Civil Rights Case Law Alerts

New California and federal decisions, cases pending, new laws on employment and housing discrimination, public accommodations and hate violence.

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Date Title Description
 8/18/14Thomas v. County of Riverside (9th Cir. 12-55470, 12-55812 8/18/14) Retaliation/First Amendment

Thomas v. County of Riverside (9th Cir. 12-55470, 12-55812 8/18/14) Retaliation/First Amendment

 

The panel affirmed in part and reversed in part the district court’s summary judgment and remanded in an action brought by an employee and her union alleging that the employee was retaliated against in violation of her First Amendment rights.

 

The panel held, in part, that the district court erred by dismissing as trivial evidence of multiple adverse employment actions. The panel determined that a reasonable juror might find that the actions, even if viewed in isolation, could deter protected speech and there was evidence suggesting that the actions were taken as part of a more general campaign and might in context have greater materiality than when viewed in isolation.

 

The panel held that although defendants offered various non-retaliatory business justifications for the employee’s workplace transfers, plaintiffs adduced evidence that these transfers came shortly after the employee’s acts of speech, that the employer had expressed opposition to that speech, and that the business justifications were pretextual. The panel also held that plaintiffs presented a genuine factual dispute as to whether an internal investigation was retaliatory. The panel held that the district court erred in determining that the defendant County was not subject to liability underMonell v. Dep’t of Soc. Servs, 436 U.S. 658, 694 (1978).

 

The panel affirmed the district court’s summary judgment as to two other internal investigations and as to an inquiry about the possibility of limiting the employee’s release time. Finally, the panel dismissed as moot defendants’ cross-appeal from the district court’s denial of attorneys’ fees.

 

http://cdn.ca9.uscourts.gov/datastore/opinions/2014/08/18/12-55470.pdf

 8/12/14Chubb & Son v. Super. Ct. (CA1/5 A140860 8/12/14) Attorney Wrongful Termination/Attorney-Client Privilege and Client Confidences

Chubb & Son v. Super. Ct. (CA1/5 A140860 8/12/14) Attorney Wrongful Termination/Attorney-Client Privilege and Client Confidences

 

Attorney Tracy Lemmon filed an employment discrimination lawsuit against her law firm employer, as well as against petitioner Chubb & Son, a division of Federal Insurance Company (Chubb), whose insureds she represented.  In response to Lemmon’s request for documents relevant to her job performance, Chubb withheld documents (or redacted them) on the ground they contain privileged or confidential information of the third parties for whom Lemmon provided legal services.  Further, Chubb insisted, the parties could not disclose any of the third parties’ privileged information even to their own attorneys in this case.  The trial court ordered that the documents in each party’s possession could be disclosed to their respective attorneys, and required Chubb to provide its responsive documents to its attorneys to ascertain whether the material was privileged and to comply with its discovery obligations.

 

Chubb petitions for a writ of mandate, contending the court’s order improperly impinges on the attorney-client privilege and the attorney duty to maintain client confidences.  More specifically, Chubb urges that the order impermissibly created an implied exception to the attorney-client privilege, and unlike disclosures that have been allowed where the client holding the privilege is a party to the litigation, the clients in this instance are not parties to Lemmon’s employment action.

 

We will deny the petition.  We hold that, for the limited purposes ordered by the trial court, the court did not err in permitting the parties (and requiring Chubb) to disclose the documents to their respective attorneys in this case.  Based on the record before us, there is no meaningful distinction between an allegation of privilege as to a party’s information and an allegation of privilege as to a third party’s information.

 

http://www.courts.ca.gov/opinions/documents/A140860.PDF

 
 8/12/14Cochran v. Schwan’s Home Service (CA2/2 B247160 8/12/14) Reimbursement of Employee Personal Cell Phone Use for Work-Related CallsCochran v. Schwan’s Home Service (CA2/2 B247160  8/12/14) Reimbursement of Employee Personal Cell Phone Use for Work-Related Calls

 

We hold that when employees must use their personal cell phones for work-related calls, Labor Code section 2802  requires the employer to reimburse them.  Whether the employees have cell phone plans with unlimited minutes or limited minutes, the reimbursement owed is a reasonable percentage of their cell phone bills.  Because the trial court relied on erroneous legal assumptions about the application of section 2802, we must reverse the order denying certification to a class of 1,500 service managers in an action against Schwan’s Home Service, Inc. (Home Service) seeking, inter lia, reimbursement of work-related cell phone expenses.  Upon remand, the trial court shall reconsider the motion for class certification in light of our interpretation of section 2802.  When reconsidering the motion, it shall apply the principles set forth in Duran v. U.S. Bank National Assn. (2014) 59 Cal.4th 1 (Duran) to the degree that the class representative, Colin Cochran (Cochran), proposes to use statistical sampling evidence to establish either liability or damages.  The parties shall have the opportunity to revise their papers to address the issues raised herein.

 

http://www.courts.ca.gov/opinions/documents/B247160.PDF

 

 8/12/14Knutsson v. KTLA (CA2/5 B251567 8/12/14) Arbitration Knutsson v. KTLA (CA2/5 B251567 8/12/14) Arbitration

 

Defendant, KTLA, LLC, appeals from an order denying its motion to compel arbitration.  Plaintiffs, Kurt Knutsson and his company, Woojivas, Incorporated, entered into a personal service agreement to act as a technology reporter with defendant, a television broadcaster.  The personal service agreement is subject to a three-step grievance and arbitration provision in a collective bargaining agreement.  The collective bargaining agreement is between Mr. Knutsson’s union, the American Federation of Television and Radio Artists Los Angeles Local (the union), and defendant.  The union is not a party to this appeal. 

           

After the personal service agreement was terminated, plaintiffs filed suit alleging contract breach, age discrimination, unfair business practices, and misappropriation of Mr. Knutsson’s likeness claims.  Defendant moved to compel arbitration.  The trial court denied defendant’s motion to compel arbitration.  We affirm the order denying the motion to compel arbitration.  We conclude:  defendant has forfeited the right to compel compliance with the collective bargaining agreement’s non-arbitration provisions in the three-step grievance process; the arbitration provisions of the three-step grievance process do not allow defendant to compel arbitration between it and plaintiffs; and the trial court, not an arbitrator, resolves the substantive arbitrability issue, notwithstanding the holding in John Wiley & Sons, Inc. v. Livingston (1986) 376 U.S. 543, 546-547 (John Wiley).

 

http://www.courts.ca.gov/opinions/documents/B251567.PDF

 7/21/14

Dept. of Fair Employment and Housing v. Ottovich (CA1/4 A136607M mod. 7/21/14) FEHA Familial Status Discrimination in Housing/Stricken Answer and Summary Judgment

Dept. of Fair Employment and Housing v. Ottovich (CA1/4 A136607M mod. 7/21/14) FEHA Familial Status Discrimination in Housing/Stricken Answer and Summary Judgment

 

Good cause lacking, defendant’s petition for rehearing is denied.  The opinion filed herein on June 30, 2014 is ordered modified as follows.  First, on page 10, the following paragraph is added to footnote 7: 

 

In a petition for rehearing, Ottovich argues that under the recently decided case of Paramount Petroleum Corp. v. Superior Court (2014) 227 Cal.App.4th 226, it was impermissible for the trial court to grant summary judgment and enter an interlocutory judgment on the issue of liability only, while leaving the amount of damages to be determined later.  By failing to raise this issue in either the trial court or his briefs on appeal, Ottovich has waived it.  (Tax Hepner v. Franchise Bd. (1997) 52 Cal.App.4th 1475, 1486 [“Points not raised in the trial court will not be considered on appeal.”]; Akins v. State of California (1998) 61 Cal.App.4th 1, 38–39, fn. 34 [“Reviewing courts need not consider points raised for the first time in a petition for rehearing.”])  In any case, other procedural mechanisms would have been available to establish Ottovich’s liability.  Our conclusion that the trial court was not required to reinstate the answer does not rest on the propriety of the mechanism the trial court used, but on the fact that Ottovich was able to protect his interests by appearing in court and contesting the amount of damages.

 

Second, a case citation on page 8 of the opinion should be revised.  On page 8, fourth line from the top, the citation reading “(Johnson, supra, Cal.App.4th at. p. 621 & fn. 8.)” should be revised to read  “(Johnson, supra, 28 Cal.App.4th at p. 621 & fn. 8.)”

 

These modifications do not effect a change in the judgment.

 

http://www.courts.ca.gov/opinions/documents/A136607M.PDF

 6/30/14Dept. of Fair Employment and Housing v. Ottovich (CA1/4 A136607 6/30/14) FEHA Familial Status Discrimination in Housing/Stricken Answer and Summary Judgment

Dept. of Fair Employment and Housing v. Ottovich (CA1/4 A136607 6/30/14) FEHA Familial Status Discrimination in Housing/Stricken Answer and Summary Judgment

 

The Department of Fair Employment and Housing (the Department) brought this action against defendant Harvey Ottovich  alleging he engaged in housing discrimination.  After Ottovich engaged in abusive discovery tactics, the trial court sanctioned him by striking his answer to the complaint and entering a default judgment.  The trial court later vacated the default, but continued to treat the answer as stricken.  Treating the unanswered allegations of the complaint as judicially admitted, the trial court granted summary judgment to the Department on the issue of liability.  A jury then assessed damages at $8,705.  Ottovich has appealed the ensuing judgment.  His primary contention is that the trial court was required to reinstate his answer at the time it vacated the default judgment.  We shall affirm the judgment.

 

http://www.courts.ca.gov/opinions/documents/A136607.PDF

 
 6/30/14Burwell v. Hobby Lobby Stores, Inc. (US 13–354 6/30/14) Affordable Care Act’s Contraceptive Mandate

Burwell v. Hobby Lobby Stores, Inc. (US 13–354 6/30/14) Affordable Care Act’s Contraceptive Mandate

 The Religious Freedom Restoration Act of 1993 (RFRA) prohibits the “Government [from] substantially burden[ing] a person’s exercise of religion even if the burden results from a rule of general applicabil­ity” unless the Government “demonstrates that application of the burden to the person—(1) is in furtherance of a compelling govern­mental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” 42 U. S. C. §§2000bb–1(a), (b). As amended by the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), RFRA covers “any exercise of religion, whether or not compelled by, or central to, a system of religious be­lief.” §2000cc–5(7)(A).At issue here are regulations promulgated by the Department of Health and Human Services (HHS) under the Patient Protection and Affordable Care Act of 2010 (ACA), which, as relevant here, requires specified employers’ group health plans to furnish “preventive care and screenings” for women without “any cost sharing requirements,”42 U. S. C. §300gg–13(a)(4). Congress did not specify what types of preventive care must be covered; it authorized the Health Resources and Services Administration, a component of HHS, to decide. Ibid. Nonexempt employers are generally required to provide coverage for the 20 contraceptive methods approved by the Food and Drug Admin­istration, including the 4 that may have the effect of preventing an already fertilized egg from developing any further by inhibiting its attachment to the uterus. Religious employers, such as churches, are exempt from this contraceptive mandate. HHS has also effectively exempted religious nonprofit organizations with religious objections to providing coverage for contraceptive services. Under this accom­modation, the insurance issuer must exclude contraceptive coverage from the employer’s plan and provide plan participants with separate payments for contraceptive services without imposing any cost­ sharing requirements on the employer, its insurance plan, or its em­ployee beneficiaries.

In these cases, the owners of three closely held for-profit corpora­tions have sincere Christian beliefs that life begins at conception and that it would violate their religion to facilitate access to contraceptive drugs or devices that operate after that point. In separate actions, they sued HHS and other federal officials and agencies (collectively HHS) under RFRA and the Free Exercise Clause, seeking to enjoin application of the contraceptive mandate insofar as it requires them to provide health coverage for the four objectionable contraceptives. In No. 13–356, the District Court denied the Hahns and their compa­ny—Conestoga Wood Specialties—a preliminary injunction. Affirm­ing, the Third Circuit held that a for-profit corporation could not “en­gage in religious exercise” under RFRA or the First Amendment, and that the mandate imposed no requirements on the Hahns in their personal capacity. In No. 13–354, the Greens, their children, and their companies—Hobby Lobby Stores and Mardel—were also denied a preliminary injunction, but the Tenth Circuit reversed. It held that the Greens’ businesses are “persons” under RFRA, and that the cor­porations had established a likelihood of success on their RFRA claim because the contraceptive mandate substantially burdened their ex­ercise of religion and HHS had not demonstrated a compelling inter­est in enforcing the mandate against them; in the alternative, the court held that HHS had not proved that the mandate was the “least restrictive means” of furthering a compelling governmental interest.

Held: As applied to closely held corporations, the HHS regulations im­posing the contraceptive mandate violate RFRA. Pp. 16–49.

(a) RFRA applies to regulations that govern the activities of closely held for-profit corporations like Conestoga, Hobby Lobby, and Mar­del. Pp. 16–31.

(1) HHS argues that the companies cannot sue because they are for-profit corporations, and that the owners cannot sue because the regulations apply only to the companies, but that would leave mer­chants with a difficult choice: give up the right to seek judicial protec­tion of their religious liberty or forgo the benefits of operating as cor­porations. RFRA’s text shows that Congress designed the statute t provide very broad protection for religious liberty and did not intend to put merchants to such a choice. It employed the familiar legal fic­tion of including corporations within RFRA’s definition of “persons,” but the purpose of extending rights to corporations is to protect the rights of people associated with the corporation, including sharehold­ers, officers, and employees. Protecting the free-exercise rights of closely held corporations thus protects the religious liberty of the humans who own and control them. Pp. 16–19.

(2) HHS and the dissent make several unpersuasive arguments. Pp. 19–31.

(i) Nothing in RFRA suggests a congressional intent to depart rom the Dictionary Act definition of “person,” which “include[s] cor­porations, . . . as well as individuals.” 1 U. S. C. §1. The Court has entertained RFRA and free-exercise claims brought by nonprofit cor­porations. See, e.g., Gonzales v. O Centro Espírita Beneficiente União do Vegetal, 546 U. S. 418. And HHS’s concession that a nonprofit corporation can be a “person” under RFRA effectively dispatches any argument that the term does not reach for-profit corporations; noconceivable definition of “person” includes natural persons and non­profit corporations, but not for-profit corporations. Pp. 19–20.

(ii) HHS and the dissent nonetheless argue that RFRA does not cover Conestoga, Hobby Lobby, and Mardel because they cannot “exercise . . . religion.” They offer no persuasive explanation for this conclusion. The corporate form alone cannot explain it because RFRA indisputably protects nonprofit corporations. And the profit­making objective of the corporations cannot explain it because the Court has entertained the free-exercise claims of individuals who were attempting to make a profit as retail merchants. Braunfeld v. Brown, 366 U. S. 599. Business practices compelled or limited by the tenets of a religious doctrine fall comfortably within the understand­ing of the “exercise of religion” that this Court set out in Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872, 877. Any suggestion that for-profit corporations are incapable of exercis­ing religion because their purpose is simply to make money flies in the face of modern corporate law. States, including those in which the plaintiff corporations were incorporated, authorize corporations to pursue any lawful purpose or business, including the pursuit of profit in conformity with the owners’ religious principles. Pp. 20–25.

(iii) Also flawed is the claim that RFRA offers no protection be­cause it only codified pre-Smith Free Exercise Clause precedents, none of which squarely recognized free-exercise rights for for-profit corporations. First, nothing in RFRA as originally enacted suggested that its definition of “exercise of religion” was meant to be tied to pre­-Smith interpretations of the First Amendment. Second, if RFRA’s original text were not clear enough, the RLUIPA amendment surely dispels any doubt that Congress intended to separate the definition ofthe phrase from that in First Amendment case law. Third, the pre-Smith case of Gallagher v. Crown Kosher Super Market of Mass., Inc., 366 U. S. 617, suggests, if anything, that for-profit corporations can exercise religion. Finally, the results would be absurd if RFRA, a law enacted to provide very broad protection for religious liberty, merely restored this Court’s pre-Smith decisions in ossified form and re­stricted RFRA claims to plaintiffs who fell within a category of plain­tiffs whose claims the Court had recognized before Smith. Pp. 25–28.

(3) Finally, HHS contends that Congress could not have wanted RFRA to apply to for-profit corporations because of the difficulty of ascertaining the “beliefs” of large, publicly traded corporations, but HHS has not pointed to any example of a publicly traded corporation asserting RFRA rights, and numerous practical restraints would like­ly prevent that from occurring. HHS has also provided no evidence that the purported problem of determining the sincerity of an assert­ed religious belief moved Congress to exclude for-profit corporations from RFRA’s protection. That disputes among the owners of corpora­tions might arise is not a problem unique to this context. State cor­porate law provides a ready means for resolving any conflicts by, for example, dictating how a corporation can establish its governing structure. Courts will turn to that structure and the underlying state law in resolving disputes. Pp. 29–31.

(b) HHS’s contraceptive mandate substantially burdens the exer­cise of religion. Pp. 31–38.

(1) It requires the Hahns and Greens to engage in conduct that seriously violates their sincere religious belief that life begins at con­ception. If they and their companies refuse to provide contraceptive coverage, they face severe economic consequences: about $475 million per year for Hobby Lobby, $33 million per year for Conestoga, and $15 million per year for Mardel. And if they drop coverage altogeth­er, they could face penalties of roughly $26 million for Hobby Lobby,$1.8 million for Conestoga, and $800,000 for Mardel. P. 32.

(2) Amici supporting HHS argue that the $2,000 per-employee penalty is less than the average cost of providing insurance, and therefore that dropping insurance coverage eliminates any substan­tial burden imposed by the mandate. HHS has never argued this and the Court does not know its position with respect to the argument. But even if the Court reached the argument, it would find it unper­suasive: It ignores the fact that the plaintiffs have religious reasonsfor providing health-insurance coverage for their employees, and it is far from clear that the net cost to the companies of providing insur­ance is more than the cost of dropping their insurance plans and pay­ing the ACA penalty. Pp. 32–35.

(3) HHS argues that the connection between what the objecting parties must do and the end that they find to be morally wrong is too attenuated because it is the employee who will choose the coverage and contraceptive method she uses. But RFRA’s question is whether the mandate imposes a substantial burden on the objecting parties’ ability to conduct business in accordance with their religious beliefs. The belief of the Hahns and Greens implicates a difficult and im­portant question of religion and moral philosophy, namely, the cir­cumstances under which it is immoral for a person to perform an act that is innocent in itself but that has the effect of enabling or facili­tating the commission of an immoral act by another. It is not for the Court to say that the religious beliefs of the plaintiffs are mistaken or unreasonable. In fact, this Court considered and rejected a nearly identical argument in Thomas v. Review Bd. of Indiana Employment Security Div., 450 U. S. 707. The Court’s “narrow function . . . is to determine” whether the plaintiffs’ asserted religious belief  reflects “an honest conviction,” id., at 716, and there is no dispute here that it does. Tilton v. Richardson, 403 U. S. 672, 689; and Board of Ed. of Central School Dist. No. 1 v. Allen, 392 U. S. 236, 248–249, distin­guished. Pp. 35–38.

(c) The Court assumes that the interest in guaranteeing cost-free access to the four challenged contraceptive methods is a compelling governmental interest, but the Government has failed to show that the contraceptive mandate is the least restrictive means of furthering that interest. Pp. 38–49.

(1) The Court assumes that the interest in guaranteeing cost-free access to the four challenged contraceptive methods is compelling within the meaning of RFRA. Pp. 39–40.

(2) The Government has failed to satisfy RFRA’s least ­restrictive-means standard. HHS has not shown that it lacks other means of achieving its desired goal without imposing a substantial burden on the exercise of religion. The Government could, e.g., as­sume the cost of providing the four contraceptives to women unable to obtain coverage due to their employers’ religious objections. Or it could extend the accommodation that HHS has already established for religious nonprofit organizations to non-profit employers with re­ligious objections to the contraceptive mandate. That accommodation does not impinge on the plaintiffs’ religious beliefs that providing in­surance coverage for the contraceptives at issue here violates their religion and it still serves HHS’s stated interests. Pp. 40–45.

(3) This decision concerns only the contraceptive mandate and should not be understood to hold that all insurance-coverage man­dates, e.g., for vaccinations or blood transfusions, must necessarily fall if they conflict with an employer’s religious beliefs. Nor does it provide a shield for employers who might cloak illegal discrimination as a religious practice. United States v. Lee, 455 U. S. 252, which up­held the payment of Social Security taxes despite an employer’s reli­gious objection, is not analogous. It turned primarily on the special problems associated with a national system of taxation; and if Lee were a RFRA case, the fundamental point would still be that there isno less restrictive alternative to the categorical requirement to pay taxes. Here, there is an alternative to the contraceptive mandate.  Pp. 45–49.

No. 13–354, 723 F. 3d 1114, affirmed; No. 13–356, 724 F. 3d 377, re­versed and remanded.

ALITO, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SCALIA, KENNEDY, and THOMAS, JJ., joined. KENNEDY, J., filed a concurring opinion. GINSBURG, J., filed a dissenting opinion, in which SOTOMAYOR, J., joined, and in which BREYER and KAGAN, JJ., joined as to all but Part III–C–1. BREYER and KAGAN, JJ., filed a dissenting opin­ion.

 

http://www.supremecourt.gov/opinions/13pdf/13-354_olp1.pdf

 
 6/26/14Salas v. Sierra Chemical Co. (SC S196568 6/26/14) FEHA After-Acquired Evidence/Unclean Hands

Salas v. Sierra Chemical Co. (SC S196568 6/26/14) FEHA After-Acquired Evidence/Unclean Hands

                                                            

Plaintiff sued his former employer under the California Fair Employment and Housing Act (FEHA; Gov. Code, § 12900 et seq.), alleging that defendant employer failed to reasonably accommodate his physical disability and refused to rehire him in retaliation for plaintiff’s having filed a workers’ compensation claim.  Thereafter, defendant learned of information suggesting that plaintiff, to gain employment with defendant, had used another man’s Social Security number. 

 

The trial court denied defendant employer’s motion for summary judgment.  When defendant sought a writ of mandate in the Court of Appeal, that court issued an alternative writ.  In response, the trial court vacated its order denying defendant’s motion for summary judgment, and it entered an order granting the motion.  Plaintiff employee appealed from the ensuing judgment, which the Court of Appeal affirmed.  It held that plaintiff’s action was barred by the doctrines of after-acquired evidence and unclean hands (based on information defendant acquired during discovery showing wrongdoing by plaintiff), and that here application of those doctrines was not precluded by Senate Bill No. 1818 (2001-2002 Reg. Sess.) (Senate Bill No. 1818), enacted in 2002 (Stats. 2002, ch. 1071, pp. 6913-6915).  That state law declares:  “All protections, rights and remedies available under state law, except any reinstatement remedy prohibited by federal law, are available to all individuals regardless of immigration status who have applied for employment, or who are or who have been employed, in this state.”  (Stats. 2002, ch. 1071, § 1, p. 6913, italics added.) 

 

After we granted plaintiff employee’s petition for review, we asked both parties for supplemental briefing on whether federal immigration law preempts California’s Senate Bill No. 1818, an issue the parties had not raised before.  We conclude:  (1) Senate Bill No. 1818, which extends state law employee protections and remedies to all workers “regardless of immigration status,” is not preempted by federal immigration law except to the extent it authorizes an award of lost pay damages for any period after the employer’s discovery of an employee’s ineligibility to work in the United States; and (2) contrary to the Court of Appeal’s holdings, the doctrines of after-acquired evidence and unclean hands are not complete defenses to a worker’s claims under California’s FEHA, although they do affect the availability of remedies.  Accordingly, we reverse and remand the matter for further proceedings.

 

http://www.courts.ca.gov/opinions/documents/S196568.PDF

 6/24/14

Hector F. v. El Centro Elementary Sch. Dist. (CA4/1 D064035 6/24/14)

Standing/Anti-Discrimination, Harassment and Bullying Policies in Schools (Note: Ed. Code, §§ 212.5, 230, 231.5 of the same statute applies to employment)

Hector F. v. El Centro Elementary Sch. Dist. (CA4/1 D064035 6/24/14) Standing/Anti-Discrimination, Harassment  and Bullying Policies in Schools (Note: Ed. Code, §§ 212.5, 230, 231.5 of the same statute applies to employment)

 

By way of its enactment of a scheme of interrelated statutes, the Legislature has imposed on public schools in California an affirmative duty to protect public school students from discrimination and harassment engendered by race, gender, sexual orientation or disability.  (See Gov. Code, § 11135; Ed. Code §§ 201, 220, 32261, 32280, 32281 & 32282.)  In particular, Education Code section 32282 requires that public schools develop and implement comprehensive school safety plans which include a discrimination and harassment policy.  (Ed. Code, § 32282, subd. (a)(2)(E).)  The legislature has encouraged schools to include in their safety plans, "to the extent that resources are available . . . policies and procedures aimed at the prevention of bullying."  (Ed. Code, § 32282, subd. (f).)

 

Appellant Hector F. is the father of three children.  While Hector's oldest son, Brian, was a student at King Elementary School (King) and Kennedy Middle School (Kennedy), in El Centro, Brian was diagnosed with a number of emotional disabilities.  Although an individualized education plan was developed for Brian, according to Hector's petition for a writ of mandate, Brian was subjected to physical and verbal abuse by other children because of his disabilities and the fact that English is his second language.  In response to complaints about the abuse Hector and his wife made, Hector alleges school officials did not intervene and provide any protection for Brian, but instead suggested Brian change classrooms.

 

Hector filed a complaint for damages and a petition for a writ of mandate in the trial court.  Hector, as guardian ad litem, sought damages on behalf of Brian and, on his own behalf, relief in mandate and as a taxpayer requiring that respondent El Centro Elementary School District (the district), which operates King and Kennedy, comply with the requirements of the discrimination and harassment provisions of the Government Code and the Education Code.  In particular Hector alleged on information and belief that the district has neither adopted nor implemented comprehensive safety plans for its schools that meet the requirements of Education Code section 32282.

 

Brian matriculated from Kennedy before these proceedings commenced and attends a high school operated by a separate school district.  However, Hector's younger two children were enrolled at King at the time Hector filed his petition.

 

The district filed a demurrer to that portion of Hector's complaint and petition in which Hector sought relief on his own behalf.  The district asserted that because Brian no longer attends any school operated by the district and because Hector has not alleged his other children have been subjected to discrimination or harassment, Hector does not have standing to assert, as an individual, and on his own behalf, any violation of the statutory provisions he relies upon.  The trial court sustained the district's demurrer without leave to amend and entered judgment in favor of the district on Hector's individual claims.  We reverse.

 

As a citizen and taxpayer Hector has standing to seek enforcement of laws in which there is an identified public as well as private interest.  The statutory provisions asserted by Hector articulate a well identified public interest in maintaining a system of taxpayer funded public education which is free of the destructive influence of discrimination, harassment and bullying.

 

Because Hector has standing to bring his claims, we reverse the judgment and remand for further proceedings.

 

http://www.courts.ca.gov/opinions/documents/D064035.PDF

 6/24/14SmithKline Beechem v. Abbott Laboratories (9th Cir. 11-17357 6/24/14) Sexual Orientation Classification/Equal Protection Heightened Scrutiny

SmithKline Beechem v. Abbott Laboratories (9th Cir. 11-17357 6/24/14) Sexual Orientation Classification/Equal Protection Heightened Scrutiny

 

The panel filed an order rejecting a sua sponte en banc call.

 

In its opinion filed January 21, 2014, the panel reversed the district court’s judgment in an antitrust case concerning a licensing agreement and the pricing of HIV medications.  The panel held that classifications based on sexual orientation are subject to heightened scrutiny, and that in jury selection, equal protection prohibits peremptory strikes based on sexual orientation.

 

Dissenting from the denial of rehearing en banc, Judge O’Scannlain, joined by Judges Bybee and Bea, wrote that the panel was wrong in holding that courts are required by United States v. Windsor, 133 S. Ct. 2675 (2013), to apply heightened scrutiny to classifications based on sexual orientation for purposes of equal protection. Judge O’Scannlain wrote that other circuits have held to the contrary and that the question whether Windsor subjects traditional marriage laws and others that may give rise to distinctions based on sexual orientation to heightened scrutiny is a question of exceptional importance.

 

http://cdn.ca9.uscourts.gov/datastore/opinions/2014/06/24/11-17357.pdf

 
 6/19/14Lane v. Franks (US 13–483 6/19/14) First Amendment Protection of Public Employee’s Subpoenaed Testimony/Qualified Immunity

Lane v. Franks (US 13–483 6/19/14) First Amendment Protection of Public Employee’s Subpoenaed Testimony/Qualified Immunity

 

As Director of Community Intensive Training for Youth (CITY), a pro­gram for underprivileged youth operated by Central Alabama Com­munity College (CACC), petitioner Edward Lane conducted an audit of the program’s expenses and discovered that Suzanne Schmitz, an Alabama State Representative on CITY’s payroll, had not been re­porting for work. Lane eventually terminated Schmitz’ employment. .Shortly thereafter, federal authorities indicted Schmitz on charges of mail fraud and theft concerning a program receiving federal funds. Lane testified, under subpoena, regarding the events that led to his terminating Schmitz. Schmitz was convicted and sentenced to 30 months in prison. Meanwhile, CITY was experiencing significant budget shortfalls. Respondent Franks, then CACC’s president, ter­minated Lane along with 28 other employees in a claimed effort to address the financial difficulties. A few days later, however, Franks rescinded all but 2 of the 29 terminations—those of Lane and one other employee. Lane sued Franks in his individual and official ca­pacities under 42 U. S. C. §1983, alleging that Franks had violated the First Amendment by firing him in retaliation for testifying against Schmitz. The District Court granted Franks’ motion for summary judgment, holding that the individual-capacity claims were barred by qualified immunity and the official-capacity claims were barred by the Elev­enth Amendment. The Eleventh Circuit affirmed, holding that Lane’s testimony was not entitled to First Amendment protection. It reasoned that Lane spoke as an employee and not as a citizen be­cause he acted pursuant to his official duties when he investigated and terminated Schmitz’ employment.

 

1. Lane’s sworn testimony outside the scope of his ordinary job du­ties is entitled to First Amendment protection. Pp. 6–13.

(a) Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U. S. 563, 568, requires balancing “the interests of the[employee], as a citizen, in commenting upon matters of public con­cern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees. ”Under the first step of the Pickering analysis, if the speech is made pursuant to the employee’s ordinary job duties, then the employee is not speaking as a citizen for First Amendment purposes, and the in­quiry ends. Garcetti v. Ceballos, 547 U. S. 410, 421. But if the “em­ployee spoke as a citizen on a matter of public concern,” the inquiry turns to “whether the relevant government entity had an adequate justification for treating the employee differently from any other member of the general public.” Id., at 418. Pp. 6–8.

(b) Lane’s testimony is speech as a citizen on a matter of public concern. Pp. 8–12.

(1) Sworn testimony in judicial proceedings is a quintessential example of citizen speech for the simple reason that anyone who tes­tifies in court bears an obligation, to the court and society at large, to tell the truth. That obligation is distinct and independent from any separate obligations a testifying public employee might have to his employer. The Eleventh Circuit read Garcetti far too broadly in hold­ing that Lane did not speak as a citizen when he testified simply be­cause he learned of the subject matter of that testimony in the course of his employment. Garcetti said nothing about speech that relates to public employment or concerns information learned in the course of that employment. The critical question under Garcetti is whether the speech at issue is itself ordinarily within the scope of an employee’s duties, not whether it merely concerns those duties. Indeed, speech by public employees on subject matter related to their employment holds special value precisely because those employees gain knowledge of matters of public concern through their employment. Pp. 9–11.

(2) Whether speech is a matter of public concern turns on the “content, form, and context” of the speech. Connick v. Myers, 461

U. S. 138, 147–148. Here, corruption in a public program and misuse of state funds obviously involve matters of significant public concern. See Garcetti, 547 U. S., at 425. And the form and context of the speech—sworn testimony in a judicial proceeding—fortify that con­clusion. See United States v. Alvarez, 567 U. S. ___, ___. Pp. 11–12.

(c) Turning to Pickering’s second step, the employer’s side of the scale is entirely empty. Respondents do not assert, and cannot demonstrate, any government interest that tips the balance in their favor—for instance, evidence that Lane’s testimony was false or erro­neous or that Lane unnecessarily disclosed sensitive, confidential, or privileged information while testifying. Pp. 12–13.

  1. Franks is entitled to qualified immunity for the claims against him in his individual capacity. The question here is whether Franks reasonably could have believed that, when he fired Lane, a govern­ment employer could fire an employee because of testimony the em­ployee gave, under oath and outside the scope of his ordinary job re­sponsibilities. See Ashcroft v. al-Kidd, 563 U. S. ___, ___. At the relevant time, Eleventh Circuit precedent did not preclude Franks from holding that belief, and no decision of this Court was sufficiently clear to cast doubt on controlling Circuit precedent. Any discrepan­cies in Eleventh Circuit precedent only serve to highlight the disposi­tive point that the question was not beyond debate at the time Franks acted. Pp. 13–17.
  2. The Eleventh Circuit declined to consider the District Court’s dismissal of the claims against respondent Burrow in her official ca­pacity as CACC’s acting president, and the parties have not asked this Court to consider them here. The judgment of the Eleventh Cir­cuit as to those claims is reversed, and the case is remanded for fur­ther proceedings. P. 17.

 

523 Fed. Appx. 709, affirmed in part, reversed in part, and remanded.

SOTOMAYOR, J., delivered the opinion for a unanimous Court. THOMAS, J., filed a concurring opinion, in which SCALIA and ALITO, JJ., joined.

 

http://www.supremecourt.gov/opinions/13pdf/13-483_9o6b.pdf

 6/12/14Kim v. Konad USA Distribution (CA4/3 G048443  6/12/14) FEHA Exhaustion of Administrative Remedies/Jurisdiction

 

Kim v. Konad USA Distribution (CA4/3 G048443  6/12/14) FEHA Exhaustion of Administrative Remedies/Jurisdiction

 

Following a bench trial, the court awarded plaintiff Esther Kim $60,000 against her former employer, defendant Konad USA Distribution, Inc. (Konad), and her former boss, defendant Dong Whang.  Defendants appeal, citing the alleged failure of plaintiff to meet certain “jurisdictional” prerequisites (e.g., exhaustion of administrative remedies, proving Konad had five employees) in her sexual harassment and wrongful termination claims.  We affirm the judgment.

 

http://www.courts.ca.gov/opinions/documents/G048443.PDF

 6/6/14Cohen v. City of Culver City (9th Cir. 13-55079 6/6/14) ADA, DPA, Unruh Act

Cohen v. City of Culver City (9th Cir. 13-55079 6/6/14) ADA, DPA, Unruh Act

The panel affirmed in part and reversed in part the district court’s summary judgment in favor of the defendants on claims under Title II the Americans with Disabilities Act and related California statutes.

The plaintiff, an elderly man suffering from dementia who required a cane for mobility, was injured when he tripped and fell as he tried to walk around a car show vendor’s display blocking a curb ramp that provided disabled access to a sidewalk in Culver City, California. The plaintiff claimed that the City violated its obligations under Title II of the ADA by allowing the vendor’s display to completely block the curb ramp, impeding disabled access to the public sidewalk, and by failing to post signs identifying alternative disabled access routes.

The panel held that there was a genuine dispute of material fact as to whether the City denied the plaintiff access to the sidewalk by reason of his disability. It held that the district court erred in reasoning that because the plaintiff could have accessed the sidewalk by taking a “marginally longer route” to a different curb ramp, he failed to establish that he was denied access to the sidewalk, because this standard applies when a public entity is modifying existing facilities to achieve ADA compliance under 28 C.F.R.§ 35.150. Here, by contrast, the City was in compliance with the ADA but allowed elimination of the disabled access it had built. The panel concluded that the City’s conduct was more analogous to altering its sidewalks for reasons unrelated to ADA compliance, as contemplated by 28 C.F.R. § 35.151. The panel reversed the judgment of the district court as to the plaintiff’s claims against the City. It addressed claims against another defendant in an accompanying memorandum disposition.

Judge Rawlinson dissented from the portion of the majority’s opinion reversing the district court’s summary judgment in favor of the City on the plaintiff’s claims under the ADA and related California statutes. She agreed with the district court that there was no showing that the plaintiff was excluded from accessing the public sidewalk because two available access routes existed when viewing the sidewalk in its entirety.

http://cdn.ca9.uscourts.gov/datastore/opinions/2014/06/06/13-55079.pdf

 5/28/14Serri v. Santa Clara University (CA6 H037534 5/28/14) Race and National Origin Discrimination/After Acquired Expert Evidence

Serri v. Santa Clara University (CA6 H037534 5/28/14) Race and National Origin Discrimination/After Acquired Expert Evidence

 

Plaintiff and appellant Conchita Franco Serri brought this action against her former employer (defendant and respondent Santa Clara University (the University)) and other individually named defendants after the University terminated her employment.  Serri had worked as the University’s Director of Affirmative Action since 1992.  The University terminated her employment in 2007 because she failed to produce Affirmative Action Plans for three consecutive years, even though her job required that she produce an Affirmative Action Plan annually.  The University also terminated her employment because she made misrepresentations about the Plans that she had failed to prepare. 

 

Notwithstanding Serri’s failure to produce the required Plans—and the misrepresentations she made about the nonexistant Plans—Seri filed a complaint alleging that she was wrongfully discharged from her employment based on her race and ethnic origin.  Her complaint also contained causes of action for breach of her employment contract, retaliation and harassment in violation of the California Fair Employment and Housing Act, violation of the federal Equal Pay Act, defamation, intentional and negligent infliction of emotional distress, and interference with prospective economic advantage.  The defendants moved for summary judgment, or in the alternative, summary adjudication of each of Serri’s causes of action.

 

We are asked to determine whether an employee who is terminated for failing to perform an important job function can avoid summary judgment by arguing, based on expert evidence obtained for the purpose of opposing a motion for summary judgment or summary adjudication, years after the employee’s termination, that the failure to perform did not and would not result in any adverse consequences to the employer.  We hold that after-acquired expert evidence that there were no adverse consequences from an employee’s failure to perform does not create a triable issue of fact on the question whether the employee failed to perform his or her job duties and thus has limited relevance, if any, to the question of discrimination.

 

In this case, expert evidence that the failure of performance did not harm the University, acquired years after Serri was terminated, did not create a triable issue of material fact on the question whether the University’s stated reasons for terminating Serri were untrue or pretextual such that a reasonable trier of fact could conclude that the employer engaged in discrimination.  Before she was terminated, Serri told the University her failure to prepare an Affirmative Action Plan could have adverse consequences, including the loss of federal grants.  That the University ultimately suffered no adverse consequences did not create a triable issue on the questions whether the University had a legitimate, nondiscriminatory reason to terminate her employment or whether its reasons for doing so were untrue or pretextual.  We also reject Serri’s other contentions.  Accordingly, we will affirm the summary judgment.

 

http://www.courts.ca.gov/opinions/documents/H037534.PDF
 5/28/14Rosenfeld v. Abraham Joshua Heschel Day School (CA2/3 B239581 5/28/14) Age Discrimination/Disparate Impact and Avoidable Consequence Theories

Rosenfeld v. Abraham Joshua Heschel Day School (CA2/3 B239581 5/28/14) Age Discrimination/Disparate Impact and Avoidable Consequence Theories

 

In this age discrimination case, plaintiff and appellant Ruth Rosenfeld (Rosenfeld) appeals a judgment following a defense verdict in favor of her former employer, defendant and respondent Abraham Joshua Heschel Day School, Inc. (Heschel).  Rosenfeld alleged Heschel repeatedly reduced her teaching hours “in an effort to force her out of her position because of her age.”  Heschel attributed the reduction in Rosenfeld’s hours to a decline in student enrollment.

 

Rosenfeld does not challenge the sufficiency of the evidence to support the verdict.  Her contentions relate to various evidentiary, instructional and other rulings.  We affirm.

 

At the commencement of trial, Rosenfeld filed a trial brief indicating she would be proceeding on a disparate impact theory of age discrimination, in addition to a disparate treatment theory. We hold the trial court properly precluded Rosenfeld from pursuing a disparate impact theory at trial.  Disparate impact and disparate treatment are different theories of employment discrimination with different elements.  Rosenfeld’s pleadings solely alleged a theory of disparate treatment, based upon intentional discrimination.    Her papers were insufficient to put Heschel on notice that she intended to pursue a disparate impact theory at trial.

 

We also conclude the trial court properly allowed Heschel to present evidence that Rosenfeld failed to pursue Heschel’s internal grievance procedure before filing suit; the evidence was relevant to mitigation of damages.  It is established the “avoidable consequences doctrine applies to damage claims under the [Fair Employment and Housing Act], and that under that doctrine a plaintiff’s recoverable damages do not include those damages that the plaintiff could have avoided with reasonable effort and without undue risk, expense, or humiliation.”  (State Department of Health Services v. Superior Court (2003) 31 Cal.4th 1026, 1034.)  Thus, the avoidable consequences doctrine enables an employer to show that reasonable use of its internal procedures would have prevented at least some of the harm the employee suffered.  (Id. at p. 1044.)

 

http://www.courts.ca.gov/opinions/documents/B239581.PDF

 4/24/14Stockwell v. City & Cnty of San Francisco (9th Cir. 12-15070 4/24/14) Class Certification

Stockwell v. City & Cnty of San Francisco (9th Cir. 12-15070 4/24/14) Class Certification

 

The panel in an interlocutory appeal reversed the district court’s denial for want of commonality of a request under Fed. R. Civ. P. 23(f) for certification of a class composed of certain San Francisco Police Department officers.  The panel held that the district court abused its discretion in denying class certification because of its legal error of evaluating merits questions, rather than focusing on whether the questions presented, whether meritorious or not, were common to the members of the putative class. The panel held that given the interlocutory nature of the appeal, and its consequent limitation to class certification factors only, the panel could not consider the merits questions, even as an alternative ground for affirmance. The panel remanded to the district court to consider in the first instance whether the putative class satisfied the strictures of Rule 23(b)(3), as well as the other prerequisites for class certification.

 

http://cdn.ca9.uscourts.gov/datastore/opinions/2014/04/24/12-15070.pdf

 
   
 4/23/14

Butts v. Bd. of Trustees (CA2/8 B243793 4/23/14) Retaliation and Retreat Rights

 

Butts v. Bd. of Trustees (CA2/8 B243793 4/23/14) Retaliation and Retreat Rights

 

Sheila Butts (plaintiff) began her employment at California State University (CSU) at Dominguez Hills in September 1979 in a nonmanagerial position.  She had obtained permanent status (tenure) in that position by September 1981.  After more than 20 years on the job, she sought and obtained a management position in the Alumni Relations Office in 2003.  Plaintiff was aware that, unlike her prior positions, management positions did not provide the benefits of permanent status.  Rather, managers served “at-will” at the pleasure of the campus President or the Chancellor, and could be terminated without cause.  Nevertheless, plaintiff was confident she would be successful in her job.  Moreover, she understood that if things did not work out well she could always “retreat” to her previous tenured position, pursuant to university regulations.

 

Things did not work out well.  After several years in management, plaintiff believed for various reasons that she was being discriminated against because of her race, gender and age.  After filing a complaint with the Equal Employment Opportunity Commission (EEOC), the situation worsened and she was terminated from her management job in mid-2008.  She believed the termination was in retaliation for her complaints about discrimination.  When she sought to retreat to her prior nonmanagement position, her request was denied and the university terminated her employment altogether.

 

Plaintiff sued the Board of Trustees of the CSU (defendant) in superior court alleging discrimination, retaliation, and various related causes of action.  Among other things, she claimed that she was improperly denied her retreat rights.  After numerous procedural twists and turns, the superior court ultimately eliminated her claim for retreat rights as a matter of law.  As the case approached trial, plaintiff’s discrimination claims were dropped and the matter was presented to the jury on the retaliation cause of action alone.  After the jury returned a verdict that found there had been no retaliation, judgment was entered for the defendant.  Plaintiff’s timely appeal seeks to reverse the judgment.  We affirm in part and reverse in part.

 

http://www.courts.ca.gov/opinions/documents/B243793.PDF

 4/22/14Schuette v. BAMN (US 12–682 4/22/14) State Law Barring Racial Preferences in Admissions

Schuette v. BAMN (US 12–682 4/22/14) State Law Barring Racial Preferences in Admissions

 

After this Court decided that the University of Michigan’s undergraduate admissions plan’s use of race-based preferences violated the Equal Protection Clause, Gratz v. Bollinger, 539 U. S. 244, 270, but that the law school admission plan’s more limited use did not, Grutter v. Bollinger, 539 U. S. 306, 343, Michigan voters adopted Proposal 2, now Art. I, §26, of the State Constitution, which, as relevant here, prohibits the use of race-based preferences as part of the admissions process for state universities. In consolidated challenges, the District Court granted summary judgment to Michigan, thus upholding Proposal 2, but the Sixth Circuit reversed, concluding that the proposal violated the principles of Washington v. Seattle School Dist. No. 1, 458 U. S. 457.

 

Held: The judgment is reversed. 701 F. 3d 466, reversed.

 

JUSTICE KENNEDY, joined by THE CHIEF JUSTICE and JUSTICE ALITO, concluded that there is no authority in the Federal Constitution or in this Court’s precedents for the Judiciary to set aside Michigan laws that commit to the voters the determination whether racial preferences may be considered in governmental decisions, in particular with respect to school admissions. Pp. 4–18.

 

(a)This case is not about the constitutionality, or the merits, of race-conscious admissions policies in higher education. Here, the principle that the consideration of race in admissions is permissible when certain conditions are met is not being challenged. Rather, the question concerns whether, and in what manner, voters in the States may choose to prohibit the consideration of such racial preferences. Where States have prohibited race-conscious admissions policies, universities have responded by experimenting “with a wide variety of alternative approaches.” Grutter, supra, at 342. The decision by Michigan voters reflects the ongoing national dialogue about such practices. Pp. 4–5.

 

(b)The Sixth Circuit’s determination that Seattle controlled here extends Seattle’s holding in a case presenting quite different issues to reach a mistaken conclusion. Pp. 5–18.

 

(1)It is necessary to consider first the relevant cases preceding Seattle and the background against which Seattle arose.  Both Reitman v. Mulkey, 387 U. S. 369, and Hunter v. Erickson, 393 U. S. 385, involved demonstrated injuries on the basis of race that, by reasons of state encouragement or participation, became more aggravated.  In Mulkey, a voter-enacted amendment to the  California Constitution prohibiting state legislative interference with an owner’s prerogative to decline to sell or rent residential property on any basis barred the challenging parties, on account of race, from invoking the protection of California’s statutes, thus preventing  them from leasing residential property.  In Hunter, voters overturned an Akron ordinance that was enacted to address widespread racial discrimination in housing sales and rentals had forced many to live in “ ‘unhealthful, unsafe, unsanitary and overcrowded’ ” segregated housing, 393 U. S., at 391. In Seattle,  after the school board adopted a mandatory busing program to alleviate racial isolation of minority students in local schools, voters  passed a state initiative that barred busing to desegregate. This Court found that the state initiative had the “practical effect” of removing “the authority to address a racial problem . . . from the existing decisionmaking body, in such a way as to burden minority interests” of busing advocates who must now “seek relief from the state legislature, or from the statewide electorate.”  458 U. S., at 474. Pp. 5–8.

 

(2)Seattle is best understood as a case in which the state action had the serious risk, if not purpose, of causing specific injuries on account of race as had been the case in Mulkey and Hunter. While there had been no judicial finding of de jure segregation with respect to Seattle’s school district, a finding that would be required today, see Parents Involved in Community Schools v. Seattle School Dist. No. 1, 551 U. S. 701, 720–721, Seattle must be understood as Seattle understood itself, as a case in which neither the State nor the United States “challenge[d] the propriety of race-conscious student assignments for the purpose of achieving integration, even absent a finding of prior de jure segregation.” 458 U. S. at 472, n. 15.

 

Seattle’s broad language, however, went well beyond the analysis needed to resolve the case. Seizing upon the statement in Justice Harlan’s concurrence in Hunter that the procedural change in that case had “the clear purpose of making it more difficult for certain racial and religious minorities to achieve legislation that is in their interest,” 385 U. S., at 395, the Seattle Court established a new and far-reaching rationale: Where a government policy “inures primarily to the benefit of the minority” and “minorities . . . consider” the policy to be “ ‘in their interest,’ ” then any state action that “place[s] effective decisionmaking authority over” that policy “at a different level of government” is subject to strict scrutiny. 458 U. S., at 472, 474. Pp. 8–11.

 

(c) To the extent Seattle is read to require the Court to determine and declare which political policies serve the “interest” of a group defined in racial terms, that rationale was unnecessary to the decision in Seattle; it has no support in precedent; and it raises serious equal protection concerns. In cautioning against “impermissible racial stereotypes,” this Court has rejected the assumption that all individuals of the same race think alike, see Shaw v. Reno, 509 U. S. 630, 647, but that proposition would be a necessary beginning point were the Seattle formulation to control. And if it were deemed necessary to probe how some races define their own interest in political matters, still another beginning point would be to define individuals according to race. Such a venture would be undertaken with no clear legal standards or accepted sources to guide judicial decision. It would also result in, or impose a high risk of, inquiries and categories dependent upon demeaning stereotypes, classifications of questionable constitutionality on their own terms. Assuming these steps could be taken, the court would next be required to determine the  policy realms in which groups defined by race had a political interest. That undertaking, again without guidance from accepted legal standards, would risk the creation of incentives for those who support or oppose certain policies to cast the debate in terms of racial advantage or disadvantage. Adoption of the Seattle formulation could affect any number of laws or decisions, involving, e.g., tax policy or housing subsidies. And racial division would be validated, not discouraged.

 

It can be argued that objections to the larger consequences of the Seattle formulation need not be confronted here, for race was an undoubted subject of the ballot issue.  But other problems raised by Seattle, such as racial definitions, still apply.  And the principal flaw in the Sixth Circuit’s decision remains: Here there was no infliction of a specific injury of the kind at issue in Mulkey and Hunter and in the history of the Seattle schools, and there is no precedent for extending these cases to restrict the right of Michigan voters to determine that race-based preferences granted by state entities should be ended. The Sixth Circuit’s judgment also calls into question other States’ long-settled rulings on policies similar to Michigan’s.

 

Unlike the injuries in Mulkey, Hunter, and Seattle, the question here is not how to address or prevent injury caused on account of race but whether voters may determine whether a policy of race-based preferences should be continued. By approving Proposal 2 and thereby adding §26 to their State Constitution, Michigan voters exercised their privilege to enact laws as a basic exercise of their democratic power, bypassing public officials they deemed not responsive to their concerns about a policy of granting race-based preferences. The mandate for segregated schools, Brown v. Board of Education, 347 U. S. 483, and scores of other examples teach that individual liberty has constitutional protection. But this Nation’s constitutional system also embraces the right of citizens to speak and debate and learn and then, as a matter of political will, to act through a lawful electoral process, as Michigan voters have done here. These precepts are not inconsistent with the well-established principle that when hurt or injury is inflicted on racial minorities by the encouragement or command of laws or other state action, the Constitution requires redress by the courts. Such circumstances were present in Mulkey, Hunter, and Seattle, but they are not present here. Pp. 11–18.

 

JUSTICE SCALIA, joined by JUSTICE THOMAS, agreed that §26 rightly stands, though not because it passes muster under the political-process doctrine. It likely does not, but the cases establishing that doctrine should be overruled. They are patently atextual, unadministrable, and contrary to this Court’s traditional equal protection jurisprudence. The question here, as in every case in which neutral state action is said to deny equal protection on account of race, is whether the challenged action reflects a racially discriminatory purpose. It plainly does not. Pp. 1–18.

 

(a)The Court of Appeals for the Sixth Circuit held §26 unconstitutional under the so-called political-process doctrine, derived from Washington v. Seattle School Dist. No. 1, 458 U. S. 457, and Hunter v. Erickson, 393 U. S. 385. In those cases, one level of government exercised borrowed authority over an apparently “racial issue” until a higher level of government called the loan. This Court deemed each revocation an equal-protection violation, without regard to whether there was evidence of an invidious purpose to discriminate. The relentless, radical logic of Hunter and Seattle would point to a similar conclusion here, as in so many other cases. Pp. 3–7.

 

(b)The problems with the political-process doctrine begin with its triggering prong, which assigns to a court the task of determining whether a law that reallocates policymaking authority concerns a “racial issue,” Seattle, 458 U. S., at 473, i.e., whether adopting one position on the question would “at bottom inur[e] primarily to the benefit of the minority, and is designed for that purpose,” id., at 472. Such freeform judicial musing into ethnic and racial “interests” involves judges in the dirty business of dividing the Nation “into racial blocs,”  Metro Broadcasting,  Inc.  v.  FCC,  497  U. S.  547,  603,  610 (O’Connor,  J.,  dissenting),  and  promotes  racial  stereotyping,  see Shaw v. Reno, 509 U. S. 630, 647.  More fundamentally, the analysis misreads the Equal Protection Clause to protect particular groups, a construction that has been repudiated in a “long line of cases understanding equal protection as a personal right.”  Adarand Constructors, Inc. v. Peña, 515 U. S. 200, 224, 230. Pp. 7–12.

 

(c) The second part of the Hunter-Seattle analysis directs a court to determine whether the challenged act “place[s] effective decisionmaking authority over [the] racial issue at a different level of government,” Seattle, supra, at 474; but, in another line of cases, the Court has emphasized the near-limitless sovereignty of each State to design its governing structure as it sees fit, see, e.g., Holt Civic Club v. Tuscaloosa, 439 U. S. 60, 71.  Taken to the limits of its logic, Hunter- Seattle is the gaping exception that nearly swallows the rule of structural state sovereignty, which would seem to permit a State to give certain powers to cities, later assign the same powers to counties, and even reclaim them for itself. Pp. 12–15.

 

(d)Hunter and Seattle also endorse a version of the proposition that a facially neutral law may deny equal protection solely because it has a disparate racial impact. That equal-protection theory has been squarely and soundly rejected by an “unwavering line of cases” holding “that a violation of the Equal Protection Clause requires state action motivated by discriminatory intent,” Hernandez v. New York, 500 U. S. 352, 372–373 (O’Connor, J., concurring in judgment), and that “official action will not be held unconstitutional solely because it results in a racially disproportionate impact,” Arlington Heights v. Metropolitan Housing Development Corp., 429 U. S. 252, 264–265. Respondents cannot prove that the action here reflects a racially discriminatory purpose, for any law expressly requiring state actors to afford all persons equal protection of the laws does not— cannot—deny “to any person . . . equal protection of the laws,” U. S. Const., Amdt. 14, §1. Pp. 15–17.

 

JUSTICE BREYER agreed that the amendment is consistent with the Equal Protection Clause, but for different reasons. First, this case addresses the amendment only as it applies to, and forbids, race-conscious admissions programs that consider race solely in order to obtain the educational benefits of a diverse student body. Second, the Constitution permits, but does not require, the use of the kind of race-conscious programs now barred by the Michigan Constitution. It foresees the ballot box, not the courts, as the normal instrument for resolving debates about the merits of these programs. Third, Hunter v. Erickson, 393 U. S. 385, and Washington v. Seattle School Dist. No. 1, 458 U. S. 457, which reflect the important principle that an individual’s ability to participate meaningfully in the political process should be independent of his race, do not apply here. Those cases involved a restructuring of the political process that changed the political level at which policies were enacted, while this case involves an amendment that took decisionmaking authority away from unelected actors and placed it in the hands of the voters. Hence, this case does not involve a diminution of the minority’s ability to participate in the political process. Extending the holding of Hunter and Seattle to situations where decisionmaking authority is moved from an administrative body to a political one would also create significant difficulties, given the nature of the administrative process. Furthermore, the principle underlying Hunter and Seattle runs up against a competing principle favoring decisionmaking through the democratic process. Pp. 1–6.

 

KENNEDY, J., announced the judgment of the Court and delivered an opinion, in which ROBERTS, C. J., and ALITO, J., joined. ROBERTS, C. J., filed a concurring opinion. SCALIA, J., filed an opinion concurring in the judgment, in which THOMAS, J., joined. BREYER, J., filed an opinion concurring in the judgment. SOTOMAYOR, J., filed a dissenting opinion, in which GINSBURG, J., joined. KAGAN, J., took no part in the consideration or decision of the case.

 

http://www.supremecourt.gov/opinions/13pdf/12-682_j4ek.pdf

 

 4/18/14 In re: Perez (9th Cir. 13-72195 4/18/14) Fair Labor Standards ActIn re: Perez (9th Cir. 13-72195 4/18/14) Fair Labor Standards Act

 

The panel granted the Secretary of the United States Department of Labor’s petition for a writ of mandamus, and vacated the district court’s order compelling the Secretary’s response to interrogatories, in the Secretary’s action against the Washington State Department of Social and Health Services alleging violations of the Fair Labor Standards Act.

 

The Secretary of Labor’s proof of the alleged Fair Labor Standards Act violations came from 400 employee statements—350 of which the Secretary obtained after he had filed suit. The district court held that the 350 employees were not informants whose identities were protected from discovery by the government’s informants privilege, and ordered the Secretary to answer three interrogatories that would disclose their identities.

 

The panel granted the Secretary’s petition for a writ of mandamus to avoid disclosing the employees’ identities because the timing of the employees’ statements did not affect their status as informants, and because knowledge of the informants’ identities would not significantly aid the Washington State Department of Social and Health Services. The panel directed the district court to enter a protective order

consistent with its opinion.

 

http://cdn.ca9.uscourts.gov/datastore/opinions/2014/04/18/13-72195.pdf

 4/15/14White v. County of Los Angeles (CA2/3 B243471 4/15/14) FMLA Leave/Fitness for Duty Evaluation

 White v. County of Los Angeles (CA2/3 B243471 4/15/14) FMLA Leave/Fitness for Duty Evaluation

 

When an employee takes leave under the Family and Medical Leave Act (FMLA) (29 U.S.C. § 2601 et seq.), the employee is entitled to be restored to employment upon certification from the employee’s health care provider that the employee is able to resume work.  The employer is not permitted to seek a second opinion regarding the employee’s fitness for work prior to restoring the employee to employment.  The question presented by the instant case is whether, if the employer is not satisfied with the employee’s health care provider’s certification, the employer may restore the employee to work, but then seek its own evaluation of the employee’s fitness for duty at its own expense.  We conclude that it may.  We therefore reverse the judgment in favor of the employee in the instant matter.

 

http://www.courts.ca.gov/opinions/documents/B243471.PDF

 3/28/14Ventress v. Japan Airlines (9th Cir. 12-15066 3/28/14) Federal Aviation Act Preemption/Retaliation

Ventress v. Japan Airlines (9th Cir. 12-15066 3/28/14) Federal Aviation Act Preemption/Retaliation

 

The panel affirmed the district court’s judgment in favor of Japan Airlines based on the Federal Aviation Act’s preemption of the pro se plaintiff’s state claims.

 

Plaintiff, a former flight engineer, alleged that Japan Airlines retaliated against him for reporting safety concerns and constructively terminated him for reasons related to his medical and mental fitness.

 

The panel held that plaintiff’s California state law claims were preempted by the Federal Aviation Act because they required the factfinder to intrude upon the federally occupied field of aviation safety by deciding questions of pilot medical standards and qualifications. The panel also held that the district court did not abuse its discretion in denying plaintiff’s motion for reconsideration.

 

Judge Bea concurred in part because he believes that plaintiff only appealed the district court’s decision denying his motion for reconsideration, and therefore he only joined that part of the majority’s opinion. Judge Bea does not believe that the court needed to address the district court’s conclusion concerning federal preemption.

 

http://cdn.ca9.uscourts.gov/datastore/opinions/2014/03/28/12-15066.pdf

 
 3/26/14

Lewis v. City of Benicia (CA1/1 A134078 3/26/14) FEHA/Same-Gender Sexual Harassment/Retaliation

Lewis v. City of Benicia (CA1/1 A134078 3/26/14) FEHA/Same-Gender Sexual Harassment/Retaliation 

Plaintiff Brian Lewis, a heterosexual man, sued his former employer, the City of Benicia (City), and two former supervisors, Steve Hickman and Rick Lantrip, asserting claims under California’s Fair Employment and Housing Act (FEHA; Gov. Code, § 12900 et seq.) for sexual harassment and (as to City) retaliation.  The trial court granted summary judgment in favor of Hickman and Lantrip, and judgment on the pleadings for City as to the sexual harassment claims.  City prevailed at trial on the retaliation claim.  On appeal, Lewis challenges the grants of summary judgment and judgment on the pleadings, and argues evidentiary and other errors require reversal as to retaliation.  We reverse the summary judgment as to Hickman, affirm summary judgment as to Lantrip, and reverse the judgment on the pleadings for City.  As to retaliation, we conclude the court prejudicially erred in excluding certain evidence at trial, and we reverse the judgment for City on the retaliation claim. 

http://www.courts.ca.gov/opinions/documents/A134078.PDF

 

 3/20/14Casas v. Carmax Auto Superstores (CA2/1 B246392 filed 2/26/14, pub. ord. 3/20/14) ArbitrationCasas v. Carmax Auto Superstores (CA2/1 B246392 filed 2/26/14, pub. ord. 3/20/14) Arbitration

 

Mario Casas filed a complaint alleging wrongful termination against CarMax Auto Superstores California, LLC (CarMax).  The trial court denied CarMax’s motion to compel arbitration, and CarMax appeals.  We reverse.

 

http://www.courts.ca.gov/opinions/documents/B246392.PDF

 3/20/14Ellis v. U.S. Security Associates (CA1/2 A136028 3/20/14) FEHA/Shortened Limitation Period Against Public Policy

Ellis v. U.S. Security Associates (CA1/2 A136028 3/20/14) FEHA/Shortened Limitation Period Against Public Policy

 

Appellant Ashley Ellis went to work for respondent U.S. Security Associates (U.S. Security) in September 2009, as a security guard.  Quickly promoted, Ellis came under the supervision of Rick Haynes, who began sexually harassing her in August 2010. Employees complained to U.S. Security, and Haynes was counseled, apparently to no avail, and he was terminated in December 2010.  Ellis was again promoted, but never to be paid the raise she was promised, and she resigned in January 2011.

           

In November 2011, Ellis filed a complaint alleging three claims under the Fair Employment and Housing Act (Government Code § 12900 et seq.) and two nonstatutory claims, claims clearly timely under the applicable statutes of limitations. U.S. Security nevertheless moved for judgment on the pleadings, based on Ellis’s signed application for employment where she agreed that “any claim or lawsuit . . . must be filed no more than six (6) months after the date of the employment action,” and she waives “any statute of limitations to the contrary.”  In a seven-line order, without discussion or explanation, the trial court granted the motion and dismissed Ellis’s complaint, apparently concluding that the shortened limitation provision was enforceable.  We conclude otherwise, and reverse, holding that the shortened limitation provision is unreasonable and against public policy.

 

http://www.courts.ca.gov/opinions/documents/A136028.PDF

 
 3/20/14Casas v. Carmax Auto Superstores (CA2/1 B246392 filed 2/26/14, pub. ord. 3/20/14) ArbitrationCasas v. Carmax Auto Superstores (CA2/1 B246392 filed 2/26/14, pub. ord. 3/20/14) Arbitration

 

Mario Casas filed a complaint alleging wrongful termination against CarMax Auto Superstores California, LLC (CarMax).  The trial court denied CarMax’s motion to compel arbitration, and CarMax appeals.  We reverse.

 

http://www.courts.ca.gov/opinions/documents/B246392.PDF

 3/13/14Carter v. City of Los Angeles (CA2/1 B241060 filed 2/26/14, pub. ord. 3/13/14) Class Action Non-Opt-Out Provisions/ADA, Section 504, Unruh Act

Carter v. City of Los Angeles (CA2/1 B241060 filed 2/26/14, pub. ord. 3/13/14) Class Action Non-Opt-Out Provisions/ADA, Section 504, Unruh Act

 

Title II of the Americans with Disabilities Act (42 U.S.C. § 12132; the ADA), Section 504 the Rehabilitation Act of 1973 (29 U.S.C. § 794 et seq.; Section 504), the Unruh Civil Rights Act (Civ. Code, § 51 et seq.), and the California Disabled Persons Act (Civ. Code, § 54) prohibit discrimination against disabled individuals and require that public entities eliminate impediments to disabled access to public facilities.  (See Ability Ctr. of Greater Toledo v. City of Sandusky (6th Cir. 2004) 385 F.3d 901, 907-908; Donald v. Cafe Royale, Inc. (1990) 218 Cal.App.3d 168, 177-178.)  “For nearly two decades, [the ADA’s] implementing regulations have required cities to make newly built and altered sidewalks readily accessible to individuals with disabilities.”  (Frame v. City of Arlington (5th Cir. 2011) 657 F.3d 215, 221.)

 

This class action litigation involves allegations that the City of Los Angeles violated the above statutes.  After the parties conditionally agreed to certify a non opt-out class, settle the litigation for injunctive relief only, and release all claims for statutory damages, the trial court certified the class and approved the settlement, finding it to be fair and reasonable.

 

Appellants contend the settlement was meager and inadequate and the non opt-out provision violated due process.  We disagree with the first contention but agree with the second.  Therefore, we reverse.

 

http://www.courts.ca.gov/opinions/documents/B241060.PDF

 3/5/14Esparza v. Co. of Los Angeles (CA2/8 B243496 filed 2/6/14, pub. ord. 3/5/14) Wrongful Termination and Demotion/FEHA and POBRAEsparza v. Co. of Los Angeles (CA2/8 B243496 filed 2/6/14, pub. ord. 3/5/14) Wrongful Termination and Demotion/FEHA and POBRA

 

Plaintiffs David Esparza, Alan Mark, Anthony Mora, and Irene Redd were peace officers employed by the Los Angeles County Office of Public Safety (OPS).  The Los Angeles County Board of Supervisors voted to dissolve OPS and merge its functions with that of the Los Angeles County Sheriff’s Department.  Plaintiffs each had the opportunity to apply for deputy sheriff positions, but did not meet the Sheriff’s Department’s qualifications.  As a result, Plaintiffs were offered lower paying positions with the Sheriff’s Department.  Plaintiffs brought suit, alleging they were improperly terminated or demoted.  The trial court sustained the demurrer and we affirm. 

 

http://www.courts.ca.gov/opinions/documents/B243496.PDF

 3/4/14Lawson v. FMR LLC (US 12-3 3/4/14) Whistleblower Protection/Sarbanes-Oxley Act

Lawson v. FMR LLC (US 12-3 3/4/14) Whistleblower Protection/Sarbanes-Oxley Act

 To safeguard investors in public companies and restore trust in the financial markets following the collapse of Enron Corporation, Con¬gress passed the Sarbanes-Oxley Act of 2002. One of the Act’s provi¬sions protects whistleblowers; at the time relevant here, that provi¬sion instructed: “No [public] company . . ., or any . . . contractor [or]subcontractor . . . of such company, may discharge, demote, suspend, threaten, harass, or . . . discriminate against an employee in the terms and conditions of employment because of [whistleblowing activ¬ity].” 18 U. S. C. §1514A(a). Plaintiffs below, petitioners here, are former employees of respond¬ents (collectively FMR), private companies that contract to advise or manage mutual funds. As is common in the industry, the mutual funds served by FMR are public companies with no employees. Both plaintiffs allege that they blew the whistle on putative fraud relating to the mutual funds and, as a consequence, suffered retaliation by FMR. Each commenced suit in federal court. Moving to dismiss the suits, FMR argued that the plaintiffs could state no claim under§1514A, for that provision protects only employees of public compa¬nies, and not employees of private companies that contract with pub¬lic companies. On interlocutory appeal from the District Court’s de¬nial of FMR’s motion to dismiss, the First Circuit reversed, concluding that the term “an employee” in §1514A(a) refers only to employees of public companies.

Held: The judgment is reversed and the case is remanded.

670 F. 3d 61, reversed and remanded.

JUSTICE GINSBURG delivered the opinion of the Court, concluding that §1514A’s whistleblower protection includes employees of a public company’s private contractors and subcontractors. Pp. 9–29.

(a) This reading of §1514A is supported by the provision’s text. Pp. 9–16.

(1) The Court looks first to the ordinary meaning of the provi¬sion’s language. See Moskal v. United States, 498 U. S. 103, 108. As relevant here, §1514A(a) provides that “no . . . contractor . . . may dis¬charge . . . an employee.” The ordinary meaning of “an employee” in this proscription is the contractor’s own employee. FMR’s “narrower construction” requires inserting “of a public company” after “an em¬ployee,” but where Congress meant “an employee of a public compa¬ny,” it said so.

The provision as a whole supports this reading. The prohibited re¬taliatory measures enumerated in §1514A(a)—discharge, demotion, suspension, threats, harassment, or discrimination in employment terms and conditions—are actions an employer takes against its own employees. Contractors are not ordinarily positioned to take adverse actions against employees of the public company with whom they contract. FMR’s interpretation of §1514A, therefore, would shrink to insignificance the provision’s ban on retaliation by contractors. The protected activity covered by §1514A, and the provision’s enforcement procedures and remedies, also indicate that Congress presumed an employer-employee relationship between the retaliator and the whis¬tleblowing employee. Pp. 9–14.

(2) FMR’s textual arguments are unpersuasive. It urges that “an employee” must be read to refer exclusively to public company em-ployees to avoid the absurd result of extending protection to the per¬sonal employees of company officers and employees, e.g., their house¬keepers or gardeners. This concern appears more theoretical than real and, in any event, is outweighed by the compelling argument sopposing FMR’s reading of §1514A. FMR also urges that its reading is supported by the provision’s statutory headings, but those head¬ings are “not meant to take the place of the detailed provisions of the text.” Trainmen v. Baltimore & Ohio R. Co., 331 U. S. 519, 528. Pp. 14–16.

(b) Other considerations support the Court’s textual analysis. Pp. 16–27.

(1) The Court’s reading fits §1514A’s aim to ward off another En¬ron debacle. The legislative record shows Congress’ understanding that outside professionals bear significant responsibility for reporting fraud by the public companies with whom they contract, and that fear of retaliation was the primary deterrent to such reporting by the employees of Enron’s contractors. Sarbanes-Oxley contains numer¬ous provisions designed to control the conduct of accountants, audi-tors, and lawyers who work with public companies, but only §1514A

affords such employees protection from retaliation by their employers for complying with the Act’s reporting requirements. Pp. 16–20.

(2) This Court’s reading of §1514A avoids insulating the entire mutual fund industry from §1514A. Virtually all mutual funds are structured so that they have no employees of their own; they are managed, instead, by independent investment advisors. Accordingly, the “narrower construction” endorsed by FMR would leave §1514Awith no application to mutual funds. The Court’s reading of §1514A,in contrast, protects the employees of investment advisors, who are often the only firsthand witnesses to shareholder fraud involving mu¬tual funds. Pp. 20–22.

(3) There is scant evidence that today’s decision will open any floodgates for whistleblowing suits outside §1514A’s purposes. The Department of Labor’s regulations have interpreted §1514A as pro¬tecting contractor employees for almost a decade, yet FMR is unable to identify a single case in which the employee of a private contractor has asserted a §1514A claim based on allegations unrelated to share¬holder fraud. Plaintiffs and the Solicitor General suggest various limiting principles to dispel any overbreadth problems. This Court need not determine §1514A’s bounds here, however, because, if plain¬tiffs’ allegations prove true, plaintiffs are precisely the “first hand witnesses to [the shareholder] fraud” Congress anticipated §1514Awould protect. S. Rep. No. 107–146, p. 10. Pp. 22–24.

(4) The 2010 Dodd-Frank Wall Street Reform and Consumer Pro¬tection Act does not affect this Court’s task of determining whether Congress in 2002 afforded protection to whistleblowing contractor employees. Pp. 24–27.

(c) AIR 21’s whistleblower protection provision has been read to cover, in addition to employees of air carriers, employees of contrac¬tors and subcontractors of the carriers. Given the parallel statutory texts and whistleblower protective aims, the Court reads the words “an employee” in AIR 21 and in §1514A to have similar import. Pp. 27–29.

JUSTICE SCALIA, joined by JUSTICE THOMAS, relying only on 18 U. S. C. §1514A’s text and broader context, agreed that §1514A pro¬tects employees of private contractors from retaliation when they re¬port covered forms of fraud. Pp. 1–3.

GINSBURG, J., delivered the opinion of the Court, in which ROBERTS, C. J., and BREYER and KAGAN, JJ., joined, and in which SCALIA and THOMAS, JJ., joined in principal part. SCALIA, J., filed an opinion con¬curring in principal part and concurring in the judgment, in which THOMAS, J., joined. SOTOMAYOR, J., filed a dissenting opinion, in which KENNEDY and ALITO, JJ., joined.

 

http://www.supremecourt.gov/opinions/13pdf/12-3_4f57.pdf

 3/4/14 anchez v. Carmax Auto Superstores (CA2/1 B244772 filed 2/6/14, pub. ord. 3/4/14) Wrongful Termination/Arbitration

Sanchez v. Carmax Auto Superstores (CA2/1 B244772 filed 2/6/14, pub. ord. 3/4/14) Wrongful Termination/Arbitration

 

Michael Sanchez filed a complaint for wrongful termination against CarMax Auto Superstores California, LLC (CarMax).  The trial court denied CarMax’s motion to compel arbitration, and CarMax appeals.  We reverse.

 

http://www.courts.ca.gov/opinions/documents/B244772.PDF

 3/4/14Pac. Shores Properties v. City of Newport Beach (9th Cir. 11-55460 & 11-55461 dissent den. rehrg. en banc 3/4/14) Housing Discrimination/Disparate Treatment/Group Homes

Pac. Shores Properties v. City of Newport Beach (9th Cir. 11-55460 & 11-55461 dissent den. rehrg. en banc 3/4/14) Housing Discrimination/Disparate Treatment/Group Homes

 

The panel filed an order rejecting a sua sponte en banc call.

 

Judge O’Scannlain, joined by Judges Tallman, Callahan, Bea, and Ikuta, dissented from the denial of rehearing en banc. He wrote that the panel’s opinion invented “an entirely unprecedented theory of actionable government discrimination: sinister intent in the enactment of facially neutral legislation can generate civil liability without evidence of discriminatory effect.”

 

http://cdn.ca9.uscourts.gov/datastore/opinions/2014/03/04/11-55460.pdf

 2/25/14Escriba v. Foster 2 Poultry Farms (9th Cir. 11-17608 and 12-15320 2/25/14) FMLA Leave Escriba v. Foster 2 Poultry Farms (9th Cir. 11-17608 and 12-15320 2/25/14) FMLA Leave

 

The panel affirmed the district court’s judgment, after a jury trial, in favor of the defendant in an action under the Family and Medical Leave Act and its California equivalent.

 

The panel held that the district court did not err in denying the plaintiff’s motion for summary judgment because an employee can affirmatively decline to use FMLA leave, even if the underlying reason for seeking leave would have invoked FMLA protection. The panel held that the district court did not err in denying the plaintiff’s motion for judgment as a matter of law because, viewing the evidence in the light most favorable to the jury’s verdict, there was substantial evidence that the plaintiff elected not to take

FMLA leave. In addition, the district court did not err in admitting evidence about the plaintiff’s prior FMLA leave.

 

On the defendant’s cross-appeal, the panel held that the district court did not abuse its discretion in declining to tax costs.

 

http://cdn.ca9.uscourts.gov/datastore/opinions/2014/02/25/11-17608.pdf
 2/25/14Robert v. Stanford Univ. (CA6 H037514 2/25/14) Meritless, Frivolous and Vexatious FEHA Action/ Attorneys’ Fees to Prevailing Party

Robert v. Stanford Univ. (CA6 H037514 2/25/14) Meritless, Frivolous and Vexatious FEHA Action/ Attorneys’ Fees to Prevailing Party

 

Plaintiff Francis Robert appeals from the trial court’s order requiring him to pay $100,000 in attorney’s fees to defendant Stanford University (Stanford) after Stanford prevailed in Robert’s action under the California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.).  He claims that the court failed to make the requisite written findings, failed to consider his financial condition, and abused its discretion in finding that his FEHA cause of action was “without merit[,] frivolous and vexatious.”  We affirm.

 

http://www.courts.ca.gov/opinions/documents/H037514.PDF

 2/11/14Law School Admission Council v. California (CA3 C073187M, filed 1/13/14, mod. 2/11/14) Unruh Act/ADA Disability AccessLaw School Admission Council v. California (CA3 C073187M, filed 1/13/14, mod. 2/11/14) Unruh Act/ADA Disability Access 

The opinion filed January 13, 2014, in the above cause is modified in the following respects:

Change the last line of the editorial information to read:  Fulbright & Jaworski, Robert E. Darby and Robert A. Burgoyne for Plaintiff and Respondent.

On page 30, change the third sentence in the first full paragraph to read: 

            We therefore consider it forfeited for purposes of this appeal.

The paragraph’s remaining text is deleted following the citation:  (Americas Propane, LP v. Landstar Ranger, Inc. (2010) 184 Cal.App.4th 981, 1001, fn. 4; People v. Stanley (1995) 10 Cal.4th 764, 793.)

This modification does not change the judgment.

http://www.courts.ca.gov/opinions/documents/C073187M.PDF

1/29/14

Pickup v. Brown (9th Cir. 12-17681 1/30/14) Sexual Orientation Change Efforts

Pickup v. Brown (9th Cir. 12-17681 1/30/14) Sexual Orientation Change Efforts

The panel replaced its prior opinion, filed on August 29, 2013, and published at 728 F.3d 1042, with an amended opinion, denied a petition for panel rehearing, denied a petition for rehearing en banc on behalf of the court, and ordered that no further petitions shall be entertained.

Reversing an order granting preliminary injunctive relief in Welch v. Brown, 13-15023, and affirming the denial of preliminary injunctive relief in Pickup v. Brown, 12-17681, the panel held that California Senate Bill 1172, which bans state-licensed mental health providers from engaging in “sexual orientation change efforts” with patients under 18 years of age, does not violate the free speech rights of practitioners or minor patients, is neither vague nor overbroad, and does not violate parents’ fundamental rights. The panel held that Senate Bill 1172 regulates professional conduct, not speech and therefore was subject only to a rational basis review.

Dissenting from the denial of rehearing en banc, Judge O’Scannlain, joined by Judges Bea and Ikuta stated that by defining disfavored speech as “conduct,” the panel’s opinion entirely exempted California’s regulation from the First Amendment. Judge O’Scannlain stated that in so doing, the panel contravened recent Supreme Court precedent, ignored established free speech doctrine, misread Ninth Circuit cases, and thus insulated from First Amendment scrutiny California’s prohibition—in the guise of a professional regulation—of politically unpopular expression.

http://cdn.ca9.uscourts.gov/datastore/opinions/2014/01/28/12-17681.pdf

1/29/14Demers v. Austin (9th Cir. 11-35558 1/29/14) § 1983/First Amendment Retaliation/Qualified Immunity

Demers v. Austin (9th Cir. 11-35558 1/29/14) § 1983/First Amendment Retaliation/Qualified Immunity

The panel replaced its prior opinion, filed on September 4, 2013, and published at 729 F.3d 1011, with a new opinion, denied a petition for panel rehearing, and denied a petition for rehearing en banc on behalf of the court, in an action brought pursuant to 42 U.S.C. § 1983 by a tenured associate university professor who alleged that university administrators retaliated against him in violation of the First Amendment for distributing a short pamphlet and drafts from an in-progress book.

The panel held that Garcetti v. Ceballos, 547 U.S. 410 (2006), does not apply to speech related to scholarship or teaching. Rather, such speech is governed by Pickering v. Board of Education, 391 U.S. 563 (1968). The panel concluded that the short pamphlet was related to scholarship or teaching and that it addressed a matter of public concern under Pickering. The panel concluded, further, that there was insufficient evidence in the record to show that the in-progress book triggered retaliation against plaintiff. Finally, the panel concluded that defendants were entitled to qualified immunity from damages, given the uncertain state of the law in the wake of Garcetti.

http://cdn.ca9.uscourts.gov/datastore/opinions/2014/01/28/11-35558.pdf

1/14/14

Mendoza v. Western Med. Center Santa Ana (CA4/3 G047394 1/14/14) Jury Instructions after Harris v. City of Santa Monica

Mendoza v. Western Med. Center Santa Ana (CA4/3 G047394 1/14/14) Jury Instructions after Harris v. City of Santa Monica

A jury voted nine to three to award $238,328 to plaintiff Romeo Mendoza, who claimed he was fired in retaliation for reporting allegations of sexual harassment. The court instructed the jury with the 2012 version of CACI No. 2430 and a special verdict form consistent therewith. Case law issued subsequent to the judgment leads us to conclude the court committed prejudicial error in doing so. (See Harris v. City of Santa Monica (2013) 56 Cal.4th 203 (Harris); Alamo v. Practice Management Information Corp. (2013) 219 Cal.App.4th 466 (Alamo).) We reject, however, defendants’ contention that they are entitled to a defense judgment as a matter of law. Accordingly, we reverse the judgment for a new trial.

http://www.courts.ca.gov/opinions/documents/G047394.PDF

1/13/14

Law School Admission Council v. California (CA3 C073187 1/13/14) Testing Accommodation

Law School Admission Council v. California (CA3 C073187 1/13/14) Testing Accommodation

This case involves a constitutional challenge to Education Code section 99161.5, which requires Law School Admission Council, Inc. (LSAC), the test sponsor of the Law School Admission Test (LSAT), to “provide testing accommodations to a test subject with a disability who makes a timely request to ensure that the [LSAT] accurately reflects the aptitude, achievement levels, or other factors that the test purports to measure and does not reflect the test subject’s disability.” (Ed. Code, § 99161.5, subd. (a)(1).) The section also requires LSAC to “give considerable weight to documentation of past modifications, accommodations, or auxiliary aids or services received by the test subject in similar testing situations when determining whether to grant an accommodation to the test subject” (§ 99161.5, subd. (b)), and prohibits the organization from either “notify[ing] a test score recipient that the score of any test subject was obtained by a subject who received an accommodation” or “withhold[ing] any information that would lead a test score recipient to deduce that a score was earned by a subject who received an accommodation.” (§ 99161.5, subd. (c)(1) & (2).)

The State of California (the State) appeals from the issuance of a preliminary injunction ordering the State to refrain from enforcing section 99161.5 against LSAC pending trial. The trial court ruled LSAC demonstrated a likelihood of prevailing on its claim that section 99161.5 violates the equal protection clause of the California Constitution (Cal. Const., art. I, § 7, subd. (a)) because it “lacks a rational basis for directing its prohibitions to LSAC exclusively, and not to other testing entities.” The trial court also found “the risk of infringement of [LSAC’s] constitutional rights is sufficient harm to warrant injunctive relief.” We issued a limited stay of the trial court’s preliminary injunction order pending resolution of this appeal, specifically directing LSAC to comply with section 99161.5, subdivision (c). We now reverse the preliminary injunction order. As we explain, section 99161.5 does not violate LSAC’s right to equal protection under the law because LSAC is not similarly situated to other testing entities for purposes of the law. Nor has LSAC demonstrated a likelihood of prevailing on its additional claims, i.e., that section 99161.5 violates its right to liberty of speech, constitutes invalid special legislation, or amounts to a prohibited bill of attainder. The only claim that cannot be determined against LSAC as a matter of law is the liberty of speech claim. But even as to that claim, the balance of interim harm does not tip in LSAC’s favor. Accordingly, it was an abuse of the trial court’s discretion to issue the preliminary injunction.

http://www.courts.ca.gov/opinions/documents/C073187.PDF

1/13/14Taylor v. Nabors Drilling (CA2/6 B241914 1/13/14) Same-Sex Hostile Work Environment Sexual Harassment/Defective Special Verdict Form Held Harmless

Taylor v. Nabors Drilling (CA2/6 B241914 1/13/14) Same-Sex Hostile Work Environment Sexual Harassment/Defective Special Verdict Form Held Harmless

In this first impression case, we hold that a defective special verdict form is subject to harmless error analysis.

Max Taylor, respondent, filed an action alleging hostile work environment sexual harassment against his former employer, Nabors Drilling USA, L.P., appellant. The action was brought pursuant to the California Fair Employment and Housing Act (FEHA). (Gov. Code, § 12900 et seq.) Judgment was entered in respondent's favor after a jury returned a $160,000 special verdict in his favor.

The trial court denied appellant's motion for judgment notwithstanding the verdict (JNOV), and awarded respondent attorney fees of $680,520.

Appellant argues that the motion for JNOV should have been granted because (1) the evidence is insufficient to show that respondent "was harassed because of his sex and/or perceived sexual orientation," and (2) the special verdict is fatally defective. In addition, appellant challenges an award of $150,000 for past noneconomic damages and an award of $10,000 for past economic damages. Finally, appellant contends that the attorney fee award is excessive.

We affirm the denial of the motion for JNOV and the award of attorney fees. We agree with appellant that the evidence is insufficient to support an award of economic damages. Accordingly, we reduce respondent's total recovery from $160,000 to $150,000. We affirm the judgment as modified.

http://www.courts.ca.gov/opinions/documents/B241914.PDF

1/2/14In re Garcia on Admission (SC S202512 1/2/14) Undocumented Immigrant/Admission to State Bar
In re Garcia on Admission (SC S202512 1/2/14) Undocumented Immigrant/Admission to State Bar
The Committee of Bar Examiners (Committee) — the entity within the State Bar of California (State Bar) that administers the California bar examination, investigates the qualifications of bar applicants, and certifies to this court candidates it finds qualified for admission to the State Bar — has submitted the name of Sergio C. Garcia (hereafter Garcia or applicant) for admission to the State Bar. In conjunction with its certification, the Committee has brought to the court’s attention the fact that Garcia’s current immigration status is that of an undocumented immigrant, and has noted that the question whether an undocumented immigrant may be admitted to the State Bar is an issue that has not previously been addressed or decided by this court. We issued an order to show cause in this matter to address the question.
Our order to show cause requested briefing on a number of issues raised by the Committee’s motion to admit Garcia to the State Bar, including the proper interpretation of a federal statute — section 1621 of title 8 of the United States Code (hereafter section 1621) — that generally restricts an undocumented immigrant’s eligibility to obtain a professional license but that also contains a subsection expressly authorizing a state to render an undocumented immigrant eligible to obtain such a professional license through the enactment of a state law meeting specified requirements. Very shortly after we held oral argument in this matter, the California Legislature enacted a statute that was intended to satisfy this aspect of section 1621 and the Governor signed that legislation into law. (Bus. & Prof. Code, § 6064, subd. (b); Stats. 2013, ch. 573, § 1, enacting Assem. Bill No. 1024 (2013-2014 Reg. Sess.) as amended Sept. 6, 2013.) The new legislation became effective on January 1, 2014.
In light of the recently enacted state legislation, we conclude that the Committee’s motion to admit Garcia to the State Bar should be granted. The new legislation removes any potential statutory obstacle to Garcia’s admission posed by section 1621, and there is no other federal statute that purports to preclude a state from granting a license to practice law to an undocumented immigrant. The new statute also reflects that the Legislature and the Governor have concluded that the admission of an undocumented immigrant who has met all the qualifications for admission to the State Bar is fully consistent with this state’s public policy, and, as this opinion explains, we find no basis to disagree with that conclusion. Finally, we agree with the Committee’s determination that Garcia possesses the requisite good moral character to warrant admission to the State Bar and, pursuant to our constitutional authority, grant the Committee’s motion to admit Garcia to the State Bar.
12/20/13Published Attorney General Opinion (AG Opn. No. 12-901 12/20/13) Place of Employment
Published Attorney General Opinion (AG Opn. No. 12-901 12/20/13) Place of Employment
The following opinion is now available on the Attorney General's site:
An owner-operated business with no employees nevertheless constitutes a “place of employment” under Labor Code section 6404.5 when employment of any kind is carried on at the business location—that is, even when such employment is carried on by persons who are employed by someone other than the business owner.
12/11/13
Dzakula v. McHugh (9th Cir. 11-16404 12/11/13) Judicial Estoppel and Bankruptcy/Non-Disclosure of Employment Discrimination Action
Dzakula v. McHugh (9th Cir. 11-16404 12/11/13) Judicial Estoppel and Bankruptcy/Non-Disclosure of Employment Discrimination Action
The panel affirmed the district court’s dismissal, based on judicial estoppel, of plaintiff’s employment discrimination action.
Plaintiff had filed for Chapter 7 bankruptcy protection, and failed to list this employment discrimination action on her bankruptcy schedules. The panel held that the district court applied the correct legal rule, properly weighed the factors set forth in New Hampshire v. Maine, 532 U.S. 742 (2001), and did not otherwise err in concluding that plaintiff’s omission on her bankruptcy schedule was neither inadvertent
nor mistaken, and that therefore judicial estoppel barred this action.
12/11/13Villacorta v. Cemex Cement (CA4/2 E054329 12/11/13) Wrongful Termination/Lost Wages
Villacorta v. Cemex Cement (CA4/2 E054329 12/11/13) Wrongful Termination/Lost Wages
Alfredo Villacorta (Villacorta) sued Cemex Cement, Inc. (Cemex) for (1) wrongful termination in violation of public policy, (2) intentional infliction of emotional distress, and (3) national origin discrimination. During closing argument, Villacorta’s trial attorney asserted Villacorta suffered $44,000 in lost wages as a result of the wrongful termination. The jury awarded Villacorta $198,000 for lost wages, but nothing for the other two causes of action. Cemex moved for a new trial and/or judgment notwithstanding the verdict (JNOV) due, in part, to substantial evidence not supporting the damages award. The trial court denied Cemex’s motions. Cemex contends the trial court erred by denying the JNOV motion because substantial evidence does not support a lost wage award of $198,000. Cemex also contends the trial court erred by not reducing the damage award because the award was excessive. We affirm the judgment.
12/11/13Hunter v. CBS Broadcasting (CA2/7 B244832, filed 11/18/13, pub. ord. 12/11/13) FEHA Employment Discrimination/Anti-SLAPP
Hunter v. CBS Broadcasting (CA2/7 B244832, filed 11/18/13, pub. ord. 12/11/13) FEHA Employment Discrimination/Anti-SLAPP
Kyle Hunter filed a discrimination complaint alleging that CBS Broadcasting refused to hire him as a weather news anchor because of his gender and age. CBS filed a motion to strike the complaint pursuant to Code of Civil Procedure section 425.16 arguing that its selection of a newscaster qualified as an act in furtherance of its free speech rights. The trial court denied the motion, concluding that Hunter’s claims did not arise from CBS’s hiring decision, but rather from its discriminatory employment practices. We reverse the order and remand for the trial court to consider whether Hunter has demonstrated a reasonable probability of prevailing on the merits of his claims.

12/3/13

Hagen v. City of Eugene (9th Cir. 12-35492 12/3/13) Public Employee/ First Amendment Retaliation

Hagen v. City of Eugene (9th Cir. 12-35492 12/3/13) Public Employee/ First Amendment Retaliation

The panel reversed the district court’s denial of defendants’ motion for judgment as a matter of law, following a jury trial, in a 42 U.S.C. § 1983 action in which plaintiff alleged that defendants violated his First Amendment rights when they removed him from his position with the Eugene Police Department’s K-9 team in retaliation for his repeatedly airing concerns about work-related safety issues to his supervisors.

The panel concluded that the evidence presented to the jury did not reasonably permit the conclusion that plaintiff established a First Amendment retaliation claim. Where, as in this case, a public employee reports departmental-safety concerns to his or her supervisors pursuant to a duty to do so, that employee does not speak as a private citizen and is not entitled to First Amendment protection. The panel reversed the judgment and held that defendants were entitled to judgment as a matter of law.

http://cdn.ca9.uscourts.gov/datastore/opinions/2013/12/03/12-35492.pdf

12/3/13Horne v. Internat. Union Painters et al., Dist. Council 16 (CA1/4 A135470 12/3/13) Race Discrimination/After-Acquired Evidence

Horne v. Internat. Union Painters et al., Dist. Council 16 (CA1/4 A135470 12/3/13) Race Discrimination/After-Acquired Evidence

The trial court granted summary judgment to respondent District Council 16 International Union of Painters and Allied Trades on appellant Raymond E. Horne’s employment discrimination action. Horne appeals, contending inter alia that the after-acquired evidence doctrine precluded consideration of evidence of the impact of his prior conviction on the issue of his qualification for a union organizer position. The council seeks sanctions from Horne for filing a frivolous appeal. We deny the request for sanctions and affirm the judgment.

http://www.courts.ca.gov/opinions/documents/A135470.PDF

11/7/13

Volpei v. County of Ventura (CA2/6 B243954 11/7/13) Arbitration

Volpei v. County of Ventura (CA2/6 B243954 11/7/13) Arbitration

An employee is a member of a union whose collective bargaining agreement provides that the union may submit a grievance to arbitration. Here we conclude that this provision does not preclude the employee with a statutory grievance against his employer from filing a judicial action.

The County of Ventura (County) appeals from an order denying its petition to compel arbitration of Mark D. Volpei's claims for retaliation, harassment and discrimination under the California Fair Employment and Housing Act (FEHA). (Gov. Code, § 12940 et seq.) We conclude that Volpei is not bound to arbitrate his claims under the terms of a memorandum of agreement (MOA) between the County and his bargaining representative, the Ventura County Deputy Sheriffs' Association (Association), because the MOA does not provide for a clear and unmistakable waiver of Volpei's right to a judicial forum for his statutory discrimination claims. We affirm.

http://www.courts.ca.gov/opinions/documents/B243954.PDF

11/6/13Vesco v. Super. Ct. (CA2/6 B249447 11/6/13) Court Accommodation/Medical Records

Vesco v. Super. Ct. (CA2/6 B249447 11/6/13) Court Accommodation/Medical Records

California Rules of Court, rule 1.100 allows persons with disabilities to apply for "accommodations" to ensure they have full and equal access to the courts. Rule 1.100 (c)(4) prohibits disclosure of the applicant's confidential information to persons "other than those involved in the accommodation process."

The trial court twice granted real party in interest's motion for continuance of trial pursuant to rule 1.100. Petitioner received no prior notice and the court denied his request to view the medical documents on which real party in interest relied to obtain a continuance.

We conclude petitioner is a person involved in the accommodation process. Therefore he has the right to notice, to view the documents on which the real party in interest relies, and to an opportunity to be heard. We issue a peremptory writ of mandate. We direct the superior court to vacate its June 12, 2013 order granting a continuance to real party in interest.

http://www.courts.ca.gov/opinions/documents/B249447.PDF

11/5/13Yanez v. Plummer (CA3 C070726 11/5/13) Wrongful Termination/In-House Counsel’s Conflict of Interest

Yanez v. Plummer (CA3 C070726 11/5/13) Wrongful Termination/In-House Counsel’s Conflict of Interest

Plaintiff Michael Yanez sued his former employer, Union Pacific Railroad Company (Union Pacific), for wrongful discharge, as well as Union Pacific’s in house counsel, Brian Plummer, for legal malpractice, breach of fiduciary duty, and fraud.

Union Pacific fired Yanez for dishonesty, citing a discrepancy between a witness statement that Yanez wrote and a deposition answer he gave concerning a coemployee’s on-the-job injury (the deposition answer occurred in the coemployee’s lawsuit against Union Pacific under the Federal Employers Liability Act (FELA; 45 U.S.C. § 51 et seq.)). At the deposition, Plummer represented both Union Pacific and Yanez. Yanez claims the alleged dishonesty was a simple miswording in his witness statement that Plummer, during the deposition, manufactured into something sinister for Union Pacific’s benefit.

Plummer moved successfully for summary judgment, claiming that Yanez could not meet the causation element of Yanez’s three causes of action against him. We reverse, concluding that Yanez has raised a triable issue of material fact that but for Plummer’s conduct, Union Pacific would not have fired Yanez.

http://www.courts.ca.gov/opinions/documents/C070726.PDF
10/28/13Chavarria v. Ralphs Grocery Store (9th Cir. 11-56673 10/28/13) Arbitration

Chavarria v. Ralphs Grocery Store (9th Cir. 11-56673 10/28/13) Arbitration

The panel affirmed the district court’s denial of defendant grocery company’s motion to compel arbitration in an action asserting claims under California labor law on behalf of the plaintiff and a proposed class of other grocery employees.

The grocery company sought to compel arbitration of the plaintiff’s individual claim pursuant to its arbitration policy, to which all employees acceded upon submitting applications for employment. The panel affirmed the district court’s holding that the arbitration policy was unconscionable under California contract law and therefore unenforceable.

he panel held that the policy was procedurally unconscionable because it was a condition of applying for employment and was presented on a “take it or leave it” basis.In addition, its terms were not provided to the plaintiff until three weeks after she had agreed to be bound by it.

The panel held that the arbitration policy was substantively unconscionable because it was unjustifiably one-sided to such an extent that it “shocked the conscience.” Specifically, the policy’s arbitrator selection process would always produce an arbitrator proposed by the defendant in employee-initiated arbitration proceedings; the policy precluded institutional arbitration administrators, which have established rules and procedures to select a neutral arbitrator; and the policy’s arbitrator-fee-apportionment provision would have the effect of pricing employees out of the dispute resolution process.

The panel distinguished Kilgore v.KeyBank National Ass’n, 718 F.3d 1052 (9th Cir. 2013) (en banc) (holding that mere risk that plaintiff will face prohibitive costs is too speculative to justify invalidating arbitration agreement), on the basis that the defendant’s policy’s fee provision stood by other unconscionable terms and was not speculative.

The panel held that the state law supporting the unconsionability holding was not preempted by the Federal Arbitration Act because it applied to contracts generally and did not in practice impact arbitration agreements disproportionately. The panel held that the Supreme Court’s decision in American Exress Corp. v. Italian Colors Restaurant, 133 S. Ct. 2304 (2013) (upholding arbitration policy with class waiver provision on basis that expense of proving statutory remedy did not eliminate right to pursue that remedy), did not preclude it from considering the cost that the defendant’s arbitration agreement imposed on employees in order for them to bring a claim.

The panel affirmed the decision of the district court denying the defendant’s motion to compel arbitration and remanded the case for further proceedings.

http://cdn.ca9.uscourts.gov/datastore/opinions/2013/10/28/11-56673.pdf

10/24/13State of Arizona v. Asarco (9th Cir. 11-17484 10/24/13) Punitive Damages

State of Arizona v. Asarco (9th Cir. 11-17484 10/24/13) Punitive Damages

The panel vacated the district court’s award of punitive damages in a Title VII sexual harassment suit where the jury awarded no compensatory damages and only one dollar in nominal damages.

The panel held that although the degree of reprehensibility of the defendant’s conduct supported a substantial punitive damages award, and the district court’s $300,000 award matched the Title VII damages cap, the award was constitutionally excessive in light of the fact that the ratio of punitive to compensatory damages was 300,000 to 1. The panel held that the highest punitive award supportable under due process was $125,000 because it was the highest award that maintained the required reasonable relationship” between compensatory and punitive damages, and nonetheless was on the order of the damages cap in Title VII and proportional to the reprehensibility of the defendant’s conduct. The panel ordered that on remand, the district court could order a new trial unless the plaintiff accepted a remittitur to $125,000.

Concurring in part and dissenting in part, Judge Hurwitz agreed with the majority that the defendant’s conduct was reprehensible and warranted punitive damages. He also agreed with the majority that a single-digit ratio between punitive and compensatory damages was not constitutionally mandated. Judge Hurwitz wrote that he nonetheless would affirm the district court’s judgment in its entirety because the punitive damages award fell within the statutory cap on damages in Title VII.

http://cdn.ca9.uscourts.gov/datastore/opinions/2013/10/24/11-17484.pdf

10/22/13Cornejo v. Lightbourne (CA3 C070704 10/22/13) Whistleblower Action

Cornejo v. Lightbourne (CA3 C070704 10/22/13) Whistleblower Action

Plaintiff Ruby Cornejo filed this action for damages for violations of the California Whistleblower Protection Act (WPA) (Gov. Code, § 8547 et seq.) in May 2010. She alleged that as a result of her reports starting in 1999 the practices and policies of the Department of Social Services (the Department) were “ ‘improper governmental activity’ ” (§ 8547.2, subd. (c)), and she experienced retaliation beginning in 2002. The Department demurred on several grounds. The trial court agreed that plaintiff had failed to comply with the Government Claims Act (Claims Act) because the Claims Act procedures for presenting claims (see §§ 900-915.4, 945.4) apply to actions under the WPA and—as plaintiff conceded—she had not filed a claim with the State of California before bringing suit (see § 905.2). The trial court also concluded the limitations period for actions subject to the claims presentation requirement had expired. The trial court did not reach the remainder of the grounds for defendant’s demurrer. It entered a judgment of dismissal in favor of the Department, from which plaintiff appeals.

Analogizing to the California Fair Employment and Housing Act (FEHA), plaintiff contends the WPA is not subject to the Claims Act because it has a comprehensive administrative procedure that satisfies the purposes of the presentation procedure in the Claims Act. We agree. We also conclude that the alternative grounds for the demurrer are without merit. We will therefore reverse the judgment and remand with directions to overrule the demurrer.

http://www.courts.ca.gov/opinions/documents/C070704.PDF
10/16/13Rope v. Auto-Chlor System (CA2/1 B242003 10/16/13) Disability Discrimination by Association/Failure to Maintain a Discrimination Free Workplace

Rope v. Auto-Chlor System (CA2/1 B242003 10/16/13) Disability Discrimination by Association/Failure to Maintain a Discrimination Free Workplace

When he was hired in September 2010, plaintiff Scott Rope informed his employer, defendant Auto-Chlor System of Washington, Inc. (Auto-Chlor) he planned in February 2011 to donate a kidney to his physically disabled sister, and requested that he be given leave to do so. Rope later requested that the leave be extended and paid under the then-newly enacted Michelle Maykin Memorial Donation Protection Act (DPA), Labor Code sections 1508–1513, which would become effective January 1, 2011. Rope was fired two days before the DPA became effective. He sued his former employer for violation of the DPA and other provisions of the Labor Code, violation of the Fair Employment and Housing Act, Government Code section 12940 et seq. (FEHA), and wrongful termination in violation of public policy.

Rope appeals from the judgment of dismissal entered after the trial court sustained general demurrers to his first and second amended complaints without leave to amend. (Code Civ. Proc., § 430.10, subd. (e).) We conclude that Rope has pleaded facts sufficient to support a claim for association-based disability discrimination and failure to maintain a discrimination free workplace in violation of FEHA, and a common law claim for wrongful termination in violation of public policy. We also conclude that the trial court properly sustained without leave to amend demurrers to Rope’s claims for violations of the DPA, violations of the Labor Code, and for direct or perceived disability discrimination under FEHA. Accordingly, we affirm in part and reverse in part the judgment of dismissal and remand for further proceedings.

http://www.courts.ca.gov/opinions/documents/B242003.PDF
10/15/13Mendez v. Mid-Wilshire Health (CA2/7 B243144, filed 9/23/13, opn. ord. 10/15/13) Arbitration

Mendez v. Mid-Wilshire Health (CA2/7 B243144, filed 9/23/13, opn. ord. 10/15/13) Arbitration

Defendant Mid-Wilshire Health Care Center (Mid-Wilshire) appeals from an order denying its motion to compel arbitration and to stay this wrongful termination action filed by plaintiff Maribel Mendez. We hold that the arbitration provision in the collective bargaining agreement governing Mendez’s employment does not apply to Mendez’s statutory discrimination claims, and affirm.

http://www.courts.ca.gov/opinions/documents/B243144.PDF

10/15/13Madigan v. Levin (US 12-872, dismissed as improvidently granted 10/15/13) Age Discrimination

Madigan v. Levin (US 12-872, dismissed as improvidently granted 10/15/13) Age Discrimination

Whether the Seventh Circuit erred in holding, in an acknowledged departure from the rule in at least four other circuits, that state and local government employees may avoid the federal Age Discrimination in Employment Act’s comprehensive remedial regime by bringing age discrimination claims directly under the Equal Protection Clause and 42 U.S.C. § 1983.

http://www.supremecourt.gov/opinions/13pdf/12-872_pm02.pdf
10/15/13Schuette v. Coalition to Defend Affirmative Action (US 12-682 Oral Argument 10/15/13) Affirmative Action

Schuette v. Coalition to Defend Affirmative Action (US 12-682 Oral Argument 10/15/13) Affirmative Action

Whether a state violates the Equal Protection Clause by amending its constitution to prohibit race- and sex-based discrimination or preferential treatment in public-university admissions decisions. (Kagan, J., recused.)

Oral Argument Transcript: http://www.supremecourt.gov/oral_arguments/argument_transcripts/12-682_l537.pdf
10/10/13 Bills Signed and VetoedGovernor Edmund G. Brown Signed into Law 10/10/13

AB 556 by Assemblymember Rudy Salas (D-Bakersfield) – Adds "military and veteran status," as defined, to the list of categories protected from employment discrimination under the Fair Employment and Housing Act. The bill also provides an exemption for an inquiry by an employer regarding military or veteran status for the purpose of awarding a veteran's preference as permitted by law.

Vetoed 10/10/13

SB 655 by Senator Roderick D. Wright (D-Los Angeles) – Fair Employment and Housing Act: unlawful practices. A veto message can be found here.

10/9/13Prudential Locations LLC v.. HUD (9th Cir. 09-16995 10/9/13) Redaction of HUD Complainant’s Identifying Information/Freedom of Information ActPrudential Locations LLC v.. HUD (9th Cir. 09-16995 10/9/13) Redaction of HUD Complainant’s Identifying Information/Freedom of Information Act

The panel affirmed the district court’s summary judgment in favor of the U.S. Department of Housing and Urban Development and held that Exemption 6 of the Freedom of Information Act justified the agency’s decision to redact identifying information.

Plaintiff filed a Freedom of Information Act (“FOIA”) request with HUD, asking it to disclose the names of the individuals who had complained to HUD that plaintiff had violated the Real Estate Settlement Procedures Act. The panel held that the identity of a person complaining to a federal agency about a violation of law is protected from disclosure under Exemption 6 of FOIA.

Judge Berzon dissented, and would remand to the district court for further factual development because the present record is inadequate to confirm the existence of any personal privacy interest to justify invocation of FOIA’s Exemption.

http://cdn.ca9.uscourts.gov/datastore/opinions/2013/10/09/09-16995.pdf

10/8/13

Davis v. Kiewit Pacific (CA4/1 D062388 9/18/13, pub. ord. 10/8/13) Punitive Damages

Davis v. Kiewit Pacific (CA4/1 D062388 9/18/13, pub. ord. 10/8/13) Punitive Damages

The trial court entered a judgment for plaintiff Lisa Davis after a jury found defendant Kiewit Pacific Co. (Kiewit) liable for gender discrimination, hostile work environment harassment, retaliation, and failure to prevent harassment, gender discrimination, or retaliation. However, before trial, the trial court granted Kiewit's motion for summary adjudication on Davis's claim for punitive damages, concluding there were no triable issues of material fact whether a managing agent of Kiewit had engaged in or ratified any oppressive, malicious and/or fraudulent conduct against her. Davis appeals, contending the trial court erred by granting Kiewit's motion for summary adjudication on her punitive damages claim because there is a triable issue of material fact regarding whether a managing agent of Kiewit engaged in or ratified the wrongful conduct against her. As we discuss below, we conclude a triable issue of material fact exists for determination by a jury.

http://www.courts.ca.gov/opinions/documents/D062388.PDF

9/24-26/13 Bills Signed by Goverbir

Bills Signed by Governor

AB 241 by Assemblymember Tom Ammiano (D-San Francisco) – Domestic work employees: labor standards.

SB 770 by Senator Hannah-Beth Jackson (D-Santa Barbara) – Unemployment compensation: disability benefits: paid family leave.

9/26/13Peng v. First Republic Bank (CA1/1 135503A, filed 8/29/13, pub. ord. 9/26/13) Arbitration

Peng v. First Republic Bank (CA1/1 A135503A, filed 8/29/13, pub. ord. 9/26/13) Arbitration

Plaintiff Anna Peng sued her employer, defendant First Republic Bank, for employment discrimination, intentional infliction of emotional distress, and wrongful termination. The trial court denied defendant’s motion to compel arbitration, finding the parties’ arbitration agreement to be fatally unconscionable. The court rejected defendant’s argument that the unconscionable provisions, if any, were severable. We conclude the agreement is not unconscionable and now reverse.

http://www.courts.ca.gov/opinions/documents/A135503A.PDF

9/20/13Comunidad en Accion v. LA City Council (CA2/8 B240554 9/20/13) Government Code 11135 Discrimination/CEQA

Comunidad en Accion v. LA City Council (CA2/8 B240554 9/20/13) Government Code 11135 Discrimination/CEQA

This lawsuit concerns a community organization’s Comunidad en Accion (Comunidad) challenge under the antidiscrimination statute in Government Code section 11135 (section 11135) to the City of Los Angeles’s (City) siting of waste facilities in Sun Valley. We affirm the summary adjudication of the section 11135 claim because Comunidad failed to raise a triable issue of material fact supporting the inference the City’s siting decision subjected residents of Sun Valley to discrimination under “any program or activity that is . . . funded directly by the state, or receives any financial assistance from the state.” (§ 11135.)

Comunidad also challenged the waste facilities under the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.). We reverse the dismissal of Comunidad’s CEQA claims. The trial court abused its discretion in dismissing the claims based on Comunidad’s one-week delay in requesting a hearing. Even though CEQA requires the expedited prosecution of claims arising under it, a trial court may grant a motion for discretionary relief based on excusable neglect. The trial court should have granted Comunidad’s motion for such relief.

http://www.courts.ca.gov/opinions/documents/B240554.PDF
9/20/13Pac. Shores Properties v. City of Newport Beach (9th Cir. 11-55460 9/20/13) FEHA/FHA/ADA/Group Homes

Pac. Shores Properties v. City of Newport Beach (9th Cir. 11-55460 9/20/13) FEHA/FHA/ADA/Group Homes

The panel reversed the district court’s orders granting summary judgment in favor of the City of Newport on claims that a City ordinance violated the Fair Housing Act, the Americans with Disabilities Act, the California Fair Employment and Housing Act, and the Equal Protection Clause by having the practical effect of prohibiting new group homes for recovering alcoholics and drug users from opening in most residential zones.

The panel held that the district court erred in disregarding the evidence that the City’s sole objective in enacting and enforcing its ordinance was to discriminate against persons deemed to be disabled understateandfederal housing discrimination laws. The panel held that the plaintiffs were not required to identify similarly situated individuals who were treated better than themselves in order to survive summary judgment. It held that where there is direct or circumstantial evidence that the defendant has acted with a discriminatory purpose and has caused harm to members of a protected class, such evidence is sufficient to permit the protected individuals to proceed to trial under a disparate treatment theory.

Thepanelalsoheld that the district court erred in concluding that the plaintiffs failed to create a triable issue of fact as to whether the losses that their businesses suffered were caused by the enactmentandenforcement ofthe ordinance when the plaintiffs presented evidence that they experienced a significant declinein businessafterthe ordinance’s enactment, that the publicity surrounding the ordinance greatly reduced referrals, and that current and prospective residents expressed concern about whether the group-home plaintiffs would close. In addition, the panel held that the costs borne by the plaintiffs to present their permit applications and the costs spent assuring the public that they were still operating despite the City’s efforts to close them were compensable. Finally, the panel held that the district court erred in dismissing one plaintiff’s claim for emotional distress, but correctly dismissed another plaintiff’s similar claim.

http://cdn.ca9.uscourts.gov/datastore/opinions/2013/09/20/11-55460.pdf

9/17/13Beauchamp v. City of Long Beach (9th Cir. 11-55780 9/17/13) Disabled Persons Act

Beauchamp v. City of Long Beach (9th Cir. 11-55780 9/17/13) Disabled Persons Act

Question Certified

Pursuant to Rule 8.548 of the California Rules of Court, a panel of the United States Court of Appeals for the Ninth Circuit, before which this appeal is pending, requests that the Supreme Court of California answer the question presented below. This court will accept the California Supreme Court’s decision on this question. Our phrasing of the question is not intended to restrict the California Supreme Court’s consideration of the case. The question certified is as follows.

Section 54.3(a) of the California Civil Code provides that a person who violates the California Disabled Persons Act (CDPA), Cal. Civ. Code §§ 54, 54.1, is liable for actual damages for “each offense . . . but in no case less than one thousand dollars ($1,000).” Does the phrase “each offense” refer to each occasion when a plaintiff encounters a barrier that denies the plaintiff full and equal access to a public facility, or should a trial court construe “each offense” more narrowly, particularly in situations where a plaintiff

repeatedly encounters the same barrier? If the phrase “each offense” is not susceptible to a narrower construction, under what circumstances would the penalty scheme in section 54.3 violate the due process clause of the state constitution?

http://cdn.ca9.uscourts.gov/datastore/opinions/2013/09/17/11-55780.pdf

9/6/13Cho v. Chang (CA2/4 B239719 9/6/13) Sexual Harassment/Anti-SLAPP Motion

Cho v. Chang (CA2/4 B239719 9/6/13) Sexual Harassment/Anti-SLAPP Motion

Appellant Jessica Chang appeals from a trial court order that in part denied her special motion to strike. After Chang filed suit against respondent Howard Cho and codefendant Midway International, Inc. (Midway) for sexual harassment and related torts, Cho filed a cross-complaint against Chang, alleging defamation and intentional infliction of emotional distress. Chang filed a special motion to strike the cross-complaint as a “SLAPP” (Strategic Lawsuit Against Public Participation) suit, pursuant to Code of Civil Procedure section 425.16. She contends the activities giving rise to her claims were protected and, hence, that the trial court should have granted her motion in full and struck the cross-complaint in its entirety. Chang also contends she should have been awarded attorney fees.

There is a further complication. Each of the causes of action in the cross-complaint combines allegations of conduct that is protected by the anti-SLAPP statute with conduct that is not. We are satisfied that the better view in such a case is that the trial court may strike the allegations in the cross-complaint attacking the protected activity while allowing the unprotected theories to remain. That is what the trial court did in this case. We shall affirm its ruling.

http://www.courts.ca.gov/opinions/documents/B239719.PDF

9/5/13Alamo v. Practice Management etc. (CA2/7 B230909A, filed 8/21/13, pub. ord. 9/5/13, opn. foll. remand) FEHA Pregnancy Discrimination & Retaliation Mixed Motive/Same Decision Defense

Alamo v. Practice Management etc. (CA2/7 B230909A, filed 8/21/13, pub. ord. 9/5/13, opn. foll. remand) FEHA Pregnancy Discrimination & Retaliation Mixed Motive/Same Decision Defense

Appellant Practice Management Information Corporation (PMIC) appealed the judgment entered in favor of respondent Lorena Alamo following a jury trial on Alamo’s causes of action for pregnancy discrimination and retaliation in violation of the California Fair Employment and Housing Act, Gov. Code § 12900 et seq. (FEHA), and wrongful termination in violation of public policy. Among other arguments, PMIC contended that the trial court erred in (1) instructing the jury pursuant to former CACI Instruction Nos. 2430, 2500, 2505, and 2507 that Alamo had to prove her pregnancy-related leave was “a motivating reason” for her discharge, and (2) refusing to instruct the jury pursuant to BAJI Instruction No. 12.26 that PMIC could avoid liability under a “mixed-motive” or “same-decision” defense by proving it would have made the same discharge decision in the absence of a discriminatory or retaliatory motive. We initially affirmed the judgment, and PMIC filed a petition for review with the Supreme Court. After granting the petition for review and deciding a related issue in Harris v. City of Santa Monica (2013) 56 Cal.4th 203 (Harris), the Supreme Court directed this court to vacate our decision and to reconsider the cause in light of its decision in Harris.

In accordance with Harris, we now hold that the trial court prejudicially erred in instructing the jury with the former versions of CACI Nos. 2430, 2500, 2505, and 2507 because the proper standard of causation in a FEHA discrimination or retaliation claim is not “a motivating reason,” as used in the CACI instructions, but rather “a substantial motivating reason,” as set forth in Harris. We further hold that PMIC was not entitled to an instruction on the mixed-motive or same-decision defense because it failed to plead that defense or any other affirmative defense alleging that it had a legitimate, non-discriminatory or non-retaliatory reason for its discharge decision in its answer. We accordingly reverse the judgment and remand the matter to the trial court for further proceedings consistent with this opinion.

http://www.courts.ca.gov/opinions/documents/B230909A.PDF

9/4/13Demers v. Austin (9th Cir. 11-35558 9/4/13) Publicly Employed Faculty/First Amendment/Retaliation

Demers v. Austin (9th Cir. 11-35558 9/4/13) Publicly Employed Faculty/First Amendment/Retaliation

The panel affirmed in part and reversed in part the district court’s summary judgment and remanded in an action brought pursuant to 42 U.S.C. § 1983 by a tenured associate university professor who alleged that university administrators retaliated against him in violation of the First Amendment for distributing a short pamphlet and drafts from an in-progress book titled “The Ivory Tower of Babel.

The panel held that Garcetti v. Ceballos, 547 U.S. 410 (2006), does not apply to teaching and writing on academic matters by teachers employed by the state. Rather, such teaching and writing by publicly employed teachers is governed by Pickering v. Board of Education, 391 U.S. 563 (1968). The panel affirmed the district court’s determination that plaintiff prepared and circulated the pamphlet pursuant to official duties, but reversed the district court’s determination that the pamphlet did not address matters of public concern under Pickering. The panel concluded, further, that there was insufficient evidence in the record to show that the in-progress book triggered retaliation against plaintiff. Finally, the panel concluded that defendants were entitled to qualified immunity from damages, given the uncertain state of the law in the wake of Garcetti.

http://cdn.ca9.uscourts.gov/datastore/opinions/2013/09/04/11-35558.pdf

8/29/13Pickup v. Brown (9th Cir. 12-17681 8/29/13) Sexual Orientation Change Efforts/First Amendment

Pickup v. Brown (9th Cir. 12-17681 8/29/13) Sexual Orientation Change Efforts/First Amendment

Reversing an order granting preliminary injunctive relief in Welch v. Brown, 13-15023, and affirming the denial of preliminary injunctive relief in Pickup v. Brown, 12-17681, the panel held that California Senate Bill 1172, which bans state-licensed mental health providers from engaging in “sexual orientation change efforts” with patients under 18 years of age, does not violate the free speech rights of practitioners or minor patients, is neither vague nor overbroad, and does not violate parents’ fundamental rights.

The panel held that Senate Bill 1172 regulates professional conduct, not speech and therefore was subject only to a rational basis review. The panel held that under its police power, California has authority to prohibit licensed mental health providers from administering therapies that the legislature has deemed harmful, and the fact that speech may be used to carry out those therapies does not turn the prohibitions of conduct into prohibitions of speech. The panel further concluded that the First Amendment does not prevent a state from regulating treatment even when that treatment is performed through speech alone. The panel concluded that the record demonstrated that the legislature acted rationally when it decided to protect the well-being of minors by prohibiting mental health providers from using “sexual orientation change efforts” on persons under 18.

The panel further held that: (1) SB 1172 did not implicate the right to freedom of association because freedom of association does not encompass the therapist-client relationship; (2) SB 1172 was neither void for vagueness nor overbroad because the text of SB 1172 was clear to a reasonable person and any incidental effect that the ban had on speech was small in comparison to its legitimate sweep; and (3) the ban did not infringe on the fundamental rights of parents because parents do not have the right to choose a specific type of provider for a specific medical or mental health treatment that the state has reasonably deemed harmful.

http://cdn.ca9.uscourts.gov/datastore/opinions/2013/08/29/12-17681.pdf

8/15/13Blantz v. Cal. Dept. of Corr. & Rehab. (9th Cir. 11-56525 8/15/13) Section 1983

Blantz v. Cal. Dept. of Corr. & Rehab. (9th Cir. 11-56525 8/15/13) Section 1983

The panel affirmed the district court’s dismissal of an action brought under 42 U.S.C. § 1983 and state law which alleged that plaintiff was terminated without explanation from her independent contractor position as a nurse for the California prison medical care system and given negative job references that effectively barred her from further employment within the system.

The panel agreed with the district court that plaintiff did not have a constitutionally protected property interest in her independent contractor position. The panel held that a state agency does not create protected property interests for its independent contractors simply by instituting performance review procedures.

The panel affirmed the district court’s dismissal of plaintiff’s federal deprivation of liberty claim, determining that plaintiff had not alleged that she was unable to find work as a nurse, only that she was unable to obtain work with the California Department of Corrections and Rehabilitation, and that this was insufficient to trigger the due process protections of the Fourteenth Amendment.

The panel affirmed the dismissal of the state law claims against Terry Hill, the former Chief Medical Officer for the Receiver of the California prison medical care system, determining that plaintiff’s allegations concerning Hill were conclusory and implausible on their face.

http://cdn.ca9.uscourts.gov/datastore/opinions/2013/08/15/11-56525%20web-CORRECTED.pdf

8/6/13K.M. v. Tustin Unified School District (9th Cir. 11-56259 8/6/13) IEP and ADA

K.M. v. Tustin Unified School District (9th Cir. 11-56259 8/6/13) IEP and ADA

Reversing the district court’s grant of summary judgment in two cases, the panel held that a school district’s compliance with its obligations to a deaf or hard-of-hearing child under the Individuals with Disabilities Education Act does not also necessarily establish compliance with its effective communication obligations to that child under Title II of the Americans with Disabilities Act.

The plaintiffs, high schoolers with hearing disabilities who received special education services under the IDEA, alleged that their school districts had an obligation under Title II of the ADA to provide them with a word-for-word transcription service.

The panel rejected the reasoning that (1) a valid IDEA individualized education program, or IEP, satisfies a regulation promulgated under § 504 of the Rehabilitation Act requiring schools to make available to children with disabilities a free appropriate public education; (2) § 504 and Title II are substantially similar statutes; (3) therefore, a valid IDEA IEP also satisfies Title II. The panel held that compliance with the IDEA does not doom all § 504 claims. In addition, there are material differences between § 504 and Title II of the ADA. According deference to the Department of Justice’s interpretation of the ADA effective communication regulation, as expressed in an amicus brief, the panel concluded that the ADA requirements regarding students who are deaf or hard-of-hearing are different than those imposed by the IDEA. The panel reversed the grants of summary judgment on the ADA claims in both cases and on

a state law claim in one of the cases and remanded for further proceedings consistent with its opinion.

http://cdn.ca9.uscourts.gov/datastore/opinions/2013/08/06/11-56259.pdf

8/2/13Wade v. Ports America Management Corp. (CA2/4 B238224 8/2/13) FEHA/Labor Arbitration

Wade v. Ports America Management Corp. (CA2/4 B238224 8/2/13) FEHA/Labor Arbitration

Camargo v. California Portland Cement Co. (2001) 86 Cal.App.4th 995 (Camargo), held that a labor arbitration pursuant to a collective bargaining agreement (CBA) has no preclusive effect on a claim pursuant to the Fair Employment and Housing Act (FEHA), Government Code section 12940 et seq., unless the parties expressly agreed to arbitrate FEHA claims. (Camargo, at p. 1008.) On appeal, Calvin Wade contends this holding should be extended to common law claims related to the FEHA, such as a claim for wrongful termination in violation of public policy. We disagree, as there is no comprehensive statutory scheme applicable to FEHA-related common law claims comparable to the FEHA. In the alternative, appellant contends the arbitration had no preclusive effect, as it did not address his racial discrimination claim. We conclude the arbitration encompassed that claim. Accordingly, we affirm the grant of a summary judgment in favor of respondents Marine Terminals Corporation and Ports America Management Corporation (collectively MTC) on appellant’s cause of action for wrongful termination in violation of public policy.

http://www.courts.ca.gov/opinions/documents/B238224.PDF

7/24/13Estrada v. City of L.A. (CA2/3 B242202 7/24/13) Volunteer not Employee under FEHA

Estrada v. City of L.A. (CA2/3 B242202 7/24/13) Volunteer not Employee under FEHA

Plaintiff and appellant Frank Estrada (Estrada) appeals a judgment following a court trial in an action against the City of Los Angeles (the City) for disability discrimination under the California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.).

The essential issue presented is whether the trial court properly held that Estrada, formerly a volunteer Police Reserve Officer for the City, was not an employee for purposes of the FEHA.

Although Police Reserve Officers are volunteers who serve gratuitously, the City deems these individuals to be “employees” for the limited purpose of extending them workers’ compensation benefits. Such benefits are not remuneration; rather, they help to make the volunteers whole, in the event they are injured while performing their duties. The City’s policy decision to extend workers’ compensation benefits to these individuals, who voluntarily put themselves in harm’s way on behalf of the community, does not transform the volunteers’ status to that of “employee” for purposes of FEHA. Accordingly, the trial court properly concluded Estrada was not an employee and therefore could not maintain a cause of action against the City for disability discrimination. The judgment is affirmed.

http://www.courts.ca.gov/opinions/documents/B242202.PDF

7/18/13Strong v. Valdez Fine Goods (9th Cir. 11-55265 7/18/13) ADA/Unruh Act

Strong v. Valdez Fine Goods (9th Cir. 11-55265 7/18/13) ADA/Unruh Act

The panel reversed the district court’s summary judgment for the defendants in an action alleging unlawful discrimination under the Americans with Disabilities Act and related California disability laws.

The panel held that the district court erred in refusing to consider the plaintiff’s evidence of barriers that he encountered at a restaurant. The panel held that the plaintiff’s statements in his declaration, including statements regarding measurements, met the requirement of personal knowledge because the plaintiff stated that he was present as the measurements were taken and also related his personal experience with the barriers. The panel held that expert testimony was not necessary because no specialized or technical knowledge was required to understand the plaintiff’s straightforward assertions.

The panel also held that the district court erred in requiring the plaintiff to prove that the removal of the barriers was readily achievable because there is no such requirement for barriers found in new construction.

Concurring in part and dissenting in part, Judge Silverman wrote that the declaration’s repetition of the

assertions of the expert who took the measurements was hearsay. Judge Silverman wrote that, by contrast, the plaintiff’s testimony about his own observations of signage and the configuration of the restaurant’s restroom were sufficient to raise factual questions precluding summary judgment.

http://cdn.ca9.uscourts.gov/datastore/opinions/2013/07/18/11-55265.pdf

7/18/13Baughman v. Walt Disney World (CA4/3 G0464707/18/13) Disabled Persons Act

Baughman v. Walt Disney World (CA4/3 G0464707/18/13) Disabled Persons Act

In 2007, plaintiff Tina Baughman brought suit against Walt Disney World Co. (Disney) alleging negligence per se, and violations of the Americans with Disabilities Act (42 U.S.C. § 12101 et seq., (ADA)), California’s Disabled Persons Act (Civ. Code, § 54 et seq., (DPA)), and the Unruh Civil Rights Act (Civ. Code, § 51 et seq.), based on Disney’s refusal to allow her to use a Segway at Disneyland, a place she has never been. Baughman alleged the Segway is her preferred method of transportation, given that her muscular dystrophy substantially limits her ability to walk. The ADA cause of action was subsequently removed to the federal district court.

The trial court below granted Disney’s motion for summary judgment and entered judgment in Disney’s favor. We find Disney established it is entitled to judgment as a matter of law in that it demonstrated a Segway is an unstable two-wheeled device that could accelerate quickly, either forward or backward, and injure the rider and/or others if the rider is bumped. The undisputed expert evidence showed Segways cannot be used safely in Disneyland crowds due to its method of operation. In all of the papers submitted, there is no evidence showing the Segway can be safely used at Disneyland except Baughman’s inconsequential declaration that she has never had an accident while using her Segway. There was no evidence that Disney’s procedures amounted to a lack of a reasonable accommodation. Accordingly, no triable issue of fact remains.

Because this issue is dispositive, we need not address other issues raised by the parties, including whether Baughman should be judicially estopped from claiming she cannot use a motorized scooter or wheelchair, given the fact she has brought three prior ADA lawsuits in which she alleged she uses a wheelchair or motorized scooter, or whether she has standing to bring an action for damages under the Unruh Civil Rights Act or the DPA. (Surrey v. TrueBeginnings, LLC (2008) 168 Cal.App.4th 414, 416 [“a person must tender the purchase price for a business’s services or products in order to have standing to sue it for alleged discriminatory practices” under the Unruh Civil Rights Act]; Reycraft v. Lee (2009) 177 Cal.App.4th 1211, 1224 [DPA requires disabled person to have paid admission fee and then be denied entry].) We affirm.

http://www.courts.ca.gov/opinions/documents/G046470.PDF

7/18/13Acuna v. San Diego Gas & Electric (CA4/1 D060064, filed 6/19/13, pub. ord. 7/18/13) FEHA Retaliation/Timeliness

Acuna v. San Diego Gas & Electric (CA4/1 D060064, filed 6/19/13, pub. ord. 7/18/13) FEHA Retaliation/Timeliness

After she was terminated, Esperanza Acuna sued her former employer, San Diego Gas & Electric Co. (SDG&E), asserting claims under the Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.), and several nonstatutory claims. The court sustained SDG&E's demurrer on Acuna's first amended complaint without leave to amend. The court found Acuna's FEHA-based claims were barred by the applicable statute of limitations and Acuna failed to sufficiently state a cause of action on her remaining claims.

Acuna appeals. We affirm the judgment on all claims, except for Acuna's causes of action for retaliation under the FEHA and for wrongful termination in violation of public policy based on the retaliation claim. SDG&E did not show these claims were untimely as a matter of law.

http://www.courts.ca.gov/opinions/documents/D060064.PDF

6/24/13University of Tex. Southwestern Med. Ctr. v. Nassar (US 12-484 6/24/13) Employment Retaliation

University of Tex. Southwestern Med. Ctr. v. Nassar (US 12-484 6/24/13) Employment Retaliation

Petitioner, a university medical center (University) that is part of the University of Texas system, specializes in medical education. It has an affiliation agreement with Parkland Memorial Hospital (Hospital), which requires the Hospital to offer vacant staff physician posts to University faculty members. Respondent, a physician of Middle Eastern descent who was both a University faculty member and a Hospital staff physician, claimed that Dr. Levine, one of his supervisors at the University, was biased against him on account of his religion and ethnic heritage. He complained to Dr. Fitz, Levine’s supervisor. But after he arranged to continue working at the Hospital without also being on the University’s faculty, he resigned his teaching post and sent a letter to Fitz and others, stating that he was leaving because of Levine’s harassment. Fitz, upset at Levine’s public humiliation and wanting public exoneration for her, objected to the Hospital’s job offer, which was then withdrawn. Respondent filed suit, alleging two discrete Title VII violations. First, he alleged that Levine’s racially and religiously motivated harassment had resulted in his constructive discharge from the University, in violation of 42 U. S. C. §2000e–2(a), which prohibits an employer from discriminating against an employee “because of such individual’s race, color, religion, sex, and national origin” (referred to here as status-based dis- crimination). Second, he claimed that Fitz’s efforts to prevent the Hospital from hiring him were in retaliation for complaining about Levine’s harassment, in violation of §2000e–3(a), which prohibits employer retaliation “because [an employee] has opposed . . . an un- lawful employment practice . . . or . . . made a [Title VII] charge.” The jury found for respondent on both claims. The Fifth Circuit vacated as to the constructive-discharge claim, but affirmed as to the retaliation finding on the theory that retaliation claims brought un- der §2000e–3(a)—like §2000e–2(a) status-based claims—require only a showing that retaliation was a motivating factor for the adverse employment action, not its but-for cause, see §2000e–2(m). And it found that the evidence supported a finding that Fitz was motivated, at least in part, to retaliate against respondent for his complaints about Levine.

Held: Title VII retaliation claims must be proved according to traditional principles of but-for causation, not the lessened causation test stated in §2000e–2(m). Pp. 5–23.

(a) In defining the proper causation standard for Title VII retaliation claims, it is presumed that Congress incorporated tort law’s causation in fact standard—i.e., proof that the defendant’s conduct did in fact cause the plaintiff’s injury—absent an indication to the contrary in the statute itself. See Meyer v. Holley, 537 U. S. 280, 285. An employee alleging status-based discrimination under §2000e–2 need not show “but-for” causation. It suffices instead to show that the motive to discriminate was one of the employer’s motives, even if the employer also had other, lawful motives for the decision. This principle is the result of Price Waterhouse v. Hopkins, 490 U. S. 228, and the ensuing Civil Rights Act of 1991 (1991 Act), which substituted a new burden-shifting framework for the one endorsed by Price Waterhouse.

As relevant here, that Act added a new subsection to §2000e–2, providing that “an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice,” §2000e–2(m).

Also relevant here is this Court’s decision in Gross v. FBL Financial Services, Inc., 557 U. S. 167, 176, which interprets the Age Dis- crimination in Employment Act of 1967 (ADEA) phrase “because of . . . age,” 29 U. S. C. §623(a)(1). Gross holds two insights that inform the analysis of this case. The first is textual and concerns the proper interpretation of the term “because” as it relates to the principles of causation underlying both §623(a) and §2000e–3(a). The second is the significance of Congress’ structural choices in both Title VII itself and the 1991 Act. Pp. 5–11.

(b) Title VII’s antiretaliation provision appears in a different section from its status-based discrimination ban. And, like §623(a)(1), the ADEA provision in Gross, §2000e–3(a) makes it unlawful for an employer to take adverse employment action against an employee “because” of certain criteria. Given the lack of any meaningful textu- al difference between §2000e–3(a) and §623(a)(1), the proper conclusion is that Title VII retaliation claims require proof that the desire to retaliate was the but-for cause of the challenged employment action. Respondent and the United States maintain that §2000e–2(m)’s motivating-factor test applies, but that reading is flawed. First, it is inconsistent with the provision’s plain language, which addresses only race, color, religion, sex, and national origin discrimination and says nothing about retaliation. Second, their reading is inconsistent with the statute’s design and structure. Congress inserted the motivating-factor provision as a subsection within §2000e–2, which deals only with status-based discrimination. The conclusion that Congress acted deliberately in omitting retaliation claims from §2000–2(m) is reinforced by the fact that another part of the 1991 Act, §109, expressly refers to all unlawful employment actions. See EEOC v. Ara¬bian American Oil Co., 499 U. S. 244, 256. Third, the cases they rely on, which state the general proposition that Congress’ enactment of a broadly phrased antidiscrimination statute may signal a concomitant intent to ban retaliation against individuals who oppose that discrim- ination, see, e.g., CBOCS West, Inc. v. Humphries, 553 U. S. 442, 452–453; Gómez-Pérez v. Potter, 553 U. S. 474, do not support the quite different rule that every reference to race, color, creed, sex, or nationality in an antidiscrimination statute is to be treated as a synonym for “retaliation,” especially in a precise, complex, and exhaustive statute like Title VII. The Americans with Disabilities Act of 1990, which contains seven paragraphs of detailed description of the practices constituting prohibited discrimination, as well as an express antiretaliation provision, and which was passed only a year before §2000e–2(m)’s enactment, shows that when Congress elected to address retaliation as part of a detailed statutory scheme, it did so clearly. Pp. 11–17.

(c) The proper interpretation and implementation of §2000e–3(a) and its causation standard are of central importance to the fair and responsible allocation of resources in the judicial and litigation systems, particularly since retaliation claims are being made with ever- increasing frequency. Lessening the causation standard could also contribute to the filing of frivolous claims, siphoning resources from efforts by employers, agencies, and courts to combat workplace harassment. Pp. 18–20.

(d) Respondent and the Government argue that their view would be consistent with longstanding agency views contained in an Equal Employment Opportunity Commission guidance manual, but the manual’s explanations for its views lack the persuasive force that is a necessary precondition to deference under Skidmore v. Swift & Co., 323 U. S. 134, 140. Respondent’s final argument—that if §2000e–2(m) does not control, then the Price Waterhouse standard should—is foreclosed by the 1991 Act’s amendments to Title VII, which displaced the Price Waterhouse framework. Pp. 20–23.

674 F. 3d 448, vacated and remanded.

KENNEDY, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SCALIA, THOMAS, and ALITO, JJ., joined. GINSBURG, J., filed a dissenting opinion, in which BREYER, SOTOMAYOR, and KAGAN, JJ., joined.

http://www.supremecourt.gov/opinions/12pdf/12-484_o759.pdf

6/24/13Vans v. Ball State Univ. (US 11-556 6/24/13) Employer Liability for Workplace Harassment

Vans v. Ball State Univ. (US 11-556 6/24/13) Employer Liability for Workplace Harassment

Under Title VII, an employer’s liability for workplace harassment may depend on the status of the harasser. If the harassing employee is the victim’s co-worker, the employer is liable only if it was negligent in controlling working conditions. In cases in which the harasser is a “supervisor,” however, different rules apply. If the supervisor’s harassment culminates in a tangible employment action (i.e., “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,” Burlington Industries, Inc. v. Ellerth, 524 U. S. 742, 761), the employer is strictly liable. But if no tangible employment action is taken, the employer may escape liability by establishing, as an affirmative defense, that (1) the employer exercised reasonable care to prevent and correct any harassing behavior and (2) that the plaintiff unreasonably failed to take advantage of the preventive or corrective opportunities that the employer provided. Faragher v. Boca Raton, 524 U. S. 775, 807; Ellerth, supra, at 765.

Petitioner Vance, an African-American woman, sued her employer, Ball State University (BSU) alleging that a fellow employee, Saundra Davis, created a racially hostile work environment in violation of Title VII. The District Court granted summary judgment to BSU. It held that BSU was not vicariously liable for Davis’ alleged actions because Davis, who could not take tangible employment actions against Vance, was not a supervisor. The Seventh Circuit affirmed.

Held: An employee is a “supervisor” for purposes of vicarious liability under Title VII only if he or she is empowered by the employer to take tangible employment actions against the victim. Pp. 9–30.

(a) Petitioner errs in relying on the meaning of “supervisor” in general usage and in other legal contexts because the term has varying meanings both in colloquial usage and in the law. In any event, Congress did not use the term “supervisor” in Title VII, and the way to understand the term’s meaning for present purposes is to consider the interpretation that best fits within the highly structured frame- work adopted in Faragher and Ellerth. Pp. 10–14.

(b) Petitioner misreads Faragher and Ellerth in claiming that those cases support an expansive definition of “supervisor” because, in her view, at least some of the alleged harassers in those cases, whom the Court treated as supervisors, lacked the authority that the Seventh Circuit’s definition demands. In Ellerth, there was no question that the alleged harasser, who hired and promoted his victim, was a supervisor. And in Faragher, the parties never disputed the characterization of the alleged harassers as supervisors, so the question simply was not before the Court. Pp. 14–18.

(c) The answer to the question presented in this case is implicit in the characteristics of the framework that the Court adopted in Ellerth and Faragher, which draws a sharp line between co-workers and supervisors and implies that the authority to take tangible employment actions is the defining characteristic of a supervisor. Ellerth, supra, at 762.

The interpretation of the concept of a supervisor adopted today is one that can be readily applied. An alleged harasser’s supervisor status will often be capable of being discerned before (or soon after) litigation commences and is likely to be resolved as a matter of law before trial. By contrast, the vagueness of the EEOC’s standard would impede the resolution of the issue before trial, possibly requiring the jury to be instructed on two very different paths of analysis, depending on whether it finds he alleged harasser to be a supervisor or merely a co-worker.

This approach will not leave employees unprotected against harassment by co-workers who possess some authority to assign daily tasks. In such cases, a victim can prevail simply by showing that the employer was negligent in permitting the harassment to occur, and the jury should be instructed that the nature and degree of authority wielded by the harasser is an important factor in determining negligence. Pp. 18–25.

(d) The definition adopted today accounts for the fact that many modern organizations have abandoned a hierarchical management structure in favor of giving employees overlapping authority with respect to work assignments. Petitioner fears that employers will at- tempt to insulate themselves from liability for workplace harassment by empowering only a handful of individuals to take tangible employment actions, but a broad definition of “supervisor” is not necessary to guard against that concern. Pp. 25–26.

646 F. 3d 461, affirmed.

ALITO, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SCALIA, KENNEDY, and THOMAS, JJ., joined. THOMAS, J., filed a concurring opinion. GINSBURG, J., filed a dissenting opinion, in which BREYER, SOTOMAYOR, and KAGAN, JJ., joined.

http://www.supre mecourt.gov/opinions/12pdf/11-556_11o2.pdf

6/3/13

McAllister v. LA Unified School Dist. (CA2/2 B244759 6/3/13) Section 1983/Wrongful Termination

McAllister v. LA Unified School Dist. (CA2/2 B244759 6/3/13) Section 1983/Wrongful Termination

Patricia McAllister (appellant) appeals from a final judgment entered after the trial court sustained a demurrer to each of appellant’s causes of action against respondents Los Angeles Unified School District (LAUSD) and John E. Deasy (Deasy), superintendent of LAUSD (collectively “respondents”). We affirm the judgment.

http://www.courts.ca.gov/opinions/documents/B244759.PDF

5/14/13McCoy v. Pacific Maritime Asso. (CA2/4 B210953 5/14/13) FEHA Sexual Harassment & Retaliation/Summary Adjudication

McCoy v. Pacific Maritime Asso. (CA2/4 B210953 5/14/13) FEHA Sexual Harassment & Retaliation/Summary Adjudication

Appellant Catherine Y. McCoy appeals from the judgment of the trial court. She makes the following contentions: (1) the court erred in summarily adjudicating her sexual harassment and intentional infliction of emotional distress claims because the harassment was sufficiently pervasive and the emotional distress was purposeful and led to her emotional collapse; (2) the court erred in excluding evidence of harassment and discrimination, including racially derogatory remarks and sexually offensive conduct, which were relevant to her remaining retaliation claim; (3) the court misapplied governing law in granting judgment notwithstanding the verdict on her unlawful retaliation claim where the totality of the circumstances provided substantial evidence upon which the jury verdict in her favor should have been upheld; (4) the court erred in ruling that respondent Pacific Maritime Association (PMA) was not her employer because PMA exercised sufficient control over her employment to be considered her employer for purposes of the California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.) ; and (5) the court improperly granted the motion for a new trial filed by respondents Yusen Terminals, Inc. (Yusen) and PMA (collectively respondents) because none of the five grounds upon which the court based its decision warranted a new trial.

We conclude: The court did not err in summarily adjudicating the sexual harassment and emotional distress claims, because the harassment was not so severe and pervasive as to alter the conditions of appellant’s employment, and respondents’ conduct failed to meet the extreme and outrageous standard necessary for the emotional distress claim; the court properly found respondent PMA was not appellant’s employer as that term is used in FEHA; and the court did not abuse its discretion in granting a new trial. We also conclude that the court did not abuse its discretion in excluding evidence, except as to evidence of sufficiently similar retaliation by respondents against other employees. Finally, we conclude there was substantial evidence to support the jury verdict in appellant’s favor on the retaliation claim and thus the court erred in setting aside that verdict.

Respondents assert in their protective cross-appeal that the trial court erred in denying them partial judgment notwithstanding the verdict regarding the economic damages award because appellant failed to establish she was constructively discharged. We conclude a constructive discharge is not a prerequisite to an award of economic damages for discrimination under FEHA.

The judgment is affirmed in part, reversed in part, and remanded with directions.

http://www.courts.ca.gov/opinions/documents/B210953.PDF
4/17/13

Maureen K. v. Tuschka (CA2/6 B236150 4/17/13) Unruh Act/HIV Disability Discrimination

Maureen K. v. Tuschka (CA2/6 B236150 4/17/13) Unruh Act/HIV Disability Discrimination

The Unruh Civil Rights Act provides a comprehensive statutory scheme to protect all persons from unlawful discrimination. A medical doctor is not immune from the broad sweep of the Act. The irony here is that appellant was in need of surgery to repair an umbilical hernia, and turned to the medical profession for help. She was turned away minutes before surgery because of a disability - she was HIV-positive. The surgery was abruptly canceled in the hospital's pre-operative room by the anesthesiologist, respondent Dr. Theodore Tuschka, after he learned from appellant's chart that she was HIV-positive and was not taking anti-retroviral (ARV) medications. Respondent refused to go forward with the surgery because of his concern for his own safety and that of the operating room staff.

As we shall explain, the trial court prejudicially erred by submitting the issue of whether appellant was disabled to the jury. A person with HIV is disabled as a matter of law. Here there is an additional reason why appellant is disabled as a matter of law: respondent "regarded or treated" her as a person with a disability.

Appellant's complaint against respondent alleges causes of action for disability discrimination in violation of the Unruh Civil Rights Act (Civ. Code, § 51, et seq.) and violation of the Confidentiality of Medical Information Act (CMIA) (§ 56, et seq.). She appeals from the judgment entered in respondent's favor after the trial court granted his motion for summary adjudication of the CMIA claim and the jury found that she is not disabled within the meaning of the Unruh Civil Rights Act.

The Legislature has determined that a person with HIV is disabled as a matter of law within the meaning of the Unruh Civil Rights Act. This is not a question for the jury. As a consequence, we reverse the judgment as to this cause of action. However, the trial court correctly granted respondent's motion for summary adjudication of the cause of action for violation of the CMIA because respondent did not disclose any individually identifying medical information.

http://www.courts.ca.gov/opinions/documents/B236150.PDF

3/29/13

Harris v. Bingham McCutchen (CA2/5B240522 3/29/13) Arbitration

Harris v. Bingham McCutchen (CA2/5B240522 3/29/13) Arbitration

Defendants, Bingham McCutchen LLP, Seth Gerber and Jonathan Loeb, appeal from an order denying their petition to compel plaintiff, Hartwell Harris, to arbitrate her California employment discrimination and wrongful termination claims.We affirm because the trial court did not err in concluding the arbitration provision was unenforceable under Massachusetts law, which the parties agreed applied to the employment relationship.

http://www.courts.ca.gov/opinions/documents/B240522.PDF

3/28.13

Hatai v. Dept. of Transportation (CA2/3 B236757 3/4/13, ord. pub. 3/28/13) Me Too Discrimination

Hatai v. Dept. of Transportation (CA2/3 B236757 3/4/13, ord. pub. 3/28/13) Me Too Discrimination

Plaintiff and appellant Kenneth Hatai (Hatai) appeals a judgment following jury verdicts in favor of his employer, defendant and respondent People of the State of California, acting by and through the Department of Transportation (Caltrans), and his supervisor, defendant and respondent Sameer Haddadeen (Haddadeen).

In this employment discrimination case, Hatai alleged he was discriminated against because of Japanese ancestry and Asian race. At trial, Hatai sought to prove his discrimination claim by showing that Haddadeen, of Arab ancestry, discriminated against any employee who was not of Arab descent. The trial court disallowed Hatai’s broad theory but allowed Hatai to present evidence of anti-Asian animus. We perceive no prejudicial error and affirm the judgment.

http://www.courts.ca.gov/opinions/documents/B236757.PDF

3/12/13

Gilstrap v. United Airlines (9th Cir. No. 11-55271 3/12/13) ADA/Air Carrier Access Act Preemption/Airport Terminal Not a Place of Public Accommodation

Gilstrap v. United Airlines (9th Cir. No. 11-55271 3/12/13) ADA/Air Carrier Access Act Preemption/Airport Terminal Not a Place of Public Accommodation

The panel affirmed in part and reversed in part the district court’s dismissal of an action alleging causes of action under California state tort law and Title III of the Americans with Disabilities Act on the basis that an airline did not provide the plaintiff with adequate assistance for moving through the airport.

Reversing in part, and adopting the framework used by the Third Circuit, the panel held that the Air Carrier Access Act, an amendment to the Federal Aviation Act, and its implementing regulations preempt state standards of care with respect to the circumstances under which airlines must provide assistance to passengers with disabilities in moving through the airport but do not preempt any state remedies that may be available when airlines violate those standards. The panel held that the ACAA and its implementing regulations do not preempt state-law personal-injury claims involving how airline agents interact with passengers with disabilities who request assistance in moving through the airport.

Affirming the dismissal of the ADA claim, the panel held that an airport terminal is not a place of public accommodation.

http://cdn.ca9.uscourts.gov/datastore/opinions/2013/03/12/11-55271.pdf

3/4/13

Wang v. Chinese Daily News, Inc. (9th Cir. 08-55483 3/4/13) Class Certification

Wang v. Chinese Daily News, Inc. (9th Cir. 08-55483 3/4/13) Class Certification

On remand from the United States Supreme Court, the panel reversed the district court’s certification of a plaintiff class in an action brought by newspaper employees under the Fair Labor Standards Act, California’s Unfair Business Practices Law, and the California Labor Code. In light of Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011), the panel reversed the district court’s certification of the state-law claims as a class action under Fed. R. Civ. P. 23(b)(2). The panel vacated the district court’s finding of commonality under Rule 23(a)(2) and remanded for reconsideration in light of Wal-Mart. The panel concluded that, as conceded by the plaintiffs, class certification for their monetary claims under Rule 23(b)(2) could not stand under Wal-Mart. The panel remanded the case to the district court for reconsideration of the propriety of class certification under Rule 23(b)(3) on the basis that common questions of fact or law predominate over questions affecting only individual class members.

http://cdn.ca9.uscourts.gov/datastore/opinions/2013/03/04/08-55483.pdf

2/21/13

Sanchez v. Swissport, Inc. (CA2/4 B237761 2/21/13) FEHA Pregnancy Disability Leave

Sanchez v. Swissport, Inc. (CA2/4 B237761 2/21/13) FEHA Pregnancy Disability Leave

In a case of first impression, we are asked to determine whether an employee who has exhausted all permissible leave available under the Pregnancy Disability Leave Law (PDLL), Government Code section 12945,may nevertheless state a cause of action under the California Fair Employment and Housing Act (FEHA), section 12900 et seq.The superior court concluded that appellant, disabled by a high-risk pregnancy, failed to state a claim under the FEHA because her employer had granted her the maximum leave provided under the PDLL before terminating her due to her failure to return to work.We conclude the allegations in appellant’s first amended complaint (FAC) are sufficient to state a prima facie case under the FEHA for employment discrimination.Accordingly, we reverse the superior court’s order dismissing the FAC.

http://www.courts.ca.gov/opinions/documents/B237761.PDF

2/13/13

Franco v. Arakelian Enterprises, Inc. (2012)149 Cal.Rptr.3d 530 (SC S207760/B232583 review granted 2/13/13) Class Action Waiver


Franco v. Arakelian Enterprises, Inc. (2012)149 Cal.Rptr.3d 530 (SC S207760/B232583 review granted 2/13/13) Class Action Waiver

Petition for review after the Court of Appeal affirmed an order denying a petition to compel arbitration in a civil action. The court ordered briefing deferred pending decision in Iskanian v. CLS Transportation Los Angeles, LLC, S204032 (#12-97), which includes the following issue: Did AT&T Mobility LLC v. Concepcion (2011) 563 U.S. __ [131 S.Ct. 1740, 179 L.Ed.2d 742] impliedly overrule Gentry v. Superior Court (2007) 42 Cal.4th 443 with respect to contractual class action waivers in the context of non-waivable labor law rights? Review granted/briefing deferred.

Docket

Court of Appeal Decision


2/13/13

Richey v. Autonation, Inc. (2012) 149 Cal.Rptr.3d 280 (SC S207536/B234711review granted 2/13/13) CFRA/honest belief defense

Richey v. Autonation, Inc. (2012) 149 Cal.Rptr.3d 280 (SC S207536/B234711review granted 2/13/13) CFRA/honest belief defense

Petition for review after the Court of Appeal reversed the judgment in a civil action. This case presents the following issues: (1) Is an employer’s honest belief that an employee was violating company policy or abusing medical leave a complete defense to the employee’s claim that the employer violated the Moore-Brown-Roberti Family Rights Act (Gov. Code, §§ 12945.1, 12945.2)? (2) Was the decision below to vacate the arbitration award in the employer’s favor consistent with the limited judicial review of arbitration awards? Review granted/brief due.

Docket

Court of Appeal Decision

2/11/13

Padgett v. Loventhal (9th Cir. 10-16533 2/11/13) Civil Rights Attorneys’ Fees

Padgett v. Loventhal (9th Cir. 10-16533 2/11/13) Civil Rights Attorneys’ Fees

The panel vacated the district court’s award of costs and attorneys’ fees in a 42 U.S.C. § 1983 action, and remanded to the district court for an explanation of how it used the lodestar method to reduce plaintiff’s fees and how it calculated plaintiff’s reduced costs.

The panel held that in reducing plaintiff’s fee request for $3.2 million in fees and $900,000 in costs, the district court did not explain how it determined that $500,000 in fees and $100,000 in costs was appropriate or why it denied costs to the prevailing defendants. As a result, the panel was unable to review the district court’s reasoning. The panel stated that the mandate that district courts show their work in calculating fees was all the more important in cases such as this one where there were many overlapping claims and a very mixed result. Therefore, the panel vacated and remanded for a more complete explanation.

http://cdn.ca9.uscourts.gov/datastore/opinions/2013/02/11/10-16533.pdf

2/7/13

Harris v. Santa Monica (SC S181004A 2/7/13) FEHA/Mixed Motive

Harris v. Santa Monica (SC S181004A 2/7/13) FEHA/Mixed Motive

A bus driver alleged that she was fired by the City of Santa Monica (the City) because of her pregnancy in violation of the prohibition on sex discrimination in the Fair Employment and Housing Act (FEHA).The City claimed that she had been fired for poor job performance.At trial, the City asked the court to instruct the jury that if it found a mix of discriminatory and legitimate motives, the City could avoid liability by proving that a legitimate motive alone would have led it to make the same decision to fire her.The trial court refused the instruction, and the jury returned a substantial verdict for the employee.The Court of Appeal reversed, holding that the requested instruction was legally correct and that refusal to give it was prejudicial error.

We conclude that the Court of Appeal was correct in part.We hold that under the FEHA, when a jury finds that unlawful discrimination was a substantial factor motivating a termination of employment, and when the employer proves it would have made the same decision absent such discrimination, a court may not award damages, backpay, or an order of reinstatement.But the employer does not escape liability.In light of the FEHA’s express purpose of not only redressing but also preventing and deterring unlawful discrimination in the workplace, the plaintiff in this circumstance could still be awarded, where appropriate, declaratory relief or injunctive relief to stop discriminatory practices.In addition, the plaintiff may be eligible for reasonable attorney’s fees and costs.Therefore, we affirm the Court of Appeal’s judgment overturning the damages verdict in this case and remand for further proceedings in accordance with the instructions set forth below.

http://www.courts.ca.gov/opinions/documents/S181004A.PDF

1/31/13

McVeigh v. Recology San Francisco (CA1/3 A131833 1/31/13) Whistleblower Action/California False Claims Act


McVeigh v. Recology San Francisco (CA1/3 A131833 1/31/13) Whistleblower Action/California False Claims Act

Plaintiff Brian McVeigh appeals following the grant of summary judgment in favor of his former employer Recology San Francisco.Recology provides waste collection, recycling and disposal services to San Francisco residents and businesses.McVeigh’s complaint alleged that Recology fired him in retaliation for his reporting possible fraud in connection with California Redemption Value payments made by and to Recology for recycled materials.

McVeigh’s whistleblower causes of action were brought under Government Code section 12653, part of the California False Claims Act (CFCA) (Gov. Code, § 12650 et seq.), and Labor Code section 1102.5.Government Code section 12653 prohibits an employer from discriminating against an employee for acts taken to expose false claims presented to the government.Labor Code section 1102.5, subdivision (b), prohibits an employer from discriminating against an employee for reporting unlawful conduct to the government.

In reviewing whether summary judgment was proper under the CFCA, we will discuss whether the state was harmed by the alleged fraud reported by McVeigh and whether his report of possible fraud was protected conduct under the statute.In order to determine whether summary judgment was proper under the Labor Code provision, we will consider whether the statute protects an employee from discrimination for reporting illegal acts by fellow employees or only illegal acts of his or her employer.

We reverse the summary judgment on three of McVeigh’s causes of action, and affirm the judgment for Recology on two others.Because McVeigh did not demonstrate that the fraud alleged in one of his causes of action under the CFCA involved possible financial harm to the state, summary judgment was proper on that claim.We conclude as to his other CFCA cause of action that McVeigh alleged possible fraud on the government that caused it economic harm and that his reporting of fraud was protected conduct.We also conclude that the Labor Code protects an employee from discrimination for reporting claims of illegal conduct by fellow employees as well as by an employer.

http://www.courts.ca.gov/opinions/documents/A131833.PDF

1/28/13

Gregory v. Cott (CA2/5 B237645 1/28/13) Occupational Primary Assumption of Risk

Gregory v. Cott (CA2/5 B237645 1/28/13) Occupational Primary Assumption of Risk

Defendant Bernard Cott contracted with a home care agency to provide the services of an in-home caregiver to care for his wife, defendant Lorraine Cott, who suffered from Alzheimer’s disease.Lorraine injured the caregiver, plaintiff Carolyn Gregory, who thereupon sued Lorraine for battery and Lorraine and Bernard for negligence and premises liability.We hold that defendants are entitled to summary judgment in their favor on the ground of primary assumption of risk.

http://www.courts.ca.gov/opinions/documents/B237645.PDF

1/23/13

Alamo v. Practice Management Information Corp. (2012) 148 Cal.Rptr.3d 151 (SC S206925/B230909 rev. granted 1/23/13) Mixed Motive

Alamo v. Practice Management Information Corp. (2012) 148 Cal.Rptr.3d 151 (SC S206925/B230909 rev. granted 1/23/13) Mixed Motive

Review after affirmance of judgment. Briefing deferred pending decision in Harris v. City of Santa Monica, S181004, which presents the following issue: Does the "mixed-motive" defense apply to employment discrimination claims under the Fair Employment and Housing Act (Gov. Code, § 12900 et seq.)?Holding for lead case

Docket

Court of Appeal Decision

1/24/13

McGrory v. Applied Signal Technology (CA6 H036597 1/24/13) FEHA/Wrongful Termination

McGrory v. Applied Signal Technology (CA6 H036597 1/24/13) FEHA/Wrongful Termination

Defendant Applied Signal Technology, Inc. (Employer) terminated its four-year employment of plaintiff John McGrory (Employee) in June 2009 after an outside investigator retained by Employer concluded that, while Employee had not discriminated against a lesbian subordinate on the basis of her sex or sexual orientation, in other ways Employee had violated Employer’s policies on sexual harassment and business and personal ethics and he had been uncooperative and deceptive during the investigation.

As an at-will employee, Employee was subject to termination by Employer for no reason or almost any reason (Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 335 (Guz)), except for a reason that violates a fundamental public policy recognized in a constitutional or statutory provision.(Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167, 170, 172-174; Green v. Ralee Engineering Co. (1998) 19 Cal.4th 66, 79.)Public policy, expressed in part in California’s Fair Employment and Housing Act (FEHA), prohibits employment discrimination on the basis of sex.(Gov. Code, § 12940 ; Rojo v. Kliger (1990) 52 Cal.3d 65, 91; see Lyle v. Warner Bros. Television Productions (2006) 38 Cal.4th 264, 277 (Lyle).)

In this case, Employee alleged that his termination violated four public policies.An employee cannot be terminated for (1) being male, (2) participating in an employer’s internal investigation, or (3) trying to protect the confidentiality and privacy of coworkers.(4) A termination for misconduct must be preceded by notice and a hearing and honest findings of misconduct.As we will explain, he has abandoned these latter two claims on appeal.He further alleged that he was defamed when Employer’s Vice-President of Human Resources told another employee why Employee was terminated.

Employer filed an alternative motion for summary judgment or summary adjudication (Code Civ. Proc., § 437c),asserting that there was no evidence that Employee was terminated for an impermissible reason and that Employer could not be liable in defamation for privileged statements of opinion on a topic of mutual interest.Over Employee’s opposition, the trial court granted summary judgment, concluding that Employer’s motion had established “a legitimate, non-discriminatory reason for terminating” Employee, Employee had “failed to meet his burden of showing substantial evidence that [Employer’s] stated reasons for the adverse action were untrue or pretextual, such that a reasonable trier of fact could conclude that [Employer] engaged in discrimination,” and Employer had established “that the allegedly slanderous statements are privileged.”

On appeal, Employee claims that he has presented triable issues of fact regarding Employer’s true motivation for terminating him and that Employer’s statements about him to coworkers were not conditionally privileged because they lacked reasonable grounds.For the reasons stated below, we will affirm the judgment after concluding that there is no evidence warranting a reasonable inference that Employee was actually terminated for being male, that being uncooperative or deceptive in an employer’s internal investigation is not a protected activity under state or federal law, and that Employer’s statements to its employees about Employee’s termination were conditionally privileged.

http://www.courts.ca.gov/opinions/documents/H036597.PDF

1/11/13

Aber v. Comstock (CA1/2 A134701fled 12/18/12, pub. ord. 1/11/13) Sexual Assault/Anti-SLAPP

Aber v. Comstock (CA1/2 A134701fled 12/18/12, pub. ord. 1/11/13) Sexual Assault/Anti-SLAPP

Plaintiff Lisa Aber sued her employer and two of its employees based on an alleged sexual assault by the employees.Defendant Michael Comstock, one of the employees, filed a cross-complaint against Aber, alleging claims for defamation and intentional infliction of emotional distress.Aber filed a special motion to strike the cross-complaint under the anti-SLAPP statute (Code Civ. Proc., § 425.16).The trial court granted the motion and dismissed the cross-complaint.Comstock appeals.We affirm.

http://www.courts.ca.gov/opinions/documents/A134701.PDF

1/11/13

Mooney v. Co. of Orange (CA4/3 G046262 1/11/13) County Employee Dismissal/Disability Retirement

Mooney v. Co. of Orange (CA4/3 G046262 1/11/13) County Employee Dismissal/Disability Retirement

Plaintiff Valerie Mooney appeals from a judgment entered after the trial court granted the motion of her former employer, defendant County of Orange (the County), for summary adjudication on her causes of action for violations of Government Code sections 31725 and 31721, subdivision (a).(All further statutory references are to the Government Code unless otherwise specified.)Mooney contends the trial court erroneously interpreted these sections in concluding neither applied to the County.

We affirm.Mooney’s claims fail as a matter of law because the undisputed facts show that Mooney was neither “dismissed” by the County because of a disability, within the meaning of section 31725, nor “separate[d]” from employment by the County, within the meaning of section 31721, subdivision (a).Both of these statutes refer to duties of an employer which are triggered by its actions.We hold that in the context of these statutes, “dismissed” and “separate” share the same meaning.

http://www.courts.ca.gov/opinions/documents/G046262.PDF

1/11/13

Lawler v. Montblanc North America, LLC (9th Cir. 11-16206 1/11/13) FEHA Disability Discrimination and Retaliation

Lawler v. Montblanc North America, LLC (9th Cir. 11-16206 1/11/13) FEHA Disability Discrimination and Retaliation

The panel affirmed the district court’s summary judgment in favor of an employer based on the former employee’s failure to present a genuine issue of material fact as to each of her four claims under California state law.

The panel held that plaintiff failed to present a genuine issue of material fact as to her claims for: disability discrimination under the California Fair Employment and Housing Act; retaliation under the Act; harassment under the Act; and intentional infliction of emotional distress under California state tort law.

http://www.ca9.uscourts.gov/datastore/opinions/2013/01/11/11-16206.pdf

1/7/13

Furtado v. State Personnel Bd. (CA4/1 D059912 1/7/13) Failure to Perform Essential Functions of Job

Furtado v. State Personnel Bd. (CA4/1 D059912 1/7/13) Failure to Perform Essential Functions of Job

Bruce Furtado appeals from a judgment denying his petition for a writ of mandate directing the California State Personnel Board (SPB) to set aside its order sustaining the decision of California's Department of Corrections and Rehabilitation (the Department) to medically demote Furtado to a non-peace officer position, and not to place Furtado in a newly-created administrative correctional lieutenant peace officer position.The trial court concluded that the law and evidence supported the SPB's decision that the Department had reasonably determined that Furtado was unable to perform the essential functions of his correctional lieutenant position even with reasonable accommodation.The court further concluded that the Department acted reasonably in demoting Furtado to an available non-peace officer position for which he was qualified and could perform the essential duties.

We affirm the trial court's judgment.

http://www.courts.ca.gov/opinions/documents/D059912.PDF

12/20/12

Barnes-Wallace v. Boy Scouts of America (9th Cir. 04-55732 12/20/12) Civil Rights/City Lease to Boy Scouts

Barnes-Wallace v. Boy Scouts of America (9th Cir. 04-55732 12/20/12) Civil Rights/City Lease to Boy Scouts

The panel affirmed in part and reversed in part the district court’s summary judgment and dismissal of a complaint which alleged that two leases of land for one dollar per year

by the City of San Diego to the Desert Pacific Council, a nonprofit corporation chartered by the Boy Scouts of America, violated, among other things, provisions of the California or federal Constitutions relating to the Establishment of Religion or the denial of Equal Protection of the Laws.

Plaintiffs alleged that they would use the land or facilities leased by the Desert Pacific Council but for the Boy Scouts’ discriminatory policies, which prohibit atheists, agnostics, and homosexuals from being members or volunteers and require members to affirm a belief in God.

The panel held that the district court erred in ruling that the City’s leases with the Boy Scouts violated the No Aid Clause of the California Constitution. The panel determined that the leases constitute, at most, indirect or incidental aid by the City for a religious purpose, and the aid does not otherwise violate the requirements established by the Supreme Court of California to avoid invalidity under the No Aid Clause.

The panel also concluded that the leases do not violate either the California No Preference Clause or the federal Establishment Clause. The panel reversed the district court’s grant of summary judgment to the plaintiffs, and remanded with instructions to grant summary judgment to the Council on these claims.

The panel affirmed the district court’s dismissal of plaintiffs’ state and federal equal protection claims on the ground that the plaintiffs lacked standing to maintain those claims.

The panel also affirmed the district court’s dismissal of plaintiffs’ claims for violation of the San Diego Human Rights ordinance and for breach of contract.

Concurring, Judge Kleinfeld joined the majority but wrote separately to note that this court erred in its previous opinion addressing standing. See Barnes-Wallace v. City of San Diego, 530 F.3d 776, 794 (9th Cir. 2008) (Kleinfeld, J., dissenting).

http://www.ca9.uscourts.gov/datastore/opinions/2012/12/20/04-55732.pdf

12/20/12

Ventura v. ABM Industries (CA2/5 B231817 12/20/12) Ralph Civil Rights Act/Workplace Violence

Ventura v. ABM Industries (CA2/5 B231817 12/20/12) Ralph Civil Rights Act/Workplace Violence

ABM Industries Incorporated, ABM Janitorial Services, Inc., and American Building Maintenance Company appeal from the judgment entered against them and in favor of respondent Sylvia Ventura, on Ventura's complaint.We affirm.

FACTS

Ventura worked for defendantsas a janitor.In December of 2004, Carlos Manzano became her supervisor.In 2007, she filed this lawsuit.The case went to the jury on causes of action for negligent supervision and hiring, and violation of Civil Codesection 51.7, which provides that "All persons within the jurisdiction of this state have the right to be free from any violence, or intimidation by threat of violence, committed against their persons or property because of . . ." specified characteristics, including sex. . . .