January 21, 2014

Invasion of Privacy Claim Established Where Supervisor Blatantly Shares Medical Condition With Co-Workers

There is an employee-with-a-disability's worst nightmare. You suffer from a disability. You try your best to go to work each day despite your disability (which here is a mental disability). Because of the stigma associated with the disability, you keep your medical condition to yourself. When you must miss work due to your disability, you faithfully let your employer know. Because you want your employer to understand that there really is a good reason for your absence, you let your employer know the nature of your disability and that it caused you to miss work. Then, your employer stands up on a chair and screams to the world, including all your co-workers, "Ignat was bipolar!" Ignat v. Yum! Brands, Inc., 214 Cal.App.4th 808 (2013).

As a result of Ignat's supervisor's loose lips, Ms. Ignat's co-workers shun her and ask whether she is going to "go postal". Ms. Ignat sues for invasion of privacy. The employer defends based on a bunch of technicalities. First, it defended the case based on the fact that she filed her legal papers too late. The trial court bought this, but the Court of Appeals reversed. Then it defended claiming you can only state a claim for invasion of privacy if the invasion is done in writing, rather than orally. The lower Court bought this argument, and dismissed Ms. Ignat's claim. Luckily for her, the Court of Appeals agrees that an invasion of privacy doesn't require a written agreement, calling such a requirement "outmoded".

I wish Ms. Ignat good luck back in the trial court. Yum! Brands (which, by the way, owns the likes of Kentucky Fried Chicken and Taco Bell) should apologize to Ms. Ignat rather than fighting her claim on technical grounds.


Jody I. LeWitter

December 31, 2013

Retaliation Claim Survives Even When Underlying Sexual Harassment Claim Fails

Sometimes courts raise the bar on sexual harassment claims too high. Whether the sexual harasser's conduct is "severe" or "pervasive" enough to go to trial often seems to be determined by the subjective lenses of the judges. The judges' lenses are often colored by their own life experience. Certainly whether a judge is a "he" or "she" may impact the analysis. Although here in Westendorf v. West Coast Contractors of Nevada, Inc. 712 F.3d 417 (9th Cir 2013), the three judge panel, including a female judge, all found against Ms. Westendorf's sexual harassment claim. Judges ought to walk a mile in the shoes of the victims of this offensive conduct, and they might not be so quick to declare that the conduct isn't severe or pervasive enough. I guess the judges weren't as offended as I was by all the talk about breasts and orgasms.

However, the same panel of judges did understand that Ms. Westendorf's claim for retaliatory termination should go forward, holding that there was a material fact as to whether she was fired because she complained of the crude and offensive remarks.

So, for Ms. Westendorf, the glass is half empty or half full, depending on the perspective!!

Jody I. LeWitter

December 23, 2013

Be Careful What You Say In Your Disability Application: It May Not Bar Your Case, But You'll Have Some Explaining to Do

The best that can be said about Smith v. Clark County School District (9th Cir 2013) 727 F.3d 950, as well as all the case law examining whether what an employee said on his or her disability application bars a claim for disability discrimination/failure to accommodate, is: BE CAREFUL! Anything you say can and will be used against you. However, as explained by the Ninth Circuit in Smith , if what you say can be interpreted in more than one way, this is a question for the jury.

Ms. Smith worked as a literacy specialist at a school district. She had a back injury that limited her mobility. When her principal informed her that she was being assigned to teach kindergarten for the next academic year, she told the principal that her back injury prevented her from doing so. Thereinafter, Ms. Smith aggravated her back injury, and was off work totally until the end of the academic year. She applied for disability benefits and family leave.

Ms. Smith filed a claim for disability discrimination and failure to accommodate under the Americans With Disabilities Act (ADA). The employer-school district filed for summary judgment.

Ms. Smith explained that by filing for disability benefits and family leave, she meant she was temporarily disabled, not that she could never perform her literacy specialist job. The lower court granted summary judgment, holding that Ms. Smith could not both claim disability and claim she could do the job.

The Ninth Circuit reversed, noting that employees should receive a "wide latitude to overcome apparent conflicts between their disability applications and their ADA claim."

So, BE CAUTIOUS! If you have or may have a disability or reasonable accommodation claim, and you need to fill out any paperwork (such as a disability application, workers compensation claim, personal injury case insurance forms, or family leave form) be careful what you say! They are watching you! If possible, consult with a lawyer beforehand!

Jody I. LeWitter
December 23, 2013

December 17, 2013

Labor Arbitration May Preclude Common Law Claims Such as Wrongful Termination in Violation of Public Policy

The law is pretty well settled that a labor arbitration does not generally bar a unionized employee from bringing a claim under the Fair Employment and Housing Act, such as a discrimination, sexual harassment or retaliation claim. See Alexander v. Gardner-Denver (1974) 415 U.S. 36; Camargo v. California Portland Cement Co. (2001) 86 Cal.App.4th 995. However, Wade v. Ports America Management Corporation (2013) 218 Cal.App.4th 648 declined to extend this good fortune to non-statutory claims such as wrongful termination in violation of public policy.

Mr. Wade brought a claim for wrongful termination in violation of public policy. His public policy claim was for race discrimination. Wade justified this outcome by noting the uniqueness of the Fair Employment and Housing Act's statutory scheme. That part, I generally understand, even if I don't agree with it However, the Court didn't stop there. It came up with a hard-to-follow and not so well- reasoned argument that Mr. Wade's public policy against race discrimination was violated was encompassed in his union arbitrations and therefore precluded by it. The fact that his union arbitration didn't in any way address race discrimination, didn't stop the Court from its labored and illogical analysis that it did. So, be very careful of your labor arbitration's impact on any civil case you might bring!

Jody I. LeWitter
December 17, 2013

November 20, 2013

Enforceability of Wage Claim Arbitrations Hangs in the Lurch Pending Remand in California Supreme Court's Sonic II

The tension between an employee's simple right to receive his wages for work he performed and the U.S. Supreme Court's favoritism towards employers, is almost palpable in the tortured history of Sonic-Calabasas A, Inc. v. Moreno (Sonic II) ___ Ca.4th ___ (Oct. 17, 2013).

Here the employer imposed an arbitration agreement upon Mr. Moreno. When Mr. Moreno filed a simple Labor Commission claim to collect his vacation pay, the employer refused to attend the Labor Commission (Berman) hearing, and instead moved to arbitrate the claim. I suspect the move was a ploy to make it so expensive and time consuming for poor Mr. Moreno to collect what wasn't a large amount of money to begin with, that he'd just give up. Lucky for Mr. Moreno, the Labor Commissioner realized the negative implications for all employees just trying to get paid for the work they do, if they can't go to the Labor Commission.

In 2011 the California Supreme Court held that Mr. Moreno was entitled to his Labor Commission hearing, and that if the employer was dissatisfied with the results of the Berman hearing, it could then move to arbitrate. This was a fairly benign and logical holding.

But I guess this wasn't enough for the anti-employee U.S. Supreme Court. It vacated the California Supreme Court opinion, and sent the case back to the California courts for reconsideration. Sonic-Calabasas A, Inc. v. Moreno 132 S.Ct 496 (2011). (I blogged about this previously, see entry of November 20, 2011.)

So, now we are back in the California Supreme Court's "court." Given that the U.S. Supreme Court held that arbitrations are practically invincible, the California Supreme Court felt forced to recant its prior opinion. Thus, it held that a Labor Commission hearing on the way to an arbitration imposed significant delays and could not be tolerated under the U.S. Supreme Court's holding on AT&T Mobility LLC v. Concepcion 131 S.Ct. 1740 (2011).

However, the California Supremes held out some hope. They held that the State of California still has the right to evaluate whether the arbitration agreement is unconscionable because it is, for example, unreasonably one-sided in favor the employer. Because the evidence related to that question had not been developed, the California Supremes sent the case back to the trial court to consider.

We can expect a hearing below looking at a variety of factors, including how unfair this is to Mr. Moreno. If Mr. Moreno has to go to arbitration, he'll need to hire a lawyer to obtain his vacation pay. This is absurd. He'll be paying more in attorney's fees than he will receive in his vacation pay! Likewise, if he has to pay the arbitrator to obtain what would have otherwise been a free hearing before the Labor Commission, this will wipe out his vacation pay, and is unconscionable and unreasonable.

And speaking of speed and efficiency - the ostensible values of the U.S. Supreme Court in basically making arbitration practically invincible - how many court hearings and years must pass before Mr. Moreno simply gets a determination of whether he is owed his vacation pay?

Jody LeWitter
11/20/13

November 13, 2013

Enforceability of Arbitration Agreements Continues to Flutter in the Wind: Arbitration Agreement Upheld in Peng v. First Republic, but Depending on Circumstances, Might Not be Upheld in Other Cases

Reading arbitration cases is like walking through a muddy field on a dark and rainy night. What is okay in the context of one case, is not in the context of another case. It just depends on how much you slip and slide through the mud and where exactly you fall.

Take the recent case of Peng v. First Republic (2013) 219 Ca.4th 1462. The Court held that failure to attach the arbitration rules didn't make the arbitration agreement procedurally unconscionable. On the other hand, if the arbitration rules had changed any important substantive rights, the agreement might have been procedurally unconscionable. So, we are left guessing whether in any other situation, an employer has to provide the arbitration rules to an employee or not.

Second, Peng held that the right of the employer to change the employment contract terms at any time, whereas the employee cannot, did not make this agreement substantively unconscionable. Why? Because the employer is supposed to act with "good faith . . . and fair dealing." So, if the employer doesn't act in good faith and fair dealing, well, then, is the agreement invalid? Again, slip and slide. We're left guessing.

This case just demonstrates that interpreting whether or not arbitration agreements are valid prove what I've said one hundred times: There is no valid and coherent way to justify involuntary arbitration agreements.

Jody LeWitter
November 13, 2013

November 1, 2013

California Court of Appeals Clarifies That the Standard for Discrimination Claims is Generally Now a Substantial Motivating Factor After Harris v. Santa Monica

Proving discrimination cases by the standard of a "substantial motivating factor" is now clearly the law of the land - at least in the land of California. Let's look at why this is so, and what it means.

First, in May 2013, the California Supreme Court declared that the standard of "substantial motivating factor" would replace the previously accepted "a motivating factor" in mixed motive cases under California law. Harris v. City of Santa Monica, 56 Cal.4th 203 (2013). (Mixed motive cases are cases where the employee proves there was discrimination, but the employer proves it would have made the same decision even without this discriminatory animus).

Although the language in Harris was broadly stated, it wasn't one hundred percent clear whether this standard applied to all discrimination cases under California law, or just mixed motive cases. Along comes Alamo v. Practice Management Information Corporation (2013) 219 Cal.4th 466, holding that the Harris decision applies to almost all employment discrimination cases, thus hammering a nail in the coffin of "a motivating factor" standard under California law. In other words, in an employment discrimination case, although discrimination need not be the sole reason for the wrongful act - it must be a "substantial motivating factor".

We who represent employees never like it when a court gratuitously makes the standards that govern employment discrimination cases more difficult to meet. Hence, it is important to analyze what this standard will mean as a practical matter. First, there is prior case law that defines "substantial motivating factor" in a way that clarifies that this standard really shouldn't be more onerous. See for example, Rutherford v. Owens-Illinois, Inc., (1997) 16 Cal.4th 953, 969 (substantial motivating factor is more than an infinitesimal or theoretical reason). Second, for purposes of summary judgment (i.e. a judge deciding whether a case should go forward to a jury) hopefully judges will have the general intelligence to see that - since the question of discrimination is really for the jury - this slight change in standard should not impact the judge's decision. Third, in terms of a jury's decision, it is a bit difficult to think that jurors will find for an employee if they don't think the discrimination was substantial.

Now, however, whenever you file a discrimination claim in California, it is worth considering whether you should also pursue a federal claim, in addition to the state claims. This is because federal claims for race, religion, sex or national origin discrimination will be governed by "a motivating factor" standard, because that standard is written right into the statute. USC §2000e-2. Of course, in doing so, you may find yourself removed to federal court . Thus, the pros and cons of federal versus state court have to be carefully balanced against the more liberal causation standard.

I'm not happy that the California courts did this. It seems absurd to judicially make the standard more strict than the federal statutory standard, but let's keep our fingers crossed on the day-to-day impact of this.

Jody LeWitter

November 1, 2013

July 26, 2013

California Employees Can Avoid the Supreme Court's New Heightened Burden in Retaliation Cases

Dr. Naiel Nassar was employed by the University of Texas Southwestern Medical Center as a faculty member and staff physician. Dr. Nassar, who is of Middle Eastern descent and practices Islam, claimed that one of his supervisors was biased against him on account of his ethnic heritage and religion. As a result, he resigned his faculty position, but continued working as a staff physician.

After resigning, he sent a letter complaining that the reason he resigned was due to his supervisor's "religious, racial and cultural bias against Arabs and Muslims." Based on this complaint, the Hospital withdrew his job offer. Dr. Nassar filed a Title VII lawsuit claiming, among other things, retaliation. The jury found for Dr. Nassar and the Court of Appeals for the Fifth Circuit affirmed the retaliation verdict. (The jury also found for Dr. Nassar on his discrimination/constructive termination claim. The Court of Appeals reversed on that issue. That claim was not before the Supreme Court). However, the University appealed to the Supreme Court to decide what type of causation a plaintiff must prove in a retaliation case.

In Title VII discrimination cases, a plaintiff only needs to show that his discrimination was a "motivating factor" in the decision to terminate him. The "motivating factor" standard acknowledges that even though there may be legitimate factors in deciding to take an adverse employment action against an employee, if the employee shows that discriminatory animus was one of the motivating factors, he has met his burden.

In its June 24, 2013 University of Texas Southwestern Medical Center v. Nassar decision, the Supreme Court held that in proving a retaliation claim under Title VII, a plaintiff must prove "but for" causation. "But for" causation requires the employee to show that retaliatory animus actually motivated the employer's decision to take the adverse action against the employee rather than the lower burden of showing that retaliatory animus was a motivating factor in the decision.

The Court's justification was politically motivated. After explaining that the number of retaliation claims has increased substantially, the Court simply decided to limit these claims by arbitrarily making them more difficult to prove.

It is not 100% clear what the standard is for a retaliation claim under state law (the Fair Employment and Housing Act), but whatever the standard is, it is a better standard than under federal law. For years, California employees only had to prove that discrimination was a motivating factor in the employment decision to prove discrimination under FEHA. Recently, the California Supreme Court issued Harris v. City of Santa Monica, 56 Cal.4th 203 (2013), setting a brand new standard of "substantial motivating factor" - a standard lesser than "but for" but greater than "a motivating factor." Harris v. City of Santa Monica specifically dealt with a mixed motive case.

We believe that "motivating factor" is still the standard in retaliation cases because retaliation cases were not discussed in the Harris v. City of Santa Monica decision, but what the courts do remains to be seen. Regardless, the State causation standard is better than the federal standard in a retaliation case. This isn't true for the causation standard in a discrimination case, where "a motivating factor" is written right into the statute. See 42 US 2000e-2(m). While the Nassar decision was a striking blow against employees who are victims of retaliation, fortunately, California employees can avoid the heightened "but for" cause standard by bringing their case under FEHA. Still, all these mixed up standards make employment cases a little more complicated that necessary.

July 26, 2013
Jody LeWitter

July 19, 2013

New U.S. Supreme Court Cases on Same-Sex Marriage Expand Leave Rights for Same-Sex Spouses

On June 24, 2013, the United States Supreme Court issued two rulings that were met with a roar of approval from equal rights advocates from coast to coast. Just days before the annual LGBT pride celebrations got underway nationwide, the Supreme Court struck down the Defense of Marriage Act ("DOMA"), and issued another decision which resulted in same-sex marriages resuming in the state of California.

Although the most obvious effect of Hollingsworth v. Perry is that same-sex couples once again have the right to get married in California, many same-sex couples are now wondering how their rights, if they choose to get married, will be impacted with respect to their employment. One of the many benefits same-sex spouses are now entitled to is family leave under the federal Family Medical Leave Act ("FMLA").

In U.S. v. Windsor, the Supreme Court struck down a provision of DOMA that defined the term "spouse" as only a person of the opposite sex who is a husband or wife, and defined "marriage" as a legal union between a man and a woman. There are over 1,000 federal statutes that use the term "spouse," and among them is the FMLA which provides up to twelve weeks per year of job-protected unpaid leave for covered employees. Prior to the U.S. v. Windsor decision, same-sex spouses could not take FMLA leave to care for each other because they were excluded from coverage by the opposite-sex definition of spouse in DOMA. Now, however, same-sex spouses are entitled to coverage under the FMLA and may take leave to care for their spouse with a serious health condition. Unfortunately, however, this decision does not have an impact on couples in recognized domestic partnerships or civil unions which means, same-sex couples who are not married are still without FMLA rights.

In California, even before the Supreme Court's recent decisions, the California Family Rights Act (a state law substantially similar to the FMLA) gave covered employees the right to take leave to care for a registered domestic partner or same-sex spouse. While same-sex spouses in California have rights under CFRA, the problem for many same-sex couples in recent years has been the moratorium on same-sex marriages. Although some 18,000 same-sex couples got married in 2008 during the brief period when California was conducting same-sex marriages, for the past four and a half years, no same-sex couples have been legally married in California. This means that same-sex couples who were not legally married or were not registered domestic partners were not covered by the CFRA leave protections. The good news under the CFRA then, is not that the definition of "spouse" has changed but that fact that same-sex couples can now become spouses if they so choose. Once married, a same-sex couple is entitled to the same protections as an opposite-sex couple under CFRA.

In addition to providing leave to covered employees, both the FMLA and CFRA have anti-retaliation provisions which prohibit an employer from punishing employees for exercising their rights under either of these two laws. Same-sex spouses who are denied or discouraged from taking leave under the FMLA or CFRA will now have recourse against their employers and have stronger protections in the workplace. This makes the laws against sexual orientation discrimination stronger than they were before.


July 19, 2013
Siegel, LeWitter & Malkani

July 9, 2013

Lucky to be a California Employee: If you are Harassed by a Supervisor You Can Avoid the US Supreme Court's Ruling in Vance v. Ball State University

Under both California law and Title VII of the Civil Rights Act of 1964, your employer may be liable if you are harassed by either a co-worker or a supervisor. However, it is more difficult to hold an employer liable for harassment if the harasser is a co-worker, and easier if the harasser is a "supervisor." Enter the United States Supreme Court in Vance v. Ball State University, unnecessarily tightening up who is a supervisor to allow employers to escape responsibility for harassment.

Title VII does not specifically define who is a "supervisor," which has created some disagreement among the lower courts. Some courts determined that an employee is not a supervisor unless he or she has the power to "hire, fire, demote, promote, transfer, or discipline the victim," while other courts follow the broader interpretation of supervisor which includes individuals who have "the ability to exercise significant discretion over [another employee's] daily work." While the difference may seem subtle, it is common in many workplaces for an employee to have a supervisor who tells them what to do on a daily basis but that person does not have the authority to hire, fire, or promote them.

This difference is particularly important for workers like Ms. Maetta Vance. Ms. Vance, an African American woman, worked as a catering assistant at Ball State University. She complained on several occasions that catering specialist, Saundra Davis, racially harassed her over a period of time. She also alleged that Ms. Davis was her supervisor, and therefore, the University was liable for the harassment.

Last week, in Vance v. Ball State University, the Supreme Court rejected Ms. Vance's argument and held that an employer is only vicariously or strictly liable for supervisor harassment when "the employer has empowered that employee to take tangible employment actions against the victim, i.e. to effect a 'significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.'"

This is a significant blow to employee rights under Title VII as it restricts employer liability in harassment cases. Based on this decision, under Title VII, if the person harassing you does not have the power to take a tangible employment action against you, such as hiring, firing, demoting, transferring or disciplining, the employer is not strictly liable.

Fortunately for California employees, not only do employers have a harder time escaping liability for supervisor harassment, but California law also has a more expansive definition of "supervisor" written into the law. Under the California Fair Employment and Housing Act, Govt. Code § 12926(s), supervisor is defined as:

"any individual having the authority, in the interest of the employer, to hire, transfer, suspend, layoff, recall, promote, discharge, assign, reward, or discipline other employees, or the responsibility to direct them, or to adjust their grievances, or effectively recommend that action..."

This more inclusive definition would have served Ms. Vance well had she been employed in California. In the coming months and years we will likely see whether employers seize on this opportunity to limit their liability in harassment cases. However, in California the protections under the Fair Employment and Housing Act are unchanged and will continue to protect workers from harassment by their supervisors, whether or not they have the power to take "tangible employment actions." You can read the full opinion here.

July 9, 2013
Siegel, LeWitter & Malkani

June 26, 2013

Court of Appeal Determines that Blowing the Whistle on Unlawful Activity of Other Employees is Protected

Most of us in California are familiar with California Redemption Value, or CRV, that we pay when we purchase a beverage from a retailer. If you take your empty bottles and cans to a recycling center, you can get a CRV refund, which is normally determined by the weight of the recyclables you bring in. Although one or two cans does not add up to much, Recology employee Brian McVeigh uncovered substantial fraud with respect to these refunds and was fired after reporting his suspicions.

Brian McVeigh worked as an operations supervisor at Pier 96 for Recology San Francisco, the company that provides waste recycling and disposal in the County of San Francisco. During his employment, Mr. McVeigh discovered that employees were engaging in "tag inflation" meaning that the Recology attendants were weighing customers' recyclables but inflating the weight on the tag. As a result, customers received inflated payments from the California Department of Conservation and attendants were potentially receiving kickbacks from this practice. He reported the fraud to both Recology and the San Francisco police.

Later, Mr. McVeigh was transferred to the company's buy-back center in Brisbane. Mr. McVeigh began suspecting tag inflation and a management cover up at the Brisbane location and reported his suspicions to local police. After finding out about his reports, Recology threatened Mr. McVeigh by telling him that he would be fired if he continued to pursue the CRV fraud, which he reported to HR. Thereafter, Mr. McVeigh was terminated and Mr. McVeigh sued under a number of legal theories.

In 2011, the San Francisco Superior Court said the whistle-blower laws did not apply to Mr. McVeigh because it was his job to look into recycling irregularities. The judge also found that because three years had passed since Mr. McVeigh first reported the irregularities and his termination, that there was no connection between the two events. However, the Court of Appeal disagreed. Significantly, the Court determined that Mr. McVeigh's claim under California Labor Code section 1102.5 could proceed because the statute "protects employee reports of unlawful activity by third parties such as contractors and employees, as well [as] unlawful activity by an employer."

Whether or not Mr. McVeigh will prevail on the merits of his case remains to be seen but this decision potentially expands protections for whistle-blowers who report the unlawful activity of other employees, not just the employer. You can read the full Court of Appeal opinion here.


June 26, 2013
Siegel, LeWitter & Malkani

April 26, 2013

Equitable Estoppel Claim Denied Where Employee Ultimately Deemed Ineligible For Family Leave

Employers shouldn't have such a tough time figuring out whether and when an employee is eligible for a protected leave of absence under California law (California Family Right Act - CFRA) or federal law (Family and Medical Leave Act - FMLA). This case is a prime example of the mishaps - here unremedied - that occur when an employer doesn't understand and accurately convey the law to an employee, leaving the employee, Mr. Olofsson, in an unfortunate lurch. Olofsson v. Mission Linen Supply (2012) 211 Cal.App.4th 1236

Mr. Olofsson worked as a driver for Mission Linen Supply. His parents lived in Sweden and he had previously received time off to visit his parents in Sweden. When he learned his mother was scheduled for back surgery, he asked for seven weeks off to return to Sweden and care for her. He made his request approximately one month before his leave was to begin.

In response, the company acted like he would receive his family leave after he submitted the right paperwork and everything was squared away. He was assigned to train a temporary employee to cover for him while he was out.

Three days before his leave was to start - with his mother scheduled for surgery in Sweden - Mission Linen all of a sudden told him that he was not eligible for family leave because he lacked the requisite 1250 hours of work in a year. No one had even suggested to him that he was short on hours, and there was no reason the company couldn't have told him this earlier. Indeed, the law requires that the employer determine whether or not the employees have met the hours requirement "within a reasonable amount of time". And state law defines this as 10 days, a standard clearly breached by Mission Linen.

Since Olofsson wasn't eligible for family leave, he sued his employer for wrongful termination in violation of public policy and estoppel. Finding for Olofsson under one of these theories is the least the Court could do - but it didn't.

The Court held that Mission Linen did not misrepresent - verbally or by its actions - that his leave was approved. The Court of Appeals here relied upon the trial court's fact finding on this issue, and thus this case should not be read to establish a blanket bar against an estoppel claim where an employer leads an employee to believe that he is entitled to family leave. The Court went off on facts that could be its version of balancing the equities in an estoppel case. Mr. Olofsson didn't submit his paperwork in the most speedy manner himself, and the paperwork he did submit had to be checked out.

The Court also found, in a somewhat disingenuous manner, that the employer's duty to respond to the employee's leave request in 10 days was met, even though the response wasn't a clear "yes" or "no".

What happened to the public policy claim isn't clear from the opinion, but it couldn't have been anything good for Olofsson.

Justice wasn't served in this case where an employee lost his job because his employer put him in a tough spot - unfairly forcing him to choose between his mom and his income. Employers should do better, and so should the courts.


April 26, 2013
Jody I. LeWitter

April 19, 2013

"Me Too" Evidence of Discrimination Against Others May Depend Upon How Original Complaint of Discrimination Is Framed in the Complaint

California has good law for employees regarding the admission of evidence that the employer discriminated against other employees, commonly referred to as "me too" evidence. Case law is clear that an employee can submit evidence that the decision maker discriminated against another employee on the same basis for which the employee claims discrimination. See Pantoja v. Anton (2011) 198 Cal.App.4th 87 (employee claiming gender discrimination can submit evidence that decision maker harassed and made sexist comments towards other female employees, Johnson v. United Cerebral Palsy (2009) 173 Cal.App.4th 740 (employee claiming pregnancy discrimination can submit evidence of discrimination against other employees).

The reason this "me too" evidence is admissible is because it demonstrates the intent or motive of the decision maker or wrongdoer. It may also cast doubt upon the employer's stated reason for the termination or other employment action.

Along comes Hatai v. Department of Transportation (March 3, 2013) ___Cal.4th_____, which casts a slightly different variation on the same theme. It also cautions employees and their lawyers to be exceedingly careful on how they plead a claim of discrimination, if they want to submit "me too" evidence.

Mr. Hatai's complaint alleged that he was discriminated against due to his national origin (Japanese) and his race (Asian). However, as the case proceeded, Mr. Hatai sought to argue that his supervisor, who was of Arab descent, discriminated against all employees who were not of Arab descent. As such, he sought to introduce "me too" evidence that other employees were discriminated against because they were not of Arab descent.

The company objected to the evidence, stating that the employee was "...repositioning the case." The trial court prohibited the employee from introducing this evidence, simply stating "[t]hat's not what you said in your complaint." Mr. Hatai's lawyers protested that the supervisor in question stated that "We Arabs should stick together", and sought to introduce evidence as to how a number of non-Arab employees were treated.

The Court of Appeals agreed with the employer in a scathing opinion, taking Mr. Hatai to task for providing "highly inconsistent" deposition testimony. It held that since Mr. Hatai's complaint alleged discrimination based on his race/national origin as an Asian and/or Japanese, how a variety of employees who were not Asian and/or Japanese were treated was not relevant.

The cautionary tale here is to be careful how you plead your case. If Mr. Hatai had originally pled his case to allege an alternative basis for discrimination as discrimination because he was not an Arab, perhaps the Court would have permitted this "me too" evidence.

The second cautionary tale is to be careful about presenting consistent and credible evidence: Throughout almost every line of this opinion, it is clear that the Court was indignant about a variety of inconsistent and possibly less than credible positions, and that this unduly influenced the Court's holding. If the Court had sympathy for Mr. Hatai, it could have simply permitted him to amend his complaint, or construed his complaint more broadly, rather than in the narrow and technical manner it did.

Bad facts here made for bad law, and both the employee and the Court need to take some responsibility for this here. Moving forward, employees should still seek to introduce "me too" evidence, and to plead their claims as broadly as possible.

Jody I. LeWitter
April 19, 2013

April 2, 2013

Arbitrator's Award Vacated: Error to Hold that Employee Could Be Denied Family Leave Due to Employer's Misinterpretation of the Law

Mr. Richey worked as a sales manager at a Toyota dealership. He suffered a back injury while moving furniture at home, and applied for family leave from Toyota. The leave was granted, but Mr. Richey was fired because his employer alleged that he was abusing his family leave by working in a family restaurant he owned while on his family leave. Mr. Richey contended that his work at his restaurant while on leave was limited, light-duty work, and that he really could not do his regular duties at the Toyota dealership. Richey v. Autonation, Inc., 210 Cal. App. 4th 1516 (2012)

When Toyota fired Mr. Richey, Mr. Richey evoked his rights under a mandatory arbitration agreement that Toyota required that he sign as a condition of his employment. After an 11 day hearing, the arbitrator ruled against Mr. Richey on his interference claim, i.e. his claim that Toyota interfered with or denied his right to family leave under the California Family Rights Act (CFRA) and the federal Family Medical Leave Act (FMLA). The arbitrator held that the employer was not liable because it terminated Mr. Richey's employment because it honestly, but mistakenly, believed he misused his family leave.

Mr. Richey moved to vacate the arbitrator's award, noting two things: (1) under both state and federal law, an honest mistake based on the employer's state of mind is not a defense, and; (2) an arbitrator's error of law that results in a denial of a party's unwaivable statuatory right (in this instance his right to family leave) exceeds the arbitrator's power and should be vacated.

The trial court ruled against Mr. Richey, but he didn't give up, appealing to the California Court of Appeals, which agreed with Mr. Richey - explaining at length that an interference with family leave claim does not require that an employee prove that his or her supervisor had a discriminatory state of mind, like other discrimination claims. Indeed, interference claims are unique; if an employer wrongly denies family leave, it doesn't matter if the employer was mistaken or honest or didn't harbor a discriminatory motive. An employee is entitled to his or her family leave, and the employer must simply understand and follow the law. This is a very important point for all employees and the employer to understand.

The Court of Appeals also delved into the issue of when and whether to overturn an arbitrator's award. While overturning this award, the Court was careful to note that not every arbitrator's mistake of fact or law warrants the overturning of an arbitrator's award. However, when the ruling results in the denial of an employee's non-waivable statuatory rights created by FEHA, the arbitrator's award exceeded the arbitrator's power and should be vacated. This is an important door to keep open for employees. Although other cases have made this point before (see, for example, Pearson Dental Supplies, Inc. v. Superior Court, 48 Cal.4th 665 (2010)), it is important that the Courts reiterate this point so that employees - who may be compelled to arbitrate a claim under the Fair Employment and Housing Act or other civil rights statutes - understand that arbitration may not be their last stop on the road to seeking justice in the legal system.


Jody I. LeWitter

April 2, 2013

March 27, 2013

Good News for Employees Disabled by Pregnancy: Your Leave of Absence May Be Longer Than the Four Months Provided by the Pregnancy Disability Leave Law

Ana Fuentes Sanchez took a pregnancy disability leave of absence while working for Swissport, Inc. When she exhausted her four months of leave mandated by the Pregnancy Disability Leave Law (PDLL) she was still unable to return to work because of the nature of her high risk pregnancy.

Swissport terminated Ms. Sanchez after the expiration of her four month leave of absence, contending that it had provided her with all that the law required under the PDLL.

But Ms. Sanchez asked what about the other provisions of the Fair Employment & Housing Act? Doesn't Govt. Code § 12940(m) require that an employer provide a reasonable accommodation to a disabled employee? (Yes.) Wasn't Ms. Sanchez - due to her high risk pregnancy - a disabled employee? (Yes.) And isn't it true that a leave of absence is, under the law, a reasonable accommodation? (Yes, again.) And - last but not least - can't a reasonable accommodation consist of a leave of absence greater than four months? (Yes! See Hanson v. Lucky Stores (1999) 74 Cal.App.4th 215, 227 ; andWatkins v. Ameripride Services (9th Cir. 2004) 375 F.3d 821, 828-829).

So wasn't it about time for a published case to declare that - if not an undue hardship on the employer - a disabled pregnant employee should be entitled to more than four months of a pregnancy related disability leave?

This is just what the Court held in Sanchez v. Swissport (2-21-13) ____ Cal.App.4th______ . The Court explained that the pregnancy leave law was meant to supplement, not limit or displace, other provisions of the Fair Employment and Housing Act.

Good for the Court! Good for Ms. Sanchez! And great news for everyone else, including pregnant women, all women employees, and their families!


Jody I. LeWitter

March 27, 2013