California Supreme Court
MARIN ASSOC. OF PUBLIC EMPL0YEES v. MARIN COUNTY EMPLOYEES’ RETIREMENT ASSOC.
The petition for review is granted. Further action in this matter is deferred pending the decision of the Court of Appeal, First Appellate District, Division Four, in Alameda County Deputy Sheriff’s Association et al. v. Alameda County Employees’ Retirement Association et al., A141913 (see Cal. Rules of Court, rule 8.512(d)(2)) or pending further order of the court.
Cal. 11/22/16; Votes: Cantil-Sakauye, Werdegar, Chin, Corrigan, Liu, Cuéllar and Kruger; ___ P.3d ___, 2016 WL 6923141 (Mem); COA decision at http://www.courts.ca.gov/opinions/revpub/A139610.PDF
California Courts of Appeal
ARMIN v. RIVERSIDE COMMUNITY HOSPITAL
“We embark here upon an admittedly lengthy voyage—slow going because we must proceed carefully in largely uncharted waters. The appeal requires us to decide two questions of first impression regarding the interaction between (a) hospital peer review proceedings against doctors governed by sections 805 to 809.7 of the Business and Professions Code, and (b) the hospital whistleblower statute, Health and Safety Code section 1278.5.1 The first question is one left open by our Supreme Court’s decision in Fahlen v. Sutter Central Valley Hospitals (2014) 58 Cal.4th 655, 168 Cal.Rptr.3d 165, 318 P.3d 833 (Fahlen). Fahlen squarely held that a physician could prosecute a section 1278.5 action without first having to prevail in an administrative mandate proceeding attacking a peer review determination, but the court did not go so far as to excuse the physician from completing the internal peer review process before filing a section 1278.5 action. The case before us now presents that very question: Is completion of peer review a prerequisite of a section 1278.5 action? Based on the analysis in Fahlen and the text and legislative history of section 1278.5, we hold that a physician need not complete the internal peer review process prior to filing a section 1278.5 action.
The second question is whether a physician bringing a 1278.5 action may name as defendants individual physicians involved in the peer review process who allegedly instigated the process in retaliation for the physician’s whistleblowing. Based on the text of section 1278.5 and its legislative history, we hold that a physician may not name individual physicians in a section 1278.5 complaint.
To complete the opinion, we must also decide an issue involving the tripartite interaction of the anti-SLAPP statute (Code Civ. Proc. § 425.16), the peer review process, and a physician’s religious discrimination claims against a hospital under FEHA. The issue is whether the fact the physician reiterated complaints of religious discrimination by the hospital in the context of protesting the initiation of peer review proceedings against him so intertwined his discrimination claims with the peer review proceedings as to subject his discrimination claims to an anti-SLAPP motion. Here, because the physician first voiced his complaints of religious discrimination prior to the initiation of the peer review proceedings, it is clear his discrimination claims are not based on activity protected under the anti-SLAPP statute. The hospital’s remedy if those religious discrimination claims cannot be supported by substantial evidence—or are otherwise legally infirm—is a summary judgment motion.”
Fenton Nelson, John A. Mills, Los Angeles, and Farooq Mir; Fenton Law Group, Henry R. Fenton, Dennis E. Lee and Nicholas D. Jurkowitz for Plaintiff and Appellant.
Theodora Oringher, Todd C. Theodora and Suzanne Cate Jones, Costa Mesa, for Defendant and Appellant Riverside Community Hospital, and Defendants and Respondents Medical Staff of Riverside Community Hospital, Kenneth E. Dozier and Subbu Nagappan.
Law Office of Mark T. Kawa and Mark T. Kawa, Redondo Beach, for Defendants and Respondents Clifford Douglas and Lawrence Clark.
Fourth District, Division 3, 11/16/16 decision by Bedsworth, Ikola and Thompson concurring; ___ Cal.Rptr.3d ___, 2016 WL 6805466.
CAMERON v. SACRAMENTO COUNTY EMPLOYEES’ RETIREMENT SYSTEM
“Plaintiff and appellant Paul Cameron appeals from the trial court’s judgment denying his petition for a writ of administrative mandate challenging the Sacramento County Employees’ Retirement System Board’s (SCERS) decision to reject his application seeking a service-connected disability retirement.
Plaintiff submitted his application for disability retirement on May 22, 2009, after the second of two injuries he sustained during his tenure as a Sacramento County employee. The SCERS staff referred this matter to the Office of Administrative Hearings where it was heard by Administrative Law Judge (ALJ) Catherine B. Frink. On February 6, 2013, the ALJ found that the application was untimely and denied the application for service-related retirement. Based on the ALJ’s findings, SCERS denied plaintiff’s application for service-connected retirement.
Plaintiff then filed a petition for writ of administrative mandate challenging the board’s decision. The trial court denied plaintiff’s petition. On appeal, plaintiff contends that the trial court erred in denying his application for service-connected disability retirement.
In the published portion of this opinion, we conclude that plaintiff failed to show he was continuously disabled within the meaning of Government Code sections 31722 and 31641, subdivision (a), between the discontinuance of his service and the time he filed his application for service-connected disability retirement. Consequently, his application was not timely under section 31722.
In the unpublished portion of this opinion, we conclude that plaintiff has not shown that SCERS failed to inform him of his rights regarding disability retirement, misled him concerning those rights, otherwise breached its fiduciary duty to him, or caused plaintiff’s delay in making his application. We affirm.”
Ronald Metzinger, Sacramento, for Plaintiff and Appellant.
Diana L. Ruiz, for Defendant and Respondent.
Third District, 11/2/16 partially published decision by Murray, Hull and Duarte concurring; ___ Cal.Rptr.3d ___, 2016 WL 6472100.
CAPITAL BUILDERS HARDWARE, INC. v. WCAB
“The applicant and real party in interest, Robert Gaona (Gaona), claimed industrial injury and filed a workers’ compensation claim. Following the circulation of a medical report, his employer, petitioner Capital Builders Hardware, Inc. (Capital Builders), objected to the admissibility of the report and requested that it be stricken. The workers’ compensation judge (WCJ) denied Capital Builders’s motions “without prejudice.” Capital Builders appealed the decision of the WCJ to the Workers’ Compensation Appeals Board (appeals board) by filing a petition for removal and a petition for reconsideration. The appeals board dismissed and denied those petitions.
Capital Builders now seeks writ review in the Court of Appeal. At issue is whether the appeals board’s order is reviewable. We conclude that it is not. It is well-established that a petition for writ of review may be sought only from a final order or decision of the appeals board. (Lab. Code, §§ 5900, 5901;1 Maranian v. Workers’ Comp. Appeals Bd. (2000) 81 Cal.App.4th 1068, 1074, 97 Cal.Rptr.2d 418 (Maranian).) Here, the appeals board’s order is not final. To the extent Alvarez v. Workers’ Comp. Appeals Bd. (2010) 187 Cal.App.4th 575, 114 Cal.Rptr.3d 429 (Alvarez) suggests that either the WCJ’s order or the appeals board’s order is reviewable by writ of review, we disagree.
Accordingly, we annul the writ of review and remand the case to the appeals board.”
Stockwell, Harris, Woolverton & Muehl, David R. Erwin and George Woolverton, Los Angeles, for Petitioner.
John F. Shields, Santa Rosa, for Respondent.
Graiwer & Kaplan, Gilbert Katen, Santa Monica, and Borris Vernik for Real Party in Interest.
Second District, Division 2, 11/16/16 decision by Ashmann-Gerst, Chavez and Hoffstadt concurring; ___ Cal.Rptr.3d ___, 2016 WL 6777817.
CITY OF PALO ALTO v. PUBLIC EMPLOYMENT RELATIONS BOARD
“Since 1978, article V of the City of Palo Alto’s (hereafter, City) charter provided that impasses in negotiations regarding wages, hours, and other terms and conditions of employment for the City’s police and firefighters would be submitted to binding interest arbitration. In 2011, the Palo Alto City Council (City Council) voted to place on the ballot for the upcoming election a measure that repealed this binding interest arbitration provision. Real party in interest the International Association of Firefighters, Local 1319, AFL-CIO (IAFF) filed an unfair practice charge with the Public Employment Relations Board (PERB), alleging the City placed the measure before voters without consulting in good faith with the IAFF, as required by the Meyers-Milias Brown Act (MMBA) (Gov. Code, § 3500 et seq.).1 A PERB administrative law judge (ALJ) found in the City’s favor. This decision was later reversed by PERB. By that time, the measure repealing the binding interest arbitration provision had already been passed by the voters. As part of its remedy, PERB ordered the City to rescind its resolution from 2011 referring the measure to the voters.
Pursuant to section 3509.5, the City requested this court issue a writ of extraordinary relief annulling PERB’s decision and directing PERB to dismiss the unfair practice charge. We granted a writ of review. As we explain below, we find PERB’s conclusion that IAFF sufficiently requested to meet and consult with the City is supported by substantial evidence and determine the constitutional issues raised by the City are meritless. Nonetheless, PERB’s order directing the City Council to rescind its resolution violated the doctrine of separation of powers by ordering a legislative body to take legislative action. We therefore annul PERB’s decision and remand the matter back to PERB with directions to strike this remedy.”
Renne Sloan Holtzman Sakai, Jonathan Holtzman, Charles D. Sakai, Randy Riddle, San Francisco, Erich W. Shiners, Sacramento, for Petitioner City of Palo Alto.
Felix De La Torre, General Counsel, Wendi L. Ross, Deputy General Counsel, Miles E. Locker, Senior Regional Attorney, for Respondent PER Board.
Mastagni Holstedt, David E. Mastagni, Isaac S. Stevens, Jeffrey R.A. Edwards, Erich A. Knorr, Sacramento, John A. Melis, for Real Party in Interest International Association of Firefighters, Local 1319, AFL-CIO.
Sixth District, 11/23/16 decision by Premo, Rushing and Grover concurring: ___ Cal.Rptr.3d ___, 2016 WL 6902091.
DINSLAGE v. CITY AND COUNTY OF SAN FRANCISCO
“David P. Dinslage is a former employee of Recreation and Parks Department (the Department) of the City and County of San Francisco (the City). As part of a large-scale restructuring of the Department’s recreation programs, Dinslage’s employment classification was eliminated, and he was one of a large number of employees who were laid off. Although he applied to be rehired in a newly created classification, he was not offered a position. He then retired from City employment.
Dinslage sued the Department, the City, and a number of the Department’s managerial employees for age discrimination, retaliation, and harassment in violation of the California Fair Employment and Housing Act (FEHA). (Gov. Code, § 12940, subds. (a), (h), (j).) He claimed the Department had taken a number of adverse employment actions against him based on his age. In addition, he claimed he had been retaliated against and harassed because of his age and his opposition to Department actions that discriminated against people with disabilities.
Respondents, defendants below, moved for summary judgment on all of Dinslage’s causes of action. They claimed, with supporting evidence, that their actions were taken for legitimate, nondiscriminatory reasons. Dinslage opposed the motion, but the trial court agreed with respondents and granted them summary judgment on all counts of Dinslage’s complaint.
Dinslage now appeals, contending there were triable issues of fact on his age discrimination and retaliation claims. In accordance with our standard of review, we have examined the record de novo. In the unpublished portion of our opinion, we conclude the trial court did not err in granting summary judgment to respondents on Dinslage’s age discrimination claim.
In the published portion of our opinion, we hold the superior court properly granted summary judgment on Dinslage’s retaliation claim because he failed to make out a prima facie case of retaliation. To prevail, Dinslage was required to show he suffered an adverse employment action because he had engaged in a “protected activity.” We hold that Dinslage’s opposition to Department policies and practices he viewed as discriminating against disabled members of the general public is not protected activity because his opposition was not directed at an unlawful employment practice. Thus, Dinslage could not reasonably have believed the practices he opposed were prohibited by the FEHA.”
The decision noted, “The court found Dinslage’s evidence “only shows that [he] spoke in public forums regarding his concern that the … Department’s reorganization would cause layoffs and the potential negative effects the reorganization would have on members of the public who have disabilities.” Thus, the trial court found Dinslage had failed to establish the first element of his retaliation claim, because he had not shown he had engaged in protected activity under the FEHA.” The decision found that the trial court did not err in reaching this conclusion.
James Paul Green, San Francisco, for Plaintiff and Appellant.
Ruth M. Bond, Office of the City Attorney, for Defendants and Respondents.
First District, Division 5, 11/9/16 decision by Jones, Simons and Needham concurring; ___ Cal.Rptr.3d ___, 2016 WL 6610280.
DRISCOLL v. GRANITE ROCK CO.
“Graniterock concrete drivers Brian Driscoll, Kenneth Gallardo, Donald Hopf, Chris Nowak and Brad Storm filed this action on January 17, 2008 on behalf of a class of approximately 200 current and former concrete mixer drivers. Plaintiffs claim that Graniterock failed to provide concrete mixer drivers with off-duty meal periods and failed to provide them with one additional hour of pay for meal periods during which the drivers opted to continue working.
Plaintiffs sought restitution under Business and Professions Code section 17200, penalties under the Private Attorney General Act (ibid.) and damages and penalties under Labor Code sections 226.7 and 512, subdivision (a). Plaintiffs’ principal claim is that Graniterock failed to provide off-duty meal periods and/or failed to pay plaintiffs one additional hour of pay for duty-free meal periods.
The trial court granted class certification of approximately 200 concrete drivers employed by Graniterock on or after January 7, 2004. The court designated two subclasses, the first being defined as “All ready-mix concrete drivers employed by Granite Rock Company on or after January 17, 2004, who signed a Graniterock form entitled ‘On Duty’ Meal Period Agreement.” The second subclass was defined as “All ready-mix concrete drivers employed [sic] Granite Rock Company on or after January 17, 2004, who either never signed a Granite Rock form entitled ‘On Duty’ Meal Period Agreement or who later provided a written notice purporting to revoke the Agreement.”
The class action was tried without a jury, and the court returned a verdict in favor of Graniterock. The court found that Graniterock did not violate labor laws in its meal period policies.”
“ … The trial court properly entered judgment in favor of Graniterock. There was substantial evidence presented at trial to support the trial court’s finding that Graniterock provided its concrete mixer drivers with an off-duty meal period as required by law.”
“ … Graniterock brings a cross-appeal of the trial court’s grant of plaintiffs’ motion for summary adjudication of its affirmative defense regarding the On-Duty Meal Period Agreement. The cross-appeal was brought for this court to consider the issue in the event we reversed the judgment. Because we affirm the judgment, we dismiss the cross-appeal as moot.”
Attorneys for Plaintiffs and Appellant Brian Driscoll et al.; Garry G. Mathiason, Alan S. Levins, Alison S. Hightower, and Laura E. Hayward of Littler Mendelson.
Attorneys for Defendant Appellant Granite Rock Co.; Harvey Sohnen, Patricia Kelly, and Joseph Clapp of Sohnen Law Offices.
Sixth District, 11/30/16 decision by Rushing, Premo and Elia concurring; no citations available yet.
GOONEWARDENE v. ADP, LLC
“In the underlying action, appellant Sharmalee Goonewardene’s fifth amended asserted claims against respondents ADP, LLC, ADP Payroll Services, Inc. and AD Processing, LLC for wrongful termination, violations of the Labor Code, and related causes of action, including breach of contract, negligent misrepresentation, and negligence. The trial court sustained respondents’ demurrers relating to the fifth amended complaint without leave to amend. Appellant contends the court abused its discretion in denying her leave to amend, arguing that her proposed sixth amended complaint states claims against respondents. We conclude that the proposed complaint states claims against respondents only for breach of contract, negligent misrepresentation, and negligence. We therefore affirm the trial court’s ruling in part, reverse it in part, and remand with instructions to permit appellant to file a complaint against respondents asserting those claims.”
The decision reasoned, “The 6AC asserts several claims predicated on the theory that ADP was appellant’s employer. Specifically, they allege or suggest (1) that ADP was subject to certain duties to appellant imposed on employers under California and federal law, and (2) that ADP was empowered to terminate appellant’s employment. The claims assert violations of the Labor Code and the Fair Labor Standards Act of 1938 (FLSA) (29 U.S.C. § 201 et seq.), racial discrimination under the California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.) and title VII of the Civil Rights Act of 1964 (title VII) (42 U.S.C. § 2000e et seq.), and wrongful termination in violation of public policy. As explained below, the claims fail for want of sufficient allegations establishing an employee-employer relationship between appellant and ADP.”
Relying on Futrell v. Payday California, Inc. (2010) 190 Cal.App.4th 1419, 1428–1429, 119 Cal.Rptr.3d 513, the decision found that ADP was merely a payroll service rather than appellant’s employer.
“ … The 6AC contains claims against ADP for discrimination under FEHA (eighth cause of action) and title VII (ninth cause of action). As these claims assert discrimination relating to appellant’s employment, ADP is liable for the alleged discrimination only if it employed her. (Vernon v. State of California (2004) 116 Cal.App.4th 114, 123, 10 Cal.Rptr.3d 121 [FEHA prohibits only employers from engaging in discrimination]; Murray v. Principal Financial Group, Inc. (9th Cir. 2010) 613 F.3d 943, 944 [plaintiffs may assert title VII discrimination claim against entity only if they are its employees].) Although courts have applied a variety of specific tests to determine the existence of an employment relationship under the two statutory schemes, “[t]he common and prevailing principle espoused in all of the tests” directs attention to “the ‘totality of circumstances’ that reflect upon the nature of the work relationship of the parties, with emphasis upon the extent to which the defendant controls the plaintiff’s performance of employment duties.” (Vernon, supra, 116 Cal.App.4th at p. 124, 10 Cal.Rptr.3d 121.) As explained above, the circumstances surrounding appellant’s work did not demonstrate an employment relationship between her and ADP. Accordingly, the 6AC states no discrimination claims against ADP.”
Relying on Miklosy v. Regents of University of California (2008) 44 Cal.4th 876, 900, 80 Cal.Rptr.3d 690, 188 P.3d 629 similarly found that the wrongful termination claim against ADP failed for lack of an employer-employee relationship.
However, the decision found that the 6AC sufficiently alleged breach of contract, negligent misrepresentation, and negligence claims against ADP.
Glen Broemer, Oxnard, for Plaintiff and Appellants.
Morgan Lewis & Bockius, Robert A. Lewis, Thomas M. Peterson and Zachary Hill for Defendants and Respondents.
Second District, Division 4, 11/4/16 decision by Manella,Epstein and Willhite concurring; ___ Cal.Rptr.3d ___, 2016 WL 6554981, 26 Wage & Hour Cas.2d (BNA) 1918.
LUBIN v. WACKENHUT CORP.
“Appellants Nivida Lubin, Sylvia M. Maresca, and Kevin Denton (together plaintiffs) filed this action on behalf of themselves and similarly situated persons, alleging defendant and respondent The Wackenhut Corporation (Wackenhut) violated California labor laws by failing to provide employees with off-duty meal and rest breaks and by providing inadequate wage statements. The trial court initially granted plaintiffs’ motion for class certification. However, as the case approached trial, the United States Supreme Court reversed a grant of class certification in Wal–Mart Stores, Inc. v. Dukes (2011) 564 U.S. 338, 131 S.Ct. 2541, 180 L.Ed.2d 374 (Wal–Mart). Relying on Wal–Mart, Wackenhut moved for decertification. The trial court granted the motion. Plaintiffs appeal, contending that decertification was not warranted by a change in circumstances or case law and that the court used improper criteria in granting the motion for decertification. We conclude that the trial court erred in granting the motion.”
The decision reasoned, “[T]he trial court’s reliance on Wal–Mart to support decertification for each of plaintiffs’ claims overextended holdings in that case. The crux of Wackenhut’s motion for decertification and the court’s subsequent order was Wal–Mart’s treatment of statistical sampling, even though statistical sampling had been introduced only in relation to one of plaintiffs’ three claims, the meal period claim. Thus, although the court had urged the parties to consider using statistical sampling to make the class action more manageable as to the meal period claim, it determined that this method was disapproved in Wal–Mart.
After the trial court issued its decertification order, the Supreme Court clarified that Wal–Mart does not “stand for the broad proposition that a representative sample is an impermissible means of establishing classwide liability.” (Tyson Foods, Inc. v. Bouaphakeo (2016) ––– U.S. ––––, 136 S.Ct. 1036, 1048, 194 L.Ed.2d 124 (Tyson).) “A representative or statistical sample, like all evidence, is a means to establish or defend against liability. Its permissibility turns not on the form a proceeding takes—be it a class or individual action—but on the degree to which the evidence is reliable in proving or disproving the elements of the relevant cause of action.” (Id. at p. 1046.) Thus, “[w]hether and when statistical evidence can be used to establish classwide liability will depend on the purpose for which the evidence is being introduced and on ‘the elements of the underlying cause of action [ ]’ [citation].” (Ibid.)”
“ … Here, statistical evidence was proposed only for the limited purpose of determining how many employees had signed on-duty meal agreements lacking revocation language during the class period.”
“ … A key issue driving the court’s decertification order on the meal period claim was its finding that Wackenhut’s affirmative defense, the nature of the work exception, could not be adjudicated on a classwide basis, even if the class were divided into subclasses as proposed by the plaintiffs, because common issues did not predominate. … Wackenhut cannot discharge its duty by arguing that its clients who requested on-duty meal periods determined that the nature of the work prevented officers from being relieved of all duty.”
“ … Wackenhut also has failed to show that individual issues predominate in this case. Plaintiffs argue that the nature of the work defense can be litigated on a classwide basis by showing that regardless of variations in specific job assignments, Wackenhut could have relieved class members of all duty for meal periods. Specifically, plaintiffs’ security expert explained that Wackenhut could relieve officers for off-duty meal periods by (1) having officers and supervisors at multi-officer sites relieve each other; (2) having field supervisors who already travel from site to site, relieve officers for breaks; (3) increasing the current number of rover officers that Wackenhut already uses to report to different locations throughout the day to relieve officers for breaks; and (4) where clients agree, having employees of Wackenhut’s clients relieve officers for breaks. … Individual issues also do not predominate because Wackenhut has treated the nature of the work exception on a classwide basis. As in Faulkinbury, supra, 216 Cal.App.4th 220, 156 Cal.Rptr.3d 632, Wackenhut had all officers sign an on-duty meal agreement during orientation, regardless of each officer’s job site or duties.”
Weinberg, Roger & Rosenfeld, Emily P. Rich, Theodore Franklin, Manuel A. Boigues, Alameda; Posner & Rosen, Howard Z. Rosen, Jason C. Marsili, Brianna M. Primozic, Los Angeles; James R. Hawkings, James R. Hawkings, and Gregory E. Mauro, for Plaintiffs and Appellants.
Gibson Dunn & Crutcher, Theodore J. Boutrous, Jr., Theane Evangelis, Los Angeles, Bradley J. Hamberger, Jennifer E. Rosenberg, Los Angeles; Gordon & Rees, Stephen E. Ronk, Los Angeles, Mollie Burks-Thomas, and Michelle L. Steinhardt, Los Angeles, for Defendant and Respondent.
Second District, Division 4, 11/21/16 decision by Epstein, Wilhitte and Manella concurring; ___ Cal.Rptr.3d ___, 2016 WL 6835499.
PEREZ v. CITY OF WESTMINSTER
“Brian Perez, an officer with the Westminster Police Department, was given notice of intent to terminate his employment, based on an alleged lack of honesty and cooperation in the investigation of a claim of police brutality. Perez appealed the decision to terminate his employment, and the chief of police concluded the allegations against Perez could not be sustained. Perez’s employment was not terminated, but he was removed from the SWAT team and the honor guard, and although he remained a field training officer, he was not assigned any trainees. Perez sued for violation of his rights under the Public Safety Officers Procedural Bill of Rights Act (Gov. Code, § 3300 et seq.) (the Act). The trial court found the removal of Perez from the SWAT team and the honor guard, and the failure to assign trainees to him as a field training officer did not violate the Act. Perez appeals, and we affirm. Substantial evidence amply supported the trial court’s decision.”
The decision reasoned, “Perez was not subject to any punitive action, as that term is defined by statute. “For the purpose of this chapter, punitive action means any action that may lead to dismissal, demotion, suspension, reduction in salary, written reprimand, or transfer for purposes of punishment.” (Gov. Code, § 3303.) Although Perez was initially threatened with termination of his employment, that action was rescinded by the chief of police. The punitive actions alleged by Perez were his removal from the SWAT team and honor guard, and the refusal to place a trainee with him as a field training officer.
The SWAT team and honor guard were collateral assignments, not formal, full-time assignments. Removal from those collateral assignments was not considered discipline, but was part of the chief of police’s “normal management of the department.” The memorandum of understanding between the City of Westminster and the police bargaining unit provides that the nonassignment of a trainee to a field training officer is not a disciplinary or punitive action. The removal of Perez’s collateral duties did not result in a reduction of salary, which is normally required to establish a punitive action.
The loss of prestige or the loss of the ability to earn overtime pay is not sufficient. (See Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 845 [officer did not violate any departmental policy, but supervisor concluded his continued presence “was not conducive to a cooperative, productive working relationship”; officer’s reassignment without loss of pay or rank was not punitive action, despite officer’s “assertion that his work as a detective is less heroic than his job as a pilot”]; Orange County Employees Assn. v. County of Orange (1988) 205 Cal.App.3d 1289, 1293 [trial court’s finding that transfer of facility director without “any financial loss—no reduction in pay or decrease in benefits” was not punitive was supported by substantial evidence].)”
John J. Gulino for Plaintiff and Appellant.
Liebert Cassidy Whitmore, Melanie M. Poturica and Jeffery E. Stockley for Defendants and Respondents.
Fourth District, Division 3, 10/20/16 decision by Fybel, Aronson and Ikola concurring; certified for publication 11/9/16; ___ Cal.Rptr.3d ___, 2016 WL 6609753.
SORIA v. UNIVISION RADIO LOS ANGELES, INC.
“Sofia Soria, a former on-air radio personality for Univision Radio Los Angeles, Inc. and Univision Communications, Inc. (collectively Univision), appeals from the judgment entered after the trial court granted summary judgment in favor of Univision in Soria’s action for disability discrimination, wrongful termination and related employment claims. Because material issues of fact exist regarding each of Soria’s claims, we reverse.”
The decision held that “normal cell growth” in connection with treatment for a tumor is a “major life activity” under Fair Employment and Housing Act (FEHA), but that Univision failed to address this issue in its summary judgment motion.
The decision also held that a fact issue existed as to whether employee’s stomach tumor limited the major life activity of “working.” The decision reasoned, “Here, the treatment for Soria’s tumor consisted of doctor visits and potential surgery that prevented Soria from coming to work. It is undisputed Soria was tardy or absent from work at least nine times in 2011 due to medical appointments related to her tumor; and a jury could reasonably infer either surgery, if it occurred, or follow-up appointments to continue to monitor the tumor would result in further time away from work. Repeated or extended absences from work may constitute a limitation on the major life activity of working.”
The decision further held that discrimination because of tumor’s potential to become disabling would violate FEHA. “Univision argues Soria’s tumor was not potentially disabling because it was shown to be benign when it was removed in 2012. Once again Univision misconstrues the fundamental purpose of FEHA. Based on what was known in November 2011, Soria’s tumor could have been malignant, had the potential to become malignant or could continue to grow in a way that obstructed Soria’s bodily functions and limited a major life activity. Discriminatory treatment of Soria in November 2011 because of that potential would violate FEHA whether or not the condition ultimately became disabling. The Legislature intended to protect employees from adverse employment action by employers concerned about what may happen in the future.”
Finally, the decision held that an employer was deemed to “know” of employee’s disability if the employees who decided to discharge her knew of the disability. “Although Soria provided no medical records to Univision and did not notify anyone in human resources regarding her condition, no authority supports Univision’s argument, which the trial court appeared to accept, that either step is essential to establish a claim for disability discrimination. All that is required is that the plaintiff show that the “employees who decided to discharge [her] knew of [her] disability.” (Avila v. Continental Airlines, Inc., supra, 165 Cal.App.4th at p. 1248, 82 Cal.Rptr.3d 440.) Soria’s testimony of her conversations with Nava provided that evidence.”
As to pretext, the decision noted inconsistencies in deposition testimony regarding Soria’s tardiness and absences. Further, tardiness was not a new issue for Soria prior to her disclosure of her tumor. Yet, “Soria had not been disciplined, but instead received positive reviews and survived two rounds of lay-offs. The only negative comment in her most recent review was mitigated by statements her performance was improving. … Taken together, this evidence—the timing of the disclosure and discharge, the apparent ongoing nature of Soria’s late arrival at work, the positive performance reviews and the contradictions in the testimony proffered by Univision—is sufficient to permit a finding the business justification for Soria’s termination advanced by Univision was pretextual.”
Additionally, the decision provided cautionary advice on alleging a separate cause of action for discrimination based on medical condition in addition to a cause of action for disability discrimination. “The first cause of action is captioned “Disability or Perceived Disability Discrimination in Violation of [FEHA]” and contains multiple allegations that Univision terminated Soria “because of” a “disability and/or perceived disability.” Although Soria used the term “medical condition” several times, she did not allege she met the definition of having a medical condition under the statute—that is, that she had an impairment related to a diagnosis of cancer. Indeed, other than the statement her tumor might be cancerous, the first amended complaint does not mention cancer, let alone contain any allegation that Soria had received a diagnosis of cancer. Further, the first amended complaint contains no allegation a medical condition was the cause of, or a motivating factor for, Soria’s termination. To the contrary, the only reason for termination expressly or impliedly stated in the first amended complaint is discrimination based on disability. In sum, even viewing the pleading liberally, Soria did not allege discrimination based on medical condition sufficiently to put Univision on notice she was asserting this separate claim. Accordingly, Soria cannot defeat summary judgment by arguing triable issues of fact exist regarding a claim for discrimination based on medical condition.”
[Ed. Note: Of concern is the decision’s muddling of the essential elements of a failure to engage in interactive process with those of a failure to provide reasonable accommodation claim. (See, CACI 2541 and 2546.) The decision cited to portions of Jensen v. Wells Fargo Bank discussing the essential elements of a reasonable accommodation claim under the Americans With Disabilities Act (ADA) rather than one brought under the Fair Employment and Housing Act (FEHA). Unlike the FEHA, the ADA does not recognize failure to engage in an interactive process as a separate cause of action, so sometimes federal courts analyze the breakdown of the interactive process within a failure to provide reasonable accommodation claim. To prevail on a FEHA failure to provide reasonable accommodation claim, an employee need only prove the employee had a known disability that could have been accommodated and that the employer failed to provide reasonable accommodation, resulting in harm to the employee. (Gov. Code, § 12940, subd. (m); CACI 2541.) However, the decision correctly found that both claims survived the summary judgment motion.]
The deRubertis Law Firm, David M. deRubertis, Studio City, and Kelly A. Knight, Lavi & Ebrahimian, N. Nick Ebrahimian, Beverly Hills, for Plaintiff and Appellant.
Venable, Daniel P. Hoffer and Robert H. Pepple, Los Angeles, for Defendants and Respondents.
Second District, Division 7, 11/15/16 decision by Perluss, Zelon and Keeny concurring; ___ Cal.Rptr.3d ___, 2016 WL 6746448.
TANGUILIG v. BLOOMINGDALE’S, INC.
“Bernadette Tanguilig, an employee at Bloomingdale’s, Inc. (Bloomingdale’s), filed a representative action on behalf of herself and fellow employees pursuant to the Labor Code Private Attorneys General Act of 2004 (PAGA) (Lab. Code, § 2698 et seq.), alleging several Labor Code violations by the company. Bloomingdale’s moved to compel arbitration of Tanguilig’s “individual PAGA claim” and stay or dismiss the remainder of the complaint. The trial court denied the motion. We affirm. Under Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348, 173 Cal.Rptr.3d 289, 327 P.3d 129 (Iskanian) and consistent with the Federal Arbitration Act (FAA) (9 U.S.C. et seq.), a PAGA representative claim is nonwaivable by a plaintiff-employee via a predispute arbitration agreement with an employer, and a PAGA claim (whether individual or representative) cannot be ordered to arbitration without the state’s consent.”
Jackson Lewis, David S. Bradshaw, Nathan W. Austin, Sacramento, Patrick C. Mullin, San Francisco; and Michael C. Christman for Defendant and Appellant.
Cornerstone Law Group, Gordon W. Renneisen, Harry G. Lewis and Jennifer A. Donnellan, San Francisco, for Plaintiff and Respondent.
First District, Division 5, 11/16/16 decision by Bruiniers, Jones and Simons concurring; ___ Cal.Rptr.3d ___, 2016 WL 6778788.
THAXTON v. STATE PERSONNEL BOARD
“Plaintiff and respondent interest Kevyn Thaxton was employed as a corrections officer by appellant, the California Department of Corrections and Rehabilitation (CDCR). After being dismissed from his position, Thaxton filed an appeal with the State Personnel Board (the SPB), along with three other colleagues who were also dismissed in relation to the same incident that led to Thaxton’s dismissal.
The SPB consolidated all four employees’ appeals and scheduled a joint evidentiary hearing. Thaxton did not appear on the first day of the evidentiary hearing, and also failed to appear on the second day, although his attorney was present to represent him on both days. On the second day of the hearing, CDCR proffered the testimony of a process server to the effect that Thaxton had informed the process server that Thaxton was purposely avoiding service of CDCR’s subpoena. Thaxton’s attorney indicated that he would not accept service of the subpoena on Thaxton’s behalf. After Thaxton’s attorney refused to accept service of the subpoena, the administrative law judge (ALJ) overseeing the hearing ordered that Thaxton appear that afternoon. When the hearing resumed, Thaxton’s attorney indicated that he had informed Thaxton of the ALJ’s order, but Thaxton neither appeared nor provided any justification or explanation for his continued absence from the proceeding. The ALJ proceeded to dismiss Thaxton’s appeal on two independent grounds: (1) that an SPB regulation requires the personal presence of the parties to an appeal, and provides that the failure of a party to be personally present is deemed a withdrawal of the party’s appeal or action; and (2) that the same regulation requires that a party “proceed” with a hearing, and Thaxton’s conduct in refusing to appear at the hearing demonstrated failure to proceed with the hearing, such that his appeal could be deemed withdrawn. The SPB adopted the ALJ’s decision.
Thaxton petitioned the trial court for a writ of mandate. The trial court granted the petition, and effectively ordered that Thaxton be reinstated to his former position at CDCR and receive back pay and interest.
CDCR challenges the trial court’s granting of Thaxton’s petition. CDCR argues that the ALJ properly dismissed Thaxton’s appeal because Thaxton failed to personally appear at the hearing, which CDCR contends is required by an SPB regulation, and/or because the ALJ acted within the scope of her authority in determining that Thaxton’s conduct in failing to appear despite the ALJ’s order that he appear constituted a failure to proceed with the hearing. A party’s failure to proceed at a hearing permits an ALJ to deem an appeal or action withdrawn pursuant to both a relevant statute and as well as the SPB regulation relied on by the ALJ. Thus, CDCR argues, the trial court erred in granting Thaxton’s petition for a writ of mandate. We agree, and reverse the trial court’s judgment.”
The Law Office of David M. Goldstein and David M. Goldstein, Redwood City, for Plaintiff and Respondent.
Alvin Gittisriboongul, Sacramento, and Chian He for Defendant and Respondent.
Kamala D. Harris, Attorney General, Chris A. Knudsen, Celine M. Cooper, Christine B. Mersten and Jodi L. Cleesattle, Deputy Attorneys General, for Real Party in Interest and Appellant.
Fourth District, Division 1, 11/16/16 decision by Aaron, Huffman and Irion concurring; ___Cal.Rptr.3d ___, 2016 WL 6777825.
Ninth Circuit
ARMANI v. NORTHWESTERN MUTUAL LIFE INS. CO.
“Avery Armani (Armani) appeals the district court’s judgment denying him benefits under long term disability policy sponsored by his employer and issued by Appellee Northwestern Mutual Life Insurance Company (Northwestern Mutual). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we VACATE the part of the judgment denying Armani benefits and REMAND the case for further proceedings consistent with this opinion.”
The decision reasoned, “The administrative record available to the district court plainly showed that, between July 25, 2011, and April 15, 2013, every physician and chiropractor who treated Armani determined that he could not sit for more than four hours a day. Nonetheless, the district court upheld Northwestern Mutual’s determination that Armani could perform work at the “sedentary” level as of April 18, 2013. The district court rejected Armani’s proposed definition of “sedentary” work on the basis that it was drawn from the Social Security context. Citing “the vast differences in both form and function between Social Security law and ERISA law,” the district court concluded, without further discussion or analysis, that “the federal criteria for Social Security claims are not transferable to ERISA cases.” This conclusion was erroneous.”
Charles Fleishman (argued) and Paul A. Fleishman, The Fleishman Law Firm, Woodland Hills, California, for Plaintiff–Appellant.
Linda M. Lawson (argued) and Charles K. Chineduh, Meserve Mumper & Hughes LLP, Los Angeles, California, for Defendant–Appellee.
Ninth Circuit, 11/1/16 decision by Nelson, Paez and Bucklo concurring; ___ F.3d ___, 2016 WL 6543523.
FREDRICKSON v. STARBUCKS CORP.
“This is a class action brought against Starbucks by three baristas who used to work at the company’s coffee shops in Oregon. They challenge the legality of Starbucks’ practice of withholding state and federal taxes from baristas’ paychecks based on the cash tips they receive. We must decide whether the district court may hear this case given the constraints imposed by the Tax Injunction Act, the Anti-Injunction Act, and the federal-state comity doctrine.”
The decision reasoned, “The plaintiffs want the district court to declare that Starbucks’ withholding of state taxes on the basis of imputed tip income is illegal under Oregon law and to enjoin Starbucks from continuing to engage in that practice. The Supreme Court has held that an employer’s withholding of tax payments from wages constitutes a method of tax “collection,” and that an order enjoining employer withholding therefore stops collection of the tax. United States v. American Friends Service Committee, 419 U.S. 7, 10, 95 S.Ct. 13, 42 L.Ed.2d 7 (1974) (per curiam). (American Friends involved the Anti–Injunction Act, 26 U.S.C. § 7421(a), which bars actions seeking to restrain the collection of federal taxes, but the Court construes the two Acts in tandem. See Direct Marketing, 135 S.Ct. at 1129.) The Third Circuit has squarely held that the Tax Injunction Act bars actions, like this one, seeking to enjoin an employer’s withholding of state taxes from wages. Sipe v. Amerada Hess Corp., 689 F.2d 396, 401–03 (3d Cir. 1982). And the Fourth Circuit has held that withholding state taxes from lottery winnings is part of a State’s collection of taxes and therefore may not be enjoined under the Act. International Lotto Fund v. Virginia State Lottery Department, 20 F.3d 589, 591–93 (4th Cir. 1994). We agree with the Third and Fourth Circuits and hold that the Tax Injunction Act bars the district court from enjoining Starbucks’ withholding of state taxes from the baristas’ paychecks.”
“ … We next consider whether the district court had the authority to entertain the plaintiffs’ claims for statutory damages. Those claims are again predicated on Starbucks’ alleged violation of both state and federal tax law.
As to the state-tax component of the plaintiffs’ claims, the Supreme Court has not yet decided whether the Tax Injunction Act bars claims for damages. That is a question we need not resolve because an award of statutory damages is precluded here by the federal-state comity doctrine.”
“ … What remains is the federal-tax component of the plaintiffs’ claims for statutory damages. We need not decide whether the jurisdictional bar imposed by the Anti-Injunction Act extends to the plaintiffs’ requested damages relief because the plaintiffs may not pursue the federal-tax component of their claims on a stand-alone basis.”
“ … Under the Tax Injunction Act and the Anti-Injunction Act, the district court lacks subject matter jurisdiction over the plaintiffs’ claims for declaratory and injunctive relief. The federal-state comity doctrine bars the district court from awarding statutory damages on the state-tax component of the plaintiffs’ claims, from which the federal-tax component cannot be severed. Because all of the claims are jurisdictionally barred or foreclosed by the comity doctrine, the entire action must be remanded to state court. See 28 U.S.C. § 1447(c); Hawthorne Savings F.S.B. v. Reliance Insurance Co. of Illinois, 421 F.3d 835, 852 (9th Cir. 2005).”
Jon M. Egan (argued), Jon M. Egan PC, Lake Oswego, Oregon, for Plaintiffs–Appellants.
Pratik A. Shah (argued), Daniel L. Nash, James E. Tysse, and Z.W. Julius Chen, Akin Gump Strauss Hauer & Feld LLP, Washington, D.C.; Gregory W. Knopp and Rex S. Heinke, Akin Gump Strauss Hauer & Feld LLP, Los Angeles, California; Carol J. Bernick, Christopher F. McCracken, and Derek D. Green, Davis Wright Tremaine LLP, Portland, Oregon; for Defendant–Appellee.
Ninth Circuit, 11/3/16 decision by Watford, Fisher and Walter concurring; ___ F.3d. ___, 2016 WL 6518882, 26 Wage & Hour Cas.2d (BNA) 1885.
MATSON v. UNITED PARCEL SERVICE, INC.
“We once again address whether a state employment claim can go forward where the employee’s terms and conditions of employment are covered by a collective bargaining agreement. See Kobold v. Good Samaritan Reg’l Med. Ctr., 832 F.3d 1024 (9th Cir. 2016).
This case, unlike any of the three appeals consolidated in the recent Kobold opinion, concerns a state equal employment claim alleging a hostile work environment. Mary Matson brought suit against her employer, United Parcel Service, Inc. (“UPS”), asserting, among other claims, a state law gender-based hostile work environment claim. A jury returned a verdict for Matson on that claim, but her victory was short-lived. The district court granted UPS’s motion for a new trial on the ground that the claim was preempted under § 301 of the Labor Management Relations Act (“LMRA”), 29 U.S.C. § 185(a). The jury in the second trial found for UPS. Matson challenges the district court’s preemption ruling. We conclude that the district court erred in holding Matson’s claim preempted and so reverse.”
Donald H. Mullins (argued) and Jacob D.C. Humphreys, Badgley Mullins Turner PLLC, Seattle, Washington, for Plaintiff–Appellant.
Eric D. Miller (argued), Tobias S. Piering, Javier F. Garcia, and Michael T. Reynvaan, Perkins Coie LLP, Seattle, Washington, for Defendant–Appellee.
Ninth Circuit, 11/4/16 decision by Berzon, Graber and Murguia concurring; ___ F.3d ___, 2016 WL 6543519, 207 L.R.R.M. (BNA) 3505, 129 Fair Empl.Prac.Cas. (BNA) 1205.