FEHA Plaintiff Must Prevail for Attorney’s Fee Award

by Greg Mullanax Posted on January 16, 2018

Here’s a FEHA disability discrimination case that went to trial and resulted in a defense verdict.  Plaintiff’s attorney then sought attorney’s fees because even though the jury awarded plaintiff no relief, the jury did say that plaintiff’s physical disability was a substantial motivating reason for the employer’s decision to fire plaintiff. But the jury also concluded that the employer’s conduct was not a substantial factor in causing plaintiff harm. The trial court denied plaintiff’s motion for attorney’s fees under FEHA.

Plaintiff relied on Harris v. City of Santa Monica, 56 Cal. 4th 203 (2013) which held that “a plaintiff subject to an adverse employment decision in which discrimination was a substantial motivating factor may be eligible for reasonable attorney’s fees and costs expended for the purpose of redressing, preventing, or deterring that discrimination, ” even if the discrimination did not “result in compensable injury” for the plaintiff. Id. at 235.

Not surprisingly, the Fourth Appellate District Court of Appeal upheld the trial court’s denial noting that plaintiff was not a “prevailing party” under FEHA.

The bottom line for plaintiff’s attorneys is that you must obtain some relief from the trial in order to be eligible for attorney’s fees.

Bustos v. Global P.E.T., Inc., et. al.
Fourth Appellate Court of Appeal, #E065869
December 22, 2017

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It’s A Conduit Case!

by Greg Mullanax Posted on September 6, 2017

In this case, plaintiff alleged he was fired because of his marital status in violation of FEHA’s protections against marital status discrimination. Plaintiff was fired by his boss, who was also his mother-in-law. Plaintiff said he was fired because he was married to his boss’ daughter, and he and his wife were dealing with a difficult marriage.

The trial court granted defendant’s motion for summary judgment and on appeal, the First Appellate District Court of Appeal affirmed.

The Court explained that the marital discrimination law is designed to prevent discrimination against classes of people and do not extend to the status of being married to a particular person.

The Court further explained that cases involving alleged discrimination due to marriage to a particular person are “conduit cases.” And in this case, since plaintiff alleged he was fired for being married to a particular person, he could not prevail on his marital status discrimination claim.

Orlando Nakal v. Friendship House Association of American Indians, Inc.
September 5, 2017
2017 WL 3432315

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Disability Discrimination Case – Summary Judgment Affirmed

by Greg Mullanax Posted on August 28, 2017

Here’s an interesting FEHA disability discrimination case in which the Ninth Circuit upheld the district court’s summary judgment dismissing the case. In this case there was no evidence that plaintiff’s disability was a substantial motivating reason for his termination.

Plaintiff was an on-call employee which means that his employer would call plaintiff when needed to work. Plaintiff would be called three times in a 15-minute period, and if plaintiff failed to answer or respond to the calls, then plaintiff was charged with being absent. Importantly, plaintiff chose to be an on-call employee, even though he had the choice to work a five-day-per-week regular schedule.

Plaintiff missed ten calls during a six-month period. During that time he was suspended twice and he was finally terminated. At one point before plaintiff’s dismissal, his supervisor advised that plaintiff provide his employer with a landline number or a pager number so he would not miss any more calls.

But plaintiff declined this wise advice because he was having an affair with a woman outside his marriage, and plaintiff apparently told his wife he was working on occasions when he was visiting his mistress. A call to his landline from his employer would blow plaintiff’s cover!

After his last absence, plaintiff decided to seek medical attention and his physician determined that plaintiff suffered from obstructive sleep apnea. Plaintiff informed his employer of this diagnosis, but after a hearing on the issue, plaintiff was terminated.

According to the Court’s opinion, after plaintiff was fired, his union appealed the termination and prevailed and plaintiff returned to work. So apparently, plaintiff was working when he filed his lawsuit.

Plaintiff—unwisely in my opinion—filed his lawsuit, which resulted in a published opinion from the Ninth Circuit which disclosed that plaintiff couldn’t show up to work sometimes and that he was having an affair, an affair which caused some of plaintiff’s absences.

Plaintiff couldn’t even present a prima facie case because he had no evidence that his sleep apnea was a substantial motivating reason for his employer’s decision to fire plaintiff because, after all, the disciplinary proceedings commenced before plaintiff’s sleep apnea diagnosis.

This is an example of a lawsuit that should never have been filed in the first place.

Alamillo v. BNSF Railway Company
2017 WL 3648514
August 25, 2017

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Derrel’s Mini Storage Settles DFEH Pregnancy Employment & Housing Lawsuit

by Greg Mullanax Posted on April 18, 2017

The California Department of Fair Employment and Housing just announced a settlement with Derrel’s Mini Storage, Inc. on a complaint it filed in Kern County Superior Court alleging pregnancy discrimination in employment and housing.

For those of you who don’t reside in the Central Valley where Derrel’s Mini Storage is well-known, Derrel’s operates mini storage facilities all over the place. They’re everywhere! And not only that, but Derrel’s signs for future mini storage facilities are everywhere, too.

Most, if not all, of the mini storage sites have resident managers. In this case, a pregnant wife and her husband accepted employment and residence at a facility in Bakersfield. But Derrel’s policies banned children from the premises during business hours and weekends.

The couple filed a complaint with DFEH and the DFEH filed suit, and Derrel’s finally settled, agreeing to modify its policies to allow managers to live onsite—even when they have kids!

That was probably a smart settlement. I don’t think a jury would be too pleased with Derrel’s had this matter gone to trial, even in Kern County.

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USA Waste of California: Horrible Employer, Prospective Employees Beware!

by Greg Mullanax Posted on April 12, 2017

USA Waste of California should be in the running for inclusion in the Top 10 Worst Employers in California. In a recent decision, a Ninth Circuit panel reversed a summary judgment granted for USA Waste in a FEHA age discrimination case.

The facts are just terrible. Gilberto Santillan worked for USA Waste for 32 years as a garbage truck driver. His customers loved him. He served Manhattan Beach the whole time and he got to know his customers and they got to know him.

USA Waste’s contract with the City of Manhattan Beach was expiring and USA Waste wanted the City to renew the contract, so USA Waste bragged about Santillan’s service to the community in an effort to get the City to renew the contract. It worked.

But then, after the contract renewal, USA Waste decided it didn’t need Gilberto anymore. Gilberto got a new supervisor. The new supervisor’s name is Steve Kobzoff, but I will refer to him as Mr. Jackass. Well Mr. Jackass did what many new supervisors do, he started picking on Gilberto, who was 53 years old. Mr. Jackass tried disciplining Gilberto, probably hoping Gilberto would just quit. But Gilberto stuck to his guns. And USA Waste fired Gilberto.

Gilberto’s termination his his customers in Manhattan Beach hard. They demanded that USA Waste reinstate Gilberto. They wrote letters. They praised Gilberto’s work ethic, his courtesy and his helpfulness. A local newspaper ran a story about this outrage.

After filing a union grievance, USA Waste was pressured to reinstate Gilberto. But it wasn’t that easy. They made Gilberto pass a drug test, criminal background check and they ordered him to provide proof of his right to work in the US.

Really? After he had already been employed by USA Waste for 32 years?

Gilberto returned to work but didn’t have his work authorization number and expiration date with him, but he did have his driver’s license and social security card. The dumbasses at USA Waste sent Gilberto home and told him to provide the requested information. Which Gilberto tried to do for two days, but USA Waste wouldn’t respond. The fine folks at USA Waste then fired Gilberto.

And this is just a summary of the facts. I encourage you to read the opinion because the facts are even worse.

Gilberto sued USA waste for age discrimination under FEHA and USA Waste removed the case to federal court, probably hoping to find one of those appointed-for-life former AUSA district judges who are known to grant MSJ’s whether or not there is a dispute of a material fact.

BINGO! USA Waste’s strategy worked, and the district judge granted summary judgment on the age discrimination claim concluding that Gilberto failed to establish a prima facie age discrimination case. Gilberto appealed, and thankfully, the Ninth Circuit reversed the district judge’s summary judgment.

If USA Waste doesn’t settle this case soon, either USA Waste is stupid or its lawyers are stupid. I haven’t met Gilberto, but unless he comes across as some United Airlines executive type, I would imagine a jury of his peers will be pretty upset at USA Waste, and will render a rather sizable verdict.

USA Waste already made a mistake by not settling this case because now there’s a published Ninth Circuit opinion detailing what a despicable company it is, and it also tarnishes Mr. Jackass’ reputation, assuming he had a good reputation to start with.

I wonder if Mr. Jackass will put on his resume his fleeting 15 minutes of infamy in a court opinion when he is forced to look for a new job after USA Waste jettisons him for being too old? I bet United Airlines would hire Mr. Jackass to throw passengers of its planes when they are oversold. Sounds like a perfect job for Steve Kobzoff.

Santillan v. United States Waste of California
2017 U.S. App. LEXIS 6027 (April 7, 2017)

Oral Argument

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Off Topic: A Vast Conspiracy

by Greg Mullanax Posted on April 5, 2017

I just read an interesting book by Jeffrey Toobin, A Vast Conspiracy. It chronicles President Clinton’s issues with Monica Lewinsky and Paula Jones. (I figure it’s relevant to this blog since it deals with sexual harassment. And besides, the appellate courts in California have been silent on FEHA cases recently.)

Why would one want to revisit that sordid episode in American history? Well, it’s hard to believe but it’s been 20 years or so since this story dominated the headlines. And with time, it’s interesting to go back and consider all of the the issues – the political and the legal.

Here are some of the lessons I took away from all of this:

  • When you are accused of something like sexual harassment or assault, never lie to your lawyers about it. Come clean.
  • When you are representing a client accused of sexual harassment or assault, and your client has a reputation, don’t believe everything your client says. Adopt President Reagan’s maxim on dealing with the Soviets, “Trust, but verify.”
  • Additionally, in this situation, don’t fan the flames by trying to act like a litigation bad-ass by trashing the victim because it will probably come back to haunt you and your client.
  • When deposing witnesses, get to the point. Don’t confuse things with silly definitions such as definitions of “sex.” Just ask what happened and deal with definitions later, such as when filing or responding to MSJ’s.
  • If you can settle early, especially when the case has merit, do so. Don’t let pride or paranoia get in the way of a smart decision.

I always wondered why Robert Bennett allowed President Clinton to lie under oath and why they trashed Paula Jones. But apparently, according to this book, Mr. Clinton was less than candid with Mr. Bennett. And that’s a recipe for disaster. If ever there was a case that should have been settled quickly and quietly, it was the Paula Jones case. The Clinton strategy of attack, attack, attack may be appropriate in some cases, especially when the underlying case has no factual merit, but it was folly in this case.

The Paula Jones case parlayed into the Monica Lewinsky case. It’s easy for observers to say that Mr. Clinton should have fessed-up at the git-go, but he didn’t. And Mr. Clinton was later impeached—which was a stupid move by the Republicans but which Clinton started. The Arkansas Judiciary suspended Bill Clinton’s law license.

It’s also fascinating to review all of the participants and their actions and motivations. It seemed like everyone had an agenda—the witnesses, the reporters, the lawyers, the politicians, and the political advisors. Even though all employment-related cases have these characteristics with parties and witnesses, representing a client at the center of a storm like this would tax even the steeliest of litigators. A lying client, unrelenting MSM coverage, greedy politicians.

One of the most disturbing parts of the whole story was Kenneth Starr’s Office of the Independent Counsel. I was certainly no fan of President Clinton’s at the time, but Kenneth Starr’s determination to get Mr. Clinton at all costs was a political abuse of his authority. And remember when the Starr Report was released? I recall everyone in the office glued to the computer screens reading it.

But what did the OIC’s investigation accomplish? Impeachment? Was it worth it?

I think not.

Recently, Kenneth Starr’s reputation was recently sullied by the Baylor University Sex Assault Scandal. I guess Kenneth Starr didn’t learn much from the Clinton affair.

We are in crazy times now with the progressive left out to get President Trump by accusing him of colluding with the Russians to steal the election while Trump supporters and anyone who believes in privacy and the Fourth Amendment are alarmed by the surveillance of Trump before and after the election. And from both sides are calls for “independent” investigations or special prosecutors.

Kenneth Starr’s OIC should be a warning to all. Special prosecutors get unlimited budgets and staff and it’s only natural for special prosecutors to drag things out and dig up anything they can so they can issue reports to justify their existence.

The other amazing fact from all of this was the silence of the feminists. They hurt their own cause by sticking with President Clinton.

My next read? The Death of American Virtue: Clinton v. Starr. I’ll post my thoughts when I finish it.

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UPDATE: Atkins v. City of Los Angeles

by Greg Mullanax Posted on March 13, 2017

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

by Greg Mullanax Posted on February 27, 2017

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?

by Greg Mullanax Posted on February 20, 2017

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?

by Greg Mullanax Posted on January 23, 2017

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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