• Dean Royer

August and September 2017 employment law decisions

Whistle-blower claim based on University policies

September 26, 2017, Fourth District Court of Appeal, Leah Levi v. The Regents of the University of California: Dr. Levi sued the Regents for a number of claims, including a whistle-blower retaliation claim. The trial court dismissed the entire case by summary judgment. The Court of Appeal reversed with respect to the retaliation claim along with a due process claim. Regarding the retaliation claim, Dr. Levi engaged in protected activity by filing or participated in complaints regarding conflicts of interest related to other Regents’ employees, modified policies favoring another Regents employee, and retaliation for being a whistle-blower, all of which were covered by Regents policies that have the force and effect of California law.

Itemized wage statement claim for civil penalties does not require a knowing or intentional violation

September 26, 2017, First District Court of Appeal, Eduardo Lopez v. Friant & Associates, LLC: Mr. Lopez filed a case for civil penalties under the Labor Code Private Attorneys General Act of 2004 for his employer’s failure to include the last four digits of employee Social Security numbers on itemized wage statements. The trial court dismissed the case on grounds the undisputed evidence showed the employer’s omission was not knowing or intentional. The Court of Appeal disagreed. The knowing or intentional standard is in a section (226(e)(1)) that also specifies penalties. But the penalties in section 226(e)(1) are “statutory” in nature. Mr. Lopez’s case was for “civil” penalties, which are specified in Labor Code section 2699(f). Therefore, the knowing or intentional standard did not apply in the PAGA case.

Discrimination must be based on the employee’s race

September 14, 2017, Second District Court of Appeal, George Diego v. City of Los Angeles: Mr. Diego and another police officer sued their employer for discrimination they alleged following their involvement in a fatal shooting. The case went to trial and a jury awarded the officers nearly $4 million. The City of Los Angeles appealed. The appellate court reversed the jury verdict. The officer’s legal theory was that they were treated less favorably because of their race (Latino) and the race of the victim (African-American). They relied on evidence of another shooting incident involving a white officer and Latino victim. They argued to the jury that any decision based on race by the City could demonstrate unlawful employment discrimination, and there were no jury instructions regarding consideration of the victim’s race. But a discrimination claim requires a showing that the employer’s challenged decision was substantially motivated by the employee’s race. The appellate court found that the officers did not have evidence to show that they were treated less favorably because of their race (as opposed to the race of the victim).

Marital status discrimination does not include marriage to a particular person

September 5, 2017, First District Court of Appeal, Orlando Nakai v. Friendship House Association of American Indians, Inc.: Mr. Nakai was terminated by Friendship House’s CEO, who also happened to be his mother-in-law, after his wife informed the CEO that Mr. Nakai had a gun and was angry at Friendship House employees and she had obtained a restraining order. Mr. Nakai filed a case for marital status discrimination and failure to conduct a reasonable investigation prior to termination. The trial court dismissed the case on grounds Mr. Nakai had insufficient evidence for a jury trial (summary judgment). The Court of Appeal agreed. Mr. Nakai’s theory was that he was terminated because he was the spouse of the employee who reported him and the son-in-law of the CEO. While marital status discrimination prohibits decisions based on an employee’s status as unwed or single or the granting of employment benefits to married employees only, it cannot be based on the status of being married to a particular person. Mr. Nakai’s case was based on the latter. As for the failure to investigate claim, Mr. Nakai was an at-will employee. As such, he had no right to a pre-termination investigation.

Statute of limitations to file with the Department of Fair Employment and Housing

August 29, 2017, Second District Court of Appeal, Guillermo Aviles-Rodriguez v. Los Angeles Community College District: The California Supreme Court previously decided (Romano v. Rockwell International, Inc. (1996) 14 Cal.4th 479) that an employee alleging that a discriminatory act led to the termination of his or her employment has until one year from the termination date to file an administrative claim. That case involved an at-will employee with advanced notice of the effective termination date. In this case, the employee was a professor who was denied tenure, filed a grievance regarding the denial, and then was terminated based on the denial of tenure. The Court of Appeal concluded that the rule established in Romano also applied in this case, i.e., the one-year statute of limitations began on the date of the termination, not the notice of denial of tenure.

#Whistleblower #Statuteoflimitations #Discrimination #Wageandhour #Maritalstatus #PAGA #Race

Recent Posts

See All

Dismissal of sexual harassment claim reversed based on employer’s response to report of customer harassment. November 18, 2021, Ninth Circuit Court of Appeals, Vincent Fried v. Wynn Las Vegas, LLC: Th

A defendant that successfully compels arbitration of a FEHA claim may not recover its attorney’s fees unless the plaintiff’s opposition was frivolous, unreasonable, or groundless. October 18, 2021, Se

The Borello common law test applies to failure to reimburse expenses claims. September 30, 2021, Fifth District Court of Appeal, Veronica Becerra v. The McClatchy Company: Becerra filed a class action