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

Cal. Supremes Hold That FEHA Statute Of Limitations Tolled By Pursuit Of Internal Remedies

        In McDonald v. Antelope Valley Community College Dist., ___ Cal.4th __ (No. S153964, Oct. 27, 2008) the Court found that the voluntary pursuit of internal remedies tolls the statute of limitations in a FEHA action.

                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

Jury Awards Plaintiff $1.3 Million Total Damages In Retaliation Claim

     A California jury awarded Jane Mootz $800,000 in non-economic damages for retaliation she suffered at the hands of her employer the California Department of Corrections and Rehabilitation.  

Expert Costs do not have to be Claimed within 15 days in a FEHA case

     When a plaintiff succeeds on a claim under the Fair Employment Housing Act (FEHA) , the court in its discretion may award the plaintiff attorneys fees and expert costs.  (Government Code § 12965(b)).  The question that was put to the Court in Anthony v. City of Los Angeles (2008) ___ Cal.App.4th ___ (B202457) was: Must the plaintiff claim expert costs within 15 days of the entry of judgment?  There, the Court said no.
    
     In Anthony, the Court held that because these costs are discretionary, it make no sense for the plaintiff to claim them as part of its standard costs memorandum under California Rules of Court, rule 3.1700, which makes the granting of certain trial costs obligatory.

     Instead, the Court held that expert costs should be claimed at the same time attorneys’ fees are claimed.  That way, the Court can address both of these discretionary ideas at the same time.  Thus, the Court in Anthony held that a claim of expert costs made 25 days after the entry of judgment, was timely.

    The second issue discussed in Anthony was the defendant’s claim that a court only had discretion to award expert costs for experts the court itself appointed, not for experts the plaintiff retained on his own.  The Court quickly dispatched this argument relying on Government Code § 12965(b) and Davis v. KGO-T.V., Inc. (1998) 17 Cal.4th 436, for the position that the Court does in fact have discretion to award expert costs for experts not appointed by the Court. 

     --Michael Sachs

Supremes Decide Jones v. Lodge at Torrey Pines

The California Supreme Court has decided in Jones v. Torrey Pines (2008) ___ Cal.4th ___ (S151022) that non-employer individuals cannot be held liable for retaliation.  The applicable part of the FEHA, Government Code section 12940(h) makes it unlawful for "any employer, labor organization, employment agency, or person to discharge, expel, or otherwise discriminate against any person because that person has filed a complaint, testified, or assisted in any proceeding" under FEHA.  Two California courts of appeal and the Ninth Circuit have all held that this language is unambiguous and means what it says:  an individual may not retaliate against a person who exercises FEHA rights, and can be held liable if he or she does.  Taylor v. City of Los Angeles Dept. of Water & Power (2006) 144 Cal.App.4th 1216;  Walrath v. Sprinkel (2002) 99 Cal.App.4th 1237;  Winarto v. Toshiba America Electronics Components (9th Cir. 2001) 274 F.3d 1276.

Not so, said the Supreme Court:  the use of the term "person" is ambiguous, and the Court therefore goes through an extensive amount of "interpretation" to render the word surplusage to support its holding. In an  impassioned and very well-reasoned dissent, Justice Moreno (joined by Justices Werdegar and Kennard) assails the Court for implementing its own views of public policy and incentivizing supervisors who harass to also retaliate against employees who oppose the harassment in an effort to dissuade their victims from reporting the conduct. 

The majority argues that it is only addressing retaliation for complaining of discrimination, not harassment (fn. 4) and that it is not expressing an opinion as to whether retaliation for complaining of harassment makes a supervisor liable.  So this window remains slightly open.  But as Justice Moreno shows in his dissent (the majority doesn't discuss the facts of the case at all), the complaints which formed the basis for the retaliation clearly related to harassment.

All in all, not a good day for plaintiffs in FEHA retaliation cases.

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.