California Courts of Appeal
BROME v. CALIFORNIA HIGHWAY PATROL
PLAINTIFF BROME ENDURED YEARS OF HARASSMENT UNTIL HE BECAME SUICIDAL AND TOOK MEDICAL LEAVE
Plaintiff Jay Brome sued Defendant California Highway Patrol for sexual orientation harassment and discrimination. Throughout Brome’s employment with the CHP, fellow officers used homophobic slurs and targeted Brome due to his sexual orientation. Officers refused to provide Brome with backup during enforcement stops, causing him to fear for his safety. Brome repeatedly complained to his superiors, but little action was taken. Brome became anxious and suicidal, went on medical leave in January 2015, and filed a workers’ compensation claim. Brome’s workers’ compensation claim resolved in his favor in late 2015, and he took industrial disability retirement in early 2016, ending his employment. In September 2016, Brome filed a DFEH complaint and filed a lawsuit the next day. The trial court granted summary judgment, finding that Brome’s DFEH complaint was untimely.
WORKERS’ COMPENSATION CLAIMS RESULT IN EQUITABLE TOLLING OF FEHA DEADLINES IF THREE ELEMENTS ARE MET
Equitable tolling is available under the FEHA while the plaintiff voluntarily pursues alternate remedies. Equitable tolling applies if the plaintiff can establish: (1) timely notice, (2) lack of prejudice to the defendant, and (3) plaintiff’s reasonable and good faith conduct. Regarding timely notice, Brome’s workers’ compensation claim put the CHP on notice of his FEHA claims because Brome claimed his workplace stress was caused by harassment and discrimination. The evidence also showed that the CHP was well aware of Brome’s discrimination complaints. Regarding prejudice, since the facts surrounding Brome’s claims were similar, the CHP would not be prejudiced by equitable tolling. Investigation of the workers’ compensation claim would allow collection and preservation of evidence of the FEHA claims. Regarding good faith conduct, though Brome delayed eleven months between the resolution of his workers’ compensation claim and his DFEH complaint, he had reason to do so. Brome was distressed and suicidal and had not received adequate counseling during his recovery. Since a reasonable trier of fact could find that Brome met the elements of equitable tolling and continuing violation, summary judgment was improper. In addition, Brome presented triable issues regarding constructive discharge. Brome’s life was in danger when he was forced to respond to high-risk situations without backup. Further, Brome’s anxiety built over time until he became suicidal. A trier of fact could find that a reasonable employee in that situation was forced to resign.
CELA INVOLVEMENT
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COA 1st District, Div. 5. Filed 1.28.20. 44 Cal.App.5th 786. Opinion by Justice Burns.
JEPPSON v. LEY
Though not an employment case, here the Court of Appeal defined “public interest” for purposes of anti-SLAPP and provided a useful analysis of the relevant case law. The parties were feuding neighbors, and Ley’s dog killed Jeppson’s cat. The written settlement agreement included money and a non-disparagement clause. Ley then posted a disparaging message about Jeppson on a neighborhood blog, and Jeppson sued him. Ley filed an anti-SLAPP motion, which the trial court denied. Ley appealed, and the Court of Appeal affirmed.
COURTS CONTINUE TO NARROW THE DEFINITION OF “PUBLIC INTEREST” TO CURTAIL ANTI-SLAPP ABUSES
The first step of the anti-SLAPP analysis is to determine whether Jeppson’s claims arose from protected activity. They did not. Code of Civil Procedure section 425.16(e)(3) protects statements made in a public forum in connection with an issue of public interest. The general definition of “public interest,” includes three qualifying categories: (1) a person or entity in the public eye, (2) a statement that could directly affect a large number of people beyond the direct participants, and (3) a topic of widespread interest. Neither Ley nor Jeppson were in the public eye, and none of their statements or actions affected a large number of people. The topic of their feud was not a matter of widespread public interest. “There is no issue of public interest when the speaker’s words are merely an effort to gather ammunition for another round in the speaker’s neighborhood wrangle.” The connection to public interest was too tenuous to constitute protected activity.
COA 2nd District, Div. 8. Filed 1.30.20. 44 Cal.App.5th 845. Opinion by Justice Wiley.
ROGER v. COUNTY OF RIVERSIDE
Plaintiff Douglas Roger sued Defendant County of Riverside after the County falsely reported that he had been charged with a felony. Roger sued for defamation, violation of his civil rights under 42 U.S.C. §1983, and other claims after his lost his hospital contract due to the erroneous felony report. The trial court sustained the County’s demurrer to the section 1983 claim and then granted summary judgment. Roger appealed.
ROGER COULD PROCEED WITH HIS CLAIMS EVEN THOUGH HE DID NOT TIMELY FILE HIS GOVERNMENT CLAIM FORM
Roger failed to file a timely claim for damages under the Government Claims Act prior to filing his lawsuit. Under section 911.2(a), Roger was required to file his claim within six months of accrual. A defamation claim accrues at the time the defamatory statement is published, or, if a diligent plaintiff would not be expected to know of the publication, the claim accrues when the plaintiff learned or reasonably should have discovered the publication. Rogers did not file the Claim within six months of the publication or his knowledge of the publication, so the Claim form was indisputably untimely. However, section 911 requires the government to give notice of any defense of insufficiency, defect, or omission in the Claim. Section 911.3 specifically requires the government to give notice when a Claim is untimely. Failure to give notice results in the government’s waiver of its defect and timeliness defenses. Since the County did not notify Roger that his claim was late and merely rejected the claim on the merits, the County waived its defense of untimeliness. In addition, though damage to reputation alone is insufficient for a section 1983 claim, Rogers’ claim was actionable because he alleged he lost his job due to the defamatory statements.
COA 4th District, Div. 2. Filed 1.9.20, publication ordered 1.22.20. 257 Cal.Rptr.3d 566. Opinion by Justice Slough.
ST. MYERS v. DIGNITY HEALTH
Plaintiff Carla St. Myers worked as a nurse practitioner at Mark Twain Medical Center. The Medical Center was a rural hospital with five health clinics and was a division of Defendant Dignity Health. Optum360 provided services to the Medical Center, including scheduling, patient registration, billing, collections, etc. While working at the Medical Center, St. Myers reported poor working conditions and patient safety issues. After a series of unsubstantiated complaints against her, St. Myers resigned and took a higher paying job. St. Myers then sued both Dignity Health and Optum360 as her joint employers. The trial court granted both Dignity Health’s and Optum360’s motions for summary judgment, and St. Myers appealed.
CONTROL OVER PERFORMANCE OF JOB DUTIES IS THE MOST IMPORTANT FACTOR IN THE JOINT EMPLOYER ANALYSIS
The Court of Appeal affirmed. In assessing joint employer, all appropriate tests require consideration of the totality of the circumstances, with emphasis on the extent to which the defendant controlled the plaintiff’s performance of her duties. This analysis requires a careful factual inquiry. Optum360 did not pay St. Myers or determine her amount of pay, had no authority to transfer, discipline, demote, or fire St. Myers, did not set St. Myers’ schedule, and did not own any of the equipment St. Myers used. Almost all factors showed that Optum360 did not jointly employ St. Myers. St. Myers’ claims against Dignity Health failed as well because she did not provide admissible evidence of adverse actions or any coercion to resign.
COA 3rd District. Filed 12.12.19, certified for partial publication 1.13.20. 44 Cal.App.5th 301. Opinion by Acting Presiding Justice Duarte.
Ninth Circuit
RIDGEWAY v. WALMART INC.
This convoluted multi-decade case involved truckers who brought a wage and hour class action against defendant Walmart. Ultimately, a jury found for the plaintiffs on four of the eleven issues and awarded the plaintiffs over $50 million in damages. The district court denied the plaintiffs’ post-trial motion for liquidated damages and civil penalties. Walmart appealed, and the plaintiffs cross-appealed. The Ninth Circuit affirmed.
THE DISTRICT COURT RETAINED JURISDICTION AFTER THE STAY WAS LIFTED BECAUSE TWO NAMED PLAINTIFFS REMAINED
Walmart argued that the district court lost jurisdiction because there was no case in controversy at the time the stay was lifted. Of the four named plaintiffs, two had died, one no longer wanted involvement, and plaintiff’s counsel was concerned that one was not an adequate class representative. However, when the stay was lifted, there were still two named plaintiffs, and the class was later certified. Therefore, the district court had jurisdiction and was not required to dismiss the case.
THE CONTROL ANALYSIS TURNS ON WHETHER EMPLOYEES CAN DO WHATEVER THEY WANT ON THEIR BREAKS
Time drivers spent on layovers was compensable under California law if Walmart exercised control of the drivers during those layovers. An employer must pay wages whenever it controls the employee. The employee need not be actively working for the employer to exercise control. Since Walmart’s policy required drivers to obtain pre-approval to spend layovers at home, Walmart exercised control over drivers during layovers. The control question is essentially whether an employee can spend a break or non-work time however they like. Here, Walmart restricted drivers’ freedom of movement during
layovers by requiring them to seek permission to go home,meaning Walmart reserved the right to decline permission to leave. Several drivers testified that they thought they were required to sleep in their trucks on layovers and could not consume alcohol or have visitors. That evidence was enough to support the jury’s finding that Walmart exercised control during layovers.
FEDERAL AVERAGING METHODS DO NOT APPLY TO THE CALIFORNIA MINIMUM WAGE ANALYSIS
The Ninth Circuit also reiterated that the federal method for assessing violation of federal minimum wage laws does not apply to California wage laws. Under California law, Walmart could not divide truckers’ pay by total hours worked and avoid liability if the result was more than minimum wage. California requires pay for all hours worked, and federal averaging methods may not be used.
9th Circuit. Filed 1.6.2020. 946 F.3d 1066. Opinion by Judge Siler.