California Courts of Appeal
AVILES-RODRIGUEZ v. LOS ANGELES COMMUNITY COLLEGE DIST.
“This case calls upon us to decide an issue previously addressed, though not definitively decided, by our Supreme Court. In Romano v. Rockwell Internat., Inc. (1996) 14 Cal.4th 479 (Romano), the court held that under the Fair Employment and Housing Act (FEHA), Government Code sections 12900 et seq., a party alleging that a discriminatory act led to the termination of his or her employment has until one year from the date the employment terminated to file an administrative claim. Romano involved an at-will employee; the instant case involves a professor denied tenure. These factual distinctions arguably are of legal significance. Nevertheless, based on our Supreme Court’s criticism of a United States Supreme Court case involving a denial of tenure and its disapproval of a California case deemed analogous to a denial of tenure, we interpret the court’s reasoning as a directive to apply the holding of Romano to the instant case.
Appellant Guillermo Aviles-Rodriguez previously was employed by respondent Los Angeles Community College District (LACCD) as a professor. On November 21, 2013, a tenure review committee voted to deny appellant tenure. Following a February 26, 2014 review and final vote by the Board of Trustees, appellant received written notice on March 5 that tenure had been denied. Before receiving notice of the Board’s final decision, appellant initiated a grievance procedure, the third and final step of which was denied by a grievance review committee on May 21, 2014. That same month appellant allegedly contacted the Department of Fair Employment and Housing (DFEH) to discuss the filing of a claim alleging racial discrimination including, but not limited to, the denial of tenure, and was advised that he had until one year from the last day of his employment to file a complaint with the DFEH. Appellant’s employment terminated June 30, 2014, the last day of the academic year, and on June 29, 2015, he filed his complaint with DFEH. After being issued a right-to-sue letter, appellant filed the instant action against LACCD. Following several demurrers, appellant filed his third amended complaint (TAC), the operative complaint. The TAC alleged a single cause of action under the FEHA against LACCD for denial of tenure and termination based on racial discrimination.
LACCD demurred to the TAC, arguing that appellant’s claim was barred because he failed to file his DFEH complaint within one year “from the date upon which the alleged unlawful practice … occurred.” (§ 12960, subd. (d).) It asserted the trigger date for the commencement of the one-year period was the date tenure was denied. Relying on Romano, appellant argued he had one year from the last day of his employment to file the DFEH complaint. The trial court sustained the demurrer without leave to amend and ordered the case dismissed.
Were we writing on a blank slate, we might conclude that the one-year limitations period to file a DFEH complaint begins to run on the date the employee is notified of the final tenure decision. However, although Romano did not involve a wrongful termination resulting from the denial of tenure, we read its discussion of both federal and state cases involving the denial of tenure or analogous facts as a clear directive that its holding should be applied here. In light of Romano, we conclude the one-year limitations period for appellant to file a timely DFEH complaint began to run from the last day of his employment. As he filed his DFEH complaint within that period, his claim was timely. Accordingly, we reverse the judgment dismissing the TAC.”
Knapp, Petersen & Clarke, André E. Jardini, Gwen Freeman, and K.L. Myles for Plaintiff and Appellant.
Wood, Smith, Henning & Berman, Stacey F. Blank, and Shannon M. Benbow for Defendant and Respondent.
Second District, Division 4, 8/29/2017 decision by Manella, Epstein and Willhite concurring; ___ Cal.Rptr.3d ___, 2017 WL 3712199.
ESPARZA v. KS INDUSTRIES, L.P.
“Defendant KS Industries, L.P. appeals from an order denying its motion to compel arbitration of a dispute with a former employee. The employee contends the lawsuit is a representative action under the Private Attorneys General Act of 2004 (PAGA). (Lab. Code, § 2698 et seq.) He argues the trial court properly applied the rule adopted in Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348, 173 Cal.Rptr.3d 289, 327 P.3d 129 (Iskanian) and concluded the lawsuit was a PAGA representative action not subject to arbitration.
KS Industries contends the trial court’s failure to order arbitration of some of the claims violated the Federal Arbitration Act (9 U.S.C. § 1 et seq.) because those claims sought individualized (i.e., victim-specific) relief and were covered by the parties’ arbitration agreement. KS Industries contends the rule adopted in Iskanian prevents the arbitration of claims only in representative actions that seek “civil penalties,” a term of art that is limited to monetary relief allocated 75 percent to the Labor and Workforce Development Agency and 25 percent to the aggrieved employees. In KS Industries’ view, “civil penalties” do not include unpaid wages payable solely to the aggrieved employee. We agree.
The Federal Arbitration Act plays a central role in this appeal. If the act requires a claim to be arbitrated, a contrary rule of state law must give way because of federal preemption. The Federal Arbitration Act requires the enforcement of arbitration agreements covering private disputes. Here, the arbitration agreement is worded to cover claims arising from the employment relationship, which includes the employee’s claims for unpaid wages and other types of victim-specific relief. The State of California is not a party to the agreement and, thus, claims brought by it or on its behalf are not subject to arbitration. Therefore, under the Federal Arbitration Act, the claims that are private disputes between the employee and KS Industries must be arbitrated and the claims brought on behalf of the State of California need not be arbitrated. The rule adopted in Iskanian attempted to define the boundary between the two types of claims by stating that PAGA representative claims for civil penalties are not subject to arbitration. We conclude that, for purposes of the Iskanian rule, PAGA representative claims for civil penalties are limited to those where a portion of the recovery is allocated to the Labor and Workforce Development Agency. Claims for unpaid wages based on Labor Code section 558 are not allocated in this manner and, therefore, the Iskanian rule does not exempt such claims from arbitration.
Applying the foregoing interpretation of the Iskanian rule and its term of art, civil penalties, to this litigation, we conclude some of the claims the employee is pursuing are PAGA representative claims that seek civil penalties. Under the Iskanian rule, those claims are not subject to arbitration. Our analysis does not end with that conclusion because the employee intended to pursue private claims for victim-specific relief, such as claims to recover wages under Labor Code section 558. The Iskanian rule does not exempt such claims from arbitration. This intention was based on the employee’s misinterpretation of the Federal Arbitration Act, the PAGA and Iskanian. Before this litigation proceeds, the employee shall be required to clearly state whether he will continue to pursue the claims to recover wages under Labor Code section 558 that are subject to arbitration. Accordingly, we remand for further proceedings to allow the employee to unambiguously state his intention. Once his intention is clear, the trial court shall enter an appropriate order.
We therefore affirm the order insofar as it denies arbitration of the representative claims for civil penalties and remand for further proceedings.” (Emphasis in original)
Justice Law Corporation, Douglas Han, Los Angeles, Shunt Tatavos-Gharajeh and Daniel J. Park for Plaintiff and Respondent.
Call & Jensen, John T. Egley, Newport Beach, and Jamin S. Soderstrom for Defendant and Appellant.
Fifth District, 8/2/17 decision by Franson, Poochigian and Smith concurring; ___ Cal.Rptr.3d ___, 13 Cal.App.5th 1228, 2017 WL 3276363, 2017 Wage & Hour Cas.2d (BNA) 269,603, 17 Cal. Daily Op. Serv. 7503, 2017 Daily Journal D.A.R. 7490.
LIGHT v. CALIFORNIA DEPARTMENT OF PARKS AND RECREATION
“Plaintiff Melony Light appeals judgments in favor of her employer, defendant California Department of Parks and Recreation (Department), and her former supervisors, defendants Leda Seals and Kathy Dolinar, following orders granting defendants’ motions for summary judgment. Light contends the trial court erred by summarily adjudicating her claims against the Department for retaliation, disability discrimination, and failure to prevent retaliation and discrimination, all in violation of the Fair Employment and Housing Act (FEHA; Gov. Code, § 12900 et seq.). She also contends the trial court erred by summarily adjudicating her claims against Seals for intentional infliction of emotional distress and assault and summarily adjudicating her claim against Dolinar for intentional infliction of emotional distress. The court also summarily adjudicated an additional claim against Seals, for false imprisonment, but Light does not challenge that ruling in this appeal.
As to the Department, we conclude triable issues of material fact preclude summary adjudication of Light’s retaliation claim, but not her disability discrimination claim. Light’s claim against the Department for failure to prevent retaliation or discrimination therefore survives based on Light’s retaliation claim. As to Seals and Dolinar, we conclude contrary to the trial court that workers’ compensation exclusivity does not bar Light’s claim for intentional infliction of emotional distress under the circumstances here. However, as to the merits of that claim, we conclude Light has raised a triable issue of fact only as to Seals, not Dolinar. We further conclude Light has raised triable issues of fact on her assault claim against Seals. We will therefore affirm in part and reverse in part the judgments in favor of the Department and Seals, and we will affirm in full the judgment in favor of Dolinar. Because our discussion of the interplay between workers’ compensation exclusivity and intentional infliction of emotional distress addresses an important legal issue, and our interpretation differs from a recent opinion by our colleagues in Division Three of this court, we will publish that discussion, as well as our discussion of the FEHA retaliation claim on which it relies. Because our discussions of Light’s FEHA disability discrimination and assault claims raise no similar issues, they remain unpublished.”
Stewart and Musell, Wendy E. Musell and Elisa J. Stewart, San Francisco, for Plaintiff and Appellant.
Kamala D. Harris, Attorney General, Chris A. Knudsen, Assistant Attorney General, Christine Mersten and Jodi L. Cleesattle, Deputy Attorneys General, for Defendant and Respondent California Department of Parks and Recreation.
Simpson Delmore Greene, Terence L. Greene, and Elizabeth A. Donovan, San Diego, for Defendant and Respondent Kathy Dolinar.
Savage Day and Kelly Savage Day for Defendant and Respondent Leda Seals.
Fourth District, Division 1, 8/8/17 partially published decision by McConnell, Haller and Aaron concurring; ___ Cal.Rptr.3d ___, 14 Cal.App.5th 75, 2017 WL 3393079, 17 Cal. Daily Op. Serv. 7746, 2017 Daily Journal D.A.R. 7669.
OKORIE v. LOS ANGELES UNIFIED SCHOOL DISTRICT
“In 2015, Dioka Okorie (Okorie) sued his employer, Los Angeles Unified School District (LAUSD) and two of his supervisors, Jacqueline Hughes (Hughes) and Cynthia Jackson (Jackson) (collectively, Defendants), alleging, among other things, discrimination, harassment, and retaliation. In response, Defendants filed a special motion to strike the complaint pursuant to section 425.16 of the Code of Civil Procedure—a so-called anti-SLAPP motion—which the trial court granted.
On appeal, Okorie and his wife, Nkeiru Okorie (collectively, Plaintiffs) advance two principal arguments. First, they contend that the trial court erred in granting the anti-SLAPP motion because the complaint contained allegations regarding both protected and unprotected activities by the Defendants. Second, they argue that the motion should have been denied because they demonstrated a likelihood of success on certain of their causes of action. We disagree with both arguments and, accordingly, affirm.”
The majority noted, “Consistent with their accumulation theory, Plaintiffs do not identify specifically or list separately each act of alleged misconduct by Defendants giving rise to each cause of action. For example, in connection with their employment discrimination causes of action, Plaintiffs do not identify the specific adverse employment actions giving rise to their claims. Instead, they allege generally that all of the various acts of misconduct identified in the section of their complaint entitled “FACTS COMMON TO ALL CAUSES OF ACTION” constitute the operative adverse employment actions. (Underscore omitted.)”
The majority reasoned, “The critical primary conduct here is quite different than that at issue in Park, supra, 2 Cal.5th 1057. “Park’s complaint [wa]s ‘based on the [single] act of denying plaintiff tenure based on national origin. [In Park,] [p]laintiff could have omitted allegations regarding communicative acts … and still state the same claims.’ ” (Id. at p. 1068.) In contrast, Plaintiffs’ complaint here is based collectively on a handful of decisions (unsupported by any evidence of discriminatory animus) and a wide array of allegedly injury-causing statements and communicative conduct by Defendants. In other words, the speech complained of here does not merely “supply evidence of animus.” (Ibid.) Rather, the speech at issue is explicitly alleged to be the injury-producing conduct. Because LAUSD’s speech and communicative conduct is the wrong complained of, the next question in our inquiry is whether that speech and communicative conduct was protected.”
“ … Although Plaintiffs claims are based, in part, on preinvestigation conduct by Defendants, during oral argument Plaintiffs’ counsel effectively conceded that his clients would not have filed a lawsuit if the only conduct at issue was Defendants’ preinvestigation conduct. Accordingly, we will focus on whether the alleged protected statements and communicative conduct made by Defendants in connection with their investigation were collateral to Plaintiffs’ claims or constituted the principal thrust or gravamen of those claims.”
“ … It is well established that internal investigations constitute an “official proceeding authorized by law,” which is another of the categories of protected activity under the anti-SLAPP statute. (§ 425.16, subd. (e); Hansen v. Department of Corrections and Rehabilitation (2008) 171 Cal.App.4th 1537, 1544 [dismissing emotional distress claim based on investigation].) Accordingly, the majority concluded that the district’s investigation-related speech and communications with Plaintiffs were protected by the Anti-SLAPP provisions.
In his dissenting opinion, J. Rothschild noted, “Although the anti-SLAPP statute refers to striking a “cause of action,” the Supreme Court explained that, for purposes of the anti-SLAPP statute, a cause of action is not determined by how the plaintiff organized the pleading. (Id. at pp. 392-395.) Rather, the phrase refers to “particular alleged acts giving rise to a claim for relief.” (Id. at p. 395.) Thus, a pleaded count, though labeled a “cause of action” in a complaint, may contain numerous claims for relief, each defined by a particular act by the defendant. In cases involving allegations of both protected and unprotected activity, the anti-SLAPP statute applies to those claims arising from protected activity and does not apply to claims arising from unprotected activity, regardless of whether they are conjoined under a single heading in the complaint.”
“ … Because Baral has eliminated the mixed cause of action problem by redefining a cause of action for purposes of the anti-SLAPP statute, there is no point to ascertaining the gravamen of a mixed cause of action; the “particular alleged acts giving rise to a claim for relief” are either protected or not. Although, as Baral pointed out, a court may need to determine whether factual allegations are incidental to a claim that arises from protected or unprotected activity, determining the gravamen has no place in anti-SLAPP analysis. (See Sheley v. Harrop (2017) 9 Cal.App.4th 1147, 1169 [“After Baral, when deciding whether claims based on protected activity arise out of protected activity we do not look for an overall or gestalt ‘primary thrust’ or ‘gravamen’ of the complaint or even a cause of action as pleaded”].) Accordingly, I disagree with the majority’s holding that “the principal thrust/gravamen analysis remains a viable tool by which to assess whether a plaintiff’s claim arises out of protected activity.” (Maj. opn. ante, at p. 18.)
“ … At a minimum, the LAUSD’s reassignment of Okorie to his home and, later, to another facility known as “teacher jail”—acts that allegedly constitute adverse employment actions and support his claims for discrimination, harassment, and retaliation—do not constitute protected activity. (See Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1068.) It was therefore error to strike the entire complaint.”
Law Offices of Akudinobi & Ikonte, Chijioke O. Ikonte; Law Office of Metu C. Ogike and Metu Chikezie Ogike, Los Angeles, for Plaintiffs and Appellants.
Anthony J. Bejarano, Assistant General Counsel, and Alexander Molina, Chief Labor and Employment Counsel, for Defendants and Respondent.
Second District, Division 1, 8/16/17 decision by Johnson, Chaney concurring and Rothschild concurring and dissenting; Cal.Rptr.3d —-, 2017 WL 3499226, 17 Cal. Daily Op. Serv. 7974.
OTO, L.L.C. v. KHO
“Ken Kho filed a claim for unpaid wages with the California Labor Commissioner (commissioner) against his former employer, OTO, L.L.C., doing business as One Toyota of Oakland (hereafter One Toyota). After settlement discussions failed, One Toyota filed a petition to compel arbitration. Under the arbitration agreement, which One Toyota required Kho to execute without explanation during his employment, the wage claim would be subject to binding arbitration conducted by a retired superior court judge. Because the intended procedure incorporated many of the provisions of the Code of Civil Procedure and the Evidence Code, the anticipated arbitration proceeding would resemble ordinary civil litigation.
The trial court denied the petition to compel. Under Sonic-Calabasas A, Inc. v. Moreno (2013) 57 Cal.4th 1109 (Sonic II), an arbitration agreement that waives the various advantageous provisions of the Labor Code governing the litigation of a wage claim is substantively unconscionable if it fails to provide the employee with an affordable and accessible alternative forum. The trial court concluded that the alternative anticipated by One Toyota’s arbitration agreement failed this standard because it effectively required Kho to retain counsel and did not expressly provide for him to recover his attorney fees if he prevailed. We reverse, concluding the arbitration proceeding satisfies the Sonic II requirements of affordability and accessibility.”
Fine, Boggs & Perkins, John P. Boggs and Roman Zhuk for Plaintiff and Appellant
Fernando Flores for Intervener and Appellant.
No appearance for Defendant and Respondent.
First District, Division 1, 8/21/17 decision by Margulies, Humes and Banks concurring; ___ Cal.Rptr.3d ___, 2017 WL 3599067, 17 Cal. Daily Op. Serv. 8112.
SPRUNK v. PRISMA LLC
“The primary issue presented in this appeal is whether a defendant in a putative class action can waive its right to compel arbitration against absent class members by deciding not to seek arbitration against the named plaintiff. In deciding that issue, we must also consider the scope of the “futility” rule, which excuses a party in some circumstances from seeking to enforce an arbitration right when the state of the law at the time would make the effort futile.
We agree with the trial court that, under the circumstances of this case, defendant and appellant Prisma LLC, doing business as Plan B Club (Plan B) waived its right to seek arbitration by filing and then withdrawing a motion to compel arbitration against the named plaintiff, Maria Elena Sprunk, and then waiting until after a class had been certified to seek arbitration against class members. We therefore affirm the trial court’s denial of Plan B’s motion to compel arbitration.”
Markun Zusman Freniere & Compton and Daria Dub Carlson, Pacific Palisades, for Defendant and Appellant.
Knapp, Petersen & Clarke, André E. Jardini, Gwen Freeman and K.L. Myles, Glendale, for Plaintiff and Respondent.
Second District, Division 1, 8/23/17 decision by Lui, Chaney and Johnson concurring; ___ Cal.Rptr.3d ___, 2017 WL 3614265, 17 Cal. Daily Op. Serv. 8259.
STOETZL v. STATE OF CALIFORNIA
“Plaintiffs are current and former correctional peace officers who work or worked at various state correctional facilities. They brought these coordinated class actions alleging they were improperly denied pay for time they spent under their employer’s control before and after their work shifts. Ruling that plaintiffs’ entitlement to overtime pay is controlled by federal, rather than California, law, the trial court entered judgment for defendants. We shall reverse the judgment in part as to the subclass of unrepresented employees and affirm as to the subclass of represented employees.”
Counsel for Plaintiffs and Appellants: Carroll, Burdick & McDonough LLP, Jack T. Friedman, Jonathan D. Yank, Laurie J. Hepler, and David M. Rice; Messing Adam & Jasmine LLP, Gregg McLean Adam; and Goyette and Associates, Inc., Gary G. Goyette.
Counsel for Defendants and Respondents: Kronick, Moskovitz, Tiedemann & Girard, David W. Tyra and Kristianne T. Seargeant; California Department of Human Resources, Joan A. Markoff, Chief Counsel, Frolan R. Aguiling, Deputy Chief Counsel, Christopher E. Thomas, Labor Relations Counsel, and David D. King, Labor Relations Counsel.
First District, Division 4, 8/31/17 decision by Rivera, Ruvolo and Reardon concurring; ___ Cal.Rptr.3d ___, 2017 WL 3772542.
SVIRIDOV v. CITY OF SAN DIEGO
“Aleksei E. Sviridov appeals a judgment after the trial court awarded the City of San Diego and the San Diego Police Department (collectively the City or defendants) $90,387.28 in costs. Sviridov contends the City is not entitled to costs based upon Williams v. Chino Valley Independent Fire Dist. (2015) 61 Cal.4th 97, 99 (Williams), which held that in actions based upon the California Fair Employment and Housing Act (FEHA; Gov. Code, § 12900 et seq.), costs should not be awarded under Government Code section 12965, subdivision (b), to a defendant against an unsuccessful FEHA plaintiff “unless the plaintiff brought or continued litigating the action without an objective basis for believing it had potential merit.” (Williams, supra, at pp. 99–100.) Sviridov also contends the Public Safety Officers Procedural Bill of Rights Act (POBRA; Gov. Code, § 3300 et seq.) prohibits an award of costs for the defense of his POBRA claim unless the action was frivolous or brought in bad faith. (Gov. Code, § 3309.5.) The City contends neither of these statutes applies because the City is entitled to its costs pursuant to Code of Civil Procedure section 998 since Sviridov rejected multiple statutory settlement offers and did not obtain a more favorable result. We conclude the City is entitled to costs pursuant to section 998 and we affirm the judgment.”
[Ed. Note: On August 22, 2017, Plaintiff filed a Petition for Modification of Opinion and Rehearing “to decide the issue of first impression which the court held was forfeited by inadequate briefing.” Plaintiff argues in part, “On appeal, Sviridov argued in his opening brief that, under Williams, supra, 61 Cal.4th 97, the City was not entitled to recover its costs under section 1032. He did not make any argument based on section 998, because that statute was not the basis for the trial court’s order.” “ … [U]pon rehearing the court should not consider the City’s fact-based claim to entitlement to costs under section 998. That claim was not made in the trial court; it was not decided by the trial court; and an appellate court should not decide such an issue as a court of first impression.”]
Law Office of Milton J. Silverman and Milton J. Silverman, for Plaintiff and Appellant.
Mara W. Elliott, City Attorney, George Schaefer, Assistant City Attorney and Meghan A. Wharton, Deputy City Attorney, for Defendants and Respondents.
Fourth District, Division 1, 7/28/17 decision by McConnell, Nares and Haller concurring, ordered published 8/15/17 https://goo.gl/GydPQj; ___ Cal.Rptr.3d ___, 2017 WL 3493855, 17 Cal. Daily Op. Serv. 7897; Plaintiff’s 8/22/17 Petition for Modification of Opinion and Rehearing: 2017 WL 3710540.
Ninth Circuit
ALAMILLO v. BNSF RAILWAY CO.
Plaintiff-Appellant Antonio Alamillo filed this suit against Defendant-Appellee BNSF Railway Company (BNSF), claiming that it terminated him from his job as a locomotive engineer because of his disabling obstructive sleep apnea, in violation of the California Fair Employment and Housing Act (FEHA), Cal. Gov. Code, § 12940 et seq.
“In 2012, Alamillo worked as a locomotive engineer for BNSF. Due to his seniority, he had the choice to work either (1) a five-day-per-week schedule with regular hours or (2) on the “extra board,” which requires employees to come to work only when called. Alamillo chose to work on the extra board from January 2012 through June 2012. If an extra board employee failed to answer or respond to three phone calls from BNSF within a single 15-minute period, the employee would be deemed to have “missed a call” and marked as absent for the day. BNSF’s attendance policy provided that a fifth missed call during any twelve-month period “may result in dismissal.
Alamillo missed a call on ten dates in 2012: January 28, January 29, January 31, March 16, March 18, March 20, April 23, May 13, May 21, and June 16. He chose to receive “Alternative Handling” for the three January missed calls, which meant that he received additional training instead of discipline. After his next four missed calls, Alamillo received a 10-day suspension and a 20-day suspension.”
“ … At some point after his final missed call on June 16, Alamillo began to suspect that he was experiencing a medical problem. At a June 19, 2012 meeting with BNSF California Division General Manager Mark Kirschinger, Alamillo mentioned that he intended to undergo testing for a possible sleep disorder. Alamillo asked Kirschinger if he could switch to a job with set hours; Kirschinger told him to follow the usual procedures to bid on a regular five-day-per-week work schedule, but added that the disciplinary process for his previous missed calls would proceed. Alamillo then switched to a regular schedule and was able to wake up to his alarm clock and arrive at work on time every day.”
The panel relied on the fact that BSNF did not know of Alamillo’s disabling condition at the time it recommended disciplinary action rather than focusing on what BSNF knew at the time it decided to fire him. The investigative hearing to determine what, if any, disciplinary action BNSF should take against Alamillo occurred on August 22. “Alamillo discussed his OSA diagnosis at the hearings and submitted Dr. Saketkhoo’s medical opinion that not being awakened by a ringing phone is “well within the array of symptoms” of OSA. However, no medical professional opined that the May 21 and June 16 missed calls actually were caused by his OSA.” The panel relied on this fact to distinguish “Humphrey v. Memorial Hospitals Association, 239 F.3d 1128 (9th Cir. 2001), in which we observed that “[f]or purposes of the ADA [Americans with Disabilities Act], … conduct resulting from a disability is considered to be part of the disability, rather than a separate basis for termination.” Id. at 1139–40.” The panel found, “Alamillo’s reliance on Humphrey is unavailing because, on the record before us, no reasonable jury could find “the requisite causal link” between Alamillo’s OSA and his attendance violations.”
The decision also imported contributory negligence analysis into the intentional tort-like claim of disability discrimination and blamed Alamillo for his discharge. The panel listed steps Alamillo could have taken to ensure he did not miss calls and accrue attendance violations. These steps included Alamillo exercising his option to work a job with regular hours. Yet, Alamillo had taken this step, so that at the time of his discharge, he was a well-performing employee working a regular shift without any attendance problems. Based on flawed reasoning, the panel affirmed the grant of summary judgment to BNSF.
[Ed. Note: Under Humphrey, symptomatic conduct is causally linked to the disability. Here, the medical evidence established that not being awakened by a ringing phone is a symptom of Alamillo’s disability. Thus, the requisite causal link between Alamillo’s OSA and his attendance violations appears remarkably clear to me. At the very least, the medical evidence raised a sufficient dispute of fact that needed to be resolved by a jury. Further, it is the employer’s knowledge of the employee’s disability at the time when the decision to take the adverse employment action was made that is relevant to the determination of whether the disability was a substantial motivating factor. Here, the employer knew that Alamillo’s absences were caused by a symptom of his disability when it decided to fire Alamillo.]
Robert M. Kitson (argued), The Myers Law Group A.P.C., Rancho Cucamonga, California, for Plaintiff-Appellant.
Ronald Wayne Novotny (argued) and Ann K. Smith, Atkinson Andelson Loya Ruud & Romo, Cerritos, California, for Defendant-Appellee.
Ninth Circuit, 8/25/17 decision by Feinerman, M. D. Smith, Jr. and N.R. Smith concurring; ___ F.3d ___, 2017 WL 3648514, 17 Cal. Daily Op. Serv. 8345.
FRLEKIN v. APPLE, INC.
Employees brought putative wage-and-hour class action against employer, seeking compensation under California law for time spent waiting for and undergoing exit searches pursuant to employer’s employee package and bag search policy. The United States District Court for the Northern District of California, William Alsup, J., 2015 WL 6851424, entered summary judgment in favor of employer. Employees appealed.
The panel certified to the Supreme Court of California the question of whether time spend on employer’s premises waiting for, and undergoing, required exit searches of packages or bags voluntarily brought to work purely for personal convenience by employees compensable as “hours worked” within the meaning of California Industrial Welfare Commission Wage Order 7 requiring employers to pay employees minimum wages for all hours worked, including time during which employees were subject to control of employers and time that employees were suffered or permitted to work.
For Plaintiffs-Appellants Amanda Frlekin, et al.: Kimberly A. Kralowec, Kathleen S. Rogers, and Chad A. Saunders, The Kralowec Law Group, 44 Montgomery Street, Suite 1210, San Francisco, California; Lee S. Shalov, Brett R. Gallaway, and Wade C. Wilkinson, McLaughlin & Stern LLP, 260 Madison Avenue, 18th Floor, New York, New York; Peter R. Dion-Kindem, Peter R. Dion-Kindem, P.C., 21550 Oxnard Street, Woodland Hills, California; and Jeff Holmes, 3311 E. Pico Boulevard, Los Angeles, California.
For Defendant-Appellee Apple, Inc.: Richard H. Rahm, Littler Mendelson, P.C., 333 Bush Street, 34th Floor, San Francisco, California; Julie A. Dunne, Littler Mendelson, P.C., 501 W. Broadway, Suite 900, San Diego, California; Todd K. Boyer, Littler Mendelson, P.C., 50 W. San Fernando Street, 15th Floor, San Jose, California; Michael G. Leggieri, Littler Mendelson, P.C., 1255 Treat Boulevard, Suite 600, Walnut Creek, California, Theodore J. Boutrous, Jr., Gibson, Dunn & Crutcher LLP, 333 South Grand Avenue, Los Angeles, California; and Joshua L. Lipshutz, Gibson, Dunn & Crutcher LLP, 555 Mission Street, San Francisco, California.
For Amicus Curiae—California Employment Lawyers Association: Michael D. Singer, Cohelan Khoury & Singer, 605 “C” Street, Suite 200, San Diego, California.
Ninth Circuit, 8/16/17 decision by Graber, Friedland and Marshall; ___ F.3d ___, 2017 WL 3723235.
KENNEDY v. BREMERTON SCHOOL DISTRICT
Bremerton High School (BHS) football coach Joseph A. Kennedy brought § 1983 and Title VII action against school district, alleging that district retaliated against him for exercising his First Amendment right to free speech by putting him on administrative leave after he refused to stop engaging in demonstrative prayer on football field in students’ presence immediately following football games. Kennedy “appeals from the district court’s order denying his motion for a preliminary injunction that would require Bremerton School District (BSD or the District) to allow Kennedy to kneel and pray on the fifty-yard line in view of students and parents immediately after BHS football games. We affirm.”
The decision held that the coach spoke as a public employee rather than as a private citizen, and thus was unlikely to succeed on merits of his First Amendment retaliation claim against the District, as required to support his request for a preliminary injunction.
Rebekah Ricketts (argued) and Benjamin D. Wilson, Gibson Dunn & Crutcher LLP, Dallas, Texas; Daniel S.J. Nowicki, Gibson Dunn & Crutcher LLP, Palo Alto, California; Jeffrey Paul Helsdon, Oldfield & Helsdon PLLC, Fircrest, Washington; Hiram Sasser and Michael Berry, First Liberty Institute, Plano, Texas; Anthony J. Ferate, Ferate PLLC, Edmond, Oklahoma; for Plaintiff-Appellant.
Michael B. Tierney (argued) and Paul Correa, Tierney & Blakney P.C., Seattle, Washington, for Defendant-Appellee.
Ninth Circuit, 8/23/17 decision by Smith, Nelson and Christensen concurring; specially concurring decision by Smith; ___ F.3d ___, 2017 WL 3613343, 17 Cal. Daily Op. Serv. 8364.
MENDOZA v. NORDSTROM, INC.
“Plaintiff Christopher Mendoza and Plaintiff-Intervenor Meagan Gordon (collectively, “Plaintiffs”) appeal the dismissal of their California Labor Code Private Attorneys General Act of 2004 (“PAGA”) claims against Defendant Nordstrom, Inc., alleging violations of California’s “day of rest” law. In an earlier order, we certified three questions of state law to the California Supreme Court. Mendoza v. Nordstrom, Inc., 778 F.3d 834 (9th Cir. 2015) (order). The California Supreme Court accepted certification and answered our questions. Mendoza v. Nordstrom, Inc., 2 Cal.5th 1074, 216 Cal.Rptr.3d 889, 393 P.3d 375 (2017). We now affirm the district court’s dismissal.”
“ ,,, Noting that “no clear controlling California precedent exist[ed]” with respect to the district court’s holdings, we certified three questions to the California Supreme Court. Id. at 836–37. The California Supreme Court accepted certification and modified the questions slightly.
The first question asked: “Is the day of rest required by sections 551 and 552 calculated by the workweek, or does it apply on a rolling basis to any seven-consecutive-day period?” Mendoza, 216 Cal.Rptr.3d 889, 393 P.3d at 377. The California Supreme Court responded: “A day of rest is guaranteed for each workweek. Periods of more than six consecutive days of work that stretch across more than one workweek are not per se prohibited.” Id.
The second question asked: “Does the section 556 exemption for workers employed six hours or less per day apply so long as an employee works six hours or less on at least one day of the applicable week, or does it apply only when an employee works no more than six hours on each and every day of the week?” Id. The California Supreme Court responded: “The exemption for employees working shifts of six hours or less applies only to those who never exceed six hours of work on any day of the workweek. If on any one day an employee works more than six hours, a day of rest must be provided during that workweek, subject to whatever other exceptions might apply.” Id.
The third question asked: “What does it mean for an employer to ‘cause’ an employee to go without a day of rest (§ 552): force, coerce, pressure, schedule, encourage, reward, permit, or something else?” Id. The California Supreme Court responded: “An employer causes its employee to go without a day of rest when it induces the employee to forgo rest to which he or she is entitled. An employer is not, however, forbidden from permitting or allowing an employee, fully apprised of the entitlement to rest, independently to choose not to take a day of rest.” Id.”
“ … As the California Supreme Court’s opinion makes clear, the district court answered the first two questions incorrectly. But because the stipulated facts nevertheless demonstrate that neither Plaintiff worked more than six consecutive days in any one Nordstrom workweek, each of their individual claims under Labor Code sections 551 and 552 fails, and the district court reached the correct conclusion, albeit for the wrong reasons. See Spencer v. Peters, 857 F.3d 789, 797 n.3 (9th Cir. 2017) (“We can affirm on any ground supported by the record.” (internal quotation marks omitted)).”
André E. Jardini (argued) and K.L. Myles, Knapp Petersen & Clarke, Glendale, California, for Plaintiff-Appellant.
R. Craig Clark (argued) and James M. Treglio, Clark Law Firm, San Diego, California; David R. Markham, The Markham Law Firm, San Diego, California; for Plaintiff-Intervenor-Appellant.
Julie A. Dunne (argued), Dawn Fonseca, and Joshua D. Levine, Littler Mendelson P.C, San Diego, California, for Defendant-Appellee.
Ninth Circuit, 8/3/17 decision by Graber, Gould and Callahan concurring; 865 F.3d 1261, 27 Wage & Hour Cas.2d (BNA) 713, 17 Cal. Daily Op. Serv. 7515, 2017 Daily Journal D.A.R. 7505.
MERRICK v. HILTON WORLDWIDE, INC.
Sixty-year-old hotel employee filed suit against his employer Hilton Worldwide and CHH Torrey Pines Tenant Corporation (collectively, “Hilton”) after his position as director of property operations was eliminated as part of a reduction-in-force (RIF), alleging age discrimination, in violation of California Fair Employment and Housing Act (FEHA) and wrongful termination violation of public policy.
The panel held:
[1] employee established prima facie case of age discrimination, in violation of FEHA;
[2] hotel’s proffered reasons for terminating employee were legitimate and nondiscriminatory;
[3] evidence that hotel did not allow employee to bump down to assistant director position failed to show its proffered reasons for layoff were discriminatory; and
[4] evidence that hotel deviated from its RIF guidelines, to director’s disadvantage, did not alone show hotel’s proffered reasons for layoff were discriminatory, when taken in context.
Summary judgment for the employer was affirmed.
James C. Mitchell (argued), The Gilleon Law Firm, San Diego, California, for Plaintiff–Appellant.
Sherry Swieca (argued), Jackson Lewis P.C., Los Angeles, California; Kelly D. Gemelli, Jackson Lewis P.C., San Diego, California; for Defendants–Appellees.
Ninth Circuit, 8/16/17 decision by Zouhary, Berzon and Nguyen concurring; ___ F.3d ___, 2017 WL 3496030, 17 Cal. Daily Op. Serv. 7949.
MULL v. MOTION PICTURE INDUSTRY HEALTH PLAN
“This appeal arises from the order of the district court granting summary judgment in favor of Plaintiffs Norman, Danielle, Lenai, and C. Mull on claims under the Employee Retirement Income Security Act of 1974 (“ERISA”) against Defendants Motion Picture Industry Health Plan (the “Plan”) and the Board of Directors of the Plan.
The Plan is a self-funded multi-employer health and welfare benefit plan established under a Motion Picture Industry Plan Agreement and Declaration of Trust (the “Trust Agreement”). The Board of Directors are named fiduciaries and administrators of the Plan. The Board adopted the Motion Picture Industry Health Plan Summary Plan Description for Active Participants (the “SPD”), which specifies eligibility requirements, conditions for the receipt of benefits, the types of benefits, and the amount and duration of benefits provided to participants and their eligible dependents.
Two related provisions of the SPD are relevant to this appeal. The SPD provides that no benefits will be payable in a third-party liability claim unless the participant, or applicable dependent, agrees to reimburse the Plan for any benefits previously paid upon receipt of a third-party recovery. The SPD further states that if reimbursement is requested but not received by the Plan, the amount of the benefits paid will be deducted from all future benefits payable to the participant and his or her dependents.
Lenai was injured in a motor vehicle accident in 2010. At the time of her accident, she received health benefits from the Plan as a dependent of Norman. The Plan extended $147,948.38 in benefits to Lenai for treatment of her injuries.
In 2011, Lenai received a $100,000 recovery from a third party involved in the accident. The Plan sought reimbursement, but Lenai declined. The Plan then instituted its overpayment procedures to recoup $100,000 from future benefits payable to Norman and the other beneficiaries under his policy.
Lenai and Norman, joined by other family-member beneficiaries under Norman’s policy, sued the Plan and the Board for declaratory relief, injunctive relief, and recovery of benefits. The Board filed a counterclaim against Lenai and Norman for equitable relief under ERISA § 502(a)(3), 29 U.S.C. § 1132(a)(3), seeking an equitable lien or a constructive trust to recover the $100,000 received by Lenai from the third party.
Lenai then filed for Chapter 7 bankruptcy, and the bankruptcy court discharged the counterclaim against her. In this action, the district court later dismissed the counterclaim against Norman on grounds not challenged on appeal.
On Plaintiffs’ claims, the district court granted summary judgment to Plaintiffs. The court ruled that, because the reimbursement/recoupment provisions that the Plan sought to enforce were found only in the SPD and not in any document that constituted “the plan,” the reimbursement/recoupment provisions were not legally enforceable under ERISA. The district court enjoined Defendants from enforcing the reimbursement/recoupment provisions, and the court directed Defendants to reimburse Norman $1,861 in benefits previously recouped. We vacate and remand.”
Kathryn Jane Halford (argued) and Elizabeth Rosenfeld, Wohlner Kaplon Cutler Halford & Rosenfeld, Encino, California, for Defendants-Appellants.
Donald Mitchell de Camara (argued), Law Office of Donald M. de Camara, Carlsbad, California; Drew M. Widders and Daniel E. Wilcoxen, Wilcoxen Callahan LLP, Sacramento, California; for Plaintiffs-Appellees.
Ninth Circuit, 8/1/17 decision by Bolton, Graber and Murguia concurring; 865 F.3d 1207, 17 Cal. Daily Op. Serv. 7412, 2017 Daily Journal D.A.R. 7435.