July and August 2017 employment law decisions
August 25, 2017, Ninth Circuit Court of Appeals, Antonio Alamillo v. BNSF Railway Company: Mr. Alamillo sued BNSF Railway Company for disability discrimination and failure to provide a reasonable accommodation. The Ninth Circuit decided that Mr. Alamillo could not establish a “prima facie” case of discrimination because BNSF did not know that Mr. Alamillo was disabled when the decision to initiate disciplinary proceedings was made, and Mr. Alamillo conceded that BNSF disregarded his disability when it decided to terminate him. The appellate court also concluded that there was no reasonable accommodation claim because BNSF provided Mr. Alamillo with a “constant work schedule” and precluding BNSF from terminating Mr. Alamillo for prior misconduct is not a reasonable accommodation.
August 16, 2017, Ninth Circuit Court of Appeals, Charles Merrick v. Hilton Worldwide, Inc.: Mr. Merrick sued Hilton Worldwide, Inc. for age discrimination. The Ninth Circuit Court of Appeals concluded that Mr. Merrick had a “prima facie” case of discrimination because he was sixty years old when he was permanently laid off, his termination was not based on his performance, and his duties were outsourced or assumed by other employees. The appellate court also determined that Hilton had non-discriminatory explanations for the layoff. Mr. Merrick did not dispute the explanations, but claimed he could prove discrimination because Hilton did not offer to transfer him, mischaracterized his responsibilities and performance, and failed to comply with its layoff policy. The Ninth Circuit found that a position Mr. Merrick pointed to was not available and Hilton provided a list of open positions, the record did not support the mischaracterization claim, and the deviation from the layoff guidelines did not constitute specific and substantial evidence of a discriminatory motive.
Hours worked question
August 16, 2017, Ninth Circuit Court of Appeals, Amanda Frlekin v. Apple, Inc.: The Ninth Circuit certified the following question to California Supreme Court: Is time spent on the employer’s premises waiting for, and undergoing, required exit searches of packages or bags voluntarily brought to work purely for personal convenience by employees compensable as “hours worked” within the meaning of California Industrial Welfare Commission Wage Order No. 7?
Anti-SLAPP motion and discrimination
August 16, 2017, Second District Court of Appeal, Dioka Okorie v. Los Angeles Unified School District: Mr. Okorie sued the Los Angeles Unified School District alleging, among other things, discrimination, harassment, and retaliation. In response, the District filed a special motion to strike the complaint (“anti-SLAPP motion”), which the trial court granted. The court of appeal affirmed. The Second District determined that Mr. Okorie’s case was distinguishable from the recent Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057 decision, which decided that a discrimination claim may be struck only if the speech or petitioning activity itself is the wrong complained of, and not just evidence of liability. The wrong in Park was the university’s decision to deny the plaintiff tenure, but Mr. Okorie complained of a wide array of adverse employment actions, with the bulk of them being statements or communicative conduct made by District personnel. Furthermore, Mr. Okorie did not allege that the primary source of the alleged discrimination was his reassignment from his classroom to his home or his subsequent reassignment from his home to ESC, the so-called teacher’s jail. Instead, the gravamen of Mr. Okorie’s theory is discrimination via humiliation, which is meaningless outside the context of the protected speech to which anti-SLAPP protection applies.
Costs of suit
August 15, 2017, Fourth District Court of Appeal, Aleksei Sviridov v. City of San Diego: Mr. Sviridov sued the City of San Diego over his terminations. After three appeals, San Diego was awarded over $90,000 in costs. Mr. Sviridov challenged the award based on the rule that an employer may not recover its costs of suit in a Fair Employment and Housing Act or Public Safety Officers Procedural Bill of Rights Act case unless the court determines it to be frivolous. The court of appeal disagreed because San Diego had made three settlement offers under Code of Civil Procedure section 998, which Mr. Sviridov rejected. The Fourth District reasoned that a blanket application of the FEHA or POBRA costs rule where there is a section 998 offer would erode the public policy of encouraging settlement in such cases.
Retaliation and disability discrimination
August 8, 2017, Fourth District Court of Appeal, Melony Light v. California Department of Parks and Recreation: Ms. Light sued the California Department of Parks and Recreation for retaliation and disability discrimination. The trial court dismissed the retaliation claim on grounds there was no adverse employment action. The Fourth District reversed on grounds there was evidence that would support a finding of an adverse action: Ms. Light was moved to a different office, was subjected to verbal and physical attack during a confrontation, was told she would no longer work at the Department when her out-of-class assignment was over, had a training offer for a position rescinded, was later rejected for promotion to that position, and had her scheduled hours reduced to zero. The appellate court also determined there was direct evidence of retaliatory intent based on a supervisor’s statements that if Ms. Light did not follow orders she would be moved to a different workplace and her work at the District would end. As for the disability claim, the Fourth District affirmed the dismissal because there was no evidence the Department knew of Ms. Light’s disabilities before it took adverse action, only vague references to workplace stress.
One day’s rest in seven
August 3, 2017, Ninth Circuit Court of Appeals, Christopher Mendoza v. Nordstrom, Inc.: Mr. Mendoza on behalf of himself and other Nordstrom employees sued Nordstrom under the California law that requires one day’s rest from work in seven. (Labor Code sections 551 and 552.) An exception applies when the employee works less than six hours. The trial court ruled in favor of Nordstrom on grounds that although Mr. Mendoza worked seven consecutive days over two work weeks on three separate occasions, he worked less than six hours on some, but not all, of those days. The Ninth Circuit affirmed the decision, but for different reasons. The California Supreme Court had decided that the seven-day period is only for each workweek and the exception only applies when the employee works less than six hours on all seven days. It was undisputed that Mr. Mendoza did not work seven consecutive days within any one work week.
Civil penalty versus unpaid wages
August 2, 2017, Fifth District Court of Appeal, Richard Esparza v. KS Industries, L.P.: KS Industries, L.P. sought to compel arbitration of Mr. Esparza’s claims, on behalf of himself and other employees, for civil penalties and wages arising from minimum wage and overtime violations, meal and rest break violations, timely payment of wages, failure to provide pay statements, and failure to reimburse business expenses. Mr. Esparza relied on Labor Code sections 558 and 1197.1 to contend that recovery of the unpaid wages was a form of civil penalty, which could not be forced into arbitration. The Fifth Circuit disagreed, pointing out that section 558 provides that the employee recovers 100 percent of the underpaid wages, whereas a civil penalty action (Labor Code Private Attorney’s General Act) requires 75 percent of the recovery to go to the State of California.
Hostile work environment
July 31, 2017, Ninth Circuit Court of Appeals, Cynthia Fuller v. Idaho Department of Corrections: Ms. Fuller sued the Idaho Department of Corrections for its response to a co-worker raping her on three occasions outside of the workplace. The Ninth Circuit reversed the trial court’s dismissal of her case. The appellate court determined that a reasonable jury could conclude that the IDOC effectively condoned the rapes by requiring Ms. Fuller to return to a workplace run by supervisors who showed public support for her rapist, eagerly anticipated his return, and continued to pay him while denying her paid leave. As a result, IDOC created a hostile work environment by making it more difficult for Ms. Fuller to do her job, to take pride in her work, and to desire to stay in her position.
Vacation pay at time of separation
July 28, 2017, Fourth District Court of Appeal, Nathan Minnick v. Automotive Creations, Inc.: Mr. Minnick sued Automotive Creations, Inc. on behalf of himself and other employees alleging that their employer’s policy violated California law because it required employees who worked for less than one year to forfeit vested vacation pay. The appellate court noted that the California Supreme Court interpreted Labor Code section 227.3 to mean that once vested, vacation pay may not be forfeited. The Fourth District agreed with a Second District decision (Owen v. Macy’s, Inc. (2009) 175 Cal.App.4th 462), which provides that the employer may establish a waiting period before the employee becomes eligible to earn vacation, and if the employer’s policy is clearly stated, the waiting period policy is enforceable. The Fourth District affirmed the dismissal of the case.
Anti-SLAPP motion and retaliation
July 26, 2017, Fourth District Court of Appeal, Aram Bonni v. St. Joseph Health System: Mr. Bonni sued St. Joseph Health System for whistle-blower retaliation. St. Joseph filed a special motion to strike the complaint (“anti-SLAPP motion”), which the trial court granted. The court of appeal reversed. The Fourth District reviewed the recent Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057 decision, which counseled that in ruling on an anti-SLAPP motion, courts should consider the elements of the challenged claim and what actions by the defendant supply those elements and consequently form the basis for liability. The Fourth District determined that Mr. Bonni’s claim, based on Labor Code 1278.5, arises from St. Joseph’s retaliatory purpose or motive, and not from how that purpose is carried out, even if by speech or petitioning activity. It then observed that Mr. Bonni’s complaint did not allege any specific written or oral statement or writing which allegedly formed the basis of his retaliation claim. Instead, he alleged that an abusive peer review process was initiated by the hospitals because he made complaints about unsafe conditions at the hospitals. Consequently, his claim was not based merely on St. Joseph’s peer review process, or on statements made during those proceedings, but on the retaliatory purpose or motive by which it was undertaken.