative to lend support to the award of the plaintiffs’ future lost earnings until retirement.  (See Toscano, supra, 124 Cal.App.4th at pp. 695-696.)

The City does not genuinely dispute that the plaintiffs are entitled to a reasonable, non-speculative award of future economic damages.  The City’s argument is that (assuming liability) the plaintiffs are not entitled to recover future lost earnings until retirement, not that they are not entitled to recover any future lost earnings at all.  Although there is evidence in the record from which the jury could have calculated a reasonable amount of future economic damages, it is not our role to say what that amount should be.  “‘The measure of damages suffered is a factual question and as such is a subject particularly within the province of the trier of fact.’”  (Behr v. Redmond (2011) 193 Cal.App.4th 517, 533; see also Bullock v. Philip Morris USA, Inc. (2008) 159 Cal.App.4th 655, 696 [remanding for a new trial limited to the amount of punitive damages because the Court of Appeal would not “substitute [its] own assessment of the appropriate amount of punitive damages for that of a jury (or a judge on a new trial motion)”].  We therefore reverse the trial court’s award of future economic damages and remand for a new trial on this limited issue.  (See Code Civ. Proc., § 657, subd. (5); cf. Piscitelli, supra, 87 Cal.App.4th at p. 990 [reversing the judgment without granting a new trial on damages because the reviewing court could distinguish between the reasonable and unreasonable portions of the jury’s award for future economic damages].)

This order does not change the judgment.  The City’s petition for rehearing is denied.

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Just Don’t Hug and Kiss at Work

Just so you know, the Ninth Circuit Court of Appeals just reminded us that there is no black letter rule that courts do not consider hugs and kisses on the cheek to be outside the realm of common workplace behavior. (I talked about this case before, but now this is a published opinion, so let’s look at it again.)

This defense worked temporarily for Yolo County Sheriff Edward G. Prieto, who was accused of hugging and kissing a female sergeant under his command. Plaintiff claimed Prieto hugged her at least 124 times over a 12-year period. And he even kissed her once.

In the federal district court, Prieto argued the “black letter law” cited above, which, we now know, is not “black letter law.” The district court granted his motion for summary judgment, but the Ninth Circuit revived the case reminding Prieto that the appropriate legal standard is whether the defendant’s conduct in this case was “severe or pervasive” and not “severe and pervasive.” The Court said that summary judgment is appropriate only if the conduct was neither severe nor pervasive enough to alter the conditions of plaintiff’s employment.

The Court also held that there is no mathematically precise test to determine whether or not defendant’s conduct was sufficiently hostile. That’ll stop a lot of summary judgments in their tracks!

So there you have it. It’s not the 1960’s Mad Men anymore.

Zetwick v. County of Yolo
2017 U.S. App. LEXIS 3260 (February 23, 2017)

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Do Probationary Employees Enjoy FEHA Protections?

A bunch of probationary police cadets sued the Los Angeles Police Department for disability discrimination under FEHA and related causes of action. All of them were injured while cadets, and they accused the LAPD of discrimination after they were all discharged. The case went to trial and the jury awarded the former cadets over $12 million! And the court awarded $1,632,110 in attorney’s fees to plaintiffs’ counsel!

The party was short-lived, however, because the LAPD appealed to the Second District Court of Appeal. The future economic damages award of over $6 million was overturned, and the case remanded for a new trial on this issue. The court also determined that there wasn’t substantial evidence to support the jury’s verdict that the LAPD discriminated against plaintiffs.

So what rights to probationary employees have under FEHA? Reassignment, as a reasonable accommodation, possibly, because FEHA applies to probationary employees and pre-probationary employees. Simply because an employee is probationary doesn’t mean that FEHA protections do not apply. The Court said, “We decline to read into FEHA a limitation on an employee’s eligibility for reassignment based on an employee’s training or probationary status.”

Instead, the Court said, the trier of fact should consider whether an employee is on probation or in training in determining whether a particular reassignment is comparable in pay and status to the employee’s original position. The Court further asserted that as a practical matter, and I guess as a legal matter, there is no difference between a probationary employee and an at-will employee because employers ordinarily can terminate probationary and at-will employees without good cause, notice or a hearing.

So the question is whether or not a probationary employee is qualified for reassignment. An employee is qualified for reassignment if the employee could perform the essential functions of his or her original position. If that’s the case, then the question of reassignment is a question of reasonable accommodation.

Atkins v. City of Los Angeles
2017 WL 588127 (February 14, 2017)
2017 Cal. App. LEXIS 115

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Is DFEH Escaping its Houdini Headache?

A few years ago, the fine minds at the Department of Fair Employment and Housing decided to use a new system for accepting online complaints from employees wanting to file discrimination claims. The DFEH decided to use Houdini, Esq. to provide the “service.” But it was a disaster, as I’ve written about before here.

As this article in the Sacramento Bee notes, things haven’t gotten much better for employees filing online complaints with Houdini. My experience with Houdini is that it’s a pain in the ass. A real pain in the ass.

The problem with an online complaint system is that it better work because if it doesn’t work properly, it could preclude some employees from filing timely lawsuits. Because in California, we have a silly law that requires those who want to sue their employees under California’s Fair Employment and Housing Act to file a complaint with the DFEH within one year of the discriminatory act, and then the employee has one year from the date of the DFEH right-to-sue letter to file a lawsuit in Superior Court.

But Houdini has messed-up some complaints which prevented some employees from filing timely lawsuits. Sometimes it’s difficult to determine whether the complaint got through or not. So then some try to file another complaint.

It shouldn’t be so difficult to file a complaint. If you request an immediate right-to-sue letter, you best make sure all of your complaints of discrimination are included in your original complaint.

The California legislature should change the requirement of filing a complaint with DFEH and receiving a right-to-sue letter before filing a lawsuit. Because with a crippled system for online complaints like Houdini, those that have been victims of discrimination can end up being victims of state incompetence. Especially since DFEH has done its best to avoid meeting or speaking with employees filing complaints or employees with questions.

Apparently DFEH is going to start using a version of Salesforce to try to remedy the problem. Let’s hope it succeeds.

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Soria v. Univision: Comprehensive Review of FEHA

A trial court’s summary judgment dismissing plaintiff’s FEHA discrimination lawsuit recently provided California’s Second Appellate District Court of Appeal to issue a comprehensive opinion on almost all issues relating to disability discrimination and medical condition discrimination cases under FEHA. And the opinion gave plaintiff new life, because the Court of Appeal reversed the trial court’s summary judgment.

I won’t go through all of the details here, and there wasn’t really any new ground broken with this opinion, but it’s a good case to review and keep around for those of us who represent clients in FEHA cases.

Soria v. Univision Radio Los Angeles, Inc.
5 Cal. App. 5th 570 (2016)

Posted in Disability Discrimination, FEHA, Interactive Process, Medical Condition, Pretext | Comments Off on Soria v. Univision: Comprehensive Review of FEHA

Parks & Recreation – Real Life Age Discrimination in SF? Not so fast…

This is a case in which the First Appellate Court of Appeal upheld a trial court’s summary judgment of an age discrimination, harassment and retaliation case. In, of all places, San Francisco! Not Bakersfield. Not Fresno. Not Texas. But San Francisco! I always heard that judges in San Francisco never grant summary judgment on employment discrimination cases, but then I always heard that Donald Trump had no chance of winning the election. So this simply proves that what one always hears is not always fact. And that’s one more reason appellate courts issue published opinions so smart lawyers like me and you can read them and learn and not rely on the conventional wisdom and what we hear.

So let’s look at this case brought by former employee David Dinslage against the San Francisco Recreation and Parks Department. Dinslage was caught up in a “large-scale restructuring of the Department’s programs” which means he lost his job in a lay-off.

Dinslage’s case was dismissed by the trial court which concluded that Dinslage’s dismissal was the result of the Department’s restructuring, which we all know to mean the Department’s legitimate, nondiscriminatory termination defense worked.

Dinslage worked for the Department since 1972. (Don’t see that much anymore!) Apparently Dinslage had a good career at the Department starting out as an assistant recreation director and ending up as “inclusion coordinator.” Disnlage had been working for years on programs directed to the disabled.

Everything was going swimmingly until a new superintendent of citywide services arrived on the scene. One of the superintendent’s duties was to reorganize and restructure the recreation services, and (we’ve all seen this story before) Dinslage, with his three decades-plus of service, didn’t like the changes proposed by the new superintendent.

Dinslage refused to go along to get along and his alleged insubordination was documented by his supervisors in his performance evaluations.

While all this was going on, a financial crisis hit the city. And so Dinslage was laid-off. Dinslage was given the opportunity to apply for other city jobs, and he did. And he scored an interview. But Dinslage took advantage of the interview opportunity to grouse about the whole restructuring thing. And guess what? Disnlage was not hired and he retired.

But Dinslage wasn’t finished and he sued the City and County of San Francisco.

This opinion focused on Dinslage’s retaliation claim which was based on Dinslage’s opposition to the restructuring. Dinslage claimed that he was engaging in “protected activity” under FEHA.

But the appellate court agreed with the trial court: Dinslage’s opposition to the restructuring wasn’t protected activity under FEHA because he wasn’t opposing practices forbidden by FEHA, he was opposing the restructuring, which had nothing to do with FEHA.

So there you have it.

Dinslage v. City and County of San Francisco
5 Cal. App. 5th 368 (November 9, 2016)

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DFEH Notice of Proposed Rulemaking: Housing and Sexual Harassment

Here’s DFEH’s Notice of Proposed Rulemaking.

Here you can download the Initial Statement of Reasons and the text of the Proposed Regulations.

TITLE 2.  DEPARTMENT OF FAIR EMPLOYMENT AND HOUSING

HOUSING REGULATIONS REGARDING HARASSMENT; LIABILITY FOR HARASSMENT; RETALIATION; AND SELECT DISABILITY SECTIONS, INCLUDING ASSISTIVE ANIMALS

NOTICE OF PROPOSED RULEMAKING

The Fair Employment and Housing Council of the Department of Fair Employment and Housing (hereafter “Council”) proposes to add sections 11098.1-11098.6 and 11098.23-11098.30 to Title 2 of the California Code of Regulations after considering all comments, objections, and recommendations regarding the proposed action.

PUBLIC HEARING

The Council will hold a public hearing at 10:00 a.m. on January 10, 2017, at the following location:

Ronald Reagan State Building
300 S. Spring Street, Auditorium
Los Angeles, CA 90013

The hearing room is wheelchair accessible.  At the hearing, any person may present statements or arguments orally or in writing relevant to the proposed action described in the Informative Digest.  The Council requests, but does not require, that persons who make oral comments at the hearing also submit a written copy of their testimony at the hearing.

WRITTEN COMMENT PERIOD

Any interested person, or his or her authorized representative, may submit written comments relevant to the proposed regulatory action to the Council.  The written comment period closes at 5:00 p.m. on January 10, 2017.  The Council will consider only comments received by that time.  Written comments can be mailed to:

Fair Employment and Housing Council
c/o Brian Sperber, Legislative & Regulatory Counsel
Department of Fair Employment and Housing
320 West 4th Street, 10th Floor
Los Angeles, CA 90013
Telephone: 213-337-4495

Comments may also be submitted by e-mail to FEHCouncil@dfeh.ca.gov.

AUTHORITY AND REFERENCE

Government Code section 12935(a) authorizes the Council to adopt these proposed regulations.  The proposed regulations implement, interpret, and make specific section 12900 et seq. of the Government Code.

INFORMATIVE DIGEST/ POLICY STATEMENT OVERVIEW

This rulemaking action clarifies, makes specific, and supplements existing state statutes and case law interpreting the Fair Employment and Housing Act (FEHA) set forth in Government Code section 12900 et seq.  As it relates to housing, the FEHA prohibits harassment and discrimination 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 any person.

In compliance with the Administrative Procedure Act, the Council proposes to adopt these rules as duly noticed, vetted, and authorized regulations.  This action has the specific benefit of creating a more comprehensive set of rules to ensure that housing providers, owners, and tenants better understand their rights and duties, in turn reducing litigation costs and the burden on courts.  Ultimately, the proposed action furthers the mission of the DFEH by protecting Californians from discrimination, harassment, and retaliation in the housing context.

The proposed amendments most notably clarify and/or articulate the following: (1) definitions; (2) the two main types of liability for discriminatory housing practices – direct and vicarious; (3) the two main types of harassment – Quid Pro Quo and Hostile Environment; (4) what constitutes retaliation; (5) housing providers’ duty to reasonably accommodate a person with a disability; (6) assistive animals as a reasonable accommodation; (7) the defense of undue hardship; (8) the interactive process; and (9) proof of disability.

The Council has determined that the proposed amendments are not inconsistent or incompatible with existing regulations.  After conducting a review for any regulations that would relate to or affect this area, the Council has concluded that these are the only regulations that concern fair housing and the Fair Employment and Housing Act.

DISCLOSURES REGARDING THE PROPOSED ACTION

The Council has made the following initial determinations:

Mandate on local agencies and school districts: None.

Cost or savings to any state agency: No additional costs or savings beyond those imposed by existing law.

Cost to any local agency or school district, which must be reimbursed in accordance with Government Code sections 17500 through 17630: None.

Other non-discretionary cost or savings imposed on local agencies: No additional costs or savings beyond those imposed by existing law.

Cost or savings in federal funding to the state: None.

Cost impacts on a representative private person or businesses: No additional costs or savings beyond those imposed by existing law.  Therefore, the agency is not aware of any cost impacts that a representative private person or business would necessarily incur in reasonable compliance with the proposed action.

Results of the economic impact assessment/analysis: The Council anticipates that the adoption of the regulations will not impact the creation or elimination of jobs or housing within the state; the creation of new businesses or housing or the elimination of existing businesses or housing within the state; or the expansion of businesses or housing currently doing business within the state.  To the contrary, adoption of the proposed amendments is anticipated to benefit California businesses, workers, housing providers, owners, tenants, and the state’s judiciary by clarifying and streamlining the operation of the law, making it easier for housing providers, owners, and tenants to understand their rights and obligations, and reducing litigation costs.

Statewide adverse economic impact directly affecting businesses and individuals:

The Council has made an initial determination that the proposed action will not have a significant statewide adverse economic impact directly affecting businesses, including the ability of California businesses to compete with businesses in other states.

Significant effect on housing costs: None.

Small Business Determination: The Council anticipates that the regulations will not create additional costs or savings beyond those imposed by existing regulations.  Similarly, the Council has determined that there is no impact on small businesses as a result of this proposed action because these regulations primarily serve to clarify existing law.

Business Report: The Council has determined that the proposed regulations do not require a report to be made.

CONSIDERATION OF ALTERNATIVES

In accordance with Government Code section 11346.5, subdivision (a)(13), the Council must determine that no reasonable alternative it considered or that has otherwise been identified and brought to the Council’s attention would be more effective in carrying out the purpose for which this action is proposed, or would be as effective and less burdensome to affected private persons than the proposed action, or would be more cost-effective to affected private persons and equally effective in implementing the statutory policy or other provision of law.

The Council has thus far not become aware of a better alternative and invites interested persons to present statements or arguments with respect to alternatives to the proposed regulations at the scheduled hearing or during the written comment period.

CONTACT PERSONS

Inquiries concerning the proposed administrative action may be directed to:

Brian Sperber, Legislative & Regulatory Counsel
Department of Fair Employment and Housing
320 West 4th Street, 10th Floor
Los Angeles, CA 90013
Telephone: (213) 337-4495

E-mail: brian.sperber@dfeh.ca.gov

The backup contact person for these inquiries is:

Holly Thomas, Deputy Director of Executive Programs
Department of Fair Employment and Housing
320 West 4th Street, 10th Floor
Los Angeles, CA 90013
Telephone: (213) 439-6799

E-mail: holly.thomas@dfeh.ca.gov

Please direct requests for copies of the proposed text (express terms) of the regulations, the Initial Statement of Reasons, the modified text of the regulations, if any, or other information upon which the rulemaking is based, should other sources be used in the future, to Brian Sperber at the above address.

AVAILABILITY OF STATEMENT OF REASONS, TEXT OF PROPOSED REGULATIONS, AND RULEMAKING FILE

The Council will have the entire rulemaking file available for inspection and copying throughout the rulemaking process at its office at the above address.  As of the date this notice is published in the Notice Register, the rulemaking file consists of this notice, the proposed text of the regulations, and the Initial Statement of Reasons.  Copies may be obtained by contacting Brian Sperber at the address or phone number listed above.

AVAILABILITY OF CHANGED OR MODIFIED TEXT

After holding the hearing and considering all timely and relevant comments received, the Council may adopt the proposed regulations substantially as described in this notice.  If the Council makes modifications that are sufficiently related to the originally proposed text, it will make the modified text (with the changes clearly indicated) available to the public for at least 15 days before the Council adopts the regulations as revised.  Please send requests for copies of any modified regulations to the attention of Brian Sperber at the address indicated above.  The Council will accept written comments on the modified regulations for at least 15 days after the date on which they are made available.

AVAILABILITY OF THE FINAL STATEMENT OF REASONS

Upon its completion, copies of the Final Statement of Reasons will be available on the Council’s Web page: http://www.dfeh.ca.gov/FEHCouncil.htm.

Copies also may be obtained by contacting Brian Sperber at the above address.

AVAILABILITY OF DOCUMENTS ON THE INTERNET

Copies of the Notice of Proposed Action, the Initial Statement of Reasons, the text of the regulations, and any modified texts and the Final Statement of Reasons can be accessed through the Council’s Web page at http://www.dfeh.ca.gov/FEHCouncil.htm.

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Ninth Circuit Revives Yolo County Sexual Harassment Claim

A FEHA sexual harassment claim filed against Yolo County Sheriff Ed Prieto was revived by the Ninth Circuit in an unpublished decision after the federal district court granted defendant’s motion for summary judgment.

Lessons from the Ninth Circuit:

  • There is no rule that hugs and kisses on the cheek are not outside the realm of common workplace behavior.
  • Rules are not created from non-binding district court decisions, especially if the decisions are old – such as 14 years old or 20 years old.
  • Old rules likely do not reflect changing contemporary standards of socially acceptable conduct in the workplace.
  • The legal standard for sexual harassment cases is “severe or pervasive” not “severe and pervasive.” (My editorial comment: A lot of defense attorneys still don’t understand that.)
  • There is no mathematically precise test to determine if a workplace is hostile, such as a few hugs a few times a year does not equal sexual harassment.

I’m always happy, well at least I’m almost always happy, when an appeals court reverses a summary judgment in a sexual harassment case because there are usually fact issues and juries should determine what constitutes sexual harassment. The court’s statement that old rules do not reflect changing contemporary standards of socially acceptable conduct in the workplace pretty much sums that up.

I’m gonna remember that line the next time I’m confronted with an MSJ on a sexual harassment case.

UPDATE 02/27/2017: See my post here which addresses this case further since the Ninth Circuit designated it as a published opinion.

Posted in Sexual Harassment, Unpublished cases | Comments Off on Ninth Circuit Revives Yolo County Sexual Harassment Claim

Silicon Valley Discrimination Complaints

Well here’s an interesting article from Tech.Mic listing complaints filed against “tech giants” in the last 22 months. The article concludes that “discrimination is still an issue in the tech industry.”

Even though must of the tech big-wigs claim to be progressives supporting Hillary Clinton.

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Fair Employment and Housing Council – New Changes in Term Lengths

California Governor Jerry Brown just signed a new bill changing the length of the terms of those appointed to the Fair Employment and Housing Council—temporarily. The bill, AB 2780, affects appointments to the Council made on or after January 1, 2017.

The Council is composed of 7 members who serve four-year terms. This new law keeps the terms of 4 members to four years, but the other three members’ terms are changed to two-year terms.

But then it gets more complicated. The new law provides that the new appointments replacing each member initially appointed under the new law upon the completion of their terms will serve a term of four-years.

Which is the way it is now. (Blank stare on my face.)

So what was the purpose of this bill? Well, according to the Assembly Floor Analysis, the purpose of the bill is to stagger the terms of the Council members in order to provide institutional continuity. Which makes sense to me.

Gee, I never thought anything coming from Sacramento would make sense to me, but this one does.

Kudos to Assemblymember Chris Holden (D-Pasadena) for this common-sense legislation.

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