California Supreme Court
OTO, LLC v. KHO
Here, our Supreme Court invalidated an arbitration agreement with what it termed excessive procedural unconscionability. Of particular importance was the fact that the employee was pursuing a wage claim, which has special administrative options under California law. If the arbitration agreement causes the employee to waive these options, it must provide an alternatively accessible and affordable procedure in exchange.
PLAINTIFF KHO WAS PRESENTED WITH AN ARBITRATION AGREEMENT
Plaintiff Ken Kho worked as a service technician for One Toyota of Ontario, licensed as OTO LLC. In 2012, Kho was presented with an arbitration agreement.
The circumstances of the arbitration agreement figured heavily into the court’s analysis. Plaintiff Kho, whose first language is Chinese, was given the agreement only in English. He was not given a copy after he signed it. The agreement was given to him in a stack of other employment-related papers. A document runner provided it to him, and waited by for him to sign it.
The agreement itself was prolix and impenetrable. Although the parties disagreed whether the font was 7 or 8.5 points, the Court stated that regardless it was “quite small.” It made numerous references to statutory provisions without providing the language of those statutes.
THE AGREEMENT WAS PROCEDURALLY UNCONSCIONABLE
Our Supreme Court re-affirmed that unconscionability analysis still applies to arbitration agreements, even after the US Supreme Court’s decision in AT&T Mobility LLC v. Concepcion.
All of the factors discussed above, other than the language issue which was not sufficiently developed in the courts below, were considered in the court’s analysis. Finding that the agreement was “extraordinarily high” in its level of procedural unconscionability, the court followed established precedent that only a low level of substantive unconscionability need be present for the agreement to be unenforceable.
THE AGREEMENT WAS SUBSTANTIVELY UNCONSCIONABLE
The OTO court did find substantive unconscionability, and a significant part of its analysis relied on the fact that Kho was pursuing a wage claim.
The Supreme Court discussed the vacation of its decision in Sonic-Calabasas A, Inc,. v. Moreno by Concepcion in 2012. The following year, it decided Sonic II.
In Sonic I, our Supreme Court ruled that an arbitration agreement that required the waiver of administrative procedures, like the Berman Hearing that California law provides for wage claims, was sufficiently substantively unconscionable to invalidate an arbitration agreement. Concepcion vacated that decision, and upon remand, in Sonic II, the court ruled that waiver of a Berman Hearing by an arbitration was not per se substantively unconscionable.
Nonetheless, in exchange for such a waiver, Sonic II ruled that an employer must provide an “accessible and affordable” procedure for pursuing wage claims. Thus, wage and hour plaintiffs have access to an important analysis when deciding on the enforceability of arbitration agreements: there must be a sufficient exchange for the waiver of the Berman Hearing, and the OTO court re-affirmed that.
Here, the exchange was not sufficient. The arbitration agreement here instituted a litigation-like process that was not as procedurally streamlined as a Berman Hearing. It allowed demurrers, summary judgment motions, applied the rules of Civil Procedure and Evidence, and generally was so impenetrable to a layperson that any wage claimant would need a lawyer. Thus, the process was not sufficiently “accessible and affordable” and did not represent an adequate exchange for the waiver of the Berman Hearing.
The OTO court therefore ruled the arbitration agreement unenforceable on the grounds of unconscionability.
THE COURT REINSTATED THE LABOR COMMISSIONER FINDING
Plaintiff Koh had originally filed his claim with the Labor Commissioner. The day before the Berman Hearing, Defendant OTO faxed a letter to the hearing officer, requesting that the hearing be taken off calendar pending a petition to compel arbitration. The hearing officer refused, and held the Berman Hearing anyway, even though OTO did not appear. Koh was allowed a substantial award of $158,546.
The trial court vacated the award, and the appellate court affirmed. Both courts found that the hearing officer should not have had the hearing in OTO’s absence.
The California Supreme Court reversed, and reinstated the award. It held that Defendant OTO had not properly requested a stay when it filed the arbitration petition, and made a strategic decision not to appear at the Berman Hearing. It would not be relieved of its strategic error, and the award would be reinstated pending subsequent appeal.
CONCLUSION
This is an important and terrific case for wage-and-hour practitioners, as well as employment lawyers generally. Here, our Supreme Court explicitly affirmed that unconscionability analysis applies to arbitration agreements. It went on to find that special issues adhere to wage claims, meaning that arbitration agreements must provide for an accessible and affordable alternative to the Berman Hearing.
CELA also extends its thanks to Miles Locker of the Division of Labor Standards Enforcement of the Department of Industrial Relations for his work on this matter.
Cal. Supreme Court, filed Aug. 29, 2019. Opinion by Justice Corrigan.
VORIS v. LAMPERT
PLAINTIFF VORIS WAS NOT PAID HIS PROMISED WAGES OR STOCK
This matter came to the Supreme Court in the posture of an appeal from a grant of judgment on the pleadings. Therefore, the court assumed all of the following alleged facts were true.
Plaintiff Voris worked for a number of related start-up companies, deferring his wages and stock compensation. When he discovered and reported what he claimed to be financial improprieties, he was fired. He was never paid his stock or his wages.
PLAINTIFF VORIS SUED BOTH THE COMPANIES AND THE INDIVIDUAL OWNERS FOR CONVERSION
Voris filed his claim for violations of the Labor Code related to unpaid wages, as well as conversion of the stock and wages. He sued both the companies and the individual owners.
After obtaining a jury verdict against the companies, Voris was unable to collect due to a corporate lack of funds. He therefore proceeded against Defendant Lampert, the remaining individual owner.
After a series of appeals, the Court of Appeal ruled that the conversion claim would lie against the failure to tender stock, but not against the failure to pay wages.
THE SUPREME COURT HELD THAT CONVERSION CLAIMS WOULD NOT LIE FOR A CAUSE OF ACTION OF UNPAID WAGES
The Supreme Court affirmed the Court of Appeal. It expressly did not rule as to whether failure to tender stock could be subject to a conversion claim, a claim that the court below found cognizable. It did, however, find that the tort of conversion did not apply to claims for unpaid wages.
The court examined the history of the tort of conversion, which had its roots in the common law claim of trover. The court explained that conversion was commonly applied to possessory interests, meaning that the defendant had to prevent the plaintiff’s possession of property over which the plaintiff already had ownership for the tort of conversion to apply. With respect to unpaid wages, the Supreme Court pointed out that there frequently was no such property in existence; a company without assets might owe wages that it didn’t have. Such a situation was in the nature of a debt, as opposed to existing property in which the plaintiff had a possessory interest.
Although no California case had expressly decided the matter, foreign jurisdictions had, with mixed results and sometimes little analysis, and therefore were of little persuasive value. Yet there were informative California cases, and the Supreme Court had to distinguish those, often doing so tenuously.
For example, in Cortez v. Purolator Air Filtration Products Co., 23 Cal.4th 163 (2000), our high court said that “earned wages that are due and payable pursuant to section 200 et seq. of the Labor Code are . . . the property of the employee who has given his or her labor to the employer in exchange for that property.” But the Voris court pointed out that in Cortez, the analysis was conducted under the Unfair Competition Law, which provides equitable relief, and not under the Labor Code. The reasoning in Cortez was based at least in part on the law of equity, which holds that “equity regards that which ought to have been done as done . . . . “ This seems a thin reed on which to rest a distinction.
CONCLUSION
At bottom, the Supreme Court seemed most concerned with the notion that, if conversion were recognized for wage claims, which are fundamentally contractual, then contract law would be swallowed up by the tort of conversion. As true as that practical consideration may be, it does not justify the tenuous legal reasoning of this opinion, especially over the strong dissent by Justice Cuéllar, joined by Justice Liu.
California Supreme Court, Opinion by Justice Kruger.
California Courts of Appeal
HERSEY v. VOPAVA
Under Code of Civil Procedure section 998, a plaintiff who refuses an offer to compromise and obtains a judgment lower than the offer must pay the defendant’s costs. (Note: this no longer applies in FEHA cases unless the case is frivolous.) Defendant Vopava, a landlord, made a section 998 offer of $10,000 shortly before the original trial date. He made a second section 998 offer of $20,001 shortly before trial. Both offers stated that the parties would bear their own costs and fees. After a bench trial, the trial court ordered judgment for Plaintiff Hersey for $7,438. The trial court found that Vopava’s section 998 offer was reasonable and found Vopava the prevailing party. The trial court awarded Vopava costs and attorney fees. Hersey appealed.
SECTION 998 IS MEANT TO INCENTIVIZE SETTLEMENT BY CREATING A STRONG FINANCIAL DISINCENTIVE TO REJECT REASONABLE OFFERS.
Preoffer costs and attorney fees are included in the assessment of whether a plaintiff obtained a more favorable judgment than the 998 offer. Since Hersey had pre-offer costs over $4000 at the time of the first 998 offer, she obtained a more favorable judgment than the first 998 offer. Since Hersey had pre-offer costs of over $12,000 at the time of the second 998 offer and $500 in attorney fees, she narrowly exceeded Vopava’s second 998 offer. Therefore, the case was reversed and remanded. The Court of Appeal stressed that the purpose of section 998 is to encourage settlement by providing “a strong financial disincentive” to a party who fails to achieve a better result.
COA 2nd Dist., Div. 8. Filed 8/14/19. 38 Cal.App.5th 792. Opinion by Justice Stratton.
JEFFRA v. CALIFORNIA STATE LOTTERY
PLAINTIFF JEFFRA ENGAGED IN WHISTLEBLOWING
The following facts were taken as true for purposes of the second prong of the anti-SLAPP motion:
Plaintiff James Jeffra worked as an investigator for the California State Lottery. From 2013 – 2016, he reported various illegal activities conducted by prize claimants not providing sufficient proof of identity, ticket retailers perpetrating fraud, and inadequate systems in place by the Lottery to prevent such fraud.
When he felt that his concerns were dismissed and even discouraged, he and another investigator filed a written whistleblower complaint in late September 2016. They gave their report to the California State Auditor and no one else.
THE CALIFORNIA STATE LOTTERY INVESTIGATED JEFFRA
In November 2016, the California State Lottery placed Jeffra on an administrative leave. He was then interviewed by the special assistant to the deputy director of the Security/Law Enforcement Division (for which he worked). The interview was ostensibly galvanized by an investigation into suspected lottery fraud by Plaintiff Jeffra. During the interview, Jeffra was asked questions about his whistleblower complaint, about which he had told no one but his fellow whistleblower and the Auditor. In fact, the interviewer had a copy of at least the first page of the complaint by the time he interviewed the other whistleblower.
JEFFRA RETIRED AND SUED FOR RETALIATION
Rather than be fired while on administrative leave, lose his pension, and have what he believed would be an impossible task gaining another position in law enforcement, Jeffra retired. He then sued the California State Lottery for whistleblower retaliation.
THE TRIAL COURT DENIED THE ANTI-SLAPP MOTION
Defendant California State Lottery filed an anti-SLAPP motion, claiming that the internal investigation was protected under that statute, and that Plaintiff Jeffra could not meet his burden under the second prong of demonstrating a likelihood of success on the merits.” The trial court denied the motion, ruling that the gravamen of the complaint was not the protected investigation, but the retaliatory acts.
THE COURT OF APPEAL AFFIRMED ON DIFFERENT GROUNDS
While the appeal was pending and after briefing was complete, our Supreme Court decided the case of Wilson v. Cable News Network, Inc., 7 Cal.5th 871 (2019). That case found that a termination of a reporter by a news agency fell within the anti-SLAPP statute’s protection of free speech, but did not rise to the level of public interest such that it was protected by the statute.
Here, the Jeffra court disagreed with the trial court’s reasoning. The court understood Wilson to mean that the investigation conducted by a state agency, such as the Lottery, fell within the statute’s protection of “any other official proceeding authorized by law.” Ca. Code Civ. Pro. §425.16(e)(2).
Nonetheless, although the investigation constituted a protected activity under the statute’s first prong, Plaintiff Jeffra made out a prima facie case sufficient to demonstrate the “minimal merit” necessary to defeat the anti-SLAPP motion.
CONCLUSION
After the Supreme Court’s decision in Wilson – discussed in last month’s edition of the Bulletin – we can expect to see more retaliation and whistleblower cases subjected to anti-SLAPP motions. Although those motions are readily defeated by a showing of “minimal merit” through declarations and other evidence, the right of immediate appeal creates a large disincentive to file such cases. This issue is in need of a legislative fix.
COA, 2nd Dist., Div. 8. Filed 8/29/19. Opinion by Justice Grimes.
L’CHAIM HOUSE, INC. v. DIVISION OF LABOR STANDARDS ENFORCEMENT
COA 1st Dist., Div. 1. Filed 7/31/19. 38 Cal.App.5th 141. Opinion by Justice Banke.
THE NATIONAL GRANGE OF THE ORDER OF PATRONS OF HUSBANDRY v. CALIFORNIA GUILD
INTERVENOR CALIFORNIA GRANGE SHARED CONFIDENTIAL INFORMATION WITH PLAINTIFF NATIONAL GRANGE’S ATTORNEYS.
This case is part of an ongoing litigation involving charters. In 2012, National Grange sued California Guild, and California Grange intervened. Law firm Porter Scott represented National Grange. Law firm Schiff Hardin represented California Grange and its master Ed Komski. From February 2014 on, Komski was in communication with Porter Scott about the ongoing litigation and shared confidential information because he understood that Porter Scott was also acting as California Grange’s attorneys until California Grange retained its own attorneys. Even after California Grange retained Schiff Hardin, Komski continued to share confidential information with Porter Scott because he thought that National Grange and California Grange were jointly litigating the case.
AN ASSOCIATE WORKING ON THE NATIONAL GRANGE CASE LEFT HIS FIRM TO WORK FOR THE FIRM REPRESENTING DEFENDANT CALIFORNIA GUILD.
In 2014, an associate named P.J. Valenti worked for Porter Scott and worked on the National Grange case. The trial court granted National Grange’s motion for summary judgment in 2015. By the end of 2016, opening briefs on appeal had been filed and the Guild and all executive committee members were represented by Ellis Law Group, where associate P.J. Valenti now worked. National Grange and California Grange filed motions to disqualify Ellis Law Group in the trial court, and National Grange also filed a motion to disqualify Ellis Law Group from the appeal. The trial and appellate courts granted the motions to disqualify. Ellis Law Group appealed the trial court’s order and an additional order disqualifying it from the 2016 litigation.
POSSESSION OF CONFIDENTIAL INFORMATION IS PRESUMED IF THERE IS A SUBSTANTIAL RELATIONSHIP BETWEEN THE SUBJECTS OF THE CURRENT AND FORMER REPRESENTATION.
The Rules of Professional Conduct prohibit an attorney from representing a new client whose interests are adverse to those of a former client on a matter in which the attorney obtained confidential information. In seeking disqualification, the moving party need not prove that the attorney actually possesses confidential information, only that there was a substantial relationship between the subjects of the current and former representation. If a substantial relationship exists, the court will presume the attorney possesses confidential information adverse to the former client and order disqualification. Where an attorney is disqualified, the entire firm is vicariously disqualified. Where the attorney represented the opposing side during the same lawsuit, the court has no choice but to disqualify the entire firm. However, if the attorney represented the adverse party in a different case, the court will use a case-by-case analysis to determine disqualification.
COA 3rd Dist. Filed 7/23/19, publication ordered 8/13/19. 38 Cal.App.5th 706. Opinion by Acting Presiding Justice Robie.
SCOTT v. CITY OF SAN DIEGO
Plaintiff Arthur Scott sued the San Diego Police Department for FEHA race discrimination and retaliation. During litigation, Scott rejected SDPD’s $7,000 Code of Civil Procedure section 998 offer to compromise. The case proceeded to trial, and Scott lost. SDPD moved for costs. The trial court awarded costs, though it found that Scott’s claims were not frivolous. Scott appealed. While the appeal was pending, the Legislature amended the FEHA to state that a prevailing defendant may not recover costs for non-frivolous claims, notwithstanding CCP section 998. The Court of Appeal held that the FEHA amendment clarified existing law and was therefore retroactive. Therefore, SDPD could not collect costs from Scott.
COA 4th Dist., Div. 1. Filed 8/1/19. 38 Cal.App.5th 228. Opinion by Justice Guerrero.
WU v. O’GARA COACH CO., LLC
RICHIE LITIGATION HAD PREVIOUSLY BEEN DISQUALIFIED FROM REPRSESENTING A CLIENT AGAINST O’GARA COACH
In a previous case, the Court of Appeals reversed the trial court, and ordered the disqualification of Richie Litigation PC from the representation of a senior executive who was suing O’Gara Coach. In that case, the court found that Darren Richie, principal of Richie Litigation, was also O’Gara Coach’s previous president and CEO, and possessed attorney-client privileged information that he gained through his employment at O’Gara. The court ordered the disqualification even though Richie obtained the information as an officer, not as a client.
RICHIE LITIGATION REPRESENTED WU IN A FEHA CLAIM
Here, Richie Litigation represented Plaintiff Thomas Wu, a former sales advisor at Defendant O’Gara Coach, in a case alleging race discrimination in violation of the Fair Employment & Housing Act (“FEHA”), as well as other employment-related claims.
THE TRIAL COURT DISQUALIFIED RICHIE LIGITATION
Defendant O’Gara Coach moved for disqualification, and the trial court granted the motion. The court found that Richie, when he worked for O’Gara as its president and CEO, had significant responsibility in creating and implementing O’Gara’s anti-discrimination policy and that it was more likely than not that he consulted with outside counsel in that role. The trial court also found that Richie would likely be a percipient witness in the case. As a result, the trial court disqualified Richie Litigation.
THE APPELLATE COURT REVERSED
Reviewing the trial court’s ruling under the abuse of discretion standard, the appellate court reversed. This was not like the previous case in which Richie Litigation had been disqualified, the court found.
Here, the presumptively privileged information that Richie possessed was of the kind referred to as “playbook” information: general information about strategies, procedures, and policies. California law has consistently held that such general knowledge will not disqualify an attorney.
There was no evidence that Richie had participated in any way in the investigation of this particular case, and therefore had no knowledge specifically pertinent here.
Moreover, the likelihood of Richie acting as a percipient witness did not warrant disqualifying his firm. He had obtained informed consent from his client, and the rules do not prohibit other lawyers in his firm from continuing the representation.
CONCLUSION
Clients are entitled to the attorneys of their choice, and in the presence of informed consent, conflicts will not necessarily disqualify a lawyer from representation. Though distasteful and unseemly, the courts will not prohibit an attorney from representing an interest adverse to his or her former employer in the absence of that lawyer’s possession of material, privileged information or some other form of cognizable disadvantage to the former employer.
COA, 2nd Dist., Div. 7, filed Aug. 21, 2019. Opinion by Presiding Justice Perluss.
Ninth Circuit
DORMAN v. THE CHARLES SCHWAB CORP.
PLAINTIFF DORMAN ALLEGED ERISA VIOLATIONS WITH RESPECT TO HIS 401(k) PLAN
Plaintiff Dorman worked for Defendant Charles Schwab from February 2009 until October 2015. He participated in a defined contribution retirement plan using deductions from his pay.
As part of enrolling in the plan, he was required to, and did, sign an arbitration agreement and a class action waiver.
THE TRIAL COURT DENIED THE PETITION TO COMPEL ARBITRATION
Plaintiff Dorman eventually sued, alleging that the plan invested in companies affiliated with Charles Schwab, and continued to do so even though they allegedly performed poorly. Plaintiff Dorman alleged that this was done for the purpose of generating fees, and constituted a breach of fiduciary duty. He sued, alleging a class action under ERISA.
The trial court denied the petition, finding, among other reasoning, that ERISA claims were not arbitrable.
ERISA CLAIMS ARE ARBITRABLE
Although a three-judge panel may not ordinarily overrule precedent in the 9th Circuit, it may do so when there has been an intervening case by the US Supreme Court.
Here, the reasoning in American Express Co. v. Italian Colors Restaurant, 570 US 228 (2013) was incompatible with that of Amaro v. Continental Can Co., 724 F.2d 747 (9th Circ. 1984). The Dorman court therefore expressly overruled Amaro.
CONCLUSION: ERISA claims are arbitrable, as the US Supreme Court has expressly held that arbitration is a sufficient forum for interpreting federal laws. Amaro is therefore overruled.
US 9th Cir., Filed 8/20/19, Opinion by District Judge Pearson, sitting by designation.
MURRAY v. MAYO CLINIC
PLAINTIFF MURRAY SUED FOR DISABILITY DISCRIMINATION UNDER THE ADA
Because the issue was purely a legal one, the court did not review the facts in an extensive way. Plaintiff Dr. Michael Murray sued Defendant Mayo Clinic, among others, alleging that he was fired because of his disability.
THE TRIAL COURT GAVE A “BUT FOR” JURY INSTRUCTION
The parties each filed proposed jury instructions. Plaintiff Murray’s proposal read:
As to Dr. Murray’s claim that his disability was the reason for Mayo Clinic Arizona’s decision to discharge him, Dr. Murray has the burden of proving the following evidence by a preponderance of the evidence: . . .
- Dr. Murray was discharged because Defendants regarded him as disabled, which means that Defendants’ belief that Plaintiff had a disability was a motivating factor in Defendants’ decision to terminate him.
Plaintiff Murray relied on Head v. Glacier Northwest, Inc., 413 F.3d 1053 (9th Cir. 2005), holding that ADA discrimination claims are subject to a “motivating cause” standard.”
Instead, the district judge gave the instruction proposed by Defendants, which read:
As to Dr. Murray’s claim that his disability was the reason for Mayo Clinic Arizona’s decision to discharge him, Dr. Murray has the burden of proving the following evidence by a preponderance of the evidence: . . .
- Dr. Murray was discharged because of his disability.
Defendants prevailed on all counts after a jury trial. Plaintiff Murray timely appealed.
“BUT FOR” IS THE STANDARD FOR TITLE I DISABILITY DISCRIMINATION CLAIMS UNDER THE ADA. HEAD IS NO LONGER GOOD LAW.
Title I of the ADA prohibits discrimination in employment “on the basis of” a disability. Only section 2000e-5 of Title I discusses a causation standard. Section 2000e-5(g)(2)(B) provides for limited relief upon a finding of an unlawful employment practice with a “mixed motivation,” similar to the FEHA standards pronounced by our Supreme Court in Harris v. City of Santa Monica, 56 Cal.4th 203 (2013). Section 2000-e(2) defines an “unlawful employment practice” as one that has an impermissible basis as “a motivating factor . . . even though other factors also motivated the practice.”
In Head, the 9th Circuit joined the 2nd, 5th, 7th and 8th Circuits in finding that “a motivating factor,” and not “but for,” was the correct standard for ADA cases, in keeping with jurisprudence under Title VII, which used the same language.
Four years after Head, the US Supreme Court decided, in Gross v. FBL Financial Services, Inc., that the Age Discrimination in Employment Act (“ADEA”) required demonstration of “but for” causation.
Pointing out yet again, as it did in Dorman, that a three-judge panel can overrule precedent when it is clearly required by an intervening High Court decision, the Murray court overruled Head in light of Gross. The 9th Circuit reasoned that the Gross decision, although analyzing only ADEA cases, inescapably required the same conclusion for the ADA. The other circuits have also ruled in accord after Gross.
CONCLUSION: The ADA has so many disadvantages to it, and now requires a “but for” standard, that it should only be used as a last resort for California practitioners. California’s Fair Employment & Housing Act (“FEHA”), much more protective of California workers, still has “a motivating factor” standard, and should be used in favor of the ADA whenever possible.
Ninth Circuit, Filed 8/20/19, Opinion by District Judge Pearson, sitting by designation.
VALTIERRA v. MEDTRONIC, INC.
PLAINTIFF VALTIERRA WAS MORBIDLY OBESE
Plaintiff Jose Valtierra worked as a facility maintenance technician for Defendant Medtronic since about 2004. That entire time, he was morbidly obese, weighing 300 pounds and in excess of that.
PLAINTIFF VALTIERRA ALLEGED HE WAS FIRED BECAUSE OF HIS OBESITY AND CONSEQUENT PHYSICAL IMPAIRMENTS
Valtierra received work assignments by computer, and updated his work status the same way. Prior to Valtierra going on vacation, his supervisor checked some of his computer inputs, and believed that Valtierra had marked “completed” on tasks he was unlikely to have actually completed.
When his supervisor confronted him, Valtierra admitted that some of the tasks hadn’t been completed, but that he would complete them when he returned from vacation. Medtronic fired him, stating that it was because he falsified records.
Valtierra sued for disability discrimination under the Americans with Disabilities Act. He alleged that the real reason for his firing was that he was morbidly obese, and produced evidence that others who had done the same thing as he had were not fired.
The district court granted summary judgment. It found that morbid obesity was not a disability within the meaning of the ADA unless it was caused by an underlying medical condition. Because Valtierra could not identify any such condition, the district court dismissed his case.
VALTIERRA COULD NOT PROVE A CAUSAL NEXUS BETWEEN HIS OBESITY AND THE TERMINATION
The Ninth Circuit affirmed. It reviewed the cases from other circuits addressing whether morbid obesity constituted a disability under the ADA or not. Having done so, it reserved the question, and found that Valtierra did not raise a triable issue of fact as to the reason for his termination.
Although he presented evidence that others who weren’t morbidly obese had done the same thing he had and had not been fired, the court noted that their actions hadn’t been brought to the company’s attention, and therefore they were not valid comparators.
CONCLUSION
California law is much better for employees, in particular in the area of FEHA’s disability discrimination jurisprudence. Whether morbid obesity constitutes a disability under the federal Americans with Disabilities Act remains an open question in the 9th Circuit, but this court’s review of the caselaw did not look promising. Practitioners need to be prepared to identify an underlying cause of the obesity, such as a recognized psychiatric disorder.
Ninth Circuit, Filed 8/20/19, Opinion by Judge Schroeder.