CalEmployeeRights

Public Entities Are Liable For Violations Of FEHA

            In DeJung v. Superior Ct. (No. A116911, December 19, 2008) ___ Cal.App.4^th ___, the Court held that public entities can be found liable for violations of FEHA (Gov. Code § 12900 et seq.)  The Court of Appeals reversed a trial court ruling which held that public entities were protected from claims based upon an affirmative defense of discretionary immunity.  (Gov Code § 815.2(b) and Gov. Code § 820.2.)

More after the jump

CBS 5-TV Sued For Age And Sex Discrimination

     Today the San Francisco Chronicle ran an article discussing the recent case brought by two veteran TV reporters against CBS 5-TV (KPIX),

     On March 31, CBS 5-TV terminated 14 newsroom employees.  The TV station states that these employees were terminated in a cost-cutting move.  All of the 14 employees who were terminated were males.

     Bill Schechner, age 66, and John Lobertini, age 48, filed a lawsuit today in San Francisco Superior Court claiming they were victims of age discrimination and sex discrimination.  The lawsuit alleges that CBS "designed its workforce reduction process to eliminate older employees" and targeted "only male on-air talent" in the layoff. 

     The case is captioned Schechner v. KPIX-TV, case number CGC-08-480933.  The complaint is listed on the SFSC website, but is not yet available to the public.  Starting tomorrow the complaint should be available here.

     --Michael Sachs

Direct Evidence of Age Animus Not Enough To Show Decision Makers Were Influenced

       In a 2-1 unpublished decision, in Adam v. Kempthorne (9th Cir. 2008) 04-17458, the Ninth Circuit upheld the lower court's decision rejecting plaintiff scientists' Age Discrimination in Employment Act ("ADEA") and other federal claims against the U.S. Geological Survey ("USGS") where direct evidence of age-based animus permeated the work environment.  Some of the evidence from the record included the following:

* The Director of the USGS, Dr. Gordon Eaton, asking an audience, "What is the difference between Jurassic Park and the Geological Division of the Geologic Survey?"and responding with the answer, "One is an amusement park filled with dinosaurs and the other is a movie."

* A poster about a meeting to discuss the USGS' workforce reduction with a cartoon caption stating "You gotta help me, Mom...This assignment is due tomorrow, and Gramps doesn't understand the new tricks." Click on the graphic to the right to see this poster.

* A 1993 official report explaining the USGS' "Vision for the 21st Century" describing that "[s]ome segments of the USGS currently are suffering from an aging, high-grade workforce", which is "a critical problem that must be addressed...."

The EEOC Provides Guidance on the ADA and Applying Performance Standards

      The Americans with Disabilities Act ("ADA") prohibits employment discrimination against employees with disabilities.  To fall within the protection of this section, an employee must have a "disability" and must be "qualified."  The ADA lays out the definition of "disability at 42 U.S.C. § 12102(2) and the definition of "qualified" individual at 42 U.S.C § 12111(8). 

     An issue that frequently arises in disability discrimination situations is what actions an employer can take in applying performance and conduct standards to employees with disabilities.  Well, the Equal Employment Opportunity Commission ("EEOC") recently issued a document that answers many of these questions.  A copy of this document is available here.

    This EEOC document is similar to a FAQ, answering a number of questions and providing examples of when an employer is acting within the guidelines of the ADA and when the employer is violating the ADA.  This document also discusses some of the requirements an employee has in alerting the employer about a disability. 

    This is a very interesting read for anyone curious as to whether their employer (or for us attorneys, whether the Defendant or our client) may have violated the ADA.  Of course additional information on the ADA and EEOC policies can be found on the EEOC website. 

     --Michael Sachs

Employees Can Bring Age Discrimination Action Against Federal Employers

       In Whitman v. Mineta (9th. Cir. 2008) ____Fed.4th_____, the court held that the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 633a, protects employees against retailiation by federal employers. 

       Terry Whitman was employed as a flight data specialist by the Federal Aviation Administration ("FAA").  Whitman filed suit under the ADEA alleging that the FAA discriminated against him by promoting a student intern to a full-time position which Whitman sought.  Whitman also alleged that the FAA retaliated against him when he filed a formal complaint of age discrimination. 

       The 9th Circuit reversed the district court's dismissal of Whitman's retaliation claim.  The 9th Circuit held that the ADEA protected employees from retaliation by federal employers.  The 9th Circuit relied on the United States Supreme Court recent ruling in Gomez-Perez v. Potter (2008) ___ U.S. ___.

       In Gomez-Perez, the US Supreme Court was faced with the same question: does the ADEA protect federal employees who are subjected to retaliation?  The Supreme Court held that the ADEA does protect employees from retaliation.  The Court analogized the ADEA with 42 U.S.C. § 1982, and 20 U.S.C. § 1681(a), both of which have been held to protect against retaliation.  (Jackson v. Birmingham Bd of Ed. (2005) 544 U.S. 167, 176-177.)

     Thus, recent US Supreme Court 9th Circuit decisions have increased federal employees' rights, protecting them not just from age discrimination, but also from retaliation for complaints of age discrimination.

       --Michael Sachs

ICM Settles Age Discrimination Case

        Updating an early post, ICM has agreed to settle a class action age discrimination case brought against it by television writers for $4.5 million.  This settlement come directly on the heels of the Court of Appeals ruling in Alch v. Superior Court, (2008) ___ Cal.App.4th ___ (Second Appellate Dist., No. C203726) which allowed the Plaintiffs discovert of third party information.  Even after this settlement, the case will press forward as a number of Defendants remain.  Yet, this settlement illustrates how pressing on discovery issues sometimes leads to settlement. 

        --Michael Sachs

Cal Supreme Court Grants Review in Reid v. Google, Inc.

Last October the Sixth District Court of Appeal reversed summary judgment in an age discrimination case in Reid v. Google, Inc.(2007) 155 Cal.App.4th 1342 (now unciteable).  The decision, written by Justice Conrad Rushing, was chock full of all kinds of pro-plaintiff language, and really quite disparaging about the tendency of some courts to evaluate and weigh facts in ruling on summary judgment (a particular problem in the Federal Courts, but something we see in state courts as well).  The decision was particularly scornful of the "stray remark" doctrine, from which employers argue (and a few appellate courts have held) that an employee cannot successfully resist summary judgment with evidence that a supervisor made a "stray remark" manifesting a general unlawful discriminatory bias.  (Example:  Horn v. Cushman & Wakefield Western, Inc. (1999) 72 Cal.App.4th 798, 809.)  As the court observed:

The so-called "stray remarks" rule allows courts to deem racist or sexist remarks insufficient to support denial of summary {Slip Opn. Page 20} judgment if the remarks are considered "stray." We cannot view such a rule as anything other than the assumption by the court of a factfinding role.

The decision also held that, when a party objects to evidence on summary judgment, if the trial court does not explicitly rule, it will be assumed to have decided only on the basis of competent, admissible evidence, following  Biljac Associates v. First Interstate Bank (1990) 218 Cal.App.3d 1410 and declining to follow the more recent contrary ruling in Demps v. San Francisco Housing Authority (2007) ___ Cal.App.4th ___.

The Supremes have now granted a hearing, thus wiping the case off the books.  The statement of issues on review indicates that the Court will resolve the Biljac vs. Demps question, but is going to take a look at the "stray remarks" doctrine for good measure.

"Reasonable Factors" -- Who Has the Burden of Proof in ADEA Cases?

The ADEA prohibits age discrimination in employment.  At the same time, 29 U.S.C. section 623(f)(1) allows "differentiation" between persons in different age groups if that differentiaion is based on "reasonable factors other than age."  Does the employer have the burden of proving that its "differentiation" was based on reasonable, non-age based factors, or does the employee have the burden of showing it was not?  This issue is now before the US Supreme Court on cert petition, and the solicitor general has urged the court to grant cert in Meacham v. Knolls Atomic Power Lab.  A copy of the federal government’s amicus curiae is available here.

Clifford Meacham and other employees of Knolls Atomic Power Laboratory were subjected to an involuntary reduction of force. The company had developed a three part process for determining which employees to terminate. While age was not an explicit part of the process, 30 of the 31 employees terminated were over the age of 40. At the time of the layoff, only 60% of the work force was over 40 years old. Meacham and other employees brought suit for age discrimination under the ADEA. At trial, the jury found that the plaintiffs established disparate-impact.

The defendant appealed and the Second Circuit Court of Appeals affirmed the trial court’s decision.  In this first appeal, the court evaluated disparate-impact under the framework described in Wards Cove Packing Co. v. Atonio, (1989) 490 U.S. 642. In affirming, the court found that the defendant could have designed an involuntary reduction in force that was less vulnerable to bias.

Shortly after the employer filed a cert petition, the Supreme Court issued its decision in Smith v. City of Jackson (2005) 544 U.S. 228. The Supreme Court then granted cert in Meacham, vacated the judgment and remanded it for further proceedings based on Smith.

On remand the Second Circuit vacated the original judgment and instructed the district court to enter judgment for Knolls. The appeals court held that based on Smith, the plaintiff bears the burden of persuasion that the employer’s justification in unreasonable.  It is the plaintiffs’ appeal of this decision which is currently before the Court on a cert petition.

In its amicus brief the federal government is asking the Supreme Court to grant cert to determine whether the employee or the employer bears the burden of persuasion in establishing "reasonable factors other than age" under section 623 (f)(1).

The Ninth Circuit addressed this issue in 1983 in the case Criswell v. Western Airlines, Inc. (9th Cir. 1983) 709 F.2d 544. In Criswell the Ninth Circuit held that the employer, not the employee, bears the burden of persuasion in establishing reasonable factors other than age. Therefore, if the Supreme Court does grant cert and affirms the holdings in Meacham  it's holding would likely affect application of the ADEA in California and the 9th Circuit.

Additional discussion of the Meachum case can be found at Scotusblog.

                                                                --Michael Sachs