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A FEHA sexual harassment claim filed against Yolo County Sheriff Ed Prieto was revived by the Ninth Circuit in an unpublished decision after the federal district court granted defendant’s motion for summary judgment.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

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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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Online DFEH Right-to-Sue Requests – Digital Signatures

Today Governor Jerry Brown signed AB 2296 regarding digital signatures. From the Legislative Counsel’s Digest:

Existing law, the Uniform Electronic Transactions Act, provides that a record or signature may not be denied legal effect or enforceability solely because it is in electronic form and defines an electronic signature for purposes of the act. Existing provisions of the Government Code authorize the use of a digital signature in any written communication with a public entity, and specifies that in those communications, the use of a digital signature has the same force and effect as the use of a manual signature if it complies with specified requirements.

This bill would express the intent of the Legislature to clarify that a digital signature may be used to satisfy the requirements of an electronic signature under the Uniform Electronic Transactions Act. The bill would, for purposes of the Uniform Electronic Transactions Act, provide that an electronic signature includes a digital signature under the above described provisions of the Government Code and that a digital signature under those provisions is a type of an electronic signature as set forth in the Uniform Electronic Transaction Act. The bill would also revise the above-described provisions of the Government Code by specifying that if a public entity elects to use a digital signature, that meets specified requirements, the digital signature has the same force and effect of a manual signature in any communication with the public entity.

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Another Reminder that FEHA Defendants Can be Awarded Attorney’s Fees

Here’s another reminder that a plaintiff in a FEHA case may be ordered to pay defendant’s attorney’s fees if the court finds that “…plaintiff’s action was frivolous, unreasonable or without foundation, even though not brought in subjective bad faith.”

There’s still a myth out there that plaintiffs are never liable for defendants’ attorney’s fees, but that’s all it is—a myth.

So sue carefully.

Gonzalez v. The Los Angeles Lakers, Inc., et al.(unpublished)
California Court of Appeals, Second District, Division Four
August 10, 2016

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Off Topic: In Defense of Dean Strang and Jerome Buting

I recently saw this article on which discusses an interview in which Steven Avery, of Making a Murderer fame, dissed his two trial attorneys, Dean Strang and Jerome Buting, claiming that but for their ineffective assistance of counsel, he wouldn’t be sitting in prison.

That’s the biggest bunch of crap I’ve heard since President Obama told us that if we liked our health care plan, we could keep it.

I have not dog in this fight, but as I wrote previously, Making a Murder was a fantastic and engrossing documentary which I think highlighted Strang’s and Buting’s fine work in defense of Steven Avery. After watching the documentary, I wasn’t convinced one way or another about Avery’s guilt. I just thought I would have liked to have watched the unedited video of the whole trial before making a decision, because who knows what was left on the cutting room floor?

But Steven Avery just convinced me of his guilt with his recent comments about Strand and Buting. Not very often does a criminal defendant get the high level of defense Avery got. If anyone should know this, Avery should, considering what happened to him when he was first wrongfully convicted while receiving ineffective assistance of counsel.

Just look at Avery’s recent letter in which Avery claims, among other things, that Strang and Buting didn’t investigate his case and were just simply protecting the State! At least I think that’s what Avery said. Here’s an excerpt of exactly what he wrote:

10. Dean and Jerry didn’t do no investigation on this case, if they did I would not be in prison, They would have the Suspect if they did there job!!

11. Dean and Jerry all they were doing is predict the state and there lawfirm,

12. Lawyers should be responsible for they wrong doing!!!

13. Lawyers sould loose there license when they dont investigate they case to proof there Client’s and they Violating the Ethics, the State sould take there license for good.

Good grief.

I agree with Steven Avery that criminal defense lawyers that fail to do their jobs should lose their bar cards. It’s all too common and in the criminal justice world, the ramifications for a client or potentially life-threatening.

But for Avery to criticize two attorneys who obviously worked their tails off in his defense just convinces me that Avery has a screw loose and is probably guilty of the murder. What’s amazing and what Avery fails to understand is that the fact that reasonable people are arguing over Avery’s innocence in the case speaks volumes on how effective Strang and Buting were.

Of course, it’s easy for me to say this because I have not ever been wrongfully convicted of a crime as a result of ineffective assistance of counsel, then years later being freed, only to find myself in prison again. But hopefully one day Avery will realize he was the beneficiary of the diligence and persistence of his two fine trial attorneys. And I bet his current attorney, Kathleen Zellner, will benefit from their hard work in her current defense of Avery.

I think what really bothers me about Avery’s comments is the “cry wolf” issue. Not every inmate in prison is there because if incompetent counsel. But a lot of inmates think that, regardless of their true innocence or guilt.

Here’s a couple of cases from Nevada about a real claim of ineffective assistance of counsel at trial and on appeal, if you want to know how bad it can get. Read these and weep.

Gibbs v. LeGrand, 767 F. 3d 879 (2014)

Rudin v. Myles, 766 F. 3d 1161 (2014)

Rudin v. Myles, 781 F. 3d 1043 (2015) (supersedes Rudin, 766 F. 3d 1161)

Here’s a recent video of Strang and Buting delivering an address to the National College for DUI Defense:

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Off Topic: Judge Kozinski on Lengthy Briefs

I regularly read the California Appellate Report blawg authored by Professor Shaun Martin of the University of San Diego Law School. I read his blawg because it’s entertaining and it’s much more pleasant than scouring through the courts’ websites looking for interesting cases.

In a recent post, Prof. Martin discussed a “neat little dissent” by my favorite Ninth Circuit judge, Judge Kozinski. In that case, Judge Kozinski was worked-up over having to deal with another long brief. I love Prof. Martin’s take on Kozinski’s hortatory.

Briefs are often longer than they need to be and that’s because it’s more difficult to write a concise and persuasive brief than to write a brief just throwing in a lot of case law without really thinking about what is really relevant and necessary to the argument.

About 20 years ago I had a case before the Nevada Supreme Court. And I think the Supreme Court rule limited briefs to 35 pages. My brief was less than 10 pages, but my opponent’s brief was exactly 35 pages and it was all italicized and boldfaced! The whole brief!

I wonder what Judge Kozinski would say about that.

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FEHA and Equitable Tolling

A California plaintiff files a racial discrimination complaint with the EEOC alleging racial discrimination against his employer. The EEOC then files a copy of the complaint with the DFEH under their work-sharing agreement. DFEH issues an immediate right-to-sue letter which gives plaintiff the right to file a lawsuit in state court within one year. EEOC investigates the claim and a couple of years later issues a letter of determination stating there is reasonable cause to believe plaintiff suffered from racial discrimination. Then, a few months later, EEOC sends out its own right-to-sue letter after the case doesn’t settle. Ninety-seven days later, plaintiff sues his employer in California Superior Court.

Did plaintiff miss the FEHA statute of limitations? No. Even though plaintiff missed the federal 90-day limitations period after receipt of the EEOC right-to-sue letter, that was irrelevant. What is relevant, is plaintiff’s limitations period under FEHA was tolled during the time in which EEOC was investigating his claim. So the statute did not start running on plaintiff’s FEHA claims until the EEOC issued its determination letter.

This is called “equitable tolling.” Having just dealt with equitable tolling in a nightmare federal habeas corpus case, I know all about it!

(The justifications for equitable tolling in the FEHA context and the federal AEDPA law are essentially  the same, in case you’re wondering.)

Anyway, this is a relatively common fact pattern and I am not surprised at the court’s decision in applying equitable tolling.

But what did surprise me was how the case got to the Court of Appeal. And I won’t go through all of the sordid details here, but it involves demurrers, a petition for writ of mandate,  an alternative writ of mandate, new orders, hearings, motions for consideration, well…it is simply crazy and a waste of time. I think the Court of Appeal finally got it right, but procedurally it was a nightmare which could have been avoided.

Mitchell v. State Dept. of Public Health
Court of Appeal of California, Second Appellate District
July 27, 2016

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Holly Thomas Appointed to DFEH Position

Governor Jerry Brown recently announced his appointment of attorney Holly A. Thomas to be the new deputy director of executive programs at DFEH.

Thomas is certainly credentialed having been special counsel to the solicitor general at the New York Attorney General’s Office, among other things.

Here’s the text of Governor Brown’s announcement:

Holly A. Thomas, 36, of Brooklyn, New York, has been appointed deputy director of executive programs at the California Department of Fair Employment and Housing. Thomas has been special counsel to the solicitor general at the New York State Attorney General’s Office since 2015. She served as a senior attorney in the Appellate Section of the Civil Rights Division at the U.S. Department of Justice from 2010 to 2015 and was an assistant counsel at the National Association for the Advancement of Colored People (NAACP) Legal Defense and Educational Fund Inc. from 2005 to 2010, where she was a fellow with the Arthur Liman Public Interest Program from 2005 to 2006. Thomas served as a law clerk for the Honorable Kim McLane Wardlaw at the U.S. Court of Appeals, Ninth Circuit from 2004 to 2005. Thomas earned a Juris Doctor degree from Yale Law School. This position does not require Senate confirmation and the compensation is $133,008. Thomas is a Democrat.

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Los Angeles Verdict: $8.5 Million for Age and Gender Discrimination

Congratulations to Los Angeles attorney Maryann Gallagher for an $8.5 million verdict she got for her client in an age and gender discrimination case against B.E. Aerospace, Inc. on June 2, 2016.

The verdict included $7 million in punitive damages and $1.5 million in compensatory damages.

Plaintiff worked for B.E. Aerospace for 23 years and never received any negative performance evaluations. Toward the end of her tenure, plaintiff was directed to train a new 24 year old employee, who eventually took plaintiff’s job after plaintiff was fired because her position was “eliminated.” Typically, before this occurred, a newer and younger supervisor arrived. This newer and younger supervisor started in on plaintiff because of plaintiff’s age and gender.

Unfortunately this has become a common practice. I see it more and more.

Considering that California is an employment at will state, it still amazes me that many of these large employers, armed with armies of lawyers, will harass and lie to older employees it wants to get rid of. Most of these cases wouldn’t be worth filing if the employer treated the employee well. Most employees know they can be fired, but they can be fired with dignity. But these lawyered-up employers often make the mistake of thinking they have to come up with a reason to get rid of employees they’re tired of or are paying too much, so they cook up some reasons to “justify” a termination.

Stupid, stupid, stupid. Especially to treat a long-term dedicated employee like some kind of undesirable cretin and kicking him/her out the door.

Gee, what about treating the employee with dignity and respect? And if there’s a business reason to terminate an employee, especially a long-term employee, how about a generous severance package and a proper send away? How about a “thank you?”

I bet B.E. Aerospace now wishes it would have thought of that.

Check out this B.S. from B.E. Aerospace’s website:


B/E Aerospace is a leading manufacturer of aircraft interior products and solutions, and leading distributor of aerospace fasteners and consumables for the commercial business jet and military markets. A career here is beyond what you would expect in a job. (emphasis added!)

At B/E, your ideas, talents, and experiences reach beyond day-to-day duties. They are also used to shape a global organization. This is your opportunity to make a real difference each day and be a part of something bigger than any single individual. You can be a part of a global team that is always looking ahead.

Open the Door to Success.

We know the best view of B/E is from the inside. Come explore the pride, commitment, and value that a career at B/E Aerospace can bring to your professional experience. (I suggest allowing plaintiff to be the tour guide.)

What a joke!

I think the website should bear a prominent disclaimer. Here’s a suggestion:

Warning! Long-term dedicated employees are likely to have their reputations sullied and are subject to unceremonious termination when BE Aerospace determines the time is right. Applicants over 40 years old and women should consider this when applying.

Congratulations to Maryann Gallagher for her righteous victory.

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