The Courts of Appeal have not issued many published decisions lately on FEHA cases, but here are two recent unpublished decisions concerning defendant’s evidence of a legitimate nondiscriminatory reason for termination and another case regarding an attorney’s fee award.

Davis v. Skyone Fed. Credit Union, 2014 Cal. App. Unpub. LEXIS 4101 (June 12, 2014).

In this case, plaintiff filed a lawsuit alleging, among other things, age discrimination under FEHA. Plaintiff was a staff accountant for a credit union and was laid off during a reduction in force. Plaintiff claimed she was laid off due to her age, but employer produced uncontroverted evidence that it suffered financial losses and therefore decided to trim its labor force. Plaintiff was laid off and was not replaced by another employee and the other employees who suffered layoffs were all under 40 years of age. Plaintiff produced evidence of one comment by a supervisor regarding her age, and evidence that some of her job duties that were transferred to others went to younger employees.

The court concluded plaintiff did not meet her burden of providing evidence sufficient to create a triable issue of fact that is was more likely than not that age discrimination was a substantial motivating factor in employer’s decision to terminate plaintiff.

I think the court made the correct decision here, especially in light of the employer’s prior dealings with plaintiff on her multiple requests for time off to deal with many personal issues, which the court discussed in detail in the opinion.

Vargas v. Martinez-Senftner, 2014 Cal. App. Unpub. LEXIS 3976 (June 5, 2014)

Plaintiff went to trial on a FEHA case and was awarded $368,000 in damages and $211,111.63 in attorney’s fees. Defendants, probably due to hubris (my guess), appealed the judgment on the verdict and the judgment for attorney’s fees.

Defendants lost on all accounts, except the court did cut the plaintiff’s request for attorney’s fees on the appeal from the requested $576,515.51 (including a 1.95 multiplier) to $224,675.71. Nevertheless, defendants felt it necessary to disparage plaintiff’s counsel by claiming the attorney’s fee award was unreasonable “in light of the work actually performed.” Defendants also asked for a larger reduction “for duplicative and/or superfluous work.”

I always chuckle when the losing attorneys assail the work of the prevailing attorneys. Sometimes it’s warranted, but often it isn’t. In this case, of course there will be duplicative work since it is an appeal, and the attorneys necessarily are going to have to review the trial testimony and evidence once more as well as legal research, etc…

As to the allegation plaintiff’s counsel’s work was superfluous, I wonder how defense counsel’s client feels about its work on the case, considering the fact defendant lost at trial and on appeal?

Read this decision because there are some facts the court discussed that make defense counsel look even sillier (especially footnote 4).