Failure to prevent harassment

Can there be a failure to prevent harassment when the jury finds harassing conduct occurred but it was not severe or pervasive so as to constitute unlawful harassment?

The Second District Court of Appeal recently considered the relationship between a failure to prevent harassment or discrimination claim and the underlying harassing or discriminatory conduct. On March 6, 2015, in Dickson v. Burke Williams (Cal. App. 2d Dist. Mar. 6, 2015) 2015 Cal. App. LEXIS 209, the court reviewed a jury’s verdict finding a failure to prevent sexual harassment and discrimination.

In this case, the employee sued her employer alleging harassing and discriminatory conduct by two customers. At trial, the employer proposed a special verdict form that directed the jury to skip deliberations on the employee’s claims for failure to prevent harassment and discrimination if there was no finding of underlying harassment and discrimination. The trial court declined.

The jury found that the employee was subjected to unwanted harassing conduct because of her sex. But it also decided that the conduct was not severe or pervasive. Consequently, the jury concluded that the employer was not liable for sexual harassment. The jury also found in favor of the employer on the employee’s sex discrimination claim. Nevertheless, the jury decided the employer was liable for failing to prevent sexual harassment and sex discrimination.

On appeal, the employer contended that the trial court improperly denied a motion to enter a judgment in its favor (judgment notwithstanding the verdict). The employee asserted that the finding of harassing conduct was sufficient to support the jury’s verdict in her favor on the failure to prevent sexual harassment claim.

The court of appeal disagreed. It reviewed the decision in Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4th 280, which recognized that a failure to prevent sexual harassment is a distinct claim. The court in Dickson noted that the court in Trujillo emphasized that the absence of unlawful harassment precludes a claim for failure to prevent harassment. The appellate court also pointed to the Directions for Use for the special verdict form for failure to prevent claims. They state that the jury should not answer any of the questions unless it finds that the underlying claim is proved.

The court in Dickson also determined that it would be anomalous to provide a remedy for failure to prevent acts that are not unlawful. This would allow an employee to succeed on a failure to prevent claim even if the underlying conduct was nothing more than lawful conduct such as teasing, an offhand comment, or an isolated incident. The court of appeal concluded by indicating that the same logic applies to failure to prevent discrimination claims, i.e., there is no failure to prevent claim unless the underlying conduct is unlawful discrimination.

Posted by deanroyerlaw in Employment

Self-serving testimony

May an employee avoid pre-trial dismissal of her case with her own uncorroborated testimony?

On February 25, 2015, the Ninth Circuit revived a disability discrimination case after concluding that the employee provided sufficient facts to warrant the case going to a trier of fact. In Nigro v. Sears, Roebuck & Co. (9th Cir. Cal. Feb. 25, 2015) 2015 U.S. App. LEXIS 2810, the federal appeals court disagreed with the trial court’s determination that the employee’s written and oral statements were “self-serving” and not enough to get past the pre-trial proceeding of summary judgment.

In this case, Anthony Nigro sued his employer after being terminated. Mr. Nigro claims that Sears discriminated against him based on his disability, declined to provide an accommodation for his disability, and failed to engage in the required interactive process to determine a possible accommodation.

For the disability discrimination claim, Mr. Nigro stated in his written declaration that the General Manager of the store at which he worked told him “[i]f you’re going to stick with being sick, it’s not helping your situation. It is what it is. You’re not getting paid, and you’re not going to be accommodated.” Mr. Nigro also offered his oral deposition testimony that a District Facilities Manager told him not to be concerned about his pay issue because the District General Manager had indicated that Mr. Nigro was “not going to be here anymore.” The district court disregarded the evidence as Mr. Nigro’s “own self-serving testimony.” After noting prior decisions acknowledging that employee declarations are often self-serving, the Ninth Circuit determined that Mr. Nigro’s evidence—uncorroborated and self-serving—was sufficient to support a finding that Sears was motivated by his disability when it terminated him.

With respect to the accommodation claim, Mr. Nigro admitted that his supervisor “continued to accommodate him,” with respect to a condition that caused loss of sleep. But there was also evidence that the supervisor did not approve of the accommodation to start work later in the morning, required Mr. Nigro to arrive on time every day, and that Mr. Nigro came to work at 6:00 a.m. every day after he returned to work. The federal appeals court concluded that a reasonable jury could infer that the supervisor’s unwillingness to accommodate compelled Mr. Nigro to arrive at 6:00 a.m. instead of at a later time.

As to the interactive process claim, the Ninth Circuit decided that the evidence supported a finding that the supervisor “chilled” Mr. Nigro’s exercise of his right to request an accommodation. The federal appeals court also determined that the General Manager’s alleged statement that he would not accommodate Mr. Nigro created a factual dispute regarding Sears’s compliance with its duty to engage with Mr. Nigro to identify an accommodation.

The Ninth Circuit acknowledged that Sears put forward substantial evidence showing that it had a non-discriminatory reason for terminating Mr. Nigro’s employment: Mr. Nigro did not comply with Sears’s attendance and leave policies resulting in job abandonment. Nevertheless, the federal appeals court reiterated the principle that it should not take much for an employee in a discrimination case to overcome summary judgment because the ultimate question—the employer’s motivation for the decisions at issue—is one that is most appropriately resolved by a factfinder at trial.

Posted by deanroyerlaw in Employment

Consecutive days of work law

California law regarding consecutive days of work to be clarified.

The Ninth Circuit Court of Appeals has requested that the California Supreme Court decide three issues concerning California law that regulates consecutive days of work. In Mendoza v. Nordstrom, Inc. (9th Cir. Cal. Feb. 19, 2015) 2015 U.S. App. LEXIS 2551, the federal appeals court certified the following questions for review by the California high court:

    1. California Labor Code section 551 provides that “[e]very person employed in any occupation of labor is entitled to one day’s rest therefrom in seven.” Is the required day of rest calculated by the workweek, or is it calculated on a rolling basis for any consecutive seven-day period?
    2. California Labor Code section 556 exempts employers from providing such a day of rest “when the total hours of employment do not exceed 30 hours in any week or six hours in any one day thereof.” Does that exemption apply when an employee works less than six hours in any one day of the applicable week, or does it apply only when an employee works less than six hours in each day of the week?
    3. California Labor Code section 552 provides that an employer may not “cause his employees to work more than six days in seven.” What does it mean for an employer to “cause” an employee to work more than six days in seven: force, coerce, pressure, schedule, encourage, reward, permit, or something else?

These questions arise from a lawsuit alleging that Nordstrom violated California Labor Code sections 551 and 552 by failing to provide two employees with one day’s rest in seven on three occasions. The district court decided that the required day of rest under section 551 is calculated on a rolling basis; the section 556 exemption applies when the employee works less than six hours in any one day of the week; and that Nordstrom did not cause the employees to work more than six days in seven because there was no coercion.

The Ninth Circuit directed the three questions to the California Supreme Court based on the ambiguous text of the statutes and the lack of legislative history and California court decisions to help answer the questions. The California high court’s answers to the questions will, as the Ninth Circuit noted, affect tens of thousands of employees.

Posted by deanroyerlaw in Employment

After-acquired evidence

Does evidence of an employee’s wrongdoing discovered by the employer after a case is filed require dismissal of the case before trial?

On February 18, 2015, the First District Court of Appeal considered whether dismissal of an employee’s discrimination case during a pre-trial proceeding is proper when based on “after-acquired evidence” (e.g., the employer learns of an employee’s ineligibility for hire after making the hiring decision). In Horne v. District Council 16 International Union of Painters & Allied Trades (Cal. App. 1st Dist. Feb. 18, 2015) 2015 Cal. App. LEXIS 148, the court concluded that an employer’s discovery of an employee’s wrongdoing after making an employment decision is not relevant for purposes of deciding whether there are disputed facts that require submission of the case to a trier of fact (“summary judgment”).

In this case, Raymond Horne sued District Council 16 contending that he was not hired for a union organizer position in 2009 and 2010 because of his race. After the case was filed, the union learned for the first time that Mr. Horne had been convicted of a narcotics sale in 1997. The union filed a motion for summary judgment, in which the court may use a three-stage analysis. The first stage requires the employee to provide evidence supporting a “prima facie” case of discrimination, including evidence that he was qualified for the position he sought. The union contended Mr. Horne could not establish a prima facie case because the conviction rendered him ineligible for the position: the Labor-Management Reporting and Disclosure Act of 1959 bars individuals convicted of violating narcotics laws from serving as organizers (29 U.S.C. section 504(a)). The trial court agreed with the union and granted summary judgment.

On appeal, Mr. Horne asserted that the trial court improperly considered the after-acquired evidence of the narcotics conviction. The court of appeal noted that the 2014 decision in Salas v. Sierra Chemical Co. (2014) 59 Cal.4th 407 “put to rest” the question of the appropriateness of using after-acquired evidence to negate a prima facie case. The court in Salas decided that after-acquired evidence is not a complete defense to claims under the California employment discrimination law, but does affect the available remedies. The union contended that the Salas decision did not apply because that court did not consider after-acquired evidence in the context of the summary judgment three-stage analysis. The court in Horne disagreed because Salas precludes the use of after-acquired evidence to completely bar an employee’s claim, and provides that such evidence is only relevant in the damages phase of the case. Because the three-stage analysis at summary judgment concerns liability only, after-acquired evidence is irrelevant for summary judgment purposes.

The court of appeal concluded that the trial court impermissibly relied on the after-acquired evidence of Mr. Horne’s felony conviction to support its grant of summary judgment. Accordingly, the court in Horne reversed the grant of summary judgment. This decision makes clear that after-acquired evidence cannot be used to dismiss an employee’s case.

Posted by deanroyerlaw in Employment

Second meal period

May employees waive a second meal period for shifts longer than 12 hours?

The Fourth District Court of Appeal recently addressed the issue of whether employees who work shifts longer than 12 hours may waive a second meal period. On February 10, 2015, in Gerard v. Orange Coast Memorial Medical Center (Cal. App. 4th Dist. Feb. 10, 2015) 2015 Cal. App. LEXIS 132, the court determined that an Industrial Welfare Commission Wage Order authorizing such waivers is invalid.

In Gerard, health care workers sued their hospital employer. One of the issues concerned the hospital’s policy allowing employees to voluntarily waive a second meal period for shifts longer than 10 hours, including those exceeding 12 hours. The employees alleged they signed second meal period waivers and occasionally worked longer than 12 hours without a second meal period. The trial court dismissed the meal period claim on grounds the employees were provided meal periods as required by law.

On appeal, the employees asserted that the second meal period waiver violated Labor Code provisions governing meal periods (sections 512(a) and 516) and that an IWC Wage Order is invalid to the extent it authorizes employees to waive second meal periods for shifts longer than 12 hours. The appeals court in Gerard agreed.

The court of appeal first looked to Labor Code section 512(a). That law requires employers to provide two meal periods for employees who work shifts longer than 10 hours, except when the shifts are no more than 12 hours and the employer and employees mutually consent to waive the second meal period. Next, the court discussed Labor Code section 516, which allows the IWC to adopt orders concerning meal periods except as provided in section 512. Finally, the court considered the Wage Order at issue (No. 5, section 11(D)). That order allows health care workers who work longer than eight hours per day to voluntarily waive a second meal period.

The court in Gerard determined that Labor Code section 512(a) and the Wage Order conflict: the Labor Code permits second meal period waivers for shifts of 12 hours or less, but the Wage Order allows such waivers for shifts longer than 12 hours. It also found that the legislative history of sections 512 and 516 of the Labor Code demonstrates an intent to prohibit the IWC from making wage orders in conflict with the requirements set forth in section 512. Ultimately, the court concluded that the IWC exceeded its authority and declared that the Wage Order at issue is invalid to the extent it authorizes waivers of second meal periods for shifts longer than 12 hours.

Posted by deanroyerlaw in Employment