Bay Area Employment Lawyer Blog

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

Published on: April 26, 2013 | Siegel LeWitter Malkani

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.

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

Published on: April 19, 2013 | Siegel LeWitter Malkani

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.

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

Published on: April 2, 2013 | Siegel LeWitter Malkani

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.

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

Published on: March 27, 2013 | Siegel LeWitter Malkani

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).

Pregnant Women Still Deserve Protection Against Discrimination Despite Recent Holding of Veronese v. Lucasfilm

Published on: February 22, 2013 | Siegel LeWitter Malkani

The case of Veronese v. Lucasfilm, Ltd. (2012) 212 Cal.App.4th 1, is replete with lessons to be learned on all fronts, especially lessons about how to navigate through the process of instructing the jury in an employment discrimination jury trial, and dealing with implicit or unspoken bias, here from a judicial panel. The lawyers representing employees must be careful not to overreach in the instructional arena, and make sure the jury instructions given accurately reflect the law. Everyone should be aware that paternalistic notions (here by an all-male appellate panel) may influence the outcome of a case, whether by jurors, lawyers, or judges.

With all that said – let’s take a look at the Veronese case. The facts are a little hard to follow, as they involve a lot of personal dialogue and soap opera-like scenarios. Ms. Veronese applied for a job with Lucasfilm, but the position had almost nothing to do with the film industry. The title was assistant to the manager of Lucas’ home, and appeared to involve a lot of household management and childcare.

The statement of facts relate a fairly lengthy set of drawn out and intricate conversations and emails throughout a terribly over-analyzed and detailed hiring process, during which Ms. Veronese finds out and announces she is pregnant with twins, the hiring manager discusses every possible feeling she has about children, pregnancy, and both sides – frankly – say and write a lot of things that are capable of multiple interpretations.

High Court Unfairly Favors Employer in Murky Mixed Motive Case

Published on: February 15, 2013 | Siegel LeWitter Malkani

For years now in California, juries have been instructed that a plaintiff in an employment discrimination case under California law must prove that discrimination was “a motivating reason” or “a motivating factor” in the wrongful employment decision. See, for example, Mixon v. Fair Employment & Housing Commission (1987) 192 Cal.App.3d 1306. This has been essential black letter law in California’s fight against discrimination, and was incorporated into standard jury instructions given in most cases throughout California. See, for example, Judicial Council of California, Civil Jury Instructions, No. 2500.

Although federal law for a while has gone through several iterations of a judicially carve out for employers (a “free day for discrimination” type of defense) called a mixed motive defense, our California state law has not. At times federal law gave employers a free ride where an employer discriminated, but could prove that it would have taken the same action anyhow. Price Waterhouse v. Hopkins (1989) 490 U.S. 288. That law was amended by statute, splitting the baby, so that there is a cause of action in this situation but damages are limited to injunctive relief and attorneys fees, which is not much solace to the employee who faced this discrimination. 42 U.S.C. Section 2000e-5(g)(2)(B).

The California Supreme Court just made a mixed up jumble of this mixed motive law in Harris v City of Santa Monica (2013) 13 C.D.O.S. 1516. In a somewhat tortured analysis, it slopped and slid through the law, without a lot of clarity as to what exactly are the changes it intended to make. Its holding was and should be limited to a mixed motive case – i.e. a case where the employer can prove both illegitimate (discriminatory) and legitimate reasons motivated the decision. In that case it held that a plaintiff must prove that discrimination “was a substantial motivating factor” in the decision, the employer must then prove that it would have made the same decision in any event, and if so, the plaintiff is entitled to only injunctive relief and attorney’s fees and costs, as with federal law.

Statistical Evidence Can Be Used to Prove Discrimination, But Was Not Enough in This Age Discrimination/Lay Off Case

Published on: September 7, 2012 | Siegel LeWitter Malkani

Statistical evidence, layoffs, and age discrimination cases can be tough. Take the situation facing Schechner and Lobertini in their case against KPIX-TV. Both were television news reporters who were laid off in an across the board budget reduction. They brought a lawsuit in federal district court against KPIX-TV, alleging that they were laid off based on their age and gender.

Schechner and Lobertini put forward substantial statistical evidence that they hoped would convince a jury that their selection for layoff was discriminatory. Their lawyers hired a statistician who determined that there was a statistically significant correlation between the age of the employees and their selection for lay off.

Both the district court and the court of appeals found that the employees had not met their burden of proof and dismissed the case on summary judgment. Schechner v. KPIX-TV, 686 F.3d 1018 (Ninth Cir., May 29, 2012). Although the Ninth Circuit clarified that statistical evidence can be used to meet an employee’s prima facie burden of proof in a discrimination case and that the burden of proof is “minimal,” it still ruled against the employees in this case. The Ninth Circuit noted that the same managers who made the decision to lay off Schechner and Lobertini also made the decision to renew their employment contracts shortly beforehand and thus the TV station was entitled to the “same-actor infererence.”

State Employees Not Entitled to FMLA Leave for Their Own Serious Conditions

Published on: August 27, 2012 | Siegel LeWitter Malkani

Sometimes reading a U.S. Supreme Court case really makes you wonder whether the courts forget to enforce the intent of our anti-discrimination laws. Take the case of Coleman v. Maryland Court of Appeals 132 U.S. 1327 (March 20, 2012), contrast it with the Supreme Court’s prior holding in Nevada Department of Human Resources v. Hibbs 538 U.S. 721 (2003), and scratch your head.

Hibbs looked at whether the Family Medical Leave Act (FMLA) applied to and protected state employees and held that it did. The facts in Hibbs involved an employee taking family leave to care for a family member with a serious illness. The Supreme Court held that Congress, when passing the FMLA, intended to let a state worker sue its employer in federal court under FMLA (i.e., it meant to abrogate the Eleventh Amendment ban against suing a state in federal court.) In other words, state employees should be entitled to a family leave just like everyone else.

One would think that Coleman – examining basically the same question – would come out the same. Not so. In Coleman, the Supreme Court held that if the family leave is for the state worker’s own serious health condition, Congress didn’t intend to let the state worker sue. So in Coleman, the Supreme Court says state workers don’t get the same rights to family leave as does everyone else.

Employer Waived Its Right to Have Arbitrability of an Employment Agreement Determined by the Arbitrator, but Labor Code §206.5 Does Not Prohibit the Arbitration of Claims

Published on: August 16, 2012 | Siegel LeWitter Malkani

Pulli v. Pony International (June 19, 2012) ___ Cal.4th____ is another interpretation of an arbitration agreement in a long line of cases interpreting whether or not an arbitration agreement is enforceable. The fact that this case even exists underscores the fact that the law on the enforceability of arbitration agreements is unnecessarily murky and that employees continue to balk at the inherent unfairness of arbitration agreements, which take away an employee’s right to a jury trial.

In this case, the California Court of Appeals held that, as a procedural matter, a defendant waives its right to have an arbitrator determine the issue of arbitrability where the defendant acted in a manner inconsistent with the right to arbitrate and substantially invoked “the litigation machinery” per Saint Agnes Medical Center v. PacifiCare of California (2003) 31 Cal.4th 1187, 1196 by addressing the employee’s claim on its merit, rather than by simply asking that the matter be sent to arbitration. This ruling makes sense – as the employer was asking the court to rule for two bites of the apple: let the court rule, and if it didn’t like the court’s opinion, then take it to an arbitrator.

Second, the Court of Appeals held that on the merits, an arbitration agreement is not invalidated by Labor Code §206.5‘s prohibition against requiring that an employee sign a release for the payment of wages without paying the wages in question. The Court noted that, as a matter of statuatory interpretation, the goal of Labor Code §206.5 is to prohibit the coercion of settlement of wage claims without the actual payment of the wages, but that Labor Code §206.5 did not bar an employer from requiring (or coercing, really!) the waiver of a jury trial.

Charge of Discrimination Electronically Filed by Attorney is Adequate to Exhaust Administrative Remedies

Published on: August 1, 2012 | Siegel LeWitter Malkani

Generally speaking, exhaustion of administrative remedies is an unnecessary hurdle for an employee to jump over on his or her way to court when filing a discrimination, harassment or retaliation claim. Rickards v. UPS (June 19, 2012), ___Cal.App.4th ___ is just another case demonstrating this same point.

Mr. Rickards had a claim for discrimination against his employer, UPS. The first hurdle in an employment case in the State of California is generally to file a charge of discrimination with the California Department of Fair Employment & Housing (“DFEH”)(depending on the circumstances, an employee may instead file with the Equal Employment Opportunity Commission, and ask that the claim be cross filed with the DFEH). For an employee who has a lawyer and intends to sue, there is generally no productive reason to file such a charge, except that failure to do so may be a fatal flaw in the subsequent lawsuit.

The Department of Fair Employment & Housing set up an online process by which a lawyer can file a charge of discrimination online for an employee. According to the DFEH, this process is set up for employees who have lawyers. As part of the filing, the employee (or lawyer!!) fills out an online form and moves from screen to screen including a screen that acknowledges that the signature is “…under Penalty of Perjury”. Previous case law had already established that an attorney may verify a charge of discrimination with the DFEH on behalf of the client. Blum v. Superior Court (2006) 141 Cal.App.4th 418.