MOUNT LEMMON FIRE DISTRICT v. GUIDO

PLAINTIFF GUIDO SUED A LOCAL FIRE DISTRICT WITH LESS THAN TWENTY EMPLOYEES FOR ADEA VIOLATIONS

Plaintiff John Guido sued Mount Lemmon Fire District for age discrimination in violation of the Age Discrimination in Employment Act (ADEA) following his termination. The Fire District argued that it was too small to qualify as an employer under the ADEA, which applies to “a person engaged in an industry affecting commerce who has twenty or more employees…” 29 U.S.C. § 203(d), (x). The ADEA initially applied only to private employers, but Congress amended it in 1974 to cover state and local governments, adding them directly to the definition of “employer.” The Supreme Court held that the definition of employer establishes separate categories: persons engaging in an industry affecting commerce with twenty or more employees, and states or their political subdivisions with no numerosity limitation.

U.S. Supreme Court. Decided 11/6/18. 139 S.Ct. 22. Opinion by Justice Ginsburg.

Full Decision

GERARD v. ORANGE COAST MEMORIAL MEDICAL CENTER

PLAINTIFFS ARGUED THAT THE LABOR CODE DISALLOWS SECOND MEAL PERIOD WAIVERS FOR HEALTH CARE WORKERS WORKING LONGER THAN TWELVE HOURS

Plaintiffs were health care workers employed by Defendant OCM Medical Center. They worked twelve-hour shifts that sometimes lasted longer than twelve hours. Hospital policy allowed them to waive their second meal period even if they worked longer than twelve hours. Plaintiffs signed waivers for their second meal periods and worked shifts longer than twelve hours without a second meal period. They sued for Labor Code violations. OCM Medical Center argued its waivers conformed to Industrial Welfare Commission (IWC) Wage Order 5 and moved for summary judgment, which the trial court granted. Plaintiffs appealed, and the Court of Appeal ultimately affirmed. The Supreme Court granted Plaintiffs’ petition for review and affirmed.

SUBSEQUENT AMENDMENTS TO THE LABOR CODE MADE CLEAR THAT WAGE ORDER 5 WAIVERS REMAIN VALID FOR HEALTH CARE WORKERS

Wage and hour claims are governed by two authorities: the Labor Code enacted by the Legislature, and the eighteen Wage Orders adopted by the IWC. When the Labor Code and Wage Orders overlap, the courts seek to harmonize them. However, the Labor Code prevails over a Wage Order if there is a genuine conflict. The Labor Code generally requires that employees who work more than five hours must receive a 30-minute meal period, and employees who work more than ten hours must receive a second 30-minute meal period. Labor Code §512(a). Employees who work fewer than six hours may waive the first meal period, and employees who work fewer than twelve hours may waive the second meal period. IWC Wage Order 5 permits health care employees to waive the second meal period even if they have worked more than twelve hours. Following the Court of Appeal’s previous decision invalidating the waivers, the Legislature passed SB 327, declaring meal period waivers for health care employees pursuant to Wage Order 5 valid and enforceable. Therefore, OCM Medical Center’s second meal period waivers were valid.

Supreme Court of California. Filed 12/10/18. 6 Cal.5th 443. Opinion by Justice Liu.

Full Decision

1550 LAUREL OWNER’S ASSOCIATION, INC. v. APPELLATE DIVISION OF THE SUPERIOR COURT OF LOS ANGELES COUNTY (MUNSHI)

Plaintiff Association sued Defendant Munshi for breach of a settlement agreement. Munshi filed a special motion to strike under CCP section 425.16 (an “anti-SLAPP motion”). CCP section 92(d) states that motions to strike may be filed in limited jurisdiction only on the ground that the damages or relief sought are not supported by the allegations in the complaint. The trial court denied the anti-SLAPP motion, finding that such a motion was not permitted in limited jurisdiction. Munshi filed a writ to the appellate division of the superior court, which granted the writ. The Association then filed a writ in the Court of Appeal, which granted the writ, finding that an anti-SLAPP motion is not permissible in limited jurisdiction.

COA 2nd Dist., Div. 3. Filed 11/7/18. 28 Cal.App.5th 1146. Opinion by Justice Edmon.

Full Decision

AMN HEALTHCARE, INC. v. AYA HEALTHCARE SERVICES, INC.

PLAINTIFF AMN HEALTHCARE FORCED ITS EMPLOYEES TO SIGN A RESTRICTIVE NON-DISCLOSURE AND NON-SOLICITATION AGREEMENT

AMN Healthcare and Aya Healthcare were competing companies providing temporary healthcare professionals to medical care facilities, particularly travel nurses. Several individual defendants were travel nurse recruiters who worked for AMN before leaving to join Aya. AMN had required the recruiters to sign a confidentiality and non-disclosure agreement (CDNA) as a condition of employment. The CDNA prohibited recruiters from soliciting any AMN employee to leave AMN, and travel nurses on temporary assignment from AMN were deemed AMN employees. AMN sued the recruiters alleging breach of contract, misappropriation of confidential information, and other claims. The recruiters cross-complained for declaratory relief and unfair business competition. The trial court granted summary judgment against AMN and enjoined AMN from enforcing the non-solicitation provision of the CDNA as to any former California AMN employees. AMN appealed, and the Court of appeal affirmed.

CALIFORNIA PUBLIC POLICY FAVORS COMPETITION AND DISFAVORS CONTRACTS RESTRAINING A PERSON FROM ENGAGING IN A LAWFUL PROFESSION

California public policy favors competition. Non-competition agreements have been void in California since 1872, unless they are specifically authorized by Business & Professions Code sections 16601 or 16602. Under B&P Code section 16600, subject to exceptions, every contract that restrains a person from engaging in a lawful profession, trade, or business of any kind is void. Statutory exceptions include sale of goodwill or interest in a business, dissolution of a partnership, and dissolution or sale of a limited liability company, none of which applied here. Therefore, the non-solicitation provision of the CDNA was void under section 16600 because it restrained Aya’s recruiters from practicing their profession of recruiting travel nurses. The restriction was especially notable because AMN’s travel nurses were only employed on temporary 13-week assignments and could easily have worked for both companies.

COA 4th Dist., Div. 1. Filed 11/1/18. 28 Cal.App.5th 923. Opinion by Justice Benke.

Full Decision

CARRINGTON v. STARBUCKS CORP.

PLAINTIFF SUED UNDER THE PRIVATE ATTORNEYS GENERAL ACT

Plaintiff Carrington brought a representative action under California’s Private Attorneys General Act (“PAGA”). The Legislature enacted PAGA to address the issue that a stretched-thin Labor Commissioner was unable to enforce the various requirements of the Labor Code, and California workers saw themselves being taken advantage of systemically.

Different from a class action, PAGA provides incentives for employees with standing to enforce various provisions of the Labor Code. Penalties apply to most such provisions, as enumerated in PAGA, and may be collected by the employee. Seventy-five percent of any such penalties go to the State Labor & Workforce Development Agency, while the plaintiff keeps 25%.

Here, Plaintiff Carrington alleged various violations of the Labor Code, all of which stemmed from her allegation that Starbucks failed to provide timely meal breaks. She alleged that, on at least two separate occasions, she received neither a timely meal period nor a premium wage, as required by the Labor Code and the Wage Orders.

THE EVIDENCE WAS SUFFICIENT TO SUPPORT A VERDICT

Plaintiff Carrington testified about those two occasions, but was unable to remember details, such as which manager was on the shift at those times. She testified further, however, that Starbucks had a requirement and common practice that breaks had to be approved by supervisors. She also testified that she accurately recorded her time, and she never refused to begin a meal break when authorized or instructed to do so by a supervisor. Finding this and other evidence compelling, the trial court found in favor of the plaintiff after a bench trial. Using its discretion to avoid an arbitrary or confiscatory award, the trial court imposed a penalty of $5 per violation, for a total of $150,000 for the 30,000 violations established by the evidence.

The Court of Appeal affirmed. Even though Carrington may have received a meal break in one of the two instances she discussed, it was after the required five hour period. This was sufficient to establish a violation, as an untimely meal period does not satisfy the Labor Code or Wage Order’s requirements.

Moreover, although Plaintiff Carrington established only that she received noncompliant late meal periods, she was not precluded from seeking penalties on behalf of employees who received no meal period at all.

CONCLUSION
PAGA remains a powerful tool to enforce workers’ rights under the Labor Code and the Wage Orders. Moreover, judicial discretion written into the statute insures that its application of penalties remains just under each particular circumstance.

COA, 4^th Dist., Div. 1, Filed Nov. 27, 2018. Opinion by Justice Guerrero.

Full Decision

CPF VASEO ASSOCIATES, LLC v. GRAY

DEFENDANTS SOUGHT SANCTIONS WITHOUT SERVING THEIR MOTION ON PLAINTIFF 21 DAYS IN ADVANCE, AS REQUIRED BY CCP §128.7

Plaintiff CPF sued the Grays in Arizona and applied for entry of a sister-state judgment in San Diego Superior Court. The clerk entered judgment for CPF for over $34 million in California. The Grays’ Arizona counsel demanded withdrawal of the application for sister-state judgment on the grounds that the order obtained in Arizona did not constitute a sister-state judgment. The Grays’ attorney said he would seek sanctions pursuant to CCP §128.7 if no corrective action was taken. CPF’s attorney refused to comply, and the Grays filed a motion to vacate the judgment. Within the motion, the Grays argued for sanctions under CCP §128.5. The trial court granted the Grays’ motion to vacate the judgment and ordered sanctions under CCP §128.5(a). The Court of Appeal reversed.

INFORMAL NOTICE VIA LETTER DOES NOT COMPLY WITH CCP §128.7

CCP §128.5 authorizes sanctions for certain bad faith actions or tactics. CCP §128.5 was revised in August 2017. Former section 128.5(f) said that any sanctions imposed under the section must be imposed consistently with CCP §128.7. CCP §128.7(c) set forth a two-step process with a safe harbor waiting period requiring the moving party to serve the motion but wait to file it for 21 days to give the opposing party a chance to correct its conduct. CPF argued that the Grays were not entitled to sanctions because they did not comply with section 128.7’s safe harbor provision. In 2016, the Court of Appeal held that a party seeking sanctions under section 128.5 need not comply with the section 128.7 safe harbor provision. Looking at the legislative intent, particularly in light of the 2017 clarifying amendment to section 128.5, the Court of Appeal determined that the Grays were required to comply with section 128.7’s safe harbor provision. Notice of the intent to seek sanctions via a letter sent 26 days before the motion was filed was insufficient to comply with the statute. Informal notice is not a substitute for the required formal notice.

COA 4th Dist., Div. 1. Filed 12/6/18. 29 Cal.App.5th 997. Opinion by Justice Dato.

Full Decision

HERNANDEZ v. PACIFIC BELL TELEPHONE CO.

PLAINTIFFS PARTICIPATED IN AN OPTIONAL HOME DISPATCH PROGRAM

Plaintiff Hernandez represented a putative class of video and internet installers/repair workers. Prior to 2009, these workers would show up for work at Pacific Bell’s garage and retrieve a company vehicle. From there, the workers proceeded to the worksite, with the vehicle loaded with whatever equipment they needed.

Beginning in 2009, Pacific Bell instituted an optional Home Dispatch Program (“HDP”). Those technicians who chose to do so could drive the company vehicles, laden with equipment for the next day, home with them. They would then drive those vehicles to the worksite. This had the advantage of eliminating the initial drive to the garage.

PLAINTIFFS’ ACTIVITIES WERE RESTRICTED WHILE DRIVING THE COMPANY VEHICLE

Workers who participated in the HDP had to observe certain restrictions while driving the company vehicle. They could not use the company vehicle for personal use, talk on their phone while driving (even before that was illegal), and were subject to other restrictions.

TIME SPENT IN THE COMPANY VEHICLE WAS NOT COMPULSORY, DID NOT REQUIRE EXTRA WORK, AND WAS THEREFORE NOT COMPENSABLE

The court examined interpretations from the Labor Commissioner, as well as state and federal cases. All of those cases discussed whether an employee was under the “control” of the employer while driving the employer’s car and transporting the employer’s equipment.

The court found it dispositive that, in each of the cases examined, the employee was required to drive the company vehicle. Because the employee had the choice of not doing so here, that mitigated the control factor.

Moreover, it was also a critical point that the employee had to perform no extra work that they would not have had to perform had they opted out of the HDP. The equipment was loaded and unloaded in the garage and at the worksite.

CONCLUSION

The court’s conclusion indicates that “control” is a function of voluntariness. It seems strange to claim that whether an employee is working or not depends on whether the work performed for the employer is voluntary, but that is the holding of this case.

COA, 3rd Dist., Filed 11/16/18. Opinion by Justice Duarte.

Full Decision

HOWARD v. GOLDBLOOM

PLAINTIFF WAS A SHAREHOLDER AND AN EMPLOYEE

In 2011, Plaintiff/Appellant Howard invested in a company named Kaggle (and various variations of that) for $100,000, receiving a 10% interest. He also worked as a Kaggle employee, writing software and engaging in financial and business development.

KAGGLE FIRED PLAINTIFF

According to the complaint’s allegations, Plaintiff Howard served as a scapegoat for the company’s financial troubles. In 2013, the company fired Plaintiff Howard instead of its CEO, Defendant Goldbloom.

PLAINTIFF ALLEGED THAT DEFENDANT DILUTED HIS STOCK

Plaintiff alleged that, in 2015, amid its financial troubles, Kaggle increased its issued and outstanding stock tenfold, diluting the interest of its minority shareholders without compensation. It used those newly issued shares to pay off its original venture capital investors, and split the remainder among the defendants.

THE TRIAL COURT DENIED DEFENDANT’S PETITION TO COMPEL ARBITRATION

Plaintiff Howard sued, alleging breach of fiduciary duty among other claims. The defendants petitioned to compel arbitration on the basis of 4 different arbitration agreements that Howard signed, 3 at the time of hiring and one in a 2013 separation agreement.

The trial court denied the petition, finding that the claims in the complaint weren’t within the purview of the agreements.

THE APPELLATE COURT AGREED

After reviewing the language of the agreements, the Court of Appeal upheld the trial court’s ruling. Each of the agreements that he signed at time of employment related only to issues arising out of that employment. Here, however, the allegations dealt with breaches of fiduciary duty, which duty exists independent of the employment relationship. As a shareholder, Plaintiff Howard had rights that were not related to his employment, and therefore the arbitration agreements would not apply.

Moreover, the separation agreement required arbitration only for those disputes arising up to the agreement’s effective date. Since the matters claimed by Plaintiff Howard occurred after the agreement became effective, that arbitration agreement did not apply either.

CONCLUSION

This is a narrow ruling, but it emphasizes that courts will construe arbitration agreements to apply narrowly within their express bounds.

COA, 1st Dist. Div. 4, Filed 12/21/18. Opinion by Justice Tucher.

Full Decision

HUERTA v. KAVA HOLDINGS, INC.

THE TRIAL COURT FOUND HUERTA’S LAWSUIT NONFRIVOLOUS BUT AWARDED EXPERT FEES AND COSTS TO KAVA HOLDINGS PURSUANT TO SECTION 998

Plaintiff Felix Huerta sued Kava Holdings after it terminated him following a workplace altercation. Most of Huerta’s causes of action were dismissed before or during trial. The jury decided his claims for FEHA harassment, discrimination, and failure to prevent and returned a defense verdict. Following the judgment, Kava moved for attorney fees and costs. The trial court found that Huerta’s action was not frivolous and denied fees and costs based on Government Code section 12965. However, the trial court awarded $50,000 in costs and expert witness fees based upon Huerta’s rejection of Kava’s pretrial section 998 offer to compromise.

THE PUBLIC POLICIES PREVENTING FEE SHIFTING IN NONFRIVOLOUS FEHA CASES OUTWEIGH THE GENERAL POLICIES BEHIND SECTION 998

Effective January 1, 2019, section 998 has no application to costs, expert fees, and attorney fees in a FEHA action unless the lawsuit was “frivolous, unreasonable, or groundless when brought, or the plaintiff continued to litigate after it clearly became so.” Government Code §12965(b), as amended. The Court of Appeal held that section 998 also does not apply to nonfrivolous FEHA actions that predate January 1, 2019. The Court of Appeal reversed the order awarding Kava expert fees and costs.

CELA INVOLVEMENT
Congratulations to CELA member Carney Shegerian of Shegerian & Associates, Inc.!

COA 2nd Dist., Div. 8. Filed 11/14/18. 29 Cal.App.5th 74. Opinion by Judge Dunning.

Full Decision

QUILES v. PARENT

PLAINTIFF QUILES PREVAILED ON HER FLSA RETALIATION CLAIM AND WAS AWARDED ATTORNEY FEES AND COSTS

Plaintiff Amanda Quiles and others filed a proposed class action against Koji’s Japan Incorporated and Arthur J. Parent, Jr., asserting state and federal wage and hour violations. Quiles also alleged that she was wrongfully terminated in violation of the Fair Labor Standards Act (FLSA). In a bench trial, the trial court found that Parent was Quiles’ joint employer along with Koji under the FLSA. Later, a jury found for Quiles on her wrongful termination claim. Quiles submitted a memorandum of costs and moved for attorney fees under the FLSA. The trial court awarded over $689,000 in attorney fees and $50,000 in costs. Parent appealed, but Koji did not. The Court of Appeal affirmed.

THE RECOVERABLE COSTS UNDER THE FLSA ARE BROADER THAN THE COSTS ALLOWABLE UNDER CCP 1033.5

The FLSA provides for prevailing party attorney fees and costs to an employee who prevails on an FLSA retaliation claim. In a case of first impression, the Court of Appeal held that federal law applies in determining the recoverability of certain types of costs in an FLSA action. The FLSA does not describe or identify the types of costs that may be awarded. Federal case law has interpreted the FLSA broadly, allowing a wide variety of costs, including “reasonable out-of-pocket expenses” beyond what federal rules regarding costs would normally allow. The Court rejected Parent’s argument that Quiles was limited to costs allowable under CCP 1033.5. Quiles was therefore entitled to costs for copying, postage, certified mail, and mediation expenses. Though some case law holds that mediation fees are not recoverable, Quiles could recover her mediation costs because Parent refused to appear at or participate in the mediation. In addition, the Court rejected Parent’s contention that Quiles was entitled to attorney fees for only the minimum amount of work necessary to prevail at trial.

CELA INVOLVEMENT
Congratulations to Bryan Schwartz and Logan Starr of Bryan Schwartz Law!

COA 4th Dist., Div.3. Filed 11/2/18. 28 Cal.App.5th 1000. Opinion by Justice Fybel.

Full Decision

RAMOS v. SUPERIOR COURT OF SAN FRANCISCO COUNTY (WINSTON & STRAWN, LLP)

PLAINTIFF RAMOS, AN “INCOME PARTNER”, SUED HER LAW FIRM FOR GENDER DISCRIMINATION AND EQUAL PAY ACT VIOLATIONS

Plaintiff Constance Ramos was an “income partner” at the law firm Winston & Strawn (Winston), LLP. She sued Winston for gender discrimination and violations of the Equal Pay Act, alleging she was treated less favorably than the male partners and denied opportunities for advancement. Winston moved to compel arbitration pursuant to Ramos’ partnership agreement. The trial court granted Winston’s motion, though it severed unconscionable provisions regarding venue and cost sharing. Ramos filed a petition for writ of mandate, which the Court of Appeal granted.

ARMENDARIZ REMAINS GOOD LAW AND APPLIED HERE BECAUSE RAMOS AND WINSTON WAS IN A SUPERIOR BARGAINING POSITION AND RAMOS COULD NOT NEGOTIATE THE ARBITRATION CLAUSE

The Court of Appeal agreed with previous decisions that noted that writ review of an order compelling arbitration is appropriate to “avoid having parties try a case in a forum where they do not belong, only to have to do it all over again in the appropriate forum.” The Court held that Armendariz governed its analysis of the arbitration agreement because Winston was in a superior bargaining position akin to an employer-employee relationship with Ramos. Ramos had no opportunity to negotiate the arbitration provision of the partnership agreement, making it an adhesive contract. Since the contract to arbitrate was not freely negotiated, Armendariz applied. With respect to FEHA claims, the minimum requirements to ensure preservation of statutory rights are: (1) neutral arbitrators, (2) no limiting of remedies provided by the FEHA, (3) sufficient discovery, (4) a written arbitration decision and judicial review sufficient to ensure the arbitrator complied with the statutory requirements, and (5) the employer must pay all costs unique to arbitration. Winston’s arbitration clause provided that the arbitrators would have no authority to substitute their judgment for that of Winston’s Partnership or Executive Committee. Since the Executive Committee cut Ramos’ pay, she could not prevail on her discrimination and Equal Pay claims pertaining to her pay cut. Therefore, the arbitration agreement prevented Ramos from obtaining statutory remedies, and that provision was unenforceable. In addition, the arbitration agreement impermissibly provided that each party would recover its own attorney fees and that the parties would share arbitration costs.

COURTS MAY SEVER UNCONSCIONABLE CONTRACTUAL PROVISIONS BUT MAY NOT MODIFY A CONTRACT

Unconscionability refers to an absence of meaningful choice for one party, coupled with contract terms that are unreasonably favorable to the other party. Procedural unconscionability focuses on oppression or surprise due to unequal bargaining power, and substantive unconscionability focuses on overly harsh or one-sided results. Both types of unconscionability must be present, though not to the same degree, for a court to refuse to enforce a contract under the doctrine of unconscionability. The Court found Winston’s arbitration provision procedurally unconscionable because Ramos had no opportunity to negotiate or amend any of its terms. However, because Ramos understood the agreement and was aware of the arbitration provision, the degree of procedural unconscionability was relatively minimal. In addition to the other substantively unconscionable provisions, the arbitration agreement had an unconscionable confidentiality provision that would have prevented Ramos from conducting informal discovery or contacting witnesses. The Court concluded that the arbitration agreement was unenforceable as a matter of law. Since the Court was not permitted to reform or augment the contract’s terms, the contract was void. Winston’s offer to sever all unconscionable provisions was effectively an offer to modify the contract, but no law allowed a party to revive a legally defective contract by offering to change it.

CELA INVOLVEMENT
Congratulations to CELA member Noah Lebowitz!

COA 1st. Dist., Div. 1. Filed 11/2/18. 28 Cal.App.5th 1042. Opinion by Justice Margulies.

Full Decision

BIEL v. ST. JAMES SCHOOL

PLAINTIFF ALLEGED BREAST CANCER DISCRIMINATION

Plaintiff Biel worked as a fifth grade teacher at St. James Catholic School. She alleged that she was fired from her position because she told the school that she required treatment for breast cancer, and would require time off for chemotherapy. She sued under the federal Americans with Disabilities Act.

THE TRIAL COURT GRANTED SUMMARY JUDGMENT

The trial court found that the ministerial exception exempted St. James from liability. That exception, founded upon First Amendment principles, prohibits encroachment upon religion by the government, and therefore precludes statutes which proscribe employment practices of those deemed to fall within the exceptions’ purview.

THE TOTALITY OF BIEL’S JOB DUTIES INDICATED THAT THE EXCEPTION DID NOT APPLY

The Ninth Circuit reversed. Recognizing that religious organizations have a broad, sweeping right to select their own ministerial leaders, the court analyzed whether the ministerial exception applied in this case.

The US Supreme Court has held that the ministerial exception bars the government from interfering in a religious organizations’ employment decisions with respect to its own ministers. Rooted in the first amendment, the ministerial exception prevents the government from reaching into religious affairs.

Here, however, Biel did not lead students in prayers, although she did participate in the prayers led by the students themselves. The subjects she taught included more religious history than religion itself. Seen as a whole, the court deemed that the ministerial exception did not apply.

CONCLUSION

Application of the ministerial exception is a fact intensive inquiry. There is no bright line to guide the decision making. Given the Ninth Circuit’s common law approach, practitioners should review the various cases and make their judgment as to whether the exception precludes suit or not.

CELA INVOLVEMENT
Congratulations to CELA members Andrew Pletcher, Cathryn Fund, and Joseph Lovretovich on this win.

9^th Circuit, Filed 12/16/18, Opinion by Judge Friedland; dissent by Judge Fisher.

Full Decision

NUNIES v. HIE HOLDINGS, INC.

PLAINTIFF NUNIES WAS FIRED AFTER HE DISCLOSED HIS DISABILITY

Plaintiff Nunies worked for HIE as a truck driver, a position that required lifting as much as fifty pounds. After he injured his shoulder, he requested a transfer to a part-time, less physical job. His transfer was approved. He then revealed his injury to HIE, which withdrew its approval and forced him to resign. Nunies sued for violation of the ADA and Hawaii’s anti-discrimination in employment law. The trial court granted summary judgment, finding that Nunies did not have a disability, was not regarded as disabled, and had failed to show that his shoulder injury substantially limited a major life activity. The Ninth Circuit reversed.

THE “REGARDED AS” PRONG OF THE ADA’S DEFINITION OF DISABILITY DOES NOT REQUIRE A SUBSTANTIAL LIMITATION OF A MAJOR LIFE ACTIVITY.

In 2008, Congress passed the ADA Amendment Act (“ADAAA”), which substantially expanded the definition of a disability. Under the ADA, a disability is defined as having (a) a physical or mental impairment that substantially limits a major life activity, (b) a record of such an impairment (usually meaning having had such an impairment in the past), or (c) being regarded as having such an impairment. Before the ADAAA, the ADA’s “regarded as” prong required that the employer subjectively believe that the plaintiff was substantially limited in a major life activity. The ADAAA explicitly changed that requirement, stating that one can be “regarded as” having a disability “whether or not the impairment limits or is perceived to limit a major life activity.” 42 USC 12102(3)(A). Though the regarded as definition of disability still excludes transitory and minor disabilities, the burden is on the employer to show a disability is transitory or minor because it is an affirmative defense. Finally, possibly contradictory statements by Nunies were irrelevant on summary judgment, as his credibility was a jury question.

9th Circuit. Amended Opinion Filed 11/1/18. 908 F.3d. 428. Opinion by Judge Tashima.

Full Decision

ROOKAIRD v. BNSF RAILWAY COMPANY

PLAINTIFF ROOKAIRD CONTINUED AN AIR BRAKE TEST DESPITE PUSHBACK FROM MANAGEMENT

Defendant BNSF operates a freight railroad. It used three-person crews to switch or reassign freight cars when freight was delivered or picked up. Plaintiff Curtis Rookaird was in charge of a three-person switcher crew. One night, Rookaird’s crew was ordered to move a train from the main line to a different set of tracks. Before moving the train, the crew performed an air brake test. The trainmaster said the test was unnecessary but did not tell the crew to stop. When the train had not been moved ninety minutes later, the trainmaster ordered Rookaird and his crew to stop and return to the depot, believing that they were moving slowly on purpose. Rookaird’s supervisor said the air brake test was unnecessary and sent Rookaird and his crew home. BNSF investigated Rookaird and fired him for failure to work efficiently.

ROOKAIRD WAS ENTITLED TO SUMMARY JUDGMENT ON THE CONTRIBUTING FACTOR ISSUE IN HIS PRIMA FACIE CASE, BUT NOT IN HIS SUBSTANTIVE CASE

The Federal Railroad Safety Act (FRSA) prohibits retaliation against employees who refuse in good faith to violate railroad safety laws or regulations. 42 U.S.C. §20109. The employee must first make a prima facie showing that protected activity was a contributing factor in the personnel action, then the burden shifts to the employer to prove, by clear and convincing evidence, that it would have taken the same action in the absence of the protected activity. The employee must then prove by a preponderance of evidence that the protected activity was a contributing factor in the personnel action. The District Court granted summary judgment to Rookaird on several elements of his claim, so the only issues for the jury were whether refusal to stop the air brake test was protected activity, BNSF’s affirmative defense, and damages. The jury found for Rookaird. The Ninth Circuit affirmed in part and reversed in part. It held that an employee can “refuse” to violate a safety rule even without being ordered to violate the rule. It further held that an actual safety rule need not be violated, so long as the employee had a good faith belief that there was a violation. Though the air brake test was not legally required, Rookaird reasonably believed that it was. However, the District Court erred by granting summary judgment to Rookaird on the issue of whether circumstances were sufficient to raise the inference that the protected activity was a contributing factor in the adverse action and instructing the jury that this issue was not in dispute. Rookaird was entitled to summary judgment on this issue in his prima facie case, because there was a lower threshold to prove his prima facie case. However, the jury should have decided the contributing factor issue when assessing the substance of Rookaird’s cause of action.

9th Circuit. Filed 11/8/18. 908 F.3d 451. Opinion by Judge Tunheim.

Full Decision