A plaintiff alleging pregnancy discrimination in violation of FEHA need only show that a pregnancy-related leave was “a motivating reason” for her termination. This is not news to most attorneys representing plaintiffs in FEHA cases, because, after all, CACI 2500 (Disparate Treatment), CACI 2505 (Retaliation) and CACI 2507 (defines “Motivating Reason”) all refer to “motivating reason” as the element of causation a plaintiff must prove.
Apparently some defense attorneys disagree. In this pregnancy-leave case, plaintiff took pregnancy leave. When she returned to work, she was fired, allegedly because while she was gone, her supervisors suddenly discovered that her job performance was lacking, even though none of the supervisors ever thought to mention the deficient performance to plaintiff and she was never disciplined for it.
Red flag! Obviously a pretext case.
The matter went to trial on the FEHA claim and plaintiff’s wrongful termination in violation of public policy claim.
The jury awarded plaintiff $10,000 in damages and the court awarded plaintiff’s counsel $50,858.44 in attorney’s fees.
On appeal, defendants argued that the trial court was wrong to instruct the jury that plaintiff had to prove her pregnancy-related leave was “a motivating reason” for her discharge, when it should have been a “but for” cause for her discharge. And defendants said use of CACI 2500, 2505 & 3507 were all wrong.
Turns out, defendants were wrong. The court said the instructions were appropriate and a prevailing plaintiff needs to show that her pregnancy-leave was a “motivating reason” for her discharge.
Mixed Motive Defense
Not only did defense counsel waste a lot of time arguing over the well-settled “motivating reason” issue, they chose to also waste time and bill their clients to argue that the trial court erred when it did not instruct the jury on the mixed motive defense, which is a defense used when there are legitimate and illegitimate motives when discharging an employee. The defense has to show that the legitimate reasons, on their own, for dismissal were enough to terminate the employee.
The court noted that both parties presented this case to a jury as a pretext case only. Defendants at trial argued only that plaintiff was terminated for performance and insubordination issues – defendants even made this clear in a motion in limine when defendant said it wanted to be “crystal clear” that defendant did not have mixed motives!
This silly argument didn’t sway the appeals court.
Now for the most important issue of all: attorney’s fees. Defense attorneys hate it when a plaintiff’s attorney gets an award of attorney’s fees. Defendants really hate it!
Here defendant made another questionable argument: the court order of attorney’s fees should have made an apportionment of the fees and only award fees related to the FEHA cause of action because the wrongful termination in violation of public policy claim is a common law cause of action so therefore, plaintiff’s counsel should not get fees for work he or she did to prevail on that claim.
The court seemed to be amused and irritated at this foolish argument, since the WTIVPP claim is married to the FEHA claim. The whole basis of the WTIVPP claim is the FEHA violation! Fail to prove a violation of FEHA and you fail to prove WTIVPP.
So what is there to apportion?
Nothing. So the court didn’t (but it did have an interesting discussion on the doctrine of invited error).
Makes sense to me!
Alamo v. Practice Management Information Corp., 2012 WL 4450066 (September 24, 2012)