Andrew Friedman, Esq.
For plaintiff employment law attorneys, the most notable developments of 2017 (and early 2018) are the staggering steps that the administration in Washington has taken to eviscerate the rights of employees. Indeed, immediately upon taking office, the administration launched a wide-ranging crusade to curtail employee protections in virtually every area impacting the employment relationship from wage and hour laws to anti-discrimination laws to occupational health and safety laws and regulations, to the unionized workplace.
Luckily, for those plaintiff employment lawyers living in California, Governor Edmund G. Brown, Jr., the California State Legislature, and the appellate courts, whether federal or state, have continued to protect and expand employee rights. This is particularly true not just with regard to recent employment-related legislation but also with respect to cases addressing summary judgment where the Ninth Circuit and the California Courts of Appeal have continued a recent trend of reversing grants of summary judgment favoring employers and, in doing so, explaining why most employment cases should be decided by a jury.
This article will briefly summarize new employment-related legislation and then examine what appears to be a growing recognition by the courts that summary judgment is usually inappropriate in employment cases.
Legislative & Regulatory Update
As with 2016, 2017 saw law multiple bills signed into law which bolster employee rights and protections. Unless noted otherwise, the new legislation became effective January 1, 2018.
Salary History Inquiries Prohibited
AB 168, which adds Section 432.3 to the Labor Code, bars all employers not only from asking about salary history and/or relying on an applicant’s salary history information as a factor in determining whether to offer employment to the applicant but also from using salary history to determine what salary to offer the applicant.
Expansion of Parental Leave Rights
SB 63, the Parental Leave Act, amends the California Family Rights Act (“CFRA”)[1] to allow employees who work for an employer with at least 20 employees to take 12 weeks of unpaid leave for new child bonding purposes so long as the employee works at a worksite that employs at least 20 employees within a 75-mile radius. The new law is a significant expansion of the CFRA, which currently only applies to employers with 50 or more employees.
Labor Code Retaliation and Whistleblowers Claims Strengthened
SB 306 provides a cornucopia of new retaliation-related protections for employees. SB 306 authorizes the Division of Labor Standards Enforcement (“DLSE”) to investigate an employer — whether or not a complaint has been filed — when, during a wage claim or other investigation, the Labor Commissioner suspects retaliation. The bill will also allow the Labor Commissioner or an employee to seek injunctive relief (requesting that the employee be reinstated pending resolution of the claim) upon the mere finding of “reasonable cause” that a violation of the law has occurred.
New Harassment Training Requirements
The California Fair Employment and Housing Act (“FEHA”) requires employers with 50 or more employees to provide at least 2 hours of specified training and education regarding sexual harassment to all supervisory employees within 6 months of their assumption of a supervisory position and once every 2 years thereafter.[2] SB 396 mandates that when employers conduct this training, they must include information on gender identity, gender expression, and sexual orientation.
Expansion of Service Members’ Rights
AB 1710 conforms state law to the federal Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”)[3] by protecting service members from hostile work environments in their civilian jobs.
Ban the Box
AB 1008 prohibits employers from asking applicants to disclose information regarding a criminal conviction (with some limited exceptions), until after the employer determines that the applicant meets the minimum employment qualifications for the position. AB 1008 also prescribes certain steps that employers must take before they can deny a position based on the applicant’s conviction history.
Immigration-Related Restrictions
In an effort to thwart certain expected immigration-related actions by the Trump administration, California enacted strict new laws related to workplace immigration enforcement. Among other things, AB 450 prohibits an employer or other person acting on the employer’s behalf from providing voluntary consent to an immigration enforcement agent to enter nonpublic areas of a place of labor unless the agent provides a judicial warrant. Likewise, AB 450 also prohibits an employer or other person acting on the employer’s behalf from providing voluntary consent to an immigration enforcement agent to access, review, or obtain the employer’s employee records without a subpoena or court order.
Human Trafficking Poster
SB 225 amends California Code Section 52.6 to expand the list of business establishments that are required to post a notice that contains information related to slavery and human trafficking. As a result, hotels, motels and bed and breakfast inns will have to now post the notice in addition to establishments such as adult or sexually oriented businesses, airports, intercity passenger rail or light rail stations and bus stations, emergency rooms within general acute care hospitals, and businesses offering massage or bodywork services for compensation.
Case Law Trends: Appellate Courts Reign In Summary Judgment
During 2017, the Ninth Circuit and the California Courts of Appeal repeatedly issued decisions reversing summary judgments issued in favor of employers in virtually every type of employment case from CFRA, to sexual harassment, to discrimination, to retaliation. As described in more detail below, the overriding trend that can be discerned from these cases is that trial courts are oftentimes applying the wrong standards and/or inappropriately making factual or credibility determinations and then incorrectly dismissing cases on summary judgment. This article will examine six such cases – Bareno v. San Diego Cmty. Coll. Dist.,[4] Cornell v. Berkeley Tennis Club,[5] Zetwick v. County of Yolo,[6] Mayes v. WinCo Holdings, Inc.,[7] Husman v. Toyota Motor Credit Corp.,[8] and Light v. California Department of Parks & Recreation.[9]
Bareno is a terrific case for plaintiff attorneys opposing a summary judgment motion and/or handling CFRA claims. Indeed, in reversing summary judgment, the Court of Appeal (Forth District) reiterated that summary judgment is not appropriate for most employment cases:
“[M]any employment cases present issues of intent, … motive, and hostile working environment, issues not determinable on paper. Such cases … are rarely appropriate for disposition on summary judgment, however liberalized [summary judgment standards may] be.”[10]
Leticia Bareno was employed by the San Diego Community College District. Bareno requested medical leave and provided the District with a medical certification from her physician. After the time period identified in her request for leave expired and Bareno failed to report to work, the District informed her that it had accepted her voluntarily resignation. Bareno immediately informed the District that she had not resigned and that she had, in fact, e-mailed her supervisor a subsequent medical certification indicating her need for additional time off from work. The District, claiming that the supervisor never received the subsequent certification, refused to reinstate Bareno.
Bareno sued, alleging that the District had retaliated against her for taking medical leave in violation of CFRA. The District moved for summary judgment and the trial court granted the motion. On appeal, Bareno argued that the trial court erred in granting summary judgment on her CFRA retaliation claim because there were triable issues of material fact in dispute. The Court of Appeal agreed, initially noting that:
When viewed as a whole, it is clear that CFRA and its implementing regulations envision a scheme in which employees are provided reasonable time within which to request leave for a qualifying purpose, and to provide the supporting certification to demonstrate that the requested leave was, in fact, for a qualifying purpose, particularly when the need for leave is not foreseeable or when circumstances have changed subsequent to an initial request for leave.[11]
Accordingly, the Court of Appeal held that “the question ‘[w]hether notice is sufficient under CFRA is a question of fact.’”[12] The Court of Appeal then reversed, finding the following three disputed issues of material fact. First, there was a triable dispute regarding whether Bareno’s supervisor had received the email providing notification of Bareno’s need for additional medical leave. Second, the Court of Appeal concluded that, even if Bareno’s supervisor had not received the email, there was a triable issue as to whether the District fulfilled its obligations under CFRA as that Act obligates employers to make further inquiries of an employee if it has questions about the employee’s leave.[13] Third, the Court of Appeal concluded that, even if Bareno’s supervisor had not received Bareno’s email, there was a triable issue as to whether the District decided to interpret Bareno’s absences as a “voluntary resignation,” despite evidence to the contrary, in retaliation for taking medical leave.
As the Fourth Appellate District did in Bareno, the First Appellate District, in Cornell, in reversing summary judgement in favor of an employer, also explained that summary judgment is not appropriate in most employment cases “[b]ecause ‘[p]roof of discriminatory intent often depends on inferences rather than direct evidence’” and that “‘very little evidence of such intent is necessary to defeat summary judgment.””[14] Ketryn Cornell, a severely obese woman, was a long term employee of the Berkeley Tennis Club when it hired a new General Manager. Cornell alleged that the new Manager harassed her because of her obesity, discriminated against her (including firing her) because of her weight, and defamed her by telling others that she had committed a crime (i.e., tape recording a conversation without consent). Citing the California Supreme Court’s decision in Cassista v. Cmty. Foods, Inc.[15] which held that obesity is not a disability unless it was the result of physiological condition or disorder, the Club moved for summary judgment initially arguing that Cornell’s obesity was not a disability. The Club also argued that summary adjudication was appropriate on Cornell’s claims for: (1) discrimination because she could not show that the non-discriminatory reason offered for firing her was pretext for discrimination; and (2) harassment because the purported harassment was neither severe nor pervasive. The Superior Court granted the Club’s motion. On appeal, the Court of Appeal reversed. Initially, with regard to the Club’s argument that obesity is not a disability, the Court of Appeal found that the Club had not carried its burden of demonstrating that Cornell could not establish that her obesity has a physiological cause. Citing Aguilar v. Atl. Richfield Co.,[16] the Court of Appeal explained that the Club was required to either present evidence disproving that Cornell’s obesity has a physiological cause or demonstrate that Cornell does not possess, and cannot reasonably obtain, evidence of a physiological cause. Next, with respect to Cornell’s disability discrimination claim, the Court of Appeal held that a reasonable factfinder could have concluded that the Club did not honestly believe that she planted a tape recorder that recorded a conversation given that (1) the Club never fully questioned her about it or performed a follow-up investigation; and (2) a significant participant in the decision to fire her exhibited discriminatory animus. In so holding, the Court of Appeal rejected the Club’s “same actor” defense much as the Court did in Husman (discussed below).With respect to Cornell’s disability harassment claim, the Court of Appeal agreed with the Superior Court that the harassing remarks made by Cornell’s supervisor were not severe or pervasive to support a FEHA harassment claim. But, the Court of Appeal concluded that, if viewed in context with the Club’s other harassing conduct (ordering staff shirts that were too small for Cornell, informing the Personnel Committee that she was not wearing the required shirts, paying her less than another employee, and denying her extra hours and internal job openings), Cornell satisfied her burden to demonstrate a triable issue of material fact as to whether the harassment was sufficiently severe or pervasive, based on her supervisor’s actions in combination with his comments communicating an offensive weight-based message.
More than thirty years ago, in Meritor Sav. Bank, FSB v. Vinson[17], the United States Supreme Court held that for sexual harassment to be actionable, it need only be “severe or pervasive.” Notwithstanding the fact that the Supreme Court has repeatedly reiterated this standard,[18] some defense employment attorneys continue to argue, and some courts continue to hold, that plaintiffs must establish that the harassment is “severe and pervasive.” In Zetwick, in reversing summary judgment in favor of the employer, the Ninth Circuit chastised the district court for applying the incorrect standard for assessing hostile work environment claims – reminding all that the standard is “severe or pervasive” not “severe and pervasive” Zetwick also serves as a powerful reminder that the courts will no longer excuse sexually inappropriate conduct as being merely “innocuous differences in the ways men and women routinely interact with members of the same sex and of the opposite sex.”[19] Victoria Zetwick alleged that her employer created a sexually hostile work environment in violation of Title VII by, among other things, greeting her with unwelcome hugs on more than one hundred occasions, and a kiss at least once, during a 12–year period. Opining that “hugging and kissing on the cheek in the workplace is not only insufficient to sustain a claim of hostile work environment, but overextends the intended scope of Title VII,”[20] the district court granted the employer’s motion for summary judgment. On appeal, the Ninth Circuit reversed holding “A reasonable juror could find, for example, from the frequency of the hugs, that [her supervisor’s] conduct was out of proportion to ‘ordinary workplace socializing’ and had, instead, become abusive.”[21] Importantly, the Ninth Circuit also highlighted several mistakes that the district court made (that are also commonly made by other courts) including that the court improperly: (1) made factual and credibility determinations – such determinations are inappropriate for resolution on summary judgment; (2) overlooked the fact that acts of supervisors have a greater power to alter the work environment than acts of coemployees; and (3) disregarded “me too” evidence showing that the alleged harasser also sexually harassed others – the sexual harassment of others, if shown to have occurred, is relevant and probative of a defendant’s general attitude of disrespect toward his female employees, and his sexual objectification of them.
As in Zetwick, the Ninth Circuit reversed summary judgement granted to an employer in Mayes and highlighted multiple mistakes made by the district court (that are also commonly made by other courts). Katie Mayes sued her former employer, a grocery store, for gender discrimination after she was fired for taking a stale cake from the store’s bakery to the break room to share with fellow employees. The district court granted the store’s motion for summary judgment finding that Mayes was unable to prove pretext. On appeal, the Ninth Circuit initially explained that an employee can prove pretext either: (1) directly, by showing that unlawful discrimination more likely motivated the employer; or (2) indirectly, by showing that the employer’s proffered explanation is unworthy of credence because it is internally inconsistent or otherwise not believable. Then, the Ninth Circuit found that summary judgment was inappropriate because Mayes was able to establish pretext both directly and indirectly. With respect to the direct route of proving pretext, the Ninth Circuit found that unlawful discrimination more likely motivated the employer because Mayes put forward evidence that one of the individuals who participated in the decision-making process (but did not participate in the ultimate termination decision) commented that she: (1) believed that a man “would be better” at leading one of the company’s committees; and (2) did not like “a girl” running the company’s freight crew. In this regard, the Ninth Circuit held that racist or sexist statements constitute direct evidence of discrimination and rejected the district court’s determination that these were so-called “stray remarks.” The Ninth Circuit also rejected the district court’s view that direct evidence had to be “specific and substantial.” With respect to the indirect route of proving pretext, the Ninth Circuit found that the employer’s proffered explanation for the Mayes’ termination was unworthy of credence because: (1) multiple employees testified that it was a common, accepted practice—rather than an offense punished by termination—for supervisors such as Mayes to take cakes to the break room; and (2) the grocery replaced her with a less qualified male employee (the Ninth Circuit explained that evidence that an employer replaced a plaintiff with a less qualified person outside the protected class can be evidence of pretext).
Husman is a terrific summary judgment case for plaintiffs as it effectively hammers the final “nail in the coffin” of the so-called hirer-firer or same-actor inference as an argument on summary judgment. Joseph Husman alleged, among other things, that his former employer, Toyota Motor Credit Corporation, fired him because he was gay. Toyota moved for summary judgment arguing, in part, that no discriminatory animus could have substantially motivated his firing because the person responsible for Husman’s advancement at Toyota, was also the person who fired him (i.e., Toyota relied on the purported “same-actor” defense). While the Superior Court bought this argument and granted Toyota’s motion, the Court of Appeal rejected the argument and reversed. Initially, the Court of Appeal noted that while the same-actor inference was “once commonly relied on by courts affirming summary judgment against a plaintiff alleging discriminatory action, the same-actor inference has lost some of its persuasive appeal in recent years.”[22] The Court of Appeal then went on to explain that “[p]sychological science on moral licensing reveals that, when a person makes both an initial positive employment decision and a subsequent negative employment decision against a member of a protected group, the second negative decision is more likely to have resulted from bias, not less.”[23] Instead, the Court of Appeal credited Husman’s “cat’s paw” argument and found that, because someone who allegedly harbored a discriminatory animus toward gay employees may have played a role in the decision to fire Husman, a triable issue of fact remained as to whether the bias of that individual infected the decision-making process.
Perhaps the most underappreciated case of 2017 is Light v. California Department of Parks & Recreation.[24] To appreciate Light, it is necessary to understand some history surrounding the Supreme Court’s 1973 McDonnell Douglas[25] burden-shifting test which was “designed to clarify and to simplify the plaintiff’s task in presenting” Title VII discrimination and retaliation cases.[26] Unfortunately, over the years, the courts – with nefarious assistance from the employment defense bar – have added so many “snarls and knots” to the burden-shifting test that the Supreme Court’s original goals – clarification and simplification – “have gone by the wayside.”[27] Accordingly, some courts have suggested abandoning this burden-shifting test in favor of restoring much needed flexibility to the summary judgment process.[28] In Light, the Court of Appeal does just that by holding that “[t]he showing of pretext, while it may indicate retaliatory intent or animus, is not the sole means of rebutting the employer’s evidence of nonretaliatory intent.”[29] Rather, the Court of Appeal explained that “[t]he central issue is and should remain whether the evidence as a whole supports a reasoned inference that the challenged action was the product of discriminatory or retaliatory animus.”[30] Accordingly, Light appears to provide plaintiffs with two paths to survive summary judgment: (1) pursuant to the McDonnell-Douglas burden-shifting test, establish a prima facie case of discrimination or retaliation and then demonstrate that the employer’s legitimate, non-discriminatory rational for the adverse employment action is pretext for the discrimination or retaliation; or (2) show that the evidence, as a whole, supports a reasoned inference that the challenged action was the product of discriminatory or retaliatory animus.[31] On an unrelated, but important note, the Court of Appeal also held that claims of intentional infliction of emotional distress based on discrimination and retaliation in violation of FEHA are not subject to workers’ compensation exclusivity.
[1] Cal. Gov’t Code § 12945.2.
[2] Cal. Gov’t Code § 12950.1.
[3] 38 USC §§ 4301-4333.
[4] (2017) 7 Cal.App.5th 546.
[5] (2017) 18 Cal.App.5th 908.
[6] (9th Cir. 2017) 850 F.3d 436.
[7] (9th Cir. 2017) 846 F.3d 1274.
[8] (2017) 12 Cal.App.5th 1168.
[9] (2017) 14 Cal.App.5th 75.
[10] Bareno, supra, 7 Cal.App.5th at 561 quoting Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 286.
[11] Bareno, supra, 7 Cal.App.5th at 565.
[12] Bareno, supra, 7 Cal.App.5th at 565 quoting Avila v. Continental Airlines, Inc. (2008) 165 Cal.App.4th 1237, 1255.
[13] See Cal. Code Regs., tit. 2, § 11091, subd. (a)(1) (“The employer should inquire further of the employee if necessary to determine whether the employee is requesting CFRA leave and to obtain necessary information concerning the leave.”).
[14] 18 Cal. App. 5th at __ quoting Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 283.
[15] (1993) 5 Cal.4th 1050.
[16] (2001) 25 Cal.4th 826.
[17] (1986) 477 U.S. 57.
[18] See e.g., Burlington Indus., Inc. v. Ellerth (1998) 524 U.S. 742; Faragher v. City of Boca Raton (1998) 524 U.S. 775; Clark Cty. Sch. Dist. v. Breeden (2001) 532 U.S. 268; Nat’l R.R. Passenger Corp. v. Morgan (2002) 536 U.S. 101; Pennsylvania State Police v. Suders (2004) 542 U.S. 129; Vance v. Ball State Univ. (2013) 570 U.S. 421.
[19] Zetwick, supra, 850 F.3d at 442 quoting Faragher v. City of Boca Raton (1998) 524 U.S. 775, 788.
[20] Zetwick v. Cty. of Yolo (E.D. Cal. 2014) 66 F.Supp. 3d 1274, 1280.
[21] Zetwick, supra, 850 F.3d at 443-44.
[22] Husman, supra, 12 Cal.App.5th at 1188.
[23] Husman, supra, 12 Cal.App.5th at 1189.
[24] (2017) 14 Cal.App.5th 75.
[25] McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792.
[26] Coleman v. Donahoe (7th Cir. 2012) 667 F.3d 835, 863 (Wood, Diane P concurring).
[27] Coleman, supra, 667 F.3d at 863.
[28] Coleman, supra, 667 F.3d at 863. (“Perhaps McDonnell Douglas was necessary nearly 40 years ago, when Title VII litigation was still relatively new in the federal courts. By now, however, as this case well illustrates, the various tests that we insist lawyers use have lost their utility. Courts manage tort litigation every day without the ins and outs of these methods of proof, and I see no reason why employment discrimination litigation (including cases alleging retaliation) could not be handled in the same straightforward way. In order to defeat summary judgment, the plaintiff one way or the other must present evidence showing that she is in a class protected by the statute, that she suffered the requisite adverse action (depending on her theory), and that a rational jury could conclude that the employer took that adverse action on account of her protected class, not for any non-invidious reason. Put differently, it seems to me that the time has come to collapse all these tests into one. We have already done so, when it comes to the trial stage of a case. It is time to finish the job and restore needed flexibility to the pre-trial stage.”)(citation omitted).
[29] Light, supra, 14 Cal.App.5th at 94.
[30] Light, supra, 14 Cal.App.5th at 94.
[31] Light, supra, 14 Cal.App.5th at 94; see also Joaquin v. City of Los Angeles (2012) 202 Cal.App.4th 1207, 1226 (“the ultimate question for the fact finder is whether the employer’s stated reason for discipline (i.e., that the employee was untruthful during an investigation) was pretextual or whether there is other evidence that, ‘as a whole supports a reasoned inference that the challenged action was the product of discriminatory or retaliatory animus.’”) quoting Mamou v. Trendwest Resorts, Inc. (2008) 165 Cal.App.4th 686, 715.