McLANE v. EEOC

“Title VII of the Civil Rights Act of 1964 permits the Equal Employment Opportunity Commission (EEOC) to issue a subpoena to obtain evidence from an employer that is relevant to a pending investigation. The statute authorizes a district court to issue an order enforcing such a subpoena. The question presented here is whether a court of appeals should review a district court’s decision to enforce or quash an EEOC subpoena de novo or for abuse of discretion. This decision should be reviewed for abuse of discretion.”

 “ … A district court’s role in an EEOC subpoena enforcement proceeding, we have twice explained, is a straightforward one. See University of Pa., 493 U.S., at 191, 110 S.Ct. 577; Shell Oil, 466 U.S., at 72, n. 26, 104 S.Ct. 1621. A district court is not to use an enforcement proceeding as an opportunity to test the strength of the underlying complaint. Ibid. Rather, a district court should “ ‘satisfy itself that the charge is valid and that the material requested is “relevant” to the charge.’ ” University of Pa., 493 U.S., at 191, 110 S.Ct. 577. It should do so cognizant of the “generou[s]” construction that courts have given the term “relevant.” Shell Oil, 466 U.S., at 68–69, 104 S.Ct. 1621 (“virtually any material that might cast light on the allegations against the employer”). If the charge is proper and the material requested is relevant, the district court should enforce the subpoena unless the employer establishes that the subpoena is “too indefinite,” has been issued for an “illegitimate purpose,” or is unduly burdensome. Id., at 72, n. 26, 104 S.Ct. 1621. See United States v. Morton Salt Co., 338 U.S. 632, 652–653, 70 S.Ct. 357, 94 L.Ed. 401 (1950) (“The gist of the protection is in the requirement … that the disclosure sought shall not be unreasonable” (internal quotation marks omitted)).”

Reversed and remanded.

Allyson N. Ho, Dallas, TX, for Petitioner.
Rachel P. Kovner, Washington, DC, for Respondent.
P. David Lopez, General Counsel, Jennifer S. Goldstein, Associate General Counsel, Margo Pave, Assistant General Counsel, James M. Tucker, Attorney, U.S. Equal Employment Opportunity Commission, Washington, DC, Ian Heath Gershengorn, Acting Solicitor General, James L. Lee, Deputy General Counsel, Irving L. Gornstein, Counselor to the Solicitor General, Rachel P. Kovner, Assistant to the Solicitor General, Noel J. Francisco, Acting Solicitor General, Department of Justice, Washington, DC, for Respondent.
Andrew M. Jacobs, Snell & Wilmer LLP, Tucson, AZ, William R. Peterson, Morgan, Lewis & Bockius LLP, Houston, TX, Allyson N. Ho, Ronald E. Manthey, John C. Sullivan, Morgan, Lewis & Bockius LLP, Dallas, TX, for Petitioner.
USSC 4/3/17 revised opinion by Sotomayor, joined by Roberts, Kennedy, Thomas, Breyer, Alito, and Kagan. Ginsberg filed an opinion concurring in part and dissenting in part; 137 S.Ct. 1159, 129 Fair Empl.Prac.Cas. (BNA) 1825, 17 Cal. Daily Op. Serv. 3131.

Full Decision

McGILL v. CITIBANK, N.A.

“In previous decisions, this court has said that the statutory remedies available for a violation of the Consumers Legal Remedies Act (CLRA; Civ. Code, § 1750 et seq.), the unfair competition law (UCL; Bus. & Prof. Code, § 17200 et seq.), and the false advertising law (id., § 17500 et seq.) include public injunctive relief, i.e., injunctive relief that has the primary purpose and effect of prohibiting unlawful acts that threaten future injury to the general public. (Cruz v. PacifiCare Health Systems, Inc. (2003) 30 Cal.4th 303, 315-316, 133 Cal.Rptr.2d 58, 66 P.3d 1157 (Cruz); Broughton v. Cigna Healthplans (1999) 21 Cal.4th 1066, 1077, 90 Cal.Rptr.2d 334, 988 P.2d 67 (Broughton).) The question we address in this case is the validity of a provision in a predispute arbitration agreement that waives the right to seek this statutory remedy in any forum. We hold that such a provision is contrary to California public policy and is thus unenforceable under California law. We further hold that the Federal Arbitration Act (FAA; 9 U.S.C. § 1 et seq.) does not preempt this rule of California law or require enforcement of the waiver provision. We therefore reverse the judgment of the Court of Appeal.”

Stroock & Stroock & Lavan, Julia B. Strickland, Stephen J. Newman, David W. Moon and Marcos D. Sasso, Los Angeles, for Defendant and Appellant.
Capstone Law, Raul Perez, Melissa Grant, Glenn A. Danas, Ryan H. Wu, Liana Carter and Katherine W. Kehr, Los Angeles, for Plaintiff & Respondent.
Cal. 4/6/17 unanimous opinion by Chin; ___ P.3d ___, 2017 WL 1279700, 17 Cal. Daily Op. Serv. 3282.

Full Decision

SHAW v. SUPERIOR COURT

“This case presents two issues: (1) Is a trial court ruling denying a request for a jury trial in a civil action subject to review prior to trial by a petition for an extraordinary writ or may such a ruling be reviewed only by appeal after trial? and (2) Is there a right to a jury trial in a health care facility whistleblower action for retaliatory termination brought pursuant to Health and Safety Code section 1278.5, subdivision (g), as amended in 2007?

For the reasons explained below, we conclude (1) that a trial court ruling denying a request for a jury trial in a civil action is reviewable prior to trial by a petition for an extraordinary writ, and (2) that there is no statutory right to a jury trial in a cause of action for retaliatory termination under the statutorily created civil action authorized under Health and Safety Code section 1278.5, subdivision (g) inasmuch as the language and legislative history of that statute demonstrate that the Legislature intended that the remedies available in such an action would be determined by the court rather than by a jury. The absence of a jury trial in a retaliatory termination action under Health and Safety Code section 1278.5, subdivision (g) does not deprive a plaintiff of a right to a jury trial, however, because Health and Safety Code section 1278.5, subdivision (m) fully preserves a plaintiff’s right to obtain a jury trial in the related tort cause of action for wrongful termination in violation of public policy authorized under Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167, 164 Cal.Rptr. 839, 610 P.2d 1330 (Tameny).”

Shegerian & Associates, Inc., Carney R. Shegerian, Santa Monica, and Anthony Nguyen for Petitioner.
No appearance for Respondent.
Shaw Valenza, D. Gregory Valenza, Sacramento, and Jasmine L. Anderson, San Jose, for Real Parties in Interest.
Cal. 4/10/17 unanimous opinion by Cantil-Sakauye; ____ P.3d ____, 2017 WL 1315681, 17 Cal. Daily Op. Serv. 3398.

Full Decision

BATZE v. SAFEWAY, INC.

“Appellants Gary Batze, Carlo Cesar and Justin Hayes brought suit against their employer, Safeway, Inc. and The Vons Companies, Inc. for failure to pay overtime wages. Appellants claimed that in their positions as First and Second Assistant Managers (AMs) for respondent’s stores they had been required to work long hours performing such non-managerial tasks as stocking shelves, checking customers’ purchases and building product displays. After weeks of trial and the testimony of dozens of witnesses, the trial court ruled, for the most part, in respondent’s favor, finding that appellants were engaged for more than 50 percent of their work week in managerial tasks, and that they met all the other qualifications to be exempt from the overtime rules. [In the bench trial,] [t]he court also ruled that during the five-month period when Batze and Hayes replaced striking hourly workers, they continued to be exempt employees. Finally, the court ruled that only those claims arising within the four years preceding appellants’ respective complaints were cognizable, and declined to apply equitable tolling to relate their claims back to the filing of a proposed class action for which certification had been denied.

Appellants contend the court’s findings that they spent the majority of their time at work engaged in managerial activities during the four-year period at issue was not supported by substantial evidence. Specifically, they contend that an employee’s ratio of exempt to non-exempt activities must be determined on a week-by-week basis, that no inferences may be drawn from the employee’s activities in surrounding weeks, and that because the employer bears the burden of proof, for any specific week in which no defense witness observed appellants’ actions at work the court should have found in appellants’ favor. We reject that contention and conclude the court drew reasonable inferences from the witnesses’ testimony and other evidence that established how appellants spent the majority of their time.

Appellants also contend the court improperly found that the strike period constituted an emergency that permitted respondent to assign managerial employees to non-exempt tasks without losing their exempt status. We affirm the court’s decision.

Finally, appellants contend the trial court erred in ruling that the statute of limitations precluded them from raising claims based on periods of employment more than four years prior to the filing of each of their complaints. We conclude the trial court reasonably found that the filing of the class action did not toll the statute of limitations.”

Daniels, Fine, Israel, Schonbuch & Lebovits, Paul R. Fine, Scott A. Brooks and Craig S. Momita, Los Angeles; Law Offices of Ian Herzog and Ian Herzog, Santa Monica; Law Offices of Stephen Glick and Stephen Glick, Los Angeles, for Plaintiffs and Appellants.
Littler Mendelson, J. Kevin Lilly, Los Angeles, R. Brian Dixon, San Francisco, and Philip L. Ross, Walnut Creek, for Defendants and Respondents.
Second District, Division 4, 4/4/17 decision by Manella, Epstein and Willhite concurring; ___ Cal.Rptr.3d ___, 2017 WL 1231382, 17 Cal. Daily Op. Serv. 3241.

Full Decision

BOLING v. PUBLIC EMPLOYMENT RELATIONS BOARD

“In June 2012 the voters of City of San Diego (City) approved a citizen-sponsored initiative, the “Citizens Pension Reform Initiative” (hereafter, CPRI), which adopted a charter amendment mandating changes in the pension plan for certain employees of City of San Diego (City). In the proceedings below, the Public Employment Relations Board (PERB) determined City was obliged to “meet and confer” pursuant to the provisions of the Meyers-Milias-Brown Act (MMBA) (Gov. Code, § 3500 et seq.) over the CPRI before placing it on the ballot and further determined that, because City violated this purported obligation, PERB could order “make whole” remedies that de facto compelled City to disregard the CPRI.

We conclude, for the reasons stated below, that under relevant California law the meet-and-confer obligations under the MMBA have no application when a proposed charter amendment is placed on the ballot by citizen proponents through the initiative process, but instead apply only to proposed charter amendments placed on the ballot by the governing body of a charter city. We also conclude that, although it is undisputed that Jerry Sanders (City’s Mayor during the relevant period) and others in City’s government provided support to the proponents to develop and campaign for the CPRI, PERB erred when it applied agency principles to transform the CPRI from a citizen-sponsored initiative, for which no meet-and-confer obligations exist, into a governing-body-sponsored ballot proposal within the ambit of People ex rel. Seal Beach Police Officers Assn. v. City of Seal Beach (1984) 36 Cal.3d 591, 205 Cal.Rptr. 794, 685 P.2d 1145 (Seal Beach). Accordingly, we hold PERB erred when it concluded City was required to satisfy the concomitant “meet-and-confer” obligations imposed by Seal Beach for governing-body-sponsored charter amendment ballot proposals, and therefore PERB erred when it found Sanders and the San Diego City Council (City Council) committed an unfair labor practice by declining to meet and confer over the CPRI before placing it on the ballot.”

Lounsbery Ferguson Altona & Peak, Kenneth H. Lounsbery, Escondido, James P. Lough and Alena Shamos Escondido, for Petitioners and Real Parties in Interest Catherine A. Boling, T. J. Zane and Stephen B. Williams in No. D069626 and No. D069630.
Jan I. Goldsmith and Mara Elliott, City Attorneys, Daniel F. Bamberg, Assistant City Attorney, Walter C. Chung and M. Travis Phelps, Deputy City Attorneys, for Petitioner and Real Party in Interest City of San Diego in No. D069630 and No. D069626
J. Felix de la Torre, Wendi L. Ross, Sacramento, Mary Weiss, Santa Barbara and Joseph W. Eckhart, for Respondent.
Smith, Steiner, Vanderpool & Wax and Ann M. Smith, for Real Party in Interest San Diego Municipal Employees Association in No. D069626.
Smith, Steiner, Vanderpool & Wax and Fern M. Steiner, San Diego, for Real Party in Interest San Diego City Firefighters Local 145 in No. D069626.
Rothner, Segall and Greenstone, Ellen Greenstone, Pasadena and Connie Hsiao, for Real Party in Interest AFCSME Local 127 in No. D069626.
Law Offices of James J. Cunningham and James J. Cunningham, for Real Party in Interest Deputy City Attorneys Association of San Diego in No. D069626.
Fourth District, Division 1, 4/11/17 decision by McConnell, Huffman and Nares concurring; ___ Cal.Rptr.3d ___, 2017 WL 1326317, 17 Cal. Daily Op. Serv. 3502.

Full Decision

DRISCOLL v. GRANITE ROCK CO.

Concrete mixer drivers employed by concrete company sued company on behalf of a class of current and former drivers, claiming that company failed to provide drivers with off-duty meal periods and with one additional hour of pay for meal periods during which drivers opted to continue working. In a bench trial, the court found for the employer and the appellate court affirmed. The Sixth District’s 11/30/16 decision by Rushing, as modified on 12/22/16, was vacated on 12/28/16 in light of Augustus v. ABM Security, Inc. (12/22/16) 2 Cal.5th 257, and further briefing has been ordered.

Sohnen Law Offices, Harvey Sohnen, Patricia Kelly, Orinda, Joseph Clapp, Oakland, for Plaintiffs and Appellants Brian Driscoll et al.
Littler Mendelson, Garry G. Mathiason, Alan S. Levins, Alison S. Hightower, Laura E. Hayward, San Francisco, for Defendant and Appellant Granite Rock Company.
Sixth District, 12/28/16 order vacating judgment and ordering further briefing; Case Number H037662.

Full Decision

FEATHERSTONE v. SOUTHERN CALIFORNIA PERMANENTE MEDICAL GROUP

“Ruth Featherstone (Featherstone) appeals from summary judgment entered against her on claims that her former employer, defendant and respondent Southern California Permanente Medical Group (SCPMG), refused to rescind her resignation in violation of the Fair Employment and Housing Act (FEHA) (Gov. Code, § 12940 et seq.) and public policy.

Specifically, Featherstone alleged that while working for SCPMG she suffered a “temporary” disability, which arose as a result of a “relatively uncommon side effect of the medication” she was taking in late December 2013; this “adverse drug reaction” allegedly caused Featherstone to suffer from an “altered mental state.” While under the influence of this altered mental state, Featherstone resigned from her position with SCPMG—first, she resigned orally in a telephone conversation with her supervisor and then, a few days later, confirmed her resignation in writing in an email to her supervisor. A few days after confirming her resignation in writing, Featherstone requested SCPMG to allow her to rescind her resignation. SCPMG, after considering Featherstone’s request, declined to do so. Featherstone then sued, alleging that SCPMG acted with discriminatory animus by refusing to allow her to rescind her resignation.

We affirm for two principal reasons. First, SCPMG’s refusal to allow Featherstone to rescind her resignation was not an adverse employment action under the FEHA. Second, Featherstone failed to raise a triable issue of fact as to whether the SCPMG employees who accepted and promptly processed her resignation knew of her alleged temporary disability at the time they took those actions. Because Featherstone failed to present evidence raising a triable issue of material fact about the legality of SCPMG’s actions, summary judgment was appropriate.”

Rushovich Mehtani, Aanand Ghods-Mehtani and Lisa M. Watanabe-Peagler for Defendant and Respondent.
Nixon Peabody, Michael R. Lindsay, Alicia C. Anderson and Mae K. Hau for Plaintiff and Appellant.
Second District, Division 1, 4/19/17 decision by Johnson, Rothschild and Chaney concurring; ___ Cal.Rptr.3d ___, 2017 WL 1399709, 17 Cal. Daily Op. Serv. 3752.

Full Decision

PORTER v. NABORS DRILLING USA, L.P.

“Movant-Appellee Nabors Drilling USA, L.P. has filed for reorganization under Chapter 11 of the Bankruptcy Code. That filing triggered the automatic stay under 11 U.S.C. § 362(a)(1), which generally applies to protect a debtor after it has filed for bankruptcy protection. The question presented by the current motion is whether that stay applies to a lawsuit filed by a plaintiff, Appellant Jeremy Porter, who has asserted a claim under California’s Private Attorney General Act of 2004 (“PAGA”), Cal. Labor Code §§ 2698 et seq. Porter contends that the exception established in 11 U.S.C. § 362(b)(4), sometimes described as the governmental regulatory or governmental unit exception, applies to exempt his PAGA claim from the automatic stay. We conclude that the exception does not apply to a claim brought by a private party under PAGA, and we therefore grant Nabors’s motion to recognize the automatic stay in this case.”

Arnold P. Peter, Peter Law Group, Manhattan Beach, California, for Plaintiff-Appellant.
Tamara I. Devitt and Matthew E. Costello, Haynes and Boone LLP, Costa Mesa, California, for Defendant-Appellee.
Ninth Cir. 4/20/17 decision by Clifton, Canby and Friedland concurring: ___ F.3d ___, 2017 WL 1404392, 17 Cal. Daily Op. Serv. 3800.

Full Decision

RIZO v. YOVINO

“The plaintiff, Aileen Rizo, is an employee of the public schools in Fresno County. After discovering that the County pays her less than her male counterparts for the same work, she brought this action under the Equal Pay Act, 29 U.S.C. § 206(d), Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5, and the California Fair Employment and Housing Act, Cal. Gov. Code § 12940. When the County1 moved for summary judgment, it conceded that it paid the plaintiff less than comparable male employees for the same work. However, it argued that this result was lawful because the pay differential was “based on any other factor other than sex,” an affirmative defense to a claim under the Equal Pay Act. This other factor was prior salary, and the district court concluded that when an employer bases a pay structure “exclusively on prior wages,” any resulting pay differential between men and women is not based on any other factor other than sex. Rizo v. Yovino, No. 1:14-cv-0423-MJS, 2015 WL 9260587, at *9 (E.D. Cal. Dec. 18, 2015). Based on this conclusion, the district court denied the County’s motion for summary judgment.

The district court candidly recognized that its decision potentially conflicted with this court’s decision in Kouba v. Allstate Insurance Co., in which we held that prior salary can be a factor other than sex, provided that the employer shows that prior salary “effectuate[s] some business policy” and the employer uses prior salary “reasonably in light of [its] stated purpose as well as its other practices,” 691 F.2d 873, 876–77 (9th Cir. 1982), and thus certified its decision for interlocutory appeal under 28 U.S.C. § 1292(b). We permitted that appeal and authorized the County to appeal from the order denying summary judgment.

We conclude that this case is controlled by Kouba. We therefore vacate the district court’s order and remand with instructions to reconsider the County’s motion for summary judgment.”

 Michael Gary Woods (argued) and Timothy J. Buchanan, McCormick Barstow Sheppard Wayte & Carruth LLP, Fresno, California, for Defendant-Appellant.
Daniel M. Siegel (argued) and Kevin Brunner, Siegel & Yee, Oakland, California, for Plaintiff-Appellee.
Ninth Cir. 4/27/17 decision by Adelman, Tashima and Hurwitz concurring; ___ F.3d ___, 2017 WL 1505068.

Full Decision

SANTILLAN v. USA WASTE OF CALIFORNIA, INC.

“This case arises from a wrongful employment termination dispute between Gilberto Santillan, a 53-year-old garbage truck driver, and his employer of 32 years, USA Waste of California, Inc. (“USA Waste”). Santillan filed this action against USA Waste alleging a wrongful termination claim based on age discrimination and retaliation. The district court granted summary judgment in favor of USA Waste.

We have jurisdiction under 28 U.S.C. § 1291. We reverse. We hold that the district court erred by granting summary judgment in favor of USA Waste because (1) Santillan established a prima facie case under both his age discrimination and retaliation theories; and (2) USA Waste failed to introduce any evidence that it had a legitimate reason for firing him.

We also hold that the district court did not abuse its discretion when it denied Santillan’s oral request for leave to amend the complaint eight months after the filing deadline.”

To state a prima facie age discrimination case under FEHA, Santillan must establish that: (1) he was a member of a protected class (i.e., 40 years of age or older); (2) he was performing competently in the position he held; (3) he suffered an adverse employment action, such as termination; and (4) “some other circumstance that suggests discriminatory motive.” See Guz, 24 Cal.4th at 355, 100 Cal.Rptr.2d 352, 8 P.3d 1089.

“ … The district court did not consider whether Santillan established the first three elements of a prima facie age discrimination case. It is undisputed that he did, as Santillan: (1) was a member of a protected class (i.e., 40 years of age or older) given that he was 53 years old; (2) was performing competently in the position he had; and (3) suffered an adverse employment action because USA Waste fired him.

The district court found that Santillan could not establish the fourth element: some other circumstance that suggests a discriminatory motive. We disagree. Evaluating the fourth element “with some flexibility,” Nidds, 113 F.3d at 917, and construing the facts in the light most favorable to Santillan, we conclude that he established a prima facie age discrimination case. Therefore, there is a presumption that USA Waste unlawfully discriminated against Santillan. See Reid, 50 Cal.4th at 520 n.2, 113 Cal.Rptr.3d 327, 235 P.3d 988; see also Nidds, 113 F.3d at 917.

Two pieces of evidence lead us to this conclusion. First, Santillan testified that he was one of five older Spanish-speaking employees who were fired or suspended once Kobzoff was assigned as USA Waste’s Manhattan Beach route manager. … Second, there is a potential thirteen-year age gap between Santillan and his replacement, Vartanian, who also has 21 fewer years experience as a garbage truck driver.”

“Under McDonnell Douglas’s second prong, USA Waste bore the burden to produce admissible evidence of a legitimate, non-discriminatory reason for firing Santillan. Earl, 658 F.3d at 1112. USA Waste’s only proffered reason for firing Santillan in July 2012 was that his “reinstatement was contingent, in part, upon providing proof of [his] legal right to work in the United States within three days of hire, as required by the Immigration Control and Reform Act of 1986, [sic] [and] [the] Settlement Agreement.”

However, USA Waste cannot rely on the IRCA or the Settlement Agreement to establish that it is entitled to summary judgment as a matter of law because, as explained below: (1) the IRCA exempts Santillan from the proof of employment eligibility that USA Waste demanded; and (2) making Santillan’s reinstatement contingent upon such proof would violate California public policy.”

Holly Noelle Boyer (argued), and Andrew N. Chang, Esner Chang & Boyer, Pasadena, California; Louanne Masry and John C. Taylor, Taylor & Ring LLP, Los Angeles, California; for Plaintiff-Appellant.
Christopher J. Boman (argued), Fisher & Phillips LLP, Irvine, California; Kristen J. Nesbit, Fisher & Phillips LLP, Los Angeles, California; for Defendant-Appellee.
Ninth Cir. 4/7/17 decision by Pregerson, Nguyen, and Owens concurring; ___ F.3d ___, 2017 WL 1289971, 130 Fair Empl.Prac.Cas. (BNA) 61, 17 Cal. Daily Op. Serv. 3322.

Full Decision