Although I apparently glossed over it when it was in the Court of Appeal, I’ve decided this is a case worth keeping an eye on. Here’s the issue:

Does Code of Civil Procedure section 1033 permit a trial court to deny Government Code section 12965 attorney fees to the prevailing plaintiff in an action under the Fair Employment and Housing Act (Gov. Code, section 12900 et seq.) if the judgment obtained in a court with jurisdiction over “unlimited” civil cases (see Code Civ. Proc., section 88) could have been rendered in a court with jurisdiction over “limited” civil cases (see Code Civ. Proc., section 85, subd. (a))?

If the Supreme Court says yes, then will plaintiffs still file FEHA cases where the damages are less than $25,000? Employers will argue that in low value cases it’s appropriate for the more streamlined limited civil procedure, which will keep costs down. Keeping costs down will also reduce the negotiating leverage generated by the costs of discovery and potential attorneys’ fees in unlimited civil cases. Plaintiffs will point out that will seriously hamper enforcement of the policies embedded in the FEHA.

This could be huge. Sorry I missed it before.

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Sent from the road….

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The Artaega court states:

[T]hough temporal proximity, by itself, may be sufficient to establish a prima facie case of discrimination or retaliation, it does not create a triable fact as to pretext once the employer has offered evidence of a legitimate, nonprohibited reason for its action.  This is especially so where the employer raised questions about the employee’s performance before he engaged in protected activity, and the subsequent discharge was based on those performance issues.

(Slip op. *2).  If you’ve ever defended a case where someone gets canned in the same week as they announce a disability  (but within a day of an employer finding out, say, it just lost 75% of its profitable business), this will be a welcome addition to your list of cases to refer to.

The weakness in this reasoning is that there is nothing conclusive about timing per se.  Surely, it augments the realities of other existing facts–even indirect inferences.  This goes to the problems of the McDonnel Douglas/Burdine framework that has been kicked around recently on some academic blogs and in some federal court opinions.  Yes, employers will try to hide or lie about direct evidence, so it’s proper to infer discrimination–but why is that different in discrimination contexts than any other application of indirect evidence, like intent?

Of course the law almost totally ignores the realities of what this means in practice: it means cases can get to juries hinging on almost nothing, with the burden of proof more or less already shifted against the Defendant, so, evidence or not, the “nuisance value” of such a case is much, much higher than it otherwise would be.

The advance sheets missed this snippet:

We conclude that the disability discrimination claim fails because the employee’s symptoms did not constitute a “physical disability” under the FEHA.  Specifically, the employee’s pain and numbness did not make it difficult for him to achieve the life activity of working.

(Slip Op. *2.)

The court engages in a lengthy discussion from Slip Op. 17-24.  Try finding much case law on the bottom limits of what is a disability under the FEHA.  There isn’t much.  This case is just as important for that precept as the former.

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This case states what I and others have long believed: the McDonnell Douglas requirement of a prima facie case is really nothing more these days than an unnecessary distraction.  This case is therefore significant because not only does it state that conclusion so bluntly, but also because it was joined both by Chief Judge Ginsburg of the D.C. Circuit and by labor law judge extraordinaire, Harry Edwards.

We’ll see if this gains any steam.  California’s jury instructions and case law have already mostly relegated that framework to motion practice, but it’s still there.

There are also some interesting comments at the above link.

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Question:  is there anyone out there who has ever heard of a small employer making the same argument?  I’ve represented a number of smaller companies or sole proprietors who could make that argument.

Something tells me not to hold my breath for a reply.

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I try not to opine that strongly.  At my new gig, I’ll be representing both sides.  Does that give me credibility from both sides, or from neither?  I suspect the latter. (=

Anyway, my view is that this is a stare decisis case based on Reno.

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Petition for review after affirmance in part and reversed in part of judgment in civil action. Issues: (1) Should California law recognize the “stray remarks” doctrine, which permits the trial court in ruling on a motion for summary judgment to disregard isolated discriminatory remarks or comments unrelated to the decision-making process as insufficient to establish discrimination? (2) Are evidentiary objections not expressly ruled on at the time of decision on a summary judgment motion preserved for appeal?  George, C.J., was absent and did not participate. Votes: Baxter, A.C.J., Kennard, Werdegar, Chin, Moreno, and Corrigan, JJ.

This one is worth following.

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By now it’s on the back burner, but with the issue of DHS “no match” letters hanging over the workplace, some guidance about how the courts would rule when employers are caught in a federalism pincer maneuver would be helpful.

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Overall, I recall the defense focused on the implication for having supervisors personally liable (i.e., if supervisors are just following order from the top).  The plaintiff’s counsel responded by comparing this scenario to a Nazi soldier who kills following an order from the top (i.e., that soldier should be personally liable for the killing).

There was also a lot of discussion/questioning from the justices about how there is no personal liability for the act of discrimination  – - yet the plaintiff’s position is to find personal liability for retaliation that resulted from the discrimination (i.e., if the manager discriminates against an employee, manager is not personally liable.  if the manager subsequently fires the employee for reporting the discriminatory conduct, we then can find the manager personally liable for the retaliation).  Either Justice Chin or Justice Corrigan asked the plaintiff’s counsel: what mental state does a plaintiff have to show in order to find the individual manager personally liable.  I think the response was “animus intent.”

So, the Nuremberg Defense argument? Hmmm…. Personally, I find the constant comparison of everything to the Holocaust… trivializing of it.

This is not about denying a remedy to a plaintiff–it’s about leverage, so I’m not sure I see the “just taking orders” issue as all that relevant, but maybe I’m just turned off by the context.

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[display_podcast]

Happy Hanukkah.

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Justice Joyce L. Kennard said the issues before the court do not simply weigh the use of “illegal drugs.” “Under California’s Compassionate Use Act, this particular use … is allowed,” she said. “What we have is a conflict.”

Indeed. It seems pretty clear to me that that conflict means the federal law wins, and, not unlike the no-match letters, it would put a lot of employers in damned-if-you-do, damned-if-you-don’t situations. Thing is, it also puts employees in the same kind of position, doesn’t it? The article is focused on the medical marijuana issue, because that’s more interesting to the newspapers. My hope is that this adds new dimensions to Tameny claims, which, ironically sprang from an employee’s unwillingness to do an illegal act. Paging Alanis Morrisette.

I will add this to the track list. Its current procedural status is “under review,” so, red.

You can watch the oral arguments, here.

UPDATE:

After watching the oral arguments, I would say that we should be prepared to see Ragingwire overruled. With one justice absent, and many mostly silent, it’s hard to speculate. Of the six there, I saw two to overrule, two on the fence, and two to affirm.

I would say that I thought Ross’s counsel had the better of the argument, but was, to be fair, thrown a number of easier questions. I thought that it was interesting that the issue of illegal aliens was only touched on for a very brief moment, when that seems to be the perfect analogy: state law extends them certain benefits; federal law prohibits their presence, and this exact conflict is very much on everyone’s mind with the no match issue—yet this was almost never discussed.

I’m not sure what result will cause less problems for the people I represent. Before, I was certain it was one way; now, I’m not so sure.

UPDATE II:
Upon further reflection (and not having read the papers at all), I’m surprised that the parties didn’t touch at the main question here: sovereignty. This is not a question of the FEHA or California common law as much as it is a question that relates to conflicts of laws and sovereignty. Yet, unless I’m forgetting something, that was not discussed at all in the oral argument.

In general, states are free to regulate the health, safety, welfare, and morals (i.e., the police power). Though apparently, the commerce clause issues opened by the Lopez case have been re-liberalized, what really needs to be looked at here, in my humble opinion, is whether the Federal CSA, even if allowed under purely intrastate grounds, means that all state laws necessarily contain it in some “implied” form.

I’m not an expert, or even a novice, on this kind of law, but, to me, this issue, and the illegal worker analogy, seem to be closer to the crux of the issue than whether it’s a “prescription” or a “recommendation.”

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