Evidence

April 2020 employment law decisions

Gender discrimination verdict reversed based on trial court’s series of errors.

April 23, 2020, Second District Court of Appeal, Lauren Pinter-Brown v. The Regents of the University of California: Dr. Pinter-Brown sued The Regents for gender discrimination and a jury found in her favor and awarded $13 million in damages. The appellate court reversed because the trial court committed a series of errors that prejudiced The Regents’ right to a fair trial by an impartial judge: (1) the court delivered a presentation to the jury highlighting major figures in the civil rights movement and told the jury it was their duty to stand in the shoes of Dr. Martin Luther King; (2) the court allowed the jury to hear about and view a long list of discrimination complaints from across the entire UC system that were not connected to Dr. Pinter-Brown’s circumstances or theory of the case; (3) the court allowed the jury to learn the contents and conclusion of a report documenting racial discrimination occurring throughout the entire UCLA campus; and (4) the court allowed Dr. Pinter-Brown to resurrect a retaliation claim after the close of evidence despite having dismissed that claim prior to trial.

After-acquired evidence may be used in federal disability discrimination cases for the issue of whether the employee was qualified for their position.

April 17, 2020, Ninth Circuit Court of Appeal, Sunny Anthony v. TRAX International Corporation: Ms. Anthony sued TRAX for disability discrimination. During the course of the case, TRAX discovered that Ms. Anthony lacked a required degree for the position she held. The Ninth Circuit concluded that this “after-acquired evidence” could be used by TRAX to show that Ms. Anthony was not qualified for her position, and, therefore, not protected under the federal disability discrimination law.

Staffing agencies uninvolved in promotion decisions cannot be held liable for a failure to promote claim.

April 7, 2020, Second District Court of Appeal, Bonnie Ducksworth v. Tri-Modal Distribution Services et al.: Ms. Ducksworth and another employee, Pamela Pollock, sued Tri-Modal and two staffing agencies that supplied them to Tri-Modal for race discrimination in promotion decisions. The appellate court affirmed the dismissal of the case against the staffing agencies because they were uninvolved in Tri-Modal’s decisionmaking about whom to promote. Ms. Pollack also had a harassment claim against Tri-Modal’s executive vice president arising from promotion decisions. The Second District also affirmed the dismissal of Ms. Pollack’s case against the executive vice president because it was filed too late (statute of limitations). It determined that the statute of limitations began running when Tri-Modal told employees they have been given a promotion (and not when the promoted worker started the new work).

Federal sector employees may prove age discrimination without showing their age was the but-for cause for an adverse employment action.

April 6, 2020, U.S. Supreme Court, Babb v. Wilkie, Secretary of Veterans Affairs: The high court decided that the age discrimination law for federal-sector employees does not require a showing that age was a but-for cause of an adverse employment action. The law’s language that “all personnel actions affecting employees or applicants for employment who are at least 40 years of age…shall be made free from any discrimination based on age” creates a more protective standard as compared to the law covering state and private sector employees. At the same time, in order to recover reinstatement, backpay, and compensatory (non-economic) damages, federal employees must satisfy the but-for cause standard.

Payment of accrued vacation time required even when there is no specific time off limit.

April 1, 2020, Second District Court of Appeal, Teresa McPherson v. EF Intercultural Foundation, Inc.: California’s Labor Code requires an employer to pay all unused, vested (accrued or earned) vacation time when an employee separates. The court of appeal decided that under the circumstances of this particular case, this requirement applied to the employer’s paid time off policy in which it did not promise its employees a specific amount of paid vacation that they would accrue or expressly tell them the paid time off was unlimited (and a limit was implied). But the Second District also stated that the requirement to pay vested vacation time does not apply to all unlimited paid time off policies.

Posted by deanroyerlaw in Employment

August and September 2019 employment law decisions

Retaliation claim can be proved with evidence concerning a comparator who need only be similarly situated to the plaintiff employee in all relevant respects.

September 26, 2019, First District Court of Appeal, Rashmi Gupta v. Trustees of the California State University: The court of appeal affirmed a jury verdict finding San Francisco State University retaliated against Dr. Gupta in denying her tenure and terminating her employment. The trial court did not err by allowing Dr. Gupta to present evidence of a comparator professor because the other professor was similarly situated in all relevant respects and Dr. Gupta did not have to show that she was clearly superior to him.

Premium wages required for on-duty meal periods unless there is written agreement to such meal periods.

September 26, 2019, Second District Court of Appeal, Gustavo Naranjo v. Spectrum Security Services, Inc.: The court of appeal determined that at-will, on-call, hourly, nonexempt employees who are paid for on-duty meal periods are also entitled to premium wages (one hour of wages for each off-duty meal period not provided) if the employer does not have a written agreement that includes an on-duty meal period revocation clause.

Employees entitled to penalties and attorney’s fees in whistleblower retaliation case.

September 25, 2019, Second District Court of Appeal, Todd Hawkins v. City of Los Angeles: A jury found in favor of Mr. Hawkins and his co-plaintiff Hyung Kim who claimed retaliation for whistleblowing. The court of appeal affirmed the jury verdict and the trial court’s award of a Private Attorney General Act (PAGA) penalty because the plaintiffs’ pre-lawsuit notice referred to their employer’s conduct directed toward them and other employees that also impacted the public. The court of appeal also affirmed the trial court’s award of attorney’s fees under PAGA, and under a law concerning enforcement of an important right affecting the public interest (Code of Civil Procedure section 1021.5) because the case concerned claims that the plaintiffs were retaliated against for reporting pressure on hearing examiners to change decisions concerning parking citations.

Common law failure to hire claim is not available.

September 24, 2019, Third District Court of Appeal, Wilfert Williams v. Sacramento River Cats Baseball Club, LLC: The court of appeal determined that Mr. Williams’s failure to hire claim is not cognizable under a common law doctrine (Tameny claim) because the doctrine requires the prior existence of an employment relationship that gives rise to an employer’s duty to not violate fundamental public policy with respect to its employees.

Employee’s whistleblower case survives anti-SLAPP motion.

August 29, 2019, Second District Court of Appeal, James Jeffra v. California State Lottery: The court of appeal disagreed with the trial court’s denial of an anti-SLAPP motion on grounds Mr. Jeffra’s whistleblower case arises from non-protected retaliation. The Second District applied a recent California Supreme Court decision that whether a case arises from protected activity depends on the elements of the claim that need to be proven. In this retaliation case, Mr. Jeffra had to prove he was subjected to an adverse employment action, which he claimed was an investigation of alleged wrongdoing (followed by administrative leave and forced retirement). Nevertheless, the court of appeal affirmed the denial of the motion because Mr. Jeffra presented sufficient evidence to establish a probability of prevailing on the merits.

Whether morbid obesity is a disability under federal law in the absence of an underlying physiological condition is an open question.

August 20, 2019, Ninth Circuit Court of Appeals, Jose Valtierra v. Medtronic Inc.: After acknowledging that four other circuits have concluded that morbid obesity is not a disability unless caused by an underlying physiological condition, the Ninth Circuit did not take a stand on that issue. Instead it affirmed the trial court’s dismissal of Mr. Valtierra’s federal disability discrimination case on grounds he did not have evidence to suggest a causal connection between his obesity and his termination.

The causation standard for federal disability discrimination claims is “but for.”

August 20, 2019, Ninth Circuit Court of Appeals, Michael J. Murray, M.D. v. Mayo Clinic: In light of two recent U.S. Supreme Court decisions, the Ninth Circuit affirmed the trial court’s jury instruction for Mr. Murray’s federal disability discrimination claim that used a but for causation standard as opposed to a motivating factor standard.

Unfair Competition Law claims seeking private injunctive relief are subject to arbitration agreements.

August 14, 2019, Fourth District Court of Appeal, Daniel Clifford v. Quest Software Inc.: Mr. Clifford brought various wage and hour claims against his employer. Quest Software moved to compel arbitration. The trial court ordered the case to arbitration except Mr. Clifford’s Unfair Competition Law (UCL) claim. The court of appeal reversed after finding that a California Supreme Court decision did not bar arbitration of a UCL claim for private (as opposed to public) injunctive relief.

The change in law for awards of attorney’s fees and costs to employers in Fair Employment and Housing Act cases applies retroactively.

August 1, 2019, Fourth District Court of Appeal, Arthur Scott v. City of San Diego: Mr. Scott rejected a $7,000 settlement offer under Code of Civil Procedure section 998. After the case went to trial and a jury found in favor of San Diego, the trial court awarded the city $51,946.96 in costs even though it found that the plaintiff’s case was not frivolous. While the appeal was pending, the California Legislature amended the governing costs statute to provide that a prevailing defendant may not recover attorney’s fees and costs, notwithstanding a section 998 offer, against a plaintiff with non-frivolous claims. The court of appeal decided that this amendment clarified existing law, meaning that the change in law applies retroactively. On this basis, it reversed the trial court’s award of costs.

Posted by deanroyerlaw in Employment

April 2019 employment law decisions

Employee’s failure to promote claim revived.

April 29, 2019, Ninth Circuit Court of Appeals, David Weil v. Citizens Telecom Services Company, LLC: The trial court erred by dismissing a failure to promote claim after excluding a statement made by an employee of the defendant employer concerning the promotion decision despite being later moved to a different role.

Unpaid wages claim by security guards with collective bargaining agreement turns on interpretation of state law.

April 25, 2019, California Supreme Court, George Melendez v. San Francisco Baseball Associates LLC: Claim for unpaid wages by security guards at San Francisco Giants’ stadium does not require interpretation of a collective bargaining agreement so the lower courts may decide the case on the merits.

Employer complies with wage statement law by listing its fictitious business name and street address not including a mail stop code.

April 10, 2019, First District Court of Appeal, Vaiula Savea v. YRC, Inc.: The court of appeal affirmed the trial court’s dismissal (on demurrer) of the employee’s case that asserted the wage statement law required listing the employer’s name registered with the California Secretary of State and an address that included the mail stop code and the ZIP+4 code.

Posted by deanroyerlaw in Employment

Sex discrimination evidence

Enough evidence of sex discrimination?

Last month, the Ninth Circuit Court of Appeals decided whether an employee had enough evidence of sex discrimination to go to trial. In Mayes v. WinCo Holdings, Inc. (9th Cir. 2017) 846 F.3d 1274, Ms. Mayes challenged her termination under the federal employment discrimination law, Title VII.

In this case, Ms. Mayes worked for WinCo, a grocery store. During her final years at WinCo, Ms. Mayes supervised employees on the night-shift freight crew. In 2011, WinCo terminated Ms. Mayes, allegedly for taking a stale cake from the store bakery to the break room to share with fellow employees and telling a loss prevention investigator that management had given her permission to do so. WinCo claimed these actions were theft and dishonesty. WinCo replaced Ms. Mayes with a male who had only one month of freight crew experience and no supervisory experience at WinCo.

After Ms. Mayes sued WinCo for sex discrimination, WinCo moved the trial court to dismiss the case (summary judgment). The court granted the motion on grounds Ms. Mayes did not have evidence to dispute WinCo’s alleged reason for terminating her.

On appeal, the Ninth Circuit began with a review of the standard for disputing an employer’s reason for a termination (pretext). An employee can prove pretext either directly by showing that unlawful discrimination more likely motivated the employer, or indirectly by showing that the employer’s explanation is unworthy of credence because it is internally inconsistent or otherwise not believable.

Most cases do not include direct evidence. But the appellate court found that Ms. Mayes had multiple examples of direct evidence of sex discrimination: the general manager of the store made the alleged comments that (1) a man “would be better” to lead the safety committee instead of Ms. Mayes; (2) she did not like “a girl” (Ms. Mayes) running the freight crew; and (3) criticized Ms. Mayes, but not a male co-worker, for leaving work early to care for her children. These comments directly concerned Ms. Mayes and the decision-making process for retaining and promoting employees.

WinCo contended that this evidence was not relevant because the general manager did not terminate Ms. Mayes. The Ninth Circuit disagreed because there was evidence suggesting the contrary: WinCo admitted in writing (interrogatory) that the general manager was involved in the termination, the general manager testified in an unemployment benefits hearing that she was involved, and the general manager testified that she was in contact with the person who notified Ms. Mayes that she was terminated. Furthermore, the general manager admitted that she contacted loss prevention after reviewing a video-recording of Ms. Mayes taking the stale cake. Finally, no one at WinCo admitted to making the termination decision. Taken as a whole, the evidence supported an inference that the general manager’s bias influenced or contributed to the termination decision.

WinCo also asserted that the general manager’s comments were “stray remarks” that could not establish discrimination. But the court of appeals concluded that a reasonable jury could decide that the general manager’s comments demonstrated her overt hostility to having women in leadership roles. The Ninth Circuit also reaffirmed precedent that the decision-maker may engage in unlawful discrimination, even when she is the same sex as the employee.

Although there was enough direct evidence for Ms. Mayes to go to trial, the Ninth Circuit also reviewed the circumstantial evidence. Multiple employees testified that it was a common, accepted practice—rather than an offense punished by termination—for supervisors like Ms. Mayes to take cakes to the break room. Also, WinCo replaced Ms. Mayes with a less qualified male. This evidence was sufficient to establish pretext circumstantially.

Based on the direct and circumstantial evidence, the appellate court reversed the trial court’s dismissal of the case.

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