Civil Rights Case Law Alerts

 Putnam Family Partnership v. Yucaipa (9^th Cir. 10-55563 2/17/12) FHAA/City Ordinance Prohibiting Conversion of Mobilehome Park Senior Housing into All-Age Housing

Putnam Family Partnership v. Yucaipa (9^th Cir. 10-55563 2/17/12) FHAA/City Ordinance Prohibiting Conversion of Mobilehome Park Senior Housing into All-Age Housing

Four mobilehome park owners in Yucaipa, California appeal the dismissal of their suit under the Fair Housing Amendments Act of 1988 (“FHAA”) challenging a city zoning ordinance prohibiting any mobilehome park currently operating as senior housing from converting to all-age housing.  Because the FHAA is silent on whether such senior housing zones are permissible and because federal regulations allow for them, we AFFIRM the judgment of the district court.

http://www.ca9.uscourts.gov/datastore/opinions/2012/02/17/10-55563.pdf

2/16/12

Ajamian v. CantorCO2e (CA1/5 A131025 2/16/12) Arbitration

Ajamian v. CantorCO2e (CA1/5 A131025 2/16/12) Arbitration

CantorCO2e, L.P. and Joshua Margolis appeal from an order denying their petition to compel arbitration of respondent’s claims under the Federal Arbitration Act.  (9 U.S.C. §§ 1-16.)  They contend:  (1) the arbitration panel, rather than the court, should have decided whether the arbitration provision in respondent’s employment agreement was unconscionable; (2) respondent failed to establish that the arbitration provision was unconscionable, and any unconscionable portion of the provision should have been severed to permit the arbitration to proceed; and (3) alternatively, arbitration should have been compelled under the terms of an employee handbook.

We will affirm the order.  Although the arbitration provision was broadly worded and indicated that arbitration might be conducted under the rules of an arbitration service that gives arbitrators the power to decide the validity of arbitration agreements, it did not provide clear and unmistakable evidence that the parties intended to delegate authority to the arbitrator, rather than to the court, to decide the threshold issue of whether the arbitration provision itself was unconscionable.  The unconscionability issue was therefore for the court to decide.  Furthermore, the provision was procedurally unconscionable and substantively unconscionable in more than one respect, such that the court did not abuse its discretion in concluding that the provision could not be saved by severing the offending terms.  In addition, appellants failed to establish that arbitration should have been compelled under the employee handbook.

http://www.courtinfo.ca.gov/opinions/documents/A131025.PDF

2/13/12

Hunt v. County of Orange (9^th Cir. 10-55163 2/13/12) Retaliation for Political Speech/42 U.S.C. § 1983/Policymaker Exception and Qualified Immunity

Hunt v. County of Orange (9^th Cir. 10-55163 2/13/12) Retaliation for Political Speech/42 U.S.C. § 1983/Policymaker Exception and Qualified Immunity

The day after his scandal-ridden third election to the position of Orange County Sheriff-Coroner, Michael Carona placed on administrative leave William Hunt, a former lieutenant officer with the Orange County Sheriff’s Department (OCSD), who had dared to enter the race and campaign against Carona’s alleged culture of corruption. Carona then demoted Hunt, an action that prompted Hunt to file this 42 U.S.C. § 1983 suit claiming that his placement on administrative leave and subsequent demotion were in unconstitutional retaliation for the exercise of his First Amendment rights. The district court concluded that Hunt’s campaign speech was not protected by the First Amendment because, based upon special factual findings by a jury, Hunt fell into the narrow “policymaker” exception to the general rule against politically motivated dismissals. Although we determine that the district court erred in this conclusion, we agree with the district court’s alternative holding that Carona is entitled to qualified immunity because a government official in his position “reasonably but mistakenly” could have believed that political loyalty was required by someone with Hunt’s job responsibilities at the time he ran against Carona. We therefore affirm the judgment of the district court.

http://www.ca9.uscourts.gov/datastore/opinions/2012/02/13/10-55163.pdf

2/2/12

Fair Housing Council v. Roommate.com (9^th Cir. 09-55272 2/2/12) Roommates/FHA & FEHA

Fair Housing Council v. Roommate.com (9^th Cir. 09-55272 2/2/12) Roommates/FHA & FEHA

There’s no place like home. In the privacy of your own home, you can take off your coat, kick off your shoes, let your guard down and be completely yourself. While we usually

share our homes only with friends and family, sometimes we need to take in a stranger to help pay the rent. When that happens, can the government limit whom we choose? Specifically, do the anti-discrimination provisions of the Fair Housing Act (“FHA”) extend to the selection of roommates?

. . .

[¶]

. . .

Because precluding individuals from selecting roommates based on their sex, sexual orientation and familial status raises substantial constitutional concerns, we interpret the FHA and FEHA as not applying to the sharing of living units.  Therefore, we hold that Roommate’s prompting, sorting and publishing of information to facilitate roommate selection is not forbidden by the FHA or FEHA. Accordingly, we vacate the district court’s judgment and remand for entry of judgment for defendant. Because the FHCs are no longer prevailing, we vacate the district court’s order for attorney’s fees and dismiss the cross-appeals on attorney’s fees as moot.

http://www.ca9.uscourts.gov/datastore/opinions/2012/02/02/09-55272.pdf

1/24/12

Marken v. Santa Monica-Malibu USD (CA2/7 B231787 1/24/12) Teacher Disciplinary Action for Sexual Harassment /Public Records Act

Marken v. Santa Monica-Malibu USD (CA2/7 B231787 1/24/12) Teacher Disciplinary Action for Sexual Harassment /Public Records Act

After an investigation of a student’s complaint Ari Marken, a mathematics teacher at Santa Monica High School, received a written reprimand from the Santa Monica-Malibu Unified School District (District) for violating the District’s policy prohibiting the sexual harassment of students.  Marken had been placed on administrative leave during the month-long investigation, but returned to his classroom following the reprimand. 

Two years later Michael Chwe, a District parent, requested disclosure under the California Public Records Act (CPRA) (Gov. Code, § 6250 et seq.)  of records concerning the District’s investigation of Marken and its findings he had violated the sexual harassment policy.  Advised by the District it intended to release certain of the records (specifically, the investigation report and letter of reprimand), Marken filed a verified complaint for injunctive and declaratory relief/petition for writ of mandate, alleging disclosure of his personnel records was not authorized under the CPRA and would violate his constitutional and statutory rights of privacy.  After initially issuing a temporary restraining order, the trial court denied Marken’s request for a preliminary injunction.  The court also denied Chwe’s ex parte application to intervene in the action.  We affirm the order denying the preliminary injunction and dismiss the appeal from the order denying leave to intervene.

http://www.courtinfo.ca.gov/opinions/documents/B231787.PDF

Joaquin v. City of L.A. (CA2/4 B2266851/23/12) Retaliation /Writ of Mandate

Joaquin v. City of L.A. (CA2/4 B2266851/23/12) Retaliation /Writ of Mandate

This case has a somewhat tortuous procedural history.  Plaintiff Richard Joaquin, a Los Angeles Police Department officer, complained of sexual harassment by Sergeant James Sands in 2005.  The department investigated and found Joaquin’s complaint unfounded.  Sands then pursued a complaint against Joaquin for filing a spurious sexual harassment charge.  Internal Affairs investigated Sands’s complaint, agreed that Joaquin’s charge was without foundation, and recommended that the matter be adjudicated by a Board of Rights.  The Board of Rights found Joaquin’s charge to have been fabricated and recommended termination.  The Chief of Police adopted the recommendation, and Joaquin was terminated effective March 2006.

Joaquin filed a petition for writ of mandate.  The superior court granted the petition and ordered Joaquin reinstated, concluding that the Board of Rights’ findings were not supported by the weight of the evidence.

Following his reinstatement, Joaquin filed the present action against the City of Los Angeles (City),  alleging that his termination was in retaliation for filing a sexual harassment complaint in violation of the Fair Employment and Housing Act (FEHA).  (Gov. Code, § 12940 et seq.)  A jury agreed and awarded Joaquin more than $2 million for lost wages and emotional distress.

The City appeals, contending, among other things, that the jury’s verdict was not supported by substantial evidence.  Having reviewed the entire record, we agree that Joaquin did not present substantial evidence that his termination was motivated by retaliatory animus, a necessary element of his claim.  We thus reverse the judgment.

White v. City of Pasadena (9^th Cir. 08-57012 1/17/12) Perceived Disability/Issue Preclusion

White v. City of Pasadena (9^th Cir. 08-57012 1/17/12) Perceived Disability/Issue Preclusion

After her first termination from the City of Pasadena Police Department and subsequent reinstatement, Karin White brought a lawsuit in state court claiming that she had been

discriminated against and harassed by the City due to its perception that she had a  disability. After her second termination, she reiterated her discrimination and harassment claims in an administrative proceeding, where she also argued that the termination was retaliatory. Both of White’s actions resulted in a decision in favor of the City. White now brings claims in federal court based on the same theories litigated in state proceedings. We conclude that California principles of issue preclusion prevent us from reaching these issues here.

http://www.ca9.uscourts.gov/datastore/opinions/2012/01/17/08-57012.pdf

Shelley v. Geren (9^th Cir. 10-35014 1/12/12) Age Discrimination in Employment Act/Prima Facie Case

Shelley v. Geren (9^th Cir. 10-35014 1/12/12) Age Discrimination in Employment Act/Prima Facie Case

Plaintiff-Appellant Devon Scott Shelley appeals the district court’s grant of summary judgment in favor of Defendant-Appellee Pete Geren, Secretary of the Army and the United States Army Corps of Engineers (collectively, the Corps).  Shelley sued the Corps for violating the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq., by failing to interview him and rejecting his applications for two promotions. We have jurisdiction pursuant to 28 U.S.C. § 1291 to consider Shelley’s appeal. We find that Shelley presented a prima facie case of age discrimination and evidence of pretext sufficient to create a material dispute as to whether age-related bias was the “but-for” cause of the Corps’ failure to interview and promote him. The district court’s grant of summary judgment in favor of the Corps is reversed.

http://www.ca9.uscourts.gov/datastore/opinions/2012/01/12/10-35014.pdf

Coleman v. Maryland Court of Appeals (US 10-1016 Oral Argument Transcript 1/11/12) FMLA Self Care Leave/11^th Amendment

Coleman v. Maryland Court of Appeals (US 10-1016 Oral Argument Transcript 1/11/12) FMLA Self Care Leave/11^th Amendment

Issue: Whether Congress constitutionally abrogated states' Eleventh Amendment immunity when it passed the self-care leave provision of the Family and Medical Leave Act.

Oral Argument Transcript

Briefs and Documents

Merits Briefs for the Petitioner

• Brief for Daniel Coleman
• Reply brief for Daniel Coleman

Amicus Briefs in Support of the Petitioner

• Brief for National Partnership for Women and Families et al.
• Brief for Lawyers' Committee for Civil Rights Under Law
• Brief for Senator Tom Harkin et al. 
• Brief for the Constitutional Accountability Center

 Merits Briefs for the Respondents

• Brief for Maryland Court of Appeals et al. 

Amicus Briefs in Support of the Respondents

• Brief for Texas et al.

Certiorari-stage documents

• Opinion below (4th Cir.)
• Petition for certiorari
• Brief in opposition
• Petitioner's reply

Hosanna-Tabor Lutheran Church and School v. Equal Employment Opportunity Commission (US 10-553 1-11-12) Employment Discrimination/First Amendment Freedom of Religion/Ministerial Exception

Hosanna-Tabor Lutheran Church and School v. Equal Employment Opportunity Commission (US 10-553 1-11-12) Employment Discrimination/First Amendment Freedom of Religion/Ministerial Exception

Petitioner Hosanna-Tabor Evangelical Lutheran Church and School is a member congregation of the Lutheran Church–Missouri Synod. The Synod classifies its school teachers into two categories: “called” and “lay.” “Called” teachers are regarded as having been called to their vocation by God. To be eligible to be considered “called,” a teacher must complete certain academic requirements, including a course of theological study. Once called, a teacher receives the formal title “Minister of Religion, Commissioned.” “Lay” teachers, by con­trast, are not required to be trained by the Synod or even to be Lu­theran. Although lay and called teachers at Hosanna-Tabor general­ly performed the same duties, lay teachers were hired only when called teachers were unavailable. After respondent Cheryl Perich completed the required training, Hosanna-Tabor asked her to become a called teacher. Perich accept­ed the call and was designated a commissioned minister. In addition to teaching secular subjects, Perich taught a religion class, led her students in daily prayer and devotional exercises, and took her stu­dents to a weekly school-wide chapel service. Perich led the chapel service herself about twice a year. Perich developed narcolepsy and began the 2004–2005 school year on disability leave. In January 2005, she notified the school principal that she would be able to report to work in February. The principal responded that the school had already contracted with a lay teacher to fill Perich’s position for the remainder of the school year. The principal also expressed concern that Perich was not yet ready to re­turn to the classroom. The congregation subsequently offered to pay resignation as a called teacher. Perich refused to resign. In Febru­ary, Perich presented herself at the school and refused to leave until she received written documentation that she had reported to work. The principal later called Perich and told her that she would likely be fired. Perich responded that she had spoken with an attorney and in­tended to assert her legal rights. In a subsequent letter, the chair­man of the school board advised Perich that the congregation would consider whether to rescind her call at its next meeting. As grounds for termination, the letter cited Perich’s “insubordination and disrup­tive behavior,” as well as the damage she had done to her “working relationship” with the school by “threatening to take legal action.” The congregation voted to rescind Perich’s call, and Hosanna-Tabor sent her a letter of termination.

Perich filed a charge with the Equal Employment Opportunity Commission, claiming that her employment had been terminated in violation of the Americans with Disabilities Act. The EEOC brought suit against Hosanna-Tabor, alleging that Perich had been fired in retaliation for threatening to file an ADA lawsuit. Perich intervened in the litigation. Invoking what is known as the “ministerial excep­tion,” Hosanna-Tabor argued that the suit was barred by the First Amendment because the claims concerned the employment relation­ship between a religious institution and one of its ministers. The District Court agreed and granted summary judgment in Hosanna­ Tabor’s favor. The Sixth Circuit vacated and remanded. It recog­nized the existence of a ministerial exception rooted in the First Amendment, but concluded that Perich did not qualify as a “minister” under the exception.

Held:

1. The Establishment and Free Exercise Clauses of the First Amendment bar suits brought on behalf of ministers against their churches, claiming termination in violation of employment discrimi­nation laws. Pp. 6–15.

(a) The First Amendment provides, in part, that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Familiar with life under the established Church of England, the founding generation sought to foreclose the possibility of a national church. By forbidding the “establishment of religion” and guaranteeing the “free exercise thereof,” the Religion Clauses ensured that the new Federal Government—unlike the Eng­lish Crown—would have no role in filling ecclesiastical offices. Pp. 6–10.

 (b) This Court first considered the issue of government interfer­ence with a church’s ability to select its own ministers in the context of disputes over church property. This Court’s decisions in that area confirm that it is impermissible for the government to contradict a church’s determination of who can act as its ministers. See Watson v. Jones, 13 Wall. 679; Kedroff v. Saint Nicholas Cathedral of Russian Orthodox Church in North America, 344 U. S. 94; Serbian Eastern Orthodox Diocese for United States and Canada v. Milivojevich, 426 U. S. 696. Pp. 10–12.

(c) Since the passage of Title VII of the Civil Rights Act of 1964 and other employment discrimination laws, the Courts of Appeals have uniformly recognized the existence of a “ministerial exception,” grounded in the First Amendment, that precludes application of such legislation to claims concerning the employment relationship be­tween a religious institution and its ministers. The Court agrees that there is such a ministerial exception. Requiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision. Such ac­tion interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs. By imposing an unwanted minister, the state infringes the Free Exercise Clause, which protects a religious group’s right to shape its own faith and mission through its appointments. According the state the power to determine which individuals will minister to the faithful also violates the Establishment Clause, which prohibits government involvement in such ecclesiastical decisions.

The EEOC and Perich contend that religious organizations can de­fend against employment discrimination claims by invoking their First Amendment right to freedom of association. They thus see no need—and no basis—for a special rule for ministers grounded in the Religion Clauses themselves. Their position, however, is hard to square with the text of the First Amendment itself, which gives spe­cial solicitude to the rights of religious organizations. The Court cannot accept the remarkable view that the Religion Clauses have nothing to say about a religious organization’s freedom to select its own ministers.

The EEOC and Perich also contend that Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872, precludes recogni­tion of a ministerial exception. But Smith involved government regu­lation of only outward physical acts. The present case, in contrast, concerns government interference with an internal church decision that affects the faith and mission of the church itself. Pp. 13–15.

2. Because Perich was a minister within the meaning of the minis­terial exception, the First Amendment requires dismissal of this em­ployment discrimination suit against her religious employer. Pp. 15–21.

 (a) The ministerial exception is not limited to the head of a reli­gious congregation. The Court, however, does not adopt a rigid for­mula for deciding when an employee qualifies as a minister. Here, it is enough to conclude that the exception covers Perich, given all the circumstances of her employment. Hosanna-Tabor held her out as a minister, with a role distinct from that of most of its members. That title represented a significant degree of religious training followed by a formal process of commissioning. Perich also held herself out as a minister by, for example, accepting the formal call to religious ser­vice. And her job duties reflected a role in conveying the Church’s message and carrying out its mission: As a source of religious in­struction, Perich played an important part in transmitting the Lu­theran faith.

In concluding that Perich was not a minister under the exception, the Sixth Circuit committed three errors. First, it failed to see any relevance in the fact that Perich was a commissioned minister. Alt­hough such a title, by itself, does not automatically ensure coverage, the fact that an employee has been ordained or commissioned as a minister is surely relevant, as is the fact that significant religious training and a recognized religious mission underlie the description of the employee’s position. Second, the Sixth Circuit gave too much weight to the fact that lay teachers at the school performed the same religious duties as Perich. Though relevant, it cannot be dispositive that others not formally recognized as ministers by the church per­form the same functions—particularly when, as here, they did so only because commissioned ministers were unavailable. Third, the Sixth Circuit placed too much emphasis on Perich’s performance of secular duties. Although the amount of time an employee spends on particu­lar activities is relevant in assessing that employee’s status, that fac­tor cannot be considered in isolation, without regard to the other con­siderations discussed above. Pp. 15–19.

    (b) Because Perich was a minister for purposes of the exception, this suit must be dismissed. An order reinstating Perich as a called teacher would have plainly violated the Church’s freedom under the Religion Clauses to select its own ministers. Though Perich no longer seeks reinstatement, she continues to seek frontpay, backpay, com­pensatory and punitive damages, and attorney’s fees. An award of such relief would operate as a penalty on the Church for terminating an unwanted minister, and would be no less prohibited by the First Amendment than an order overturning the termination. Such relief would depend on a determination that Hosanna-Tabor was wrong to have relieved Perich of her position, and it is precisely such a ruling that is barred by the ministerial exception.

Any suggestion that Hosanna-Tabor’s asserted religious reason for firing Perich was pretextual misses the point of the ministerial ex­ception. The purpose of the exception is not to safeguard a church’s decision to fire a minister only when it is made for a religious reason. The exception instead ensures that the authority to select and control who will minister to the faithful is the church’s alone. Pp. 19–20.

(c) Today the Court holds only that the ministerial exception bars an employment discrimination suit brought on behalf of a minister, challenging her church’s decision to fire her. The Court expresses no view on whether the exception bars other types of suits. Pp. 20–21.

597 F. 3d 769, reversed.

ROBERTS, C. J., delivered the opinion for a unanimous Court. THOM-AS, J., filed a concurring opinion. ALITO, J., filed a concurring opinion, in which KAGAN, J., joined.

http://www.supremecourt.gov/opinions/11pdf/10-553.pdf

Mize-Kurzman v. Marin Community College Dist. (CA1/2 A126937 1/10/12) Whistleblower Retaliation/Jury Instructions

Mize-Kurzman v. Marin Community College Dist. (CA1/2 A126937 1/10/12) Whistleblower Retaliation/Jury Instructions

Plaintiff Pamela Mize-Kurzman appeals from a judgment in favor of defendants Marin Community College District and its Board of Trustees (collectively “district”), following a jury trial on her claims that the district was liable under two California “whistleblower” protection statutes, Labor Code section 1102.5 and Education Code section 87160 et seq.  Plaintiff contends the trial court committed reversible error in jury instructions it gave that were patterned upon federal law; that the errors were compounded by erroneous answers to the jury’s questions; that the court unduly pressured the jury to return a verdict; and that the court committed reversible error when it allowed the district to present evidence of plaintiff’s retirement pension on the issue of her mitigation of damages and instructed the jury that it could determine whether such retirement pension should reduce any damages.  We shall conclude that three of the court’s instructions were erroneous and require reversal and remand for a new trial.

http://www.courtinfo.ca.gov/opinions/documents/A126937.PDF

12/9/11

Henry v. Red Hill Evangelical Lutheran (CA4/3 G044556 12/9/11) FEHA/Ministerial Exception

Henry v. Red Hill Evangelical Lutheran (CA4/3 G044556 12/9/11) FEHA/Ministerial Exception

Plaintiff Sara Henry sued Red Hill Evangelical Lutheran Church of Tustin (sometimes the church) for wrongful termination under the California Fair Employment and Housing Act (Gov. Code, § 12900 et seq. (the FEHA)) and for wrongful termination in violation of public policy based upon her termination from the Red Hill Lutheran School (the school) for living with her boyfriend and raising their child together without being married.  The trial was bifurcated with the church’s defenses to be tried first to the court.  The court held the ministerial exception applied and entered judgment in favor of the church.  We affirm and hold:  (1) Henry’s claim of wrongful termination under the FEHA is barred because the church does not qualify as an “employer” under the FEHA; (2) Henry’s employment was terminated for religious reasons for which the church and school are exempt under title VII of the 1964 Civil Rights Act (42 U.S.C. § 2000e et seq. (Title VII)); and additionally, (3) her claim for wrongful termination in violation of public policy is barred by the ministerial exception.

http://www.courtinfo.ca.gov/opinions/documents/G044556.PDF

12/8/11

Johnson v. Bd. Of Trustees (9^th Cir. No. 10-35233 12/8/11) ADA/Qualified Individual with a Disability

Johnson v. Bd. Of Trustees (9^th Cir. No. 10-35233 12/8/11) ADA/Qualified Individual with a Disability

We must decide whether a disabled teacher is a “qualified individual with a disability” under the Americans with Disabilities Act.

[¶] . . . [¶]

In sum, an individual who fails to satisfy the job prerequisites cannot be considered “qualified” within the meaning of the ADA unless she shows that the prerequisite is itself discriminatory in effect. Otherwise, the default rule remains that “the obligation to make reasonable accommodation is owed only to an individual with a disability who . . . satisfies all the skill, experience, education and other job-related selection criteria.” 29 C.F.R. Pt. 1630, App. to § 1630.9(a). Because Johnson does not allege that the Board’s legal authorization requirement was itself discriminatory, her failure to satisfy such requirement rendered her unqualified, and the Board was not required to accommodate her disability.

The judgment of the district court is affirmed.

http://www.ca9.uscourts.gov/datastore/opinions/2011/12/08/10-35233.pdf

11/16/11

Fuentes v. AutoZone (CA2/4 B224034 11/16/11) Sexual Harassment/Attorneys’ Fees

Fuentes v. AutoZone (CA2/4 B224034 11/16/11) Sexual Harassment/Attorneys’ Fees

AutoZone, Inc. (AutoZone) challenges a judgment against it in an action for sexual harassment brought by its former employee, Marcela Fuentes.  It claims that critical portions of Fuentes’s testimony were inherently improbable, and that the evidence of sexual harassment was insufficient.  AutoZone also challenges as excessive the attorney fees awarded to Fuentes and her counsel.

In the published portion of this decision, we reject AutoZone’s claim that Fuentes’s testimony was improbable and find that substantial evidence supports the jury’s verdict.  In the unpublished portions of the opinion, we decline to find that AutoZone waived its challenge to the sufficiency of the evidence by presenting a slanted and incomplete discussion of the trial evidence.  We also reject Fuentes’s claim that the doctrine of law of the case precludes AutoZone from challenging the sufficiency of the evidence to support the verdict.  Finding no error, we affirm the award of attorney fees.

http://www.courtinfo.ca.gov/opinions/documents/B224034.PDF

Haligowski v. Super. Ct. (CA2/3 B231310 11/10/11) Serviceperson Discrimination/Supervisorial Liability

Haligowski v. Super. Ct. (CA2/3 B231310 11/10/11) Serviceperson Discrimination/Supervisorial Liability

California’s Military and Veterans Code section 394 prohibits employers from discriminating against members of the armed forces.  In this case of first impression, we are asked to decide whether plaintiffs may hold supervisors personally liable for discrimination under section 394.  We conclude that, like the California Fair Employment and Housing Act (the FEHA) (Gov. Code, § 12900 et seq.), another employment discrimination statute which contains similar language and embodies similar goals, section 394 allows servicemen and servicewomen plaintiffs to hold their employers, but not individual employees, liable for discrimination.  Accordingly, we grant the writ petition and issue a peremptory writ of mandate.

http://www.courtinfo.ca.gov/opinions/documents/B231310.PDF

Brennan v. Townsend & O’Leary (CA4/3 G042398 10/18/11) Sexual Harassment/Severe or Pervasive Standard

Brennan v. Townsend & O’Leary (CA4/3 G042398 10/18/11) Sexual Harassment/Severe or Pervasive Standard

Plaintiff Stephanie Crowley Brennan appeals from a judgment entered in favor of her former employer, Townsend & O’Leary Enterprises, Inc., and a former manager at Townsend & O’Leary Enterprises, Scott Montgomery (collectively referred to as defendants), after the trial court granted defendants’ motion for judgment notwithstanding the verdict (JNOV motion).  The court granted the JNOV motion on the ground insufficient evidence supported a finding plaintiff had been subjected to severe or pervasive harassment based on her gender.

We affirm.  The California Supreme Court has set forth the legal standards to be applied in determining whether a plaintiff has demonstrated severe or pervasive harassment based on gender.  (See Hughes v. Pair (2009) 46 Cal.4th 1035 (Hughes); Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264 (Lyle).)  Applying those legal standards to the evidence in the record in the light most favorable to the jury’s verdicts, we must conclude insufficient evidence supported a finding plaintiff was subjected to severe or pervasive harassment based on her gender.  The trial court, therefore, did not err by granting defendants’ JNOV motion.  We cannot reconcile any other result than the one reached by the trial court with California Supreme Court authority.  Because we conclude plaintiff’s appeal is without merit, we do not reach the issues raised in defendants’ cross appeal.

http://www.courtinfo.ca.gov/opinions/documents/G042398.PDF

Employment Bill Signed by Governor Edmund G. Brown, Jr. (10-10-11)

Employment Bill Signed by Governor Edmund G. Brown, Jr. (10-10-11)

AB 22 by Assemblymember Tony Mendoza (D-Artesia) – Employment: credit reports.  http://www.leginfo.ca.gov/pub/11-12/bill/asm/ab_0001-0050/ab_22_bill_20110920_enrolled.pdf

Employment Bills Signed by Governor Edmund G. Brown, Jr. (10/9/11)

Employment Bills Signed by Governor Edmund G. Brown, Jr. (10/9/11)

AB 592 by Assemblymember Ricardo Lara (D-South Gate) – Employment: leave: interference, restraint, and denial. http://www.leginfo.ca.gov/pub/11-12/bill/asm/ab_0551-0600/ab_592_bill_20110916_enrolled.pdf

AB 887 by Assemblymember Toni G. Atkins (D-San Diego) – Gender. http://www.leginfo.ca.gov/pub/11-12/bill/asm/ab_0851-0900/ab_887_bill_20110908_enrolled.pdf

AB 1088 by Assemblymember Mike Eng (D-Monterey Park) – State agencies: collection of demographic data. http://www.leginfo.ca.gov/pub/11-12/bill/asm/ab_1051-1100/ab_1088_bill_20110916_enrolled.pdf

AB 1236 by Assemblymember Paul Fong (D-Mountain View) – Employment: hiring practices: electronic employment verification. http://www.leginfo.ca.gov/pub/11-12/bill/asm/ab_1201-1250/ab_1236_bill_20110909_enrolled.pdf

SB 459 by Senator Ellen Corbett (D-San Leandro) – Employment: independent contractors. http://www.leginfo.ca.gov/pub/11-12/bill/sen/sb_0451-0500/sb_459_bill_20110912_enrolled.pdf

SB 757 by Senator Ted Lieu (D-Torrance) – Discrimination. http://www.leginfo.ca.gov/pub/11-12/bill/sen/sb_0751-0800/sb_757_bill_20110906_enrolled.pdf

Log Cabin Republicans v. United States (9^th Cir. 10-56634 9/29/11) Constitutionality of “Don’t Ask, Don’t Tell”/Mootness

Log Cabin Republicans v. United States (9^th Cir. 10-56634 9/29/11) Constitutionality of “Don’t Ask, Don’t Tell”/Mootness

We are called upon to decide whether the congressionally enacted “Don’t Ask, Don’t Tell” policy respecting homosexual conduct in the military is unconstitutional on its face.

[¶] . . . . [¶]

This suit became moot when the repeal of section 654 took effect on September 20. If Log Cabin filed suit today seeking a declaration that section 654 is unconstitutional or an injunction against its application (or both), there would be no Article III controversy because there is no section 654. The repeal, in short, gave Log Cabin “everything” its complaint “hoped to achieve.” Helliker, 463 F.3d at 876. There is no longer “a present, live controversy of the kind that must exist” for us to reach the merits. Hall, 396 U.S. at 48.

http://www.ca9.uscourts.gov/datastore/opinions/2011/09/29/10-56634.pdf

Plaintiff Christine Earl appeals the district court’s grant of summary judgment on her age and disability discrimination and wrongful termination claims under California law against defendant employer Nielsen Media Research, Inc. (“Nielsen”). Viewing the evidence in the light most favorable to Earl, reasonable jurors could find that Nielsen’s proffered reason for terminating Earl’s employment was a pretext for age discrimination. We therefore reverse the district court’s grant of summary judgment against Earl on her age discrimination and wrongful termination claims. We affirm summary judgment against Earl on her disability discrimination claim.

http://www.ca9.uscourts.gov/datastore/opinions/2011/09/26/09-17477.pdf

We remand to the district court to comply with the United States Supreme Court’s decision in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011).

Intermountain Fair Housing v. Boise Rescue (9^th Cir. 10-35519 9/19/11) Fair Housing Act/Religious Discrimination in Shelter/Residential Recovery Services

Intermountain Fair Housing v. Boise Rescue (9^th Cir. 10-35519 9/19/11) Fair Housing Act/Religious Discrimination in Shelter/Residential Recovery Services

We consider the extent of the protection afforded by the Fair Housing Act (“FHA”), 42 U.S.C. §§ 3601-3631, against religious discrimination. Defendant Boise Rescue Mission Ministries, a non-profit Christian organization, operates a residential drug treatment program and, at the time relevant to this appeal, two homeless shelters in Boise, Idaho. Plaintiffs Janene Cowles, Richard Chinn, and Intermountain Fair Housing Council allege that Defendant engages in religious discrimination in providing shelter and residential recovery services, in violation of the FHA. The district court granted summary judgment to Defendant, and we affirm.

http://www.ca9.uscourts.gov/datastore/opinions/2011/09/19/10-35519.pdf

Ellis v. Costco Wholesale Corp. (9th Cir. 07-15838 9/16/11) Title VII Sex Discrimination/Class Certification

Ellis v. Costco Wholesale Corp. (9th Cir. 07-15838 9/16/11) Title VII Sex Discrimination/Class Certification

Costco Wholesale Corporation appeals the district court’s order granting class certification in a class action brought by Shirley “Rae” Ellis, Leah Horstman, and Elaine Sasaki (collectively Plaintiffs). In the class action, Plaintiffs allege that Costco’s promotional practices discriminate based on gender.  Because we granted Costco permission to file an interlocutory appeal, our jurisdiction arises under 28 U.S.C. § 1292(e). We affirm in part, vacate in part, and remand.

This complicated case requires us to consider a number of issues relating to class certification. Several of these issues have recently been clarified by the Supreme Court’s decision in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2551 (2011). Given this new precedent altering existing case law, we must remand to the district court. See Associated Builders & Contractors, Inc. v. Curry, 68 F.3d 342, 343 (9th Cir. 1995). Specifically, we take the following actions: (1) Because at least one named Plaintiff (Sasaki) alleges a concrete injury that is both directly traceable to Costco’s allegedly discriminatory practices and is redressable by both injunctive relief and monetary damages, see Bates v. United Parcel Serv., Inc., 511 F.3d 974, 985 (9th Cir. 2007) (en banc), we affirm the district court’s ruling on standing. (2) We vacate and remand the district court’s ruling as to “commonality” under Rule 23(a) of the Federal Rules of Civil Procedure. The district court failed to conduct the required “rigorous analysis” to determine whether there were common questions of law or fact among the class members’ claims. Gen. Tel. Co. of the Sw. v. Falcon, 457 U.S. 147, 161 (1982). Instead it relied on the admissibility of Plaintiffs’ evidence to reach its conclusion on commonality. (3) We vacate the district court’s ruling as to “typicality” under Rule 23(a), because the district court failed to consider the effect that defenses unique to the named Plaintiffs’ claims have on that question. Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 1992). (4) We affirm the district court’s ruling that Sasaki is an adequate class representative under Rule 23(a). As a current employee who continues to be denied promotion, Sasaki has incentive to vigorously pursue injunctive relief as well as monetary damages on behalf of all the class members. Hanlon v. Chrysler Corp., 150 F.3d 1011, 1020 (9th Cir. 1998).  However, we vacate the district court’s finding that Ellis and Horstman could adequately represent the class, because they were former employees and had no incentive to pursue injunctive relief. (5) In light of Wal-Mart’s rejection of the “predominance” test, 131 S. Ct. at 2557-59, the district court must consider whether the claims for various forms of monetary relief will require individual determinations and are therefore only appropriate for a Rule 23(b)(3) class. Thus, we vacate the district court’s certification of the class under Rule 23(b)(2).

http://www.ca9.uscourts.gov/datastore/opinions/2011/09/16/07-15838.pdf

Nichols v. Dancer (9th Cir. 10-15359 9/15/11) Public Employee/First Amendment Freedom of Association

Nichols v. Dancer (9th Cir. 10-15359 9/15/11) Public Employee/First Amendment Freedom of Association

This case tests the bounds of a public employer’s right to discharge or demote an employee for taking action on a matter of public concern. Under the balancing test in Pickering v. Board of Education of Township High School District 205, 391 U.S. 563, 568 (1968), we have long given public employers significant discretion to discipline employees if their conduct disrupts the workplace. That discretion, however, has never been unfettered. An employer may not interfere with an employee’s First Amendment rights unless there is evidence that the employee’s actions have actually disrupted the workplace or are reasonably likely to do so in the future. Simply saying that there has been or will be disruption, without supporting evidence, is not enough. In the face of Pickering, the “because I said so” approach is insufficient to establish a reasonable prediction of disruption, let alone actual disruption.

Kathleen Nichols, a former employee of the Washoe County School District (“District”), was forced to take early retirement after attending a school board meeting at which her boss was fired. The District claimed it was concerned that her association with her former boss would create conflicts in the office. Viewing the record in the light most favorable to Nichols, however, it appears the triggering factor in the District’s action was simply Nichols’s decision to sit next to her boss at the public board meeting, without even speaking to him.  Because the District produced no evidence that Nichols’s association with her boss actually disrupted the office or her performance, or reasonably threatened to cause future disruption, the District has failed to show that its interests in workplace efficiency outweigh Nichols’s First Amendment interests.  Accordingly, we reverse the district court’s grant of summary judgment in favor of the District.

http://www.ca9.uscourts.gov/datastore/opinions/2011/09/15/10-15359.pdf

Dept. Fair Empl. & Hous. v. Air Canada (Messih-Zemaitis) (July 14, 2011) No. 11-07-P FEHC Precedential Dec. on Reconsideration, 2011 WL ____ (Cal.F.E.H.C.) FEHA Disability Discrimination

Dept. Fair Empl. & Hous. v. Air Canada (Messih-Zemaitis) (July 14, 2011) No. 11-07-P FEHC Precedential Dec. on Reconsideration, 2011 WL ____ (Cal.F.E.H.C.) FEHA Disability Discrimination

Caroline Messih-Zemaitis was employed as a customer service agent for Air Canada.  The airline became aware of the employee’s disability when she reported that she had been injured in a work-related incident.  Following this injury, the employee successfully worked for the airline for nearly two years with minor self-modifications and no formal accommodation.  When the employee’s condition worsened, she went on leave for a year while placed on temporary total disability.  After a year with ongoing treatment, the employee’s condition improved and her doctors found her able to return to work under the same modified work duties she had previously successfully employed.  However, the airline refused to reinstate the employee to her former position or to a comparable position and terminated her. 

The Fair Employment and Housing Commission held that Air Canada violated Government Code section 12940, subdivisions (a), (k), (m) and (n) by: terminating Ms. Zemaitis’ employment as a customer service agent because of her disability; failing to provide reasonable accommodations to her that would have allowed her to do her job; ignoring Ms. Zemaitis’ attempts to communicate with the company to return her to work; and ignoring its own accommodations and leave policies.  The Commission awarded Ms. Zemaitis $102,737.60 in back pay, $19,720 in lost benefits, reinstatement to the same or comparable position, front pay from the first day of the hearing (February 16, 2010) to the date of reinstatement, $125,000 in emotional distress damages, and a $25,000 administrative fine to the State General Fund.  It also ordered Air Canada to develop and implement a reasonable accommodation and interactive process policy, to train California management and supervisors on the policy and the FEHA, and to post notices of the decision for 90 days and employee rights under the FEHA permanently in all of Air Canada’s California business locations.  

http://www.fehc.ca.gov/act/pdf/11-07-P_Air%20Canada_Dec_on_Reconsideration.pdf

DFEH Procedural Regulations Approved

DFEH Procedural Regulations Approved

The DFEH Procedural Regulations have been approved by the Office of Administrative Law and filed with the Secretary of State, and will be effective on or about October 7, 2011.  The regulations will be cited as California Code of Regulations, title 2, sections 10000-10066.

FEHA and Related Bills Signed into Law

FEHA and Related Bills Signed into Law

Employment

SB 117 by Senator Christine Kehoe (D-San Diego) – Public contracts: prohibitions: discrimination based on gender or sexual orientation.

SB 559 by Senator Alex Padilla (D-Pacoima) – Discrimination: genetic information.

Housing

AB 483 by Assemblymember Norma J. Torres (D-Pomona) – Housing finance.

SB 332 by Senator Alex Padilla (D-Pacoima) – Rental dwellings: smoking.

Martin v. Inland Empire Utilities Agency (CA4/2 E051217 8/18/11) Race/Age Discrimination/Defamation/Anti-SLAPP

Martin v. Inland Empire Utilities Agency (CA4/2 E051217 8/18/11) Race/Age Discrimination/Defamation/Anti-SLAPP

Plaintiff Dean Martin filed a complaint alleging six causes of action deriving from purported racial and age discrimination and retaliation by defendants Inland Empire Utilities Agency (agency) and its CEO (chief executive officer),  Richard Atwater (collectively, “defendants”), for plaintiff’s refusal to take punitive action against another employee who had made similar allegations.  Plaintiff’s fifth cause of action for defamation alleged defendants had “fabricated false allegations and uttered comm[unic]ations for the specific purpose of injuring Plaintiff in his career and occupation and designed to humiliate and embarrass Plaintiff . . . before the Board and before his own staff.”  Some of the alleged defamatory statements were purported to have occurred during a meeting of the agency’s board on October 7, 2009.  Defendants demurred and also filed a special motion to strike the complaint (anti-SLAPP motion)  pursuant to Code of Civil Procedure, section 425.16.   Plaintiff opposed both the anti-SLAPP motion and the demurrer.  Defendants filed replies with evidentiary objections to plaintiff’s declaration in support of his opposition to the anti-SLAPP motion.

The court overruled defendants’ demurrer as to the first and third causes of action, sustained it without leave to amend as to the second cause of action, and sustained the demurrer with leave to amend as to plaintiff’s remaining causes of action including defamation.  The court then denied the anti-SLAPP motion without ruling on any of defendants’ evidentiary objections.  Defense counsel brought the lack of any rulings on the evidentiary objections to the court’s attention.  Defense counsel also argued that the court’s determination that plaintiff’s failure to adequately plead the defamation cause of action compelled an order granting the anti-SLAPP motion at least as to that particular cause of action.  The court agreed and issued an order granting the anti-SLAPP motion with leave to amend.   The court issued a separate order a week later, ruling on defendants’ evidentiary objections. 

Defendants appeal contending the court erred in (1) granting the anti-SLAPP motion as to only the fifth cause of action; (2) granting the anti-SLAPP motion with leave to amend; (3) neglecting to rule on their evidentiary objections prior to ruling on the anti-SLAPP motion; (4) overruling 18 of defendants’ 33 evidentiary objections; and (5) failing to award them attorney fees as the prevailing party.  We affirm the judgment. 

http://www.courtinfo.ca.gov/opinions/documents/E051217.PDF

Oliver v. Ralphs Grocery Co. (9^th Cir. 09-56447 8/17/11) ADA/Reasonable Accommodation

Oliver v. Ralphs Grocery Co. (9^th Cir. 09-56447 8/17/11) ADA/Reasonable Accommodation

A.J. Oliver is a disabled individual who requires the use of a motorized wheelchair to get around. On December 7, 2007, Oliver filed a lawsuit against Ralphs Grocery Company (“Ralphs”) and Cypress Creek Company (“Cypress Creek”) alleging that a Food 4 Less grocery store in Chula Vista, California did not comply with the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. §§ 12101 12213, and certain state laws. The district court granted summary judgment to the defendants on Oliver’s ADA claim and dismissed his state law claims without prejudice. We affirm.

http://www.ca9.uscourts.gov/datastore/opinions/2011/08/17/09-56447.pdf

Rogers v. County of Los Angeles (CA2/2 B217764 8/16/11) CFRA/Retaliation

Rogers v. County of Los Angeles (CA2/2 B217764 8/16/11) CFRA/Retaliation

After 19 weeks of medical leave, long-time employee Katrina L. Rogers returned to her job with the County of Los Angeles, only to learn that she was being transferred to another position in another department.  She sued the County for violation of the California Family Rights Act of 1993 (CFRA) (Gov. Code, § 12945.2).  Her claim had two components:  (1) that the County interfered with her CFRA rights by transferring her to a noncomparable position, and (2) that the County retaliated against her for exercising her right to take CFRA leave.  The jury returned a special verdict in her favor and awarded damages of $356,000.

The County appealed, contending that her interference claim was barred as a matter of law and that there was insufficient evidence to support her retaliation claim.  We agree and reverse the judgment.

http://www.courtinfo.ca.gov/opinions/documents/B217764.PDF

Salas v. Sierra Chemical Co. (CA3 C064627 8/9/11) Disability Discrimination/Unclean Hands

Salas v. Sierra Chemical Co. (CA3 C064627 8/9/11) Disability Discrimination/Unclean Hands

Plaintiff Vicente Salas appeals from a summary judgment entered in favor of defendant Sierra Chemical Co. (Sierra Chemical).  We affirm the judgment.

. . . ¶ . . .

Salas sued Sierra Chemical, alleging disability discrimination in violation of the Fair Employment and Housing Act (FEHA) and denial of employment in violation of public policy.  Specifically, Salas alleged that Sierra Chemical failed to make reasonable accommodation for his disability and failed to engage in an interactive process to determine such a reasonable accommodation.  (Gov. Code, § 12940, subds. (a), (m), (n).)  Salas also alleged that Sierra Chemical denied him employment to punish him for filing a claim for workers’ compensation benefits, and to intimidate and deter him and others from bringing such a claim. 

Following an in limine motion filed by Salas in which he advised the trial court that he would assert his Fifth Amendment right against self-incrimination in response to any questions concerning his immigration status, Sierra Chemical discovered that the Social Security number used by Salas to secure employment with the company belonged to a man in North Carolina named Kelley R. Tenney. 

http://www.courtinfo.ca.gov/opinions/documents/C064627.PDF

Pantoja v. Anton (CA5 F058414 8/9/11) FEHA Racial & Sexual Harassment/Me Too Evidence

Pantoja v. Anton (CA5 F058414 8/9/11) FEHA Racial & Sexual Harassment/Me Too Evidence

In this employment discrimination case, we are asked to decide whether the court erred in not allowing the jury to hear “me too” evidence, that is, evidence of the employer’s alleged gender bias in the form of harassing activity against women employees other than the plaintiff.  Here, the “me too” evidence related to harassing activity that occurred outside the plaintiff’s presence and at times other than when plaintiff was employed.  At issue is whether the court properly excluded this evidence as propensity or character evidence under Evidence Code section 1101, subdivision (a), or whether it should have been admitted as evidence of a discriminatory or biased intent or motive under Evidence Code section 1101, subdivision (b). 

We conclude that the evidence should have been admitted and the failure to do so was prejudicial.  Consequently, the judgment entered upon the jury’s defense verdict must be reversed.  In doing so, we fully recognize and agree that the FEHA is not a civility code and is “ not designed to rid the workplace of vulgarity.’”  (Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 295 (Lyle).)  Attempting to impose a civility code, human nature being what it is, would be an exercise in futility.  The plaintiff’s evidence in this case, however, if believed, would be more than “vulgarity” in the workplace.

Another issue is whether the court correctly instructed the jury with language from the Supreme Court’s opinion in Lyle, supra, 38 Cal.4th at page 278.  We conclude that the instruction given was a correct statement of the law.  In the context of this case, however, giving it without other clarifying instructions that are also consistent with the principles and teaching of Lyle was error.  We express no opinion regarding whether the particular proposed clarifying instructions requested in this case were appropriate. 

In addition, we conclude that, by granting defendants’ motion in limine to exclude evidence of plaintiff’s supervisor’s use of the word “Mexicans,” and rejecting proffers of similar evidence during trial, the court in effect improperly granted relief equivalent to summary adjudication against plaintiff’s claim alleging racial discrimination.  Finally, we conclude the court did not abuse its discretion when it excluded evidence offered to rehabilitate one of plaintiff’s witnesses after defendants impeached that witness.

The judgment is reversed. 

http://www.courtinfo.ca.gov/opinions/documents/F058414.PDF

Johnson v. Lucent Technologies (9^th Cir. 09-55203 8/4/11) Section 1981 Retaliation/Statute of Limitations

Johnson v. Lucent Technologies (9^th Cir. 09-55203 8/4/11) Section 1981 Retaliation/Statute of Limitations

This case requires us to decide whether 42 U.S.C. § 1981 retaliation claims are governed by the four-year statute of limitations applicable to claims “arising under an Act of Congress enacted” after December 1, 1990, 28 U.S.C. § 1658, or by the personal injury statute of limitations of the forum state. Section 1981 retaliation claims were foreclosed by Patterson v. McLean Credit Union, 491 U.S. 164 (1989), and then made again possible by the Civil Rights Act of 1991. Because they arise under a post-December 1, 1990 Act of Congress, section 1981 retaliation claims are governed by the four-year statute of limitations under § 1658. We have jurisdiction under 28 U.S.C. § 1291. We affirm in part, reverse in part, and remand.

http://www.ca9.uscourts.gov/datastore/opinions/2011/08/04/09-55203.pdf

Walls v. Central Contra Costa Transit Auth. (9^th Cir. 10-15967 8/3/11) FMLA

Walls v. Central Contra Costa Transit Auth. (9^th Cir. 10-15967 8/3/11) FMLA

Plaintiff-Appellant Kerry Walls (“Walls”) appeals the district court’s grant of summary judgment in favor of Defendant-Appellee Central Contra Costa Transit Authority (“CCCTA”). Walls is a former bus driver for CCCTA. After being terminated on January 27, 2006, Walls was reinstated on March 2, 2006 pursuant to an agreement executed over the course of a grievance process between Walls, his union representative, and CCCTA (“Last Chance Agreement” or “Agreement”).  On March 3, 2006, Walls incurred an unexcused absence that violated the attendance requirements of the Agreement. As a result, CCCTA again terminated Walls on March 6, 2006.

After grieving his termination, Walls brought this suit, claiming that his March 6 discharge violated the Family Medical Leave Act (“FMLA”) and his due process right to a pretermination hearing under the United States and California Constitutions. The parties filed cross-motions for summary judgment. The district court granted summary judgment in favor of CCCTA on both claims, reasoning that Walls was not an employee eligible for FMLA benefits when he requested leave, and that he had waived his due process rights. Walls timely appealed. Additional facts are noted where relevant.

We have jurisdiction under 28 U.S.C. § 1291, and we affirm in part and reverse and remand in part.

http://www.ca9.uscourts.gov/datastore/opinions/2011/08/03/10-15967.pdf

Cecil Ingram and The Fair Housing Council of the San Fernando Valley (“Appellants”) appeal the district court’s order awarding them attorney fees following settlement of their claims against Armine Oroudjian and Antony Abelyan (“Appellees”) brought under the Fair Housing Act, 42 U.S.C. §§ 3601-3619, and California law.

Ingram, disabled and confined to a wheelchair, lives in an apartment owned by Oroudjian and managed by Abelyan. In May of 2008, Ingram’s bank did not honor his rent check and the landlord initiated an unlawful detainer action against Ingram in state court. While the state action was pending, Appellants filed this federal lawsuit alleging, among other things, discrimination in violation of the Fair Housing Act and violation of the California Fair Employment and Housing Act. Ingram eventually prevailed in the unlawful detainer action and maintained possession of his apartment.

After learning Ingram succeeded in the unlawful detainer action, the district court strongly encouraged the parties to settle this case. Instead, according to the district court, counsel for Appellants took unreasonable settlement positions and prolonged the litigation, forcing Appellees to pursue litigation alternatives, including a motion for summary judgment. With an opening demand of $425,000, the case later settled for payments of $30,000 to Ingram and $2,000 to the Fair Housing Council, an offer which had been rejected by Appellants one month before settling for that amount. Following settlement, Appellants moved for an award of attorney fees in the amount of $88,857.50. The district court awarded $30,485.00. Appellants argue the district court erred by deducting some of the hours billed and lowering the hourly rates requested by

Appellants.

We review the district court’s decision awarding attorney fees for an abuse of discretion. See Simonia v. Glendale Nissan/Infiniti Disability Plan, 608 F.3d 1118, 1121 (9th Cir. 2010).

http://www.ca9.uscourts.gov/datastore/opinions/2011/07/27/09-57022.pdf

Life Technologies Corp. v. Super. Ct. (CA1/1 A131120 7/14/11) FEHA Discrimination & Retaliation/Privacy Rights of Third Party Witnesses

Life Technologies Corp. v. Super. Ct. (CA1/1 A131120 7/14/11) FEHA Discrimination & Retaliation/Privacy Rights of Third Party Witnesses

Real party in interest Timothy Joyce has sued petitioner Life Technologies Corporation (LTC) for wrongful termination, claiming, among other things, that he was discriminated against on the basis of his age and retaliated against because he complained about such discrimination.  Joyce successfully moved to compel further answers to special interrogatories seeking detailed information about other employees/former employees.  LTC seeks writ relief, contending the information ordered disclosed is irrelevant, unlikely to lead to admissible evidence and implicates significant privacy rights of the third party employees/former employees.  It also contends the trial court failed to provide adequate procedural protections to the third parties before their private information is disclosed and failed to provide adequate protections for any such information once it is disclosed. 

We conclude the trial court did not adequately consider, or provide procedural protections for, the substantial privacy interests of the third party employees/former employees.  Accordingly, we will issue a peremptory writ directing the court to vacate its order compelling further answers to the challenged interrogatories and reconsider Joyce’s motion in light of our opinion.

http://www.courtinfo.ca.gov/opinions/documents/A131120.PDF

Petition for review after granting motion to compel arbitration.  Issue is not yet published, but is likely to be: (1) whether MOU clearly and unmistakably provided that the issue of arbitrability was for the arbitrator, and (2) whether any requirement to arbitrate employee grievances regarding furloughs was an improper delegation of city's budgeting and salary-setting discretion.  Votes: Cantil-Sakauye, C.J., Kennard, Baxter, Werdegar, Chin and Corrigan, JJ.  Review granted/brief due.

Court of Appeal Decision: http://www.courtinfo.ca.gov/opinions/documents/B228732.PDF

Docket: http://appellatecases.courtinfo.ca.gov/search/case/mainCaseScreen.cfm?dist=0&doc_id=1978425&doc_no=S192828

Zullo v. Super. Ct. (CA6 H036242 6/21/11) Arbitration

Zullo v. Super. Ct. (CA6 H036242 6/21/11) Arbitration

Petitioner Sharon Elizabeth Zullo sued her employer, real party in interest Inland Valley Publishing Co. (Inland) for wrongful termination in violation of California’s Fair Employment and Housing Act (Gov. Code, § 12920 et seq. (FEHA)).  The superior court granted Inland’s petition to compel arbitration and stayed the civil proceedings.  Petitioner challenged that ruling by way of a petition for writ of mandate.  We temporarily stayed the arbitration and issued an order to show cause why relief should not be granted.  We now grant the petition and issue the writ.

http://www.courtinfo.ca.gov/opinions/documents/H036242.PDF

County of Kern v. Jadwin (CA2/6 B227276 7/5/11) Harassment/False Claim Act

County of Kern v. Jadwin (CA2/6 B227276 7/5/11) Harassment/False Claim Act

Post hoc, ergo propter hoc is a Latin phrase ". . . used in logic to describe the fallacy of thinking that a happening which follows another must be its result . . . ."  (Webster's New World Dict. (2d College ed. 1989) p. 1113, col. 1.)  In other words, the propinquity of two events does not necessarily establish cause and effect.  The key word here is "necessarily."  County of Kern (County) argues that its filing of a False Claim Act (FCA, Gov. Code, § 12650 et seq.) against its former employee was not, and is not, a result of the employee's federal lawsuit against it.    At oral argument, County adamantly claimed that the two lawsuits have nothing to do with each other.  But, as we shall explain, a trier of fact, i.e., the superior court, factually found that the propinquity of these two lawsuits was not a mere happenstance.  Instead, it expressly  found that the FCA complaint was filed to harass the employee and that it was frivolous.  (§ 12652, subd. (g)(9).)  It implicitly found that maintaining the FCA action was caused by the employee's lawsuit against County. 

County ". . . has no appreciation for the trial court's order which can only be viewed as an adverse factual finding."  (In re Marriage of Greenberg (2011) 194 Cal.App.4th 1095, 1099.)  Where, as here, circumstantial evidence supports the adverse factual finding, it should be, and will be, affirmed on appeal. (Ibid.)  We affirm the order awarding Doctor David F. Jadwin $50,820 attorney fees under the FCA. 

http://www.courtinfo.ca.gov/opinions/documents/B227276.PDF

Nichols v. Dancer (9th Cir. 10-15359 6/24/11) Public Employee Discipline/First Amendment Freedom of Association & Workplace Disruption

This case tests the bounds of a public employer’s right to discharge or demote an employee for taking action on a matter of public concern. Under the balancing test in Pickering v. Board of Education of Township High School District 205, 391 U.S. 563, 568 (1968), we have long given public employers significant discretion to discipline employees if their conduct disrupts the workplace. That discretion, however, has never been unfettered. An employer may not interfere with an employee’s First Amendment rights unless there is evidence that the employee’s actions have actually disrupted the workplace or are reasonably likely to do so in the future. Simply saying that there has been or will be disruption, without supporting evidence, is not enough. In the face of Pickering, the “because I said so” approach is insufficient to establish a reasonable prediction of disruption, let alone actual disruption.

Kathleen Nichols, a former employee of the Washoe County School District (“District”), was forced to take early retirement after attending a school board meeting at which her boss was fired. The District claimed it was concerned that her association with her former boss would create conflicts in the office. Viewing the record in the light most favorable to Nichols, however, it appears the triggering factor in the District’s action was simply Nichols’s decision to sit next to her boss at the public board meeting, without even speaking to him. Because the District produced no evidence that Nichols’s association with her boss actually disrupted the office or her performance, or reasonably threatened to cause future disruption, the District has failed to show that its interests in workplace efficiency outweigh Nichols’s First Amendment interests. Accordingly, we reverse the district court’s grant of summary judgment in favor of the District.

http://www.ca9.uscourts.gov/datastore/opinions/2011/06/24/10-15359.pdf

After petitioner borough fired respondent Guarnieri as its police chief, he filed a union grievance that led to his reinstatement. When the borough council later issued directives instructing Guarnieri how to perform his duties, he filed a second grievance, and an arbitrator ordered that some of the directives be modified or withdrawn. Guarnieri then filed this suit under 42 U. S. C. §1983, alleging that the directives were issued in retaliation for the filing of his first grievance, thereby violating his First Amendment “right . . . to petition the Government for a redress of grievances”; he later amended his complaint to allege that the council also violated the Petition Clause by denying his request for overtime pay in retaliation for his having filed the §1983 suit. The District Court instructed the jury, inter alia, that the suit and the grievances were constitutionally protected activity, and the jury found for Guarnieri. Affirming the compensatory damages award, the Third Circuit held that a public employee who has petitioned the government through a formal mechanism such as the filing of a lawsuit or grievance is protected under the Petition Clause from retaliation for that activity, even if the petition concerns a matter of solely private concern. In so ruling, the court rejected the view of every other Circuit to have considered the issue that, to be protected, the petition must address a matter of public concern.

Held: A government employer’s allegedly retaliatory actions against an employee do not give rise to liability under the Petition Clause unless the employee’s petition relates to a matter of public concern. The Third Circuit’s conclusion that the public concern test does not limit public employees’ Petition Clause claims is incorrect. Pp. 4–19.

(a)

A public employee suing his employer under the First Amendment’s Speech Clause must show that he spoke as a citizen on a matter of public concern. Connick v. Myers, 461 U. S. 138, 147. Even where the employee makes that showing, however, courts balance his employee’s right to engage in speech against the government’s interest in promoting the efficiency and effectiveness of the public services it performs through its employees. Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U. S. 563, 568. Although cases might arise in which special Petition Clause concerns would require a distinct analysis, public employees’ retaliation claims do not call for this divergence. The close connection between the rights of speech and petition has led Courts of Appeals other than the Third Circuit to apply the public concern test to public employees’ Petition Clause claims. This approach is justified by the substantial common ground in the definition and delineation of these rights. Pp.4–8.

(b)

The substantial government interests that justify a cautious and restrained approach to protecting public employees’ speech are just as relevant in Petition Clause cases. A petition, no less than speech, can interfere with government’s efficient and effective operation by, e.g., seeking results that “contravene governmental policies or impair the proper performance of governmental functions,” Garcetti v. Ceballos, 547 U. S. 410, 419. A petition taking the form of a lawsuit against the government employer may be particularly disruptive, consuming public officials’ time and attention, burdening their exercise of legitimate authority, and blurring the lines of accountability between them and the public. Here, for example, Guarnieri’s attorney invited the jury to review myriad details of government decisionmaking. It is precisely to avoid this sort of intrusion into internal governmental affairs that this Court has held that, “while the First Amendment invests public employees with certain rights, it does not empower them to ‘constitutionalize the employee grievance.’ ” Id., at 420. Interpreting the Petition Clause to apply even where matters of public concern are not involved would be unnecessary, or even disruptive, when there is already protection for the public employees’ rights to file grievances and litigate. Adopting a different rule for Petition Clause claims would provide a ready means for public employees to circumvent the public concern test’s protections and aggravate potential harm to the government’s interests by compounding the costs of complying with the Constitution. Pp. 8–13.

(c)

Guarnieri’s claim that applying the public concern test to the Petition Clause would be inappropriate in light of the private nature of many petitions for redress lacks merit. Although the Clause undoubtedly has force and application in the context of a personal grievance addressed to the government, petitions to the government assume an added dimension when they seek to advance political, social, or other ideas of interest to the community as a whole. The Clause’s history reveals the frequent use of petitions to address a wide range of political, social, and other matters of great public import and interest. Pp. 13–17.

(d)

The framework used to govern public employees’ Speech Clause claims, when applied to the Petition Clause, will protect both the government’s interests and the employee’s First Amendment right. If a public employee petitions as an employee on a matter of purely private concern, his First Amendment interest must give way, as it does in speech cases. San Diego v. Roe, 543 U. S. 77, 82–83. If he petitions as a citizen on a matter of public concern, his First Amendment interest must be balanced against the government’s countervailing interest in the effective and efficient management of its internal affairs. Pickering, supra, at 568. If that balance favors the public employee, the First Amendment claim will be sustained. If the balance favors the employer, the employee’s First Amendment claim will fail even though the petition is on a matter of public concern. As under the Speech Clause, whether a petition relates to a matter of public concern will depend on its “content, form, and context . . . , as revealed by the whole record.” Connick, supra, at 147–148, n. 7. The forum in which a petition is lodged will also be relevant. See Snyder

v. Phelps, 562 U. S. ___, ___. A petition filed with a government employer using an internal grievance procedure in many cases will not seek to communicate to the public or to advance a political or social point of view beyond the employment context. Pp. 17–18.

(e)

Absent full briefs by the parties, the Court need not consider how the foregoing framework would apply to this case. P. 19. 364 Fed. Appx. 749, vacated and remanded.

KENNEDY, J., delivered the opinion of the Court, in which ROBERTS, C. J., and GINSBURG, BREYER, ALITO, SOTOMAYOR, and KAGAN, JJ., joined. THOMAS, J., filed an opinion concurring in the judgment. SCALIA, J., filed an opinion concurring in the judgment in part and dissenting in part.

http://www.supremecourt.gov/opinions/10pdf/09-1476.pdf

Wal-Mart Stores, Inc. v. Dukes (US 10-277 6/20/11) Sex Discrimination/Class Action

Wal-Mart Stores, Inc. v. Dukes (US 10-277 6/20/11) Sex Discrimination/Class Action

Respondents, current or former employees of petitioner Wal-Mart, sought judgment against the company for injunctive and declaratory relief, punitive damages, and backpay, on behalf of themselves and a nationwide class of some 1.5 million female employees, because of Wal-Mart’s alleged discrimination against women in violation of Title VII of the Civil Rights Act of 1964. They claim that local managers exercise their discretion over pay and promotions disproportionately in favor of men, which has an unlawful disparate impact on female employees; and that Wal-Mart’s refusal to cabin its managers’ authority amounts to disparate treatment. The District Court certified the class, finding that respondents satisfied Federal Rule of Civil Procedure 23(a), and Rule 23(b)(2)’s requirement of showing that “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” The Ninth Circuit substantially affirmed, concluding, inter alia, that respondents met Rule 23(a)(2)’s commonality requirement and that their backpay claims could be certified as part of a (b)(2) class because those claims did not predominate over the declaratory and injunctive relief requests. It also ruled that the class action could be manageably tried without depriving Wal-Mart of its right to present its statutory defenses if the District Court selected a random set of claims for valuation and then extrapolated the validity and value of the untested claims from the sample set.

Held:

1. The certification of the plaintiff class was not consistent with Rule 23(a). Pp. 8–20.

(a) Rule 23(a)(2) requires a party seeking class certification to prove that the class has common “questions of law or fact.” Their claims must depend upon a common contention of such a nature that it is capable of classwide resolution—which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke. Here, proof of commonality necessarily overlaps with respondents’ merits contention that Wal-Mart engages in a pattern or practice of discrimination. The crux of a Title VII inquiry is “the reason for a particular employment decision,” Cooper v. Federal Reserve Bank of Richmond, 467

U. S. 867, 876, and respondents wish to sue for millions of employment decisions at once. Without some glue holding together the alleged reasons for those decisions, it will be impossible to say that examination of all the class members’ claims will produce a common answer to the crucial discrimination question. Pp. 8–12.

(b)

General Telephone Co. of Southwest v. Falcon, 457 U. S. 147, describes the proper approach to commonality. On the facts of this case, the conceptual gap between an individual’s discrimination claim and “the existence of a class of persons who have suffered the same injury,” id., at 157–158, must be bridged by “[s]ignificant proof that an employer operated under a general policy of discrimination,” id., at 159, n. 15. Such proof is absent here. Wal-Mart’s announced policy forbids sex discrimination, and the company has penalties for denials of equal opportunity. Respondents’ only evidence of a general discrimination policy was a sociologist’s analysis asserting that Wal-Mart’s corporate culture made it vulnerable to gender bias. But be-cause he could not estimate what percent of Wal-Mart employment decisions might be determined by stereotypical thinking, his testimony was worlds away from “significant proof” that Wal-Mart “operated under a general policy of discrimination.” Pp. 12–14.

(c)

The only corporate policy that the plaintiffs’ evidence convincingly establishes is Wal-Mart’s “policy” of giving local supervisors discretion over employment matters. While such a policy could be the basis of a Title VII disparate-impact claim, recognizing that a claim “can” exist does not mean that every employee in a company with that policy has a common claim. In a company of Wal-Mart’s size and geographical scope, it is unlikely that all managers would exercise their discretion in a common way without some common direction. Respondents’ attempt to show such direction by means of statistical and anecdotal evidence falls well short. Pp. 14–20.

2. Respondents’ backpay claims were improperly certified under Rule 23(b)(2). Pp. 20–27.

(a) Claims for monetary relief may not be certified under Rule 23(b)(2), at least where the monetary relief is not incidental to the requested injunctive or declaratory relief. It is unnecessary to decide whether monetary claims can ever be certified under the Rule be-cause, at a minimum, claims for individualized relief, like backpay, are excluded. Rule 23(b)(2) applies only when a single, indivisible remedy would provide relief to each class member. The Rule’s history and structure indicate that individualized monetary claims be-long instead in Rule 23(b)(3), with its procedural protections of pre-dominance, superiority, mandatory notice, and the right to opt out. Pp. 20–23.

(b)

Respondents nonetheless argue that their backpay claims were appropriately certified under Rule 23(b)(2) because those claims do not “predominate” over their injunctive and declaratory relief re-quests. That interpretation has no basis in the Rule’s text and does obvious violence to the Rule’s structural features. The mere “pre-dominance” of a proper (b)(2) injunctive claim does nothing to justify eliminating Rule 23(b)(3)’s procedural protections, and creates incentives for class representatives to place at risk potentially valid monetary relief claims. Moreover, a district court would have to reevaluate the roster of class members continuously to excise those who leave their employment and become ineligible for classwide injunctive or declaratory relief. By contrast, in a properly certified (b)(3) class action for backpay, it would be irrelevant whether the plaintiffs are still employed at Wal-Mart. It follows that backpay claims should not be certified under Rule 23(b)(2). Pp. 23–26.

(c)

It is unnecessary to decide whether there are any forms of “incidental” monetary relief that are consistent with the above interpretation of Rule 23(b)(2) and the Due Process Clause because respondents’ backpay claims are not incidental to their requested injunction. Wal-Mart is entitled to individualized determinations of each employee’s eligibility for backpay. Once a plaintiff establishes a pattern or practice of discrimination, a district court must usually conduct “additional proceedings . . . to determine the scope of individual relief.” Teamsters v. United States, 431 U. S. 324, 361. The company can then raise individual affirmative defenses and demonstrate that its action was lawful. Id., at 362. The Ninth Circuit erred in trying to replace such proceedings with Trial by Formula. Because Rule 23 cannot be interpreted to “abridge, enlarge or modify any substantive right,” 28 U. S. C. §2072(b), a class cannot be certified on the premise that Wal-Mart will not be entitled to litigate its statutory defenses to individual claims. Pp. 26–27.

603 F. 3d 571, reversed.

SCALIA, J., delivered the opinion of the Court, in which ROBERTS,

C. J., and KENNEDY, THOMAS, and ALITO, JJ., joined, and in which GINS-BURG, BREYER, SOTOMAYOR, and KAGAN, JJ., joined as to Parts I and III.

GINSBURG, J., filed an opinion concurring in part and dissenting in part, in which BREYER, SOTOMAYOR, and KAGAN, JJ., joined.

http://www.supremecourt.gov/opinions/10pdf/10-277.pdf Description

Absmeier v. Simi Valley Unif. School Dist. (CA2/6 B221710 6/7/11) Wrongful Termination/Administrative Hearing and Due Process

Absmeier v. Simi Valley Unif. School Dist. (CA2/6 B221710 6/7/11) Wrongful Termination/Administrative Hearing and Due Process

Sometimes an attempt to fix one problem creates a second bigger problem.  Take the instant case for example.

A personnel director files an administrative appeal to challenge his dismissal by his employer, a school district.  A hearing officer selected by the school district's personnel commission to hear the administrative appeal conducts a hearing.  So far so good, but then comes the first problem.  The hearing officer does not decide the case.  After many months go by, he informs the parties that he will not decide the case.  Instead of starting over, the commission creates the second problem.  It employs its attorneys to review the transcripts of the administrative hearing and render the decision.

We reverse.  Problems solved.

Plaintiff John Absmeier appeals a judgment denying his petition for a writ of administrative mandamus.  (Code Civ. Proc., §§ 1085, 1094.5.)  He challenged the termination of his employment by defendant Simi Valley Unified School District (District) by way of an administrative appeal of the District's decision.  His termination was upheld by defendant Simi Valley Unified School District Personnel Commission (Commission). 

We conclude, among other things, that:  1) the Commission had good cause to remove the administrative law judge (ALJ) who presided at the hearing, but 2) it acted beyond its authority when it retained a law firm after the hearing to write the administrative decision using transcripts to weigh the evidence and make findings on credibility.

http://www.courtinfo.ca.gov/opinions/documents/B221710.PDF

Kelley v. The Conco Companies (CA1/5 A126865 6/6/11) FEHA/Sexual Harassment and Retaliation

Kelley v. The Conco Companies (CA1/5 A126865 6/6/11) FEHA/Sexual Harassment and Retaliation

Patrick Kelley was an apprentice ironworker employed by respondent The Conco Companies (Conco).  He complained that he was subjected to a barrage of sexually demeaning comments and gestures by his male supervisor, and later to similar comments by male coworkers, and that he was also subjected to physical threats by coworkers in retaliation for his complaints about his supervisor.  Kelley’s employer changed his work site to separate him from his harassers, but Kelley was later suspended by his union from its apprenticeship program rendering him ineligible for employment.  After the suspension expired, he was not rehired by Conco.  He filed suit against Conco and his former supervisor, and the trial court granted the defendants’ motion for summary judgment on Kelley’s claims for sexual harassment, retaliation and related causes of action.  We reverse as to Kelley’s retaliation claim under the California Fair Employment and Housing Act (FEHA; Govt. Code, § 12900 et seq.), and otherwise affirm.

Quinn v. U.S. Bank (CA2/4 B226143 6/6/11) FEHA Disability Discrimination in Employment/Preemption by National Bank Act

Quinn v. U.S. Bank (CA2/4 B226143 6/6/11) FEHA Disability Discrimination in Employment/Preemption by National Bank Act

Plaintiff filed the present action alleging disability discrimination in violation of the Fair Employment and Housing Act (FEHA) and state common law against his former employer (a national bank) and his former supervisor.  The bank and supervisor moved for summary judgment, asserting that plaintiff’s causes of action were preempted by section 24 of the National Bank Act, title 12 of the United States Code section 24, paragraph Fifth (section 24), which grants national banks the power to dismiss officers “at pleasure.”  The trial court agreed that plaintiff’s causes of action were preempted and granted summary judgment.

We reverse in part.  We conclude that section 24’s “at pleasure” clause was impliedly amended by the Americans With Disabilities Act (ADA), title 42, United States Code sections 12101-12213.  As amended, section 24 preempts FEHA only to the extent that FEHA’s disability provisions exceed the requirements of the ADA.  Because the bank has not demonstrated that plaintiff’s FEHA claims are preempted in their entirety by section 24, we reverse the grant of judgment for the bank as to those claims.  Plaintiff concedes that his claim against his former supervisor is preempted, and we affirm the grant of summary judgment in his favor. 

http://www.courtinfo.ca.gov/opinions/documents/B226143.PDF

Lewis v. United States (9^th Cir. 10-35624 5/26/11) FMLA Medical Certification

Lewis v. United States (9^th Cir. 10-35624 5/26/11) FMLA Medical Certification

Janet Lewis appeals from the district court’s denial of summary judgment affirming a decision of the Merit Systems Protection Board (“MSPB”), which in turn upheld a decision by the United States Air Force (the “Agency”) to terminate her employment. We affirm.

http://www.ca9.uscourts.gov/datastore/opinions/2011/05/26/10-35624.pdf

Semler v. General Electric Capital Corp. (CA2/1 B221103 5/6/11) Unruh Civil Rights Act/Commercial Loan to Felons

Semler v. General Electric Capital Corp. (CA2/1 B221103 5/6/11) Unruh Civil Rights Act/Commercial Loan to Felons

This appeal raises the question of whether a commercial lending institution, which also invests its own money in a borrower's venture, violated the Unruh Civil Rights Act (Act) (Civ. Code, § 51) by declining to make a mezzanine loan to a limited liability company because one of its members was a felon.  We conclude that being a felon is not a personal characteristic similar to those enumerated in the Act, the lending institution had legitimate business reasons justifying its decision — the repayment of the loan and making a return on its investment — and the potential consequences of allowing such a claim would improperly involve the courts in second-guessing a lending institution's expertise in determining loan and investment criteria.

http://www.courtinfo.ca.gov/opinions/documents/B221103.PDF

Can a purported remedy cause the very disease it is supposed to prevent? In this so-called "headless" class action, the answer regrettably is yes.

During the first administration of Governor Edmund G. Brown, Jr., in the mid-1970s, the California Legislature reformed the state's marijuana laws to require the "destruction" by "permanent obliteration" of all records of minor marijuana convictions that were more than two years old. Employers were prohibited from even asking about such convictions on their job applications, with statutory penalties of the greater of actual damages, or $200 per aggrieved applicant.

Real parties are three individuals who brought a class action against petitioner Starbucks Corporation (Starbucks), seeking some $26 million in statutory penalties on behalf of an estimated 135,000 job applicants, because Starbucks's preprinted job application allegedly violated provisions of this marijuana reform legislation. In Starbucks Corp. v. Superior Court (2008) 168 Cal.App.4th 1436 (Starbucks I), we held real parties did not have standing to represent the proposed class because none had any marijuana convictions to reveal. We declined to turn the legislation into a "veritable financial bonanza for litigants like plaintiffs who had no fear of stigmatizing marijuana convictions." (Id. at p. 1449.)

Following our opinion, real parties were dismissed as class representatives on summary judgment. One would have thought this class action suit therefore had reached an end. However, the court permitted plaintiffs to file a first amended complaint to include only job applicants with marijuana convictions. The court also allowed class counsel to conduct further discovery to find a "suitable" class representative. To achieve this, Starbucks has been ordered to randomly review job applications until it identifies job applicants with prior marijuana convictions. Their names are to be disclosed to class counsel unless they affirmatively opt out to a neutral administrator.

By providing for the disclosure of job applicants with minor marijuana convictions, the discovery order ironically violates the very marijuana reform legislation the class action purports to enforce. We fail to understand how destroying applicants' statutory privacy rights can serve to protect them. We reverse the discovery order.

http://www.courtinfo.ca.gov/opinions/documents/G043650.PDF

This is a pleading case masquerading as a summary judgment case. Employees of a corporate-owned car dealership sued the corporation and its sole shareholder, alleging causes of action for age discrimination and violation of the California Family Rights Act. The trial court granted the shareholders motions for summary judgment on the ground that only the corporation as the employer could be held liable for discrimination, and an alter ego theory was not pleaded in the complaint. The court further granted the shareholders motion for attorney fees and costs pursuant to Government Code section 12965, subdivision (b).

Plaintiffs claims regarding the merits of the summary judgment motion are twofold. They do not deny that only an employer may be liable to an employee for discrimination under the California Fair Employment and Housing Act (FEHA) or for violation of the Family Rights Act. They claim that Cooper was an employer under the statutes, the proper test for determining who is an employer being the degree to which that person controls the employee. They also claim that Cooper is liable for the wrongdoing of the corporate employer under an alter ego theory.

The alter ego theory was tendered in a motion to amend their pleading to assert it as a ground of Coopers liability. The plaintiffs did not make an offer of proof in support of the motion. Rather, they offered the facts tendered in opposition to the motion for summary judgment as grounds justifying an amendment. The trial court denied the request on the ground the facts, if true, did not establish Coopers liability as an alter ego of the corporation.

We shall conclude that Coopers control over the employees is not the proper test to determine whether he was the actual employer. The essence of the alter ego doctrine is not that the individual shareholder becomes the corporation, but that the individual shareholder is liable for the actions of the corporation. (Mesler v. Bragg Management Co. (1985) 39 Cal.3d 290, 300.) The proper method for determining whether the sole shareholder of a corporate employer is liable for the wrongdoing employer/corporation, is by the application of an alter ego theory. We agree with the trial court that plaintiffs did not adequately plead an alter ego theory of recovery in their complaint. This being the case, defendant Cooper was under no duty to negate an alter ego claim.

Plaintiffs attempted to raise the issue of alter ego in their opposition to the summary judgment motion. Because the facts they claimed to be undisputed were insufficient to state a claim of alter ego, it is not reasonably possible that they could amend their complaints to allege the theory, and the trial court did not abuse its discretion in denying leave to amend.

We shall reverse the portion of the judgment awarding attorney fees to Cooper because we do not find the action unreasonable, frivolous, meritless or vexatious. Likewise, we deny Coopers motions for sanctions on appeal because we do not find the appeal frivolous.

http://www.courtinfo.ca.gov/opinions/documents/C061510.PDF

Plaintiff-Appellant Hossein Zeinali, who is of Iranian descent, was employed by Defendant-Appellee Raytheon Company for approximately four years. He alleges, inter alia, that Raytheon violated the California Fair Employment and Housing Act (FEHA), Cal. Gov. Code § 12940 et seq., by terminating him on the basis of his race and national origin after he was denied a security clearance by the Department of Defense. Raytheon contends that (1) per Department of the Navy v. Egan, 484 U.S. 518 (1988), federal courts lack jurisdiction to decide discrimination cases involving security clearance decisions, and (2) Zeinali has not introduced any evidence to satisfy his burdens under McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973), and Guz v. Bechtel National, Inc., 8 P.3d 1089, 1113-14 (Cal. 2000).

We hold that we have jurisdiction to adjudicate Zeinali's discriminatory termination claim, as he does not dispute the merits of the executive branch's decision to deny his security clearance application. Rather, he disputes the bona fides of Raytheon's professed security clearance requirement, and he introduces evidence showing that Raytheon retained similarly situated non-Iranian engineers who lacked security clearances. We reverse the district court and hold that Zeinali's discrimination claim may proceed.

This case calls upon us to determine the proper scope of review for a district court considering whether a proposed settlement of housing discrimination claims involving minor plaintiffs is fair and reasonable. Plaintiffs-Appellants-including minors and their guardians ad litem1-appeal the district court's denial, in part, of their motion to approve a proposed settlement of Plaintiffs' housing discrimination claims against their former landlords, Wayne and Eileen Wacker ("Defendants"). The district court, exercising its special duty to protect the interests of litigants who are minors, rejected the settlement, as proposed, because the district court found the designation of 56% of the total settlement value to Plaintiffs' counsel "excessive" and unreasonable. Robidoux v. Wacker Family Trust, 2009 WL 1531785, at *5-6 (E.D. Cal. May 29, 2009). The district court then reduced Plaintiffs' counsel's award from $135,000.00 to $77,166.42 in fees and $8,500.73 in costs and approved the modified settlement. Id. at *6.

We reverse. Although the district court has a special duty to safeguard the interests of minor plaintiffs, that duty requires only that the district court determine whether the net amount distributed to each minor plaintiff in the proposed settlement is fair and reasonable, without regard to the proportion of the total settlement value designated for adult co-Plaintiffs and contracted by them with Plaintiffs' counsel. If the net recovery of each minor plaintiff under the proposed settlement is fair and reasonable, the district court should approve the settlement as proposed.

In Turner v. Association of American Medical Colleges (2008) 167 Cal.App.4th 1401 (Turner I), this court held that, when taking a standardized test, individuals with learning disabilities and other conditions affecting their ability to read are not entitled to accommodations under California's Unruh Civil Rights Act (Unruh Act) (Civ. Code, § 51) and Disabled Persons Act (DPA) (§ 54 et seq.). We reversed the trial court's decision in favor of plaintiffs and, on remand, defendant Association of American Medical Colleges sought an award of attorney fees under section 55 of the DPA. Section 55 provides that the "prevailing party" in an action for injunctive relief under the DPA "shall be entitled to recover reasonable attorney's fees." On remand, the trial court declined to award attorney fees to defendant because, among other reasons, all of the hours spent by defendant on the claim for injunctive relief under section 55 were inextricably intertwined with the defense on plaintiffs' claims under the Unruh Act and section 54.3 of the DPA, and only prevailing plaintiffs are entitled to attorney fees on those claims. That is, section 52 authorizes fee awards only to prevailing plaintiffs on Unruh Act claims, and section 54.3 authorizes fee awards only to prevailing plaintiffs on claims for violation of the DPA. The fee provisions were added to those two sections subsequent to the enactment of section 55.

This case presents an issue of first impression: Is a trial court required to award attorney fees to a prevailing defendant under the bilateral, "prevailing party" statutory fee-shifting provision in section 55 for attorney hours that were inextricably intertwined with the hours incurred in defending claims under sections 52 and 54.3? We conclude that a prevailing defendant is not entitled to an attorney fee award for such hours. When the Legislature enacted the unilateral, "prevailing plaintiff" fee-shifting provisions in sections 52 and 54.3, it created an exception to section 55 by implication, prohibiting a fee award to a prevailing defendant for the same hours devoted to defending claims under sections 52 and 54.3. Thus, the trial court did not err in rejecting defendant's attorney fee request.

Diane Sanders, a former employee of the City of Newport ("the City"), sued the City when it refused to reinstate her after she took an approved medical leave. In her complaint, Sanders alleged that the City violated the Family and Medical Leave Act of 1993 ("FMLA"), the Oregon Family Leave Act ("OFLA"), and other state and federal laws when it failed to reinstate her after she took FMLA/OFLA leave, and ultimately fired her.1 At trial, the City argued that it could not provide a safe workplace for Sanders because she suffered from multiple chemical sensitivity. In a bifurcated trial, a jury decided Sanders's FMLA and other damages claims, while the court decided Sanders's claims for equitable relief under OFLA. The jury returned its verdict in favor of the City, finding that the City did not violate Sanders's FMLA rights. On the basis of the same evidence presented to the jury, the court concluded that the City violated Sanders's OFLA rights and awarded monetary relief. Both Sanders and the City timely appealed. In her appeal, Sanders argues that the court improperly instructed the jury on the elements of her FMLA interference claim. Sanders further argues that the instructional error was not harmless and therefore she is entitled to a new trial. In its appeal, the City argues that the court was bound by the jury's implicit factual findings that it made in rendering a verdict for the City on Sanders's FMLA claim. The City thus argues that it is entitled to judgment on Sanders's OFLA claim.

For the reasons explained below, we agree with Sanders that the trial court improperly instructed the jury on the elements of her FMLA interference claim and that the error was not harmless. We therefore reverse the judgment as to this claim and remand for a new trial. Because the jury was improperly instructed, we vacate the judgment on Sanders's OFLA claim and remand it for further consideration after the retrial of her FMLA claim.

Plaintiff and Appellant Michael Hall filed suit against Goodwill Industries of Southern California (Goodwill) alleging a retaliation claim under the Fair Employment and Housing Act (FEHA; Gov. Code, § 12900 et seq.), and wrongful termination. The trial court granted summary judgment to Goodwill on the ground that Hall's action was barred by the statute of limitations. The court subsequently denied Hall's motion for a new trial based on a claim that newly discovered evidence permitted the court to apply equitable tolling principles to the limitations period. We conclude that the one-year limitations period set forth in Government Code section 12965, subdivision (b) (section 12965(b)) began to run as of the date of the right-to-sue notice issued to Hall and, as a result, Hall's complaint was untimely filed. We further conclude the trial court properly denied Hall's motion for a new trial because he did not present any newly discovered evidence in support of the motion.

Recognizing the significance of religious freedom in all aspects of life, Congress passed the Religious Land Use and Institutionalized Persons Act of 2000 ("RLUIPA" or "the Act") to "protect[ ] institutionalized persons who are unable freely to attend to their religious needs and are therefore dependent on the government's permission and accommodation for exercise of their religion." Cutter v. Wilkinson, 544 U.S. 709, 721 (2005). RLUIPA prohibits state and local governments from imposing "a substantial burden on the religious exercise of a person residing in or confined to an institution" unless the government demonstrates that imposing that burden "is the least restrictive means" of furthering "a compelling governmental interest." 42 U.S.C. § 2000cc-1(a). The term "institution" includes "a jail, prison, or other correctional facility" and "a pretrial detention facility." 42 U.S.C. § 1997(1)(B). We consider whether the Orange County Santa Ana Courthouse holding facility, where every day hundreds of individuals are detained in connection with court proceedings, is an "institution" as defined by RLUIPA. We conclude that this facility is such an "institution" under RLUIPA, and thus the Act covers persons detained at the facility.

Our interpretation of the statute is guided by three principles. To begin, the focus of our inquiry is narrow and preliminary. The only question before us is whether Orange County's facility is an "institution" under RLUIPA; other courthouse or detention facilities have unique characteristics that warrant individualized review. Next, we are mindful that the issue of accommodation—whether the substantial burden on religious exercise is "the least restrictive means of furthering [a] compelling governmental interest"—is distinct from the threshold issue of whether the facility is a covered "institution" in the first place. 42 U.S.C. § 2000cc-1(a). The accommodation question involves serious practical considerations regarding institutional safety, security, and the feasibility of accommodation that are not before us now. Finally, Congress has explicitly directed us to resolve any ambiguities in RLUIPA "in favor of a broad protection of religious exercise, to the maximum extent permitted." 42 U.S.C. § 2000cc-3(g) (emphasis added). With this framework in mind, we turn to the background of the case.

While employed as an angiography technician by respondent Proctor Hospital, petitioner Staub was a member of the United States Army Reserve. Both his immediate supervisor (Mulally) and Mulally's supervisor (Korenchuk) were hostile to his military obligations. Mulally gave Staub disciplinary warning which included a directive requiring Staub to report to her or Korenchuk when his cases were completed. After receiving a report from Korenchuk that Staub had violated the Corrective Action, Proctor's vice president of human resources (Buck) reviewed Staub's personnel file and decided to fire him. Staub filed a grievance, claiming that Mulally had fabricated the allegation underlying the warning out of hostility toward his military obligations, but Buck adhered to her decision. Staub sued Proctor under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), which forbids an employer to deny "employment, reemployment, retention in employment, promotion, or any benefit of employment" based on a person's "membership" in or "obligation to perform service in a uniformed service," 38 U. S. C. §4311(a), and provides that liability is established "if the person's membership . . . is a motivating factor in the employer's action," §4311(c). He contended not that Buck was motivated by hostility to his military obligations, but that Mulally and Korenchuk were, and that their actions influenced Buck's decision. A jury found Proctor liable and awarded Staub damages, but the Seventh Circuit reversed, holding that Proctor was entitled to judgment as a matter of law because the decisionmaker had relied on more than Mulally's and Korenchuk's advice in making her decision.

Held:

1. If a supervisor performs an act motivated by antimilitary animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable under USERRA. In construing the phrase "motivating factor in the employer's action," this Court starts from the premise that when Congress creates a federal tort it adopts the background of general tort law. See, e.g., Burlington N. & S. F. R. Co. v. United States, 556 U. S. ___, ___. Intentional torts such as the one here "generally require that the actor intend' the consequences' of an act,' not simply 'the act itself.' " Kawaauhau v. Geiger, 523 U. S. 57, 61-62. However, Proctor errs in contending that an employer is not liable unless the de facto decisionmaker is motivated by discriminatory animus. So long as the earlier agent intended, for discriminatory reasons, that the adverse action occur, he has the scienter required for USERRA liability. Moreover, it is axiomatic under tort law that the decisionmaker's exercise of judgment does not prevent the earlier agent's action from being the proximate cause of the harm. See Hemi Group, LLC v. City of New York, 559 U. S. 1, ___. Nor can the ultimate decisionmaker's judgment be deemed a superseding cause of the harm. See Exxon Co., U. S. A. v. Sofec, Inc., 517 U. S. 830, 837. Proctor's approach would have an improbable consequence: If an employer isolates a personnel official from its supervisors, vests the decision to take adverse employment actions in that official, and asks that official to review the employee's personnel file before taking the adverse action, then the employer will be effectively shielded from discriminatory acts and recommendations of supervisors that were designed and intended to produce the adverse action. Proctor also errs in arguing that a decisionmaker's independent investigation, and rejection, of an employee's discriminatory animus allegations should negate the effect of the prior discrimination. Pp. 4-10.
2. Applying this analysis here, the Seventh Circuit erred in holding that Proctor was entitled to judgment as a matter of law. Both Mulally and Korenchuk acted within the scope of their employment when they took the actions that allegedly caused Buck to fire Staub. There was also evidence that their actions were motivated by hostility toward Staub's military obligations, and that those actions were causal factors underlying Buck's decision. Finally, there was evidence that both Mulally and Korenchuk had the specific intent to cause Staub's termination. The Seventh Circuit is to consider in the first instance whether the variance between the jury instruction given at trial and the rule adopted here was harmless error or should mandate a new trial. Pp. 11-12.

560 F. 3d 647, reversed and remanded.

SCALIA, J., delivered the opinion of the Court, in which ROBERTS, C. J., and KENNEDY, GINSBURG, BREYER, and SOTOMAYOR, JJ., joined. ALITO, J., filed an opinion concurring in the judgment, in which THO-MAS, J., joined. KAGAN, J., took no part in the consideration or decision of the case.

This [Unruh Civil Rights Act] case [regarding a non-compliant disabled parking space] presents the question: Is a plaintiff who obtains a default judgment by written declaration entitled to seek statutory attorney fees by means of a postjudgment motion? We conclude the answer to this question is "No." A plaintiff electing to proceed by way of a default judgment may recover statutory attorney fees only if a request for those fees is included in the request for default judgment. Accordingly, we affirm the trial court's denial of plaintiff Alfredo Garcia's postjudgment motion for attorney fees.

Plaintiff and appellant Thomas Mundy, a disabled person, sought to recover damages from defendant and respondent Pro-Thro Enterprises for denying him full and equal access to its business location. Following a court trial, judgment was entered in favor of respondent. Appellant contends that he was entitled to a judgment as a matter of law and that the court abused its discretion in admitting various items of evidence. We find no basis for relief on appeal and affirm the judgment.

Dept. of Fair Emp. & Housing v. Mayr(CA6 H034935 2/9/11) DFEH/Litigation Costs and Fees [Although this is a housing case, the holding is equally applicable to employment cases under the FEHA.]

After a jury found in favor of the defendants in this housing discrimination action, the trial court ordered the plaintiff, the Department of Fair Employment and Housing (DFEH or Department), to pay the costs and attorney fees of the defendants, the owner of rental property and her property manager. DFEH appeals, contending that the court erroneously applied Code of Civil Procedure section 1028.5 as a sanction for pursuing a meritless action notwithstanding Government Code section 12989.2, which bars awards of litigation costs and fees either to or against a government agency in a housing discrimination action. We agree with DFEH that the latter statute governed the availability of costs and attorney fees in this case. We therefore must reverse the order.

http://www.courtinfo.ca.gov/opinions/documents/H034935.PDF

Wherry v. Award, Inc.(CA4/3 G042404, filed 2/9/11, pub. ord. 2/23/11) Arbitration

Defendants Award, Inc., Award-Superstars, Century 21 Superstars and Gregory Britton appeal from an order denying their petition to arbitrate the complaint for gender discrimination and sexual harassment filed by plaintiffs Karena Wherry and Rocelyn Traieh. Defendants assert the petition should have been granted for a variety of reasons, including that in the contract executed by the parties they agreed to arbitrate all disputes, including those under FEHA (California Fair Employment and Housing Act; Gov. Code, § 12900 et seq.), and the terms of arbitration were not unconscionable. We determine the arbitration provisions were unconscionable and therefore unenforceable and affirm.

http://www.courtinfo.ca.gov/opinions/documents/G042404.PDF

The trial court granted summary judgment in favor of an employer and an employee-supervisor on the ground the one year statute of limitations had run against a former employee's claims of sexual harassment and retaliation. It is clear to us that there would be a triable issue of material fact whether the former employee was sexually harassed. But it is equally clear the statute of limitations ran on her claims. The last act of harassment or retaliation occurred in January 2007, and the administrative complaint was not filed until May 2008, long after the applicable statute ran.

Accordingly, we must affirm the judgment entered in this case. The undisputed material facts establish that (1) Irene Trovato failed to initiate her case against her former employer, Beckman Coulter, Inc. (Beckman), and her former supervisor, Michael Allyn, within the statutory time limits, and (2) the continuing violation doctrine does not save Trovato's untimely action because the unlawful conduct stopped no later than January 31, 2007. Additionally, we conclude the trial court properly denied Trovato's motion for a new trial, because the evidence Trovato claimed was newly discovered would not have produced a different result.

A majority of the panel (Judges O'Scannlain and Kleinfeld) holds that World Vision, Inc. qualifies as an entity exempt under 42 U.S.C. § 2000e-1(a) from Title VII's general prohibition against religious discrimination. Judges O'Scannlain and Kleinfeld concur that an entity is eligible for the section 2000e-1 exemption, at least, if it is organized for a religious purpose, is engaged primarily in carrying out that religious purpose, holds itself out to the public as an entity for carrying out that religious purpose, and does not engage primarily or substantially in the exchange of goods or services for money beyond nominal amounts.

For the reasons set forth in the opinions of Judges O'Scannlain and Kleinfeld, the district court's grant of summary judgment to World Vision, Inc. is AFFIRMED.

Thompson v. North American Stainless, LP(US 09-291 1/24/11) Title VII/Third Party Retaliation

After petitioner Thompson's fiancée, Miriam Regalado, filed a sex discrimination charge with the Equal Employment Opportunity Commission (EEOC) against their employer, respondent North American Stainless (NAS), NAS fired Thompson. He filed his own charge and a subsequent suit under Title VII of the Civil Rights Act, claiming that NAS fired him to retaliate against Regalado for filing her charge. The District Court granted NAS summary judgment on the ground that third-party retaliation claims were not permitted by Title VII, which prohibits discrimination against an employee "because he has made a [Title VII] charge," 42 U. S. C. §2000e–3(a), and which permits, inter alia, a "person claiming to be aggrieved . . . by [an] alleged employment practice" to file a civil action, §2000e–5(f)(1). The en banc Sixth Circuit affirmed, reasoning that Thompson was not entitled to sue NAS for retaliation because he had not engaged in any activity protected by the statute.

Held:

1. If the facts Thompson alleges are true, his firing by NAS constituted unlawful retaliation. Title VII's antiretaliation provision must be construed to cover a broad range of employer conduct. Burlington N. & S. F. R. Co. v. White, 548 U. S. 53. It prohibits any employer action that " 'well might have "dissuaded a reasonable worker from making or supporting a [discrimination] charge," '" id., at 68. That test must be applied in an objective fashion, to "avoi[d] the uncertainties and unfair discrepancies that can plague a judicial effort to determine a plaintiff's unusual subjective feelings." Id., at 68–69. A reasonable worker obviously might be dissuaded from engaging in protected activity if she knew that her fiancé would be fired. Pp. 2–4.
2. Title VII grants Thompson a cause of action. Pp. 4–7.
   
   1. For Title VII standing purposes, the term "person aggrieved" must be construed more narrowly than the outer boundaries of Article III. Dictum in Trafficante v. Metropolitan Life Ins. Co., 409 U. S. 205, suggesting that Title VII's aggrievement requirement reaches as far as Article III permits, is too expansive and the Court declines to follow it. At the other extreme, limiting "person aggrieved" to the person who was the subject of unlawful retaliation is an artificially narrow reading. A common usage of the term "person aggrieved" avoids both of these extremes. The Administrative Procedure Act, which authorizes suit to challenge a federal agency by any "person. . . adversely affected or aggrieved . . . within the meaning of a relevant statute," 5 U. S. C. §702, establishes a regime under which a plaintiff may not sue unless he "falls within the 'zone of interests' sought to be protected by the statutory provision whose violation forms the legal basis for his complaint," Lujan v. National Wildlife Federation, 497 U. S. 871, 883. Title VII's term "aggrieved" incorporates that test, enabling suit by any plaintiff with an interest " 'arguably [sought] to be protected' by the statutes," National Credit Union Admin. v. First Nat. Bank & Trust Co., 522 U. S. 479, 495, while excluding plaintiffs who might technically be injured in an Article III sense but whose interests are unrelated to Title VII's statutory prohibitions. Pp. 4–7.
   2. Applying that test here, Thompson falls within the zone of interests protected by Title VII. He was an employee of NAS, and Title VII's purpose is to protect employees from their employers' unlawful actions. Moreover, accepting the facts as alleged, Thompson is not an accidental victim of the retaliation. Hurting him was the unlawful act by which NAS punished Regalado. Thus, Thompson is a person aggrieved with standing to sue under Title VII. P. 7.
   
   567 F. 3d 804, reversed and remanded.
   SCALIA, J., delivered the opinion of the Court, in which all other Members joined, except KAGAN, J., who took no part in the consideration or decision of the case. GINSBURG, J., filed a concurring opinion, in which BREYER, J., joined.

http://www.supremecourt.gov/opinions/10pdf/09-291.pdf

Harris v. Maricopa County Superior Court(9th Cir. 09-15833 1/20/11) Title VII/Fees and Costs for Prevailing Defendant

After he was forced out of his position as an Initial Appearance Hearing Officer for the Maricopa County Superior Court, Vernon Harris unsuccessfully sued the Superior Court and the other defendants for violations of, inter alia, his rights under Title VII of the Civil Rights Act and the Fourteenth Amendment. Defendants then sought substantial attorneys fees and costs from Harris, and were awarded over $125,000 in fees and costs by the district court. Harris challenges those awards. Our laws encourage individuals to seek relief for violations of their civil rights, and allow a defendant to recover fees and costs from a plaintiff in a civil rights case only "in exceptional circumstances" in which the plaintiff's claims are "frivolous, unreasonable or without foundation." See Barry v. Fowler, 902 F.2d 770, 773 (9th Cir. 1990) (internal quotation marks, citation omitted); Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 422 (1978). Moreover, only fees "attributable exclusively to plaintiff's frivolous claims," are recoverable by a defendant. See Tutor-Saliba Corp. v. City of Hailey, 452 F.3d 1055, 1064 (9th Cir. 2006) (internal quotation marks, alterations and citation omitted). Because the district court both used an impermissible method of determining the amount of fees and costs to be assessed for the claims for which fees were appropriate, and erred in some of its determinations as to which claims were properly subject to a fee award to defendants, we vacate the award of attorneys fees and remand for a new award that complies with this opinion.

http://www.ca9.uscourts.gov/datastore/opinions/2011/01/20/09-15833.pdf

Clairmont v. Sound Mental Health(9th Cir. 09-35856 1/19/11) First Amendment Retaliation/Public Employee Balancing Test Applied to Contractor's Employee

In this First Amendment retaliation case, Richard Clairmont appeals the district court's grant of summary judgment to Defendant Joni Wilson, the Manager of Probation Services at the Seattle Municipal Court. Before filing suit, Clairmont was employed as a domestic violence counselor for Sound Mental Health, a private company that provides domestic violence prevention treatment programs to criminal defendants in Seattle. He alleges that he was fired in retaliation for giving truthful subpoenaed testimony in a criminal proceeding.

Although Clairmont was not employed directly by the Seattle Municipal Court, the district court determined that, because his employer was an independent contractor for the court, his First Amendment claim should be evaluated as if he were a public employee. Applying the Pickering public employee balancing test, the district court determined that the Seattle Municipal Court's interests outweighed Clairmont's First Amendment interests, and granted Wilson's motion for summary judgment on the basis of qualified immunity.

As we explain below, we agree with the district court that, for the purposes of this suit, Clairmont's retaliation claim should be evaluated as if he were a public employee. We conclude, however, that Clairmont's First Amendment interests outweigh the administrative interests of the Seattle Municipal Court and that his rights were clearly established at the time of the alleged violation. We therefore reverse and remand.

http://www.ca9.uscourts.gov/datastore/opinions/2011/01/19/09-35856.pdf

National Aeronautics and Space Administration v. Nelson(US 09-530 1-19-11) Privacy/Federal Contract Employee Drug Treatment or Counseling

The National Aeronautics and Space Administration (NASA) has a workforce of both federal civil servants and Government contract employees. Respondents are contract employees at NASA's Jet Propulsion Laboratory (JPL), which is operated by the California Institute of Technology (Cal Tech). Respondents were not subject to Government background checks at the time they were hired, but that changed when the President ordered the adoption of uniform identification standards for both federal civil servants and contractor employees. The Department of Commerce mandated that contract employees with long-term access to federal facilities complete a standard background check, typically the National Agency Check with Inquiries (NACI), by October 2007. NASA modified its contract with Cal Tech to reflect the new requirement, and JPL announced that employees who did not complete the NACI process in time would be denied access to JPL and face termination by Cal Tech. The NACI process, long used for prospective civil servants, begins with the employee filling out a standard form (here, Standard Form85, the Questionnaire for Non-Sensitive Positions (SF–85)). SF–85 asks whether an employee has "used, possessed, supplied, or manufactured illegal drugs" in the last year. If so, the employee must provide details, including information about "treatment or counseling received." The employee must also sign a release authorizing the Government to obtain personal information from schools, employers, and others during its investigation. Once SF–85 is completed, the Government sends the employee's references a questionnaire (Form 42) that asks open-ended questions about whether they have "any reason to question" the employee's "honesty or trustworthiness," or have "adverse information" concerning a variety of other matters. All SF–85 and Form 42 responses are subject to the protections of the Privacy Act.

With the deadline for completing the NACI process drawing near, respondents brought suit, claiming, as relevant here, that the background-check process violates a constitutional right to informational privacy. The District Court declined to issue a preliminary injunction, but the Ninth Circuit reversed. It held that SF–85's inquiries into recent drug involvement furthered the Government's interest in combating illegal-drug use, but that the drug "treatment or counseling" question furthered no legitimate interest and was thus likely to be held unconstitutional. It also held that Form 42's open-ended questions were not narrowly tailored to meet the Government's interests in verifying contractors' identities and ensuring JPL's security, and thus also likely violated respondents' informational-privacy rights.

Held:

1. In two cases decided over 30 years ago, this Court referred broadly to a constitutional privacy "interest in avoiding disclosure of personal matters." Whalen v. Roe, 429 U. S. 589, 599–600; Nixon v. Administrator of General Services, 433 U. S. 425, 457. In Whalen, the Court upheld a New York law permitting the collection of names and addresses of persons prescribed dangerous drugs, finding that the statute's "security provisions," which protected against "public disclosure" of patient information, 462 U. S., at 600–601, were sufficient to protect a privacy interest "arguably . . . root[ed] in the Constitution," id., at 605. In Nixon, the Court upheld a law requiring the former President to turn over his presidential papers and tape recordings for archival review and screening, concluding that the federal Act at issue, like the statute in Whalen, had protections against "undue dissemination of private materials." 433 U. S, at 458. Since Nixon, the Court has said little else on the subject of a constitutional right to informational privacy. Pp. 8–10.
   
   
2. Assuming, without deciding, that the Government's challenged inquiries implicate a privacy interest of constitutional significance, that interest, whatever its scope, does not prevent the Government from asking reasonable questions of the sort included on SF–85 and Form 42 in an employment background investigation that is subject to the Privacy Act's safeguards against public disclosure. Pp. 10–24.
   
   
   1. The forms are reasonable in light of the Government interests at stake. Pp. 11–19.
      
      
      1. Judicial review of the forms must take into account the context in which the Government's challenged inquiries arise. When the Government acts in its capacity "as proprietor" and manager of its "internal operation," Cafeteria & Restaurant Workers v. McElroy, 367 U. S. 886, 896, it has a much freer hand than when it regulates as to citizens generally. The questions respondents challenge are part of a standard background check of the sort used by millions of private employers. The Government has been conducting employment investigations since the Republic's earliest days, and the President has had statutory authority to assess an applicant's fitness for the civil service since 1871. Standard background investigations similar to those at issue became mandatory for federal civil-service candidates in 1953, and the investigations challenged here arose from a decision to extend that requirement to federal contract employees. This history shows that the Government has an interest in conducting basic background checks in order to ensure the security of its facilities and to employ a competent, reliable workforce to carry out the people's business. The interest is not diminished by the fact that respondents are contract employees. There are no meaningful distinctions in the duties of NASA's civil-service and contractor employees, especially at JPL, where contract employees do work that is critical to NASA's mission and that is funded with a multibillion dollar taxpayer investment. Pp. 12–15.
         
         
      2. The challenged questions on SF–85 and Form 42 are reasonable, employment-related inquiries that further the Government's interests in managing its internal operations. SF–85's "treatment or counseling" question is a follow up question to a reasonable inquiry about illegal-drug use. In context, the drug-treatment inquiry is also a reasonable, employment-related inquiry. The Government, recognizing that illegal-drug use is both a criminal and medical issue, seeks to separate out those drug users who are taking steps to address and overcome their problems. Thus, it uses responses to the drug-treatment question as a mitigating factor in its contractor credentialing decisions. The Court rejects the argument that the Government has a constitutional burden to demonstrate that its employment background questions are "necessary" or the least restrictive means of furthering its interests. So exacting a standard runs directly contrary to Whalen. See 429 U. S., at 596–597. Pp. 16–18.
         
         
      3. Like SF–85's drug-treatment question, Form 42's open ended questions are reasonably aimed at identifying capable employees who will faithfully conduct the Government's business. Asking an applicant's designated references broad questions about job suitability is an appropriate tool for separating strong candidates from weak ones. The reasonableness of such questions is illustrated by their pervasiveness in the public and private sectors. Pp. 18–19.
         
         
   2. In addition to being reasonable in light of the Government interests at stake, SF–85 and Form 42 are also subject to substantial protections against disclosure to the public. Whalen and Nixon recognized that a "statutory or regulatory duty to avoid unwarranted disclosures" generally allays privacy concerns created by government" accumulation" of "personal information" for "public purposes." Whalen, supra, at 605. Respondents attack only the Government's collection of information, and here, as in Whalen and Nixon, the information collected is shielded by statute from unwarranted disclosure. The Privacy Act—which allows the Government to maintain only those records "relevant and necessary to accomplish" a purpose authorized by law, 5 U. S. C. §552a(e)(1); requires written consent before the Government may disclose an individual's records, §552a(b);and imposes criminal liability for willful violations of its nondisclosure obligations, §552a(i)(1)—"evidence[s] a proper concern" for individual privacy. Whalen, supra, at 605; Nixon, supra, at 458–459. Respondents' claim that the statutory exceptions to the Privacy Act's disclosure bar, see §§552a(b)(1)–(12), leave its protections too porous to supply a meaningful check against unwarranted disclosures. But that argument rests on an incorrect reading of Whalen, Nixon, and the Privacy Act. Pp. 19–23.

530 F. 3d 865, reversed and remanded.

ALITO, J., delivered the opinion of the Court, in which ROBERTS, C. J., and KENNEDY, GINSBURG, BREYER, and SOTOMAYOR, JJ., joined. SCALIA, J., filed an opinion concurring in the judgment, in which THOMAS, J., joined. THOMAS, J., filed an opinion concurring in the judgment. KAGAN, J., took no part in the consideration or decision of the case.

http://www.supremecourt.gov/opinions/10pdf/09-530.pdf

Holmes v. Petrovich Development(CA3 C059133 1/13/11) E-Mail Communications between Attorney and Client on Employer's Computer/ Privilege

Plaintiff Gina Holmes appeals from the judgment entered in favor of defendants Petrovich Development Company, LLC and Paul Petrovich in her lawsuit for sexual harassment, retaliation, wrongful termination, violation of the right to privacy, and intentional infliction of emotional distress. She contends that the trial court erred in granting defendants' motion for summary adjudication with respect to the causes of action for discrimination, retaliation, and wrongful termination, and that the jury's verdict as to the remaining causes of action must be reversed due to evidentiary and instructional errors. We disagree and shall affirm the judgment.

Among other things, we conclude that e-mails sent by Holmes to her attorney regarding possible legal action against defendants did not constitute "'confidential communication between client and lawyer'" within the meaning of Evidence Code section 952. This is so because Holmes used a computer of defendant company to send the e-mails even though (1) she had been told of the company's policy that its computers were to be used only for company business and that employees were prohibited from using them to send or receive personal e-mail, (2) she had been warned that the company would monitor its computers for compliance with this company policy and thus might "inspect all files and messages . . . at any time," and (3) she had been explicitly advised that employees using company computers to create or maintain personal information or messages "have no right of privacy with respect to that information or message."

As we will explain, an attorney-client communication "does not lose its privileged character for the sole reason that it is communicated by electronic means or because persons involved in the delivery, facilitation, or storage of electronic communication may have access to the content of the communication." (Evid. Code, § 917, subd. (b).) However, the e-mails sent via company computer under the circumstances of this case were akin to consulting her lawyer in her employer's conference room, in a loud voice, with the door open, so that any reasonable person would expect that their discussion of her complaints about her employer would be overheard by him. By using the company's computer to communicate with her lawyer, knowing the communications violated company computer policy and could be discovered by her employer due to company monitoring of e-mail usage, Holmes did not communicate "in confidence by means which, so far as the client is aware, discloses the information to no third persons other than those who are present to further the interest of the client in the consultation or those to whom disclosure is reasonably necessary for the transmission of the information or the accomplishment of the purpose for which the lawyer is consulted." (Evid. Code, § 952.) Consequently, the communications were not privileged.

http://www.courtinfo.ca.gov/opinions/documents/C059133.PDF

Dawson v. Entek International(9th Cir. 09-35844 1-10-11) Sexual Orientation Hostile Work Environment and Retaliation

Shane Dawson (Dawson), a male homosexual, appeals the district court's grant of summary judgment in favor of his former employer, Entek International (Entek), on claims of discrimination arising from his termination. Entek is an Oregon based company that manufactures polyethylene battery separators.

On appeal, Dawson argues that the district court erred when it applied the McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), burden-shifting framework to analyze state claims under Or. Rev. Stat. § 659A.030 for retaliatory discharge, sex hostile work environment, and sexual orientation hostile work environment. Dawson also claims that the district court erred when it granted summary judgment in Entek's favor on Dawson's claims of retaliatory discharge and sex hostile work environment under both Title VII and Or. Rev. Stat. § 659A.030, as well as sexual orientation hostile work environment under Or. Rev. Stat. § 659A.030. Finally, Dawson alleges that the district court erred when it granted summary judgment against Dawson on his claim of intentional infliction of emotional distress.

Viewing the evidence in the light most favorable to the nonmoving party, Dawson produced circumstantial evidence of retaliatory discharge and sexual orientation hostile work environment, such that resolution of this action by summary judgment was error. We reverse and remand.

http://www.ca9.uscourts.gov/datastore/opinions/2011/01/10/09-35844.pdf

Chapman v. Pier 1 Imports(9th Cir. 07-16326 1/7/11) ADA Public Accommodations/Architectural Barriers

Byron Chapman is unable to walk unassisted, and he requires the use of a motorized wheelchair when traveling in public. In July 2004, Chapman sued a Pier 1 Imports store ("Pier One" or "Store") in Vacaville, California, alleging that some of the Store's architectural features denied him full and equal enjoyment of the premises in violation of the Americans with Disabilities Act ("ADA"). Chapman requested an injunction requiring the Store to remove the barriers he personally encountered during his visits to the Store that deprived him of full and equal enjoyment because of his wheelchair confinement, as well as barriers that he did not personally encounter but that might impede his access during future visits due to his disability. Chapman also requested monetary damages pursuant to provisions of California law. During discovery, Chapman testified that he was not deterred by the alleged ADA violations; rather, Chapman freely acknowledged that he actually intends to return to the Store, which is located near his home and offers products he finds desirable.

Chapman's complaint provided a list of the architectural barriers existing at the Store, "to the extent known" to him, some of which he alleged that he had personally encountered. More than one year after the complaint was filed, and two months before the close of discovery, Chapman submitted an additional report compiled by his expert, Joe Card. The Card Report identified thirty alleged ADA and CBC violations at the Store, some of which were listed in the complaint, others of which were new. The parties cross-moved for summary judgment. Chapman's motion papers sought judgment as to only eleven of the alleged barriers, some of which had been listed in his complaint and some of which were identified only in the Card Report. The Store moved for summary judgment on the grounds that Chapman lacks standing and that the asserted barriers were not barriers as a matter of law or had been remedied.

The district court granted Pier One's motion as to numerous challenged barriers, concluding either that Chapman had failed to cite any applicable ADA regulation or that the barrier Chapman identified no longer existed. The court considered each of Chapman's eleven claims, including some that were raised only in the Card Report, finding that Chapman disclosed the violations in sufficient time to permit Pier One to address them in the context of its summary judgment motion. The court granted summary judgment to Chapman as to seven of the barriers listed solely in the Card Report. The parties later jointly stipulated to entry of final judgment, subject to Pier One's reservation of the right to appeal the grant of summary judgment to Chapman and the denial of its motion to strike the Card Report.

Pier One timely appealed, challenging, among other things, the district court's conclusion that Chapman had standing to seek an injunction as to barriers he did not personally encounter. A three-judge panel of our court agreed with Pier One, concluding that Chapman lacked Article III standing as to barriers he had not personally encountered, because they did not deter him from returning to the Store. See Chapman v. Pier 1 Imports (U.S.), Inc., 571 F.3d 853 (9th Cir. 2009) (withdrawn). We vacated the panel's decision after a majority of our court's non-recused active judges voted to rehear the appeal en banc to examine the Article III standing doctrine in the context of actions for injunctive relief under the ADA.

We now clarify that when an ADA plaintiff has suffered an injury-in-fact by encountering a barrier that deprives him of full and equal enjoyment of the facility due to his particular disability, he has standing to sue for injunctive relief as to that barrier and other barriers related to his disability, even if he is not deterred from returning to the public accommodation at issue. First, we hold that an ADA plaintiff can establish standing to sue for injunctive relief either by demonstrating deterrence, or by demonstrating injury-in-fact coupled with an intent to return to a noncompliant facility. Second, we hold that an ADA plaintiff who establishes standing as to encountered barriers may also sue for injunctive relief as to unencountered barriers related to his disability. Here, however, Chapman has failed to allege and prove the required elements of Article III standing to support his claim for injunctive relief under the ADA. Specifically, he has not alleged or proven that he personally suffered discrimination as defined by the ADA as to encountered barriers on account of his disability. We therefore vacate the district court's grant of summary judgment, and remand with instructions to dismiss Chapman's ADA claim for lack of jurisdiction and for further proceedings consistent with this opinion.

http://www.ca9.uscourts.gov/datastore/opinions/2011/01/07/07-16326.pdf

Enyart v. National Conference of Bar Examiners(9th Cir. 10-15286, 10-16392 1/4/11) Reasonable Accommodation/Testing

Stephanie Enyart, a legally blind law school graduate, sought to take the Multistate Professional Responsibility Exam and the Multistate Bar Exam using a computer equipped with assistive technology software known as JAWS and ZoomText. The State Bar of California had no problem with Enyart's request but the National Conference of Bar Examiners refused to grant this particular accommodation. Enyart sued NCBE under the Americans with Disabilities Act seeking injunctive relief. The district court issued preliminary injunctions requiring NCBE to allow Enyart to take the exams using the assistive software, and NCBE appealed. We hold that in granting the injunctions, the district court did not abuse its discretion. We affirm.

http://www.ca9.uscourts.gov/datastore/opinions/2011/01/04/10-15286.pdf

Munoz v. Mabus(9th Cir. 08-16374 12/27/10) FEHA Hostile Work Environment/Disparate Treatment Jury Instruction

Ysauro Munoz appeals an adverse summary judgment ruling on two claims arising from a single dispute over whether a Title VII predetermination settlement agreement required the Navy to provide him a particular type of training. Munoz foremost brings a breach of contract action, over which the district court lacked subject matter jurisdiction, and we therefore vacate summary judgment on Count 1 and remand with instructions to dismiss. Munoz also alleges that the denial of training was in retaliation for filing his underlying age and race discrimination complaint. We have jurisdiction over this Count and affirm.

http://www.ca9.uscourts.gov/datastore/opinions/2010/12/27/08-16374.pdf

Turman v. Turning Point(CA6 H032576 filed 11/23/10, pub ord. 12/21/10) FEHA Hostile Work Environment/Disparate Treatment Jury Instruction

Appellant Joyce Turman sued her former employer, respondent Turning Point of Central California, Inc. for gender discrimination based on disparate treatment and a hostile work environment. At the conclusion of the evidence at trial, the court instructed the jury on disparate impact rather than disparate treatment, opining that the evidence produced at trial supported the former. The jury returned a verdict in favor of respondent, specifically finding that respondent did not have an employment practice that had a disproportionate effect on women. In addition, the jury found that while appellant was subjected to a hostile work environment, respondent did not fail to take immediate and corrective action to alleviate the harassment.

On appeal, appellant claims there was not substantial evidence to support the jury's finding that defendant did not fail to take immediate and corrective action to alleviate appellant's hostile work environment. In addition, appellant asserts the trial court erred by failing to instruct the jury on disparate treatment. Appellant also asks that in the event we remand the matter for a new trial, that her punitive damages allegations be revived.

http://www.courtinfo.ca.gov/opinions/documents/H032576.PDF

A jury rejected Mitchell Grobeson's claims that the City of Los Angeles (City) and Daniel Watson unlawfully retaliated against Grobeson in violation of the Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.) and Labor Code section 1101 et seq.; that City and Watson unlawfully discriminated against Grobeson and harassed him in violation of the aforesaid statutes; that City constructively discharged Grobeson; and that appellant Watson unlawfully retaliated against Grobeson and harassed him in violation of FEHA and Labor Code section 1101 et seq.

The trial court granted Grobeson's motion for a new trial on the ground of juror misconduct as to the discrimination, retaliation and constructive discharge claims in City's instance and also on the retaliation claim against Watson. The appeal is from this order.

Grobeson cross-appeals from the trial court's denial of his equitable claim for reinstatement as a police officer. Grobeson also cross-appeals from the order granting City's motion for summary judgment on Grobeson's claim under title 42 United States Code section 1983 and the order denying Grobeson's motion for a directed verdict. Finally, Grobeson claims that the trial court erred in making various evidentiary rulings and in denying his request for certain jury instructions.

We affirm the order granting the motion for a new trial and therefore dismiss the cross-appeal. We remand with directions to dismiss the claim for unlawful retaliation against Watson under the authority of Jones v. Lodge at Torrey Pines Partnership (2008) 42 Cal.4th 1158.

This case involves a controversial subject: persons unlawfully present in this country. The California Legislature has provided that unlawful aliens are exempt from paying nonresident tuition at California state colleges and universities under certain circumstances. (Ed. Code, § 68130.5 (section 68130.5).) Congress has prohibited the states from making unlawful aliens eligible for postsecondary education benefits under certain circumstances. (8 U.S.C. § 1623 (section 1623).) Plaintiffs challenge section 68130.5's validity, largely on the basis that it violates section 1623. Defendants argue section 68130.5 complies with federal law.

This court has received many briefs making policy arguments for and against section 68130.5's tuition exemption. We have received arguments that section 68130.5 affords deserving students educational opportunities that would not otherwise be available and, conversely, arguments that it flouts the will of Congress, wastes taxpayers' money, and encourages illegal immigration. But this court does not make policy. Whether Congress's prohibition or the Legislature's exemption is good policy is not for us to say. Rather, we must decide the legal question of whether California's exemption violates Congress's prohibition or is otherwise invalid. We must decide the statutory question by employing settled methods of statutory construction.

The main legal issue is this: Section 1623 provides that an alien not lawfully present in this country shall not be eligible on the basis of residence within a state for any postsecondary education benefit unless a citizen or national of this country is eligible for that benefit. In general, nonresidents of California who attend the state's colleges and universities must pay nonresident tuition. (Ed. Code, § 68050.) But section 68130.5, subdivision (a), exempts from this requirement students — including those not lawfully in this country — who meet certain requirements, primarily that they have attended high school in California for at least three years. The question is whether this exemption is based on residence within California in violation of section 1623.

Because the exemption is given to all who have attended high school in California for at least three years (and meet the other requirements), and not all who have done so qualify as California residents for purposes of in-state tuition, and further because not all unlawful aliens who would qualify as residents but for their unlawful status are eligible for the exemption, we conclude the exemption is not based on residence in California. Rather, it is based on other criteria. Accordingly, section 68130.5 does not violate section 1623.

We also conclude plaintiffs' remaining challenges to section 68130.5 lack merit. Specifically, section 68130.5 does not violate another federal statute (8 U.S.C. § 1621 (section 1621)), is not impliedly preempted by federal law, and does not violate the privileges and immunities clause of the Fourteenth Amendment to the United States Constitution. We reverse the judgment of the Court of Appeal, which had found section 68130.5 invalid on each of these grounds.

Plaintiff Steven Braun (Braun) sued defendants Toyota Motor Sales, U.S.A. (Toyota) and Randall Bauer (Bauer) for, among other things, gender discrimination and sexual harassment under the Fair Employment and Housing Act (Gov. Code, §§ 12940, et. seq.), and for common law claims of defamation, constructive discharge, and intentional and negligent infliction of emotional distress. In support of the claims, Braun alleged that while working for Toyota as a manager in various departments, he was sexually harassed by Bauer, who was a Corporate Manager to whom Braun reported. After Braun spurned Bauer's advances, according to Braun, Bauer and Toyota retaliated against him by issuing false reprimands and other adverse employment actions forcing him to leave the company.

In the trial court, Toyota and Bauer moved to compel Braun to submit to an independent psychiatric examination (Code Civ. Proc., § 2032.310). The trial court granted the motion, but permitted Braun's attorney to be present in an adjoining room during the examination so as to monitor it. Toyota and Bauer filed a petition for writ of mandate in this court to compel the trial court to set aside the portion of the order permitting Braun's attorney's presence in an adjoining room and his contemporaneous monitoring of the examination. Toyota contends that allowing the presence of counsel was error because the experts retained for the exam believe counsel's presence would interfere with the validity of the exam and Braun made no evidentiary showing that his counsel's presence in an adjoining room was necessary to protect his privacy.

We issued an alternative writ directing the trial court to set aside the portion of its order permitting Braun's counsel's attendance at the examination or to show cause why we should not issue the writ requested. The trial court declined to take action, and we have received Braun's return to the petition and the reply by Toyota and Bauer. We now issue the writ.

James Richard Stiefel appeals from orders of the district court dismissing his employment discrimination claims against Bechtel Construction Company under the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. Stiefel contends that Bechtel discriminated against him because of a disabling work-related injury and failed to accommodate that disability ("pre-termination claims") and then laid him off to retaliate against him for seeking accommodation ("termination claims"). Stiefel also alleges that Bechtel thereafter discriminated and retaliated against him by refusing to rehire him and accommodate his disability ("post-termination claims"). The district court granted a motion to dismiss Stiefel's pre-termination and termination claims and granted summary judgment in favor of Bechtel on Stiefel's post-termination claims.

The district court dismissed Stiefel's pre-termination and termination claims on the ground that Stiefel failed to file a charge with the Equal Employment Opportunity Commission ("EEOC") within 30 days after receiving a right-to-sue letter from the California Department of Fair Employment and Housing ("DFEH"). See 42 U.S.C. § 2000e-5(e)(1); 29 C.F.R. § 1626.7(a). We reverse that order because Stiefel's DFEH charge was deemed filed with the EEOC pursuant to a "Worksharing Agreement" between the DFEH and the EEOC. See Surrell v. Cal. Water Serv., 518 F.3d 1097, 1104 (9th Cir. 2008).

The district court granted summary judgment in favor of Bechtel on Stiefel's post-termination claims because it found that Stiefel never gave Bechtel an opportunity to rehire him by attending enough roll call meetings at the union hiring hall to advance to the top of his union's out-of-work list. We affirm that order because Stiefel has failed to demonstrate either that he applied to be rehired or that it would have been futile to do so. See Holly D. v. Cal. Inst. of Tech., 339 F.3d 1158, 1179 n.24 (9th Cir. 2003).

Plaintiffs Charles Luke, Francis McCaskey, and John Mellen brought these actions against California State Automobile Association (CSAA) and California State Automobile Association Inter-Insurance Bureau charging breach of contract and age discrimination. The gist of the claims was that defendant brought about plaintiff's discharges by breaching a promise to permit senior sales agents to continue in their employ under relaxed sales quotas. The trial court entered summary judgment for defendants primarily on the grounds that they were contractually entitled to rescind the promise, and that plaintiffs failed to raise a triable issue of fact concerning defendants' claimed nondiscriminatory reasons for eliminating the policy. We find that the record raises a triable issue of fact on the contract claim over the question whether defendants honored the policy for an agreed time, or if no agreement as to time can be inferred from the terms and circumstances of the employment contract, for a reasonable time. The record also presents triable issues of fact concerning the genuineness of defendants' claimed reasons for eliminating the policy. Accordingly, we will reverse the judgment.

A city employee was terminated for alleged sexual harassment of a subordinate. The employee denied harassment and challenged his termination as lacking just cause. The dispute was submitted to arbitration, as mandated by the terms of a collective bargaining agreement between the city and the employee's union. The arbitrator ordered the employee reinstated upon concluding that the sexual harassment charge was time-barred because the collective bargaining agreement required any disciplinary action to be implemented within six months of the city learning of the alleged misconduct, and the city did not act in time.

The city petitioned the court to vacate the award on public policy grounds, and the court did so. (Code Civ. Proc., § 1285.) The court held that the arbitrator violated public policy against sexual harassment in the workplace by relying upon the contractual limitation provision to award reinstatement "on purely procedural grounds" without a determination of whether the employee actually harassed his subordinate.

We reverse the trial court's order and remand with instructions to confirm the arbitration award. Arbitral finality is the general rule, and the public policy exception permitting courts to vacate an arbitration award arises in only limited and exceptional circumstances. (Advanced Micro Devices, Inc. v. Intel Corp. (1994) 9 Cal.4th 362, 373; Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 32 (Moncharsh).) While there is a strong public policy against workplace harassment, the city has not established that public policy precludes arbitral enforcement of a reasonable limitation period contained in a collective bargaining agreement barring stale claims of misconduct.

Complainant Eleanor Reed was a customer service representative for Avis Budget Group (Avis) at its San Francisco Airport location. In June 2006, she requested a reasonable accommodation of a six-hour shift for her mental disability (post traumatic stress disorder). She had previously been granted the accommodation without any problems, and had succeeded in performing her essential functions with the accommodation. Avis decided to place her on unpaid leave and thereafter requested medical documentation. She timely provided the documentation requested, including the diagnosis, the reasons for the accommodation, and why it would allow her to perform the essential functions of the job. However, she refused to agree to a blanket release of her medical records, including several years of psychiatric records that detailed decades of sexual and other physical and mental domestic abuse, or to provide unfettered access to her treating psychiatrist. Avis decided the doctor's documentation was inadequate, and requested that she provide the full medical records release and access to her doctor or submit to the company's physician for evaluation. Avis did not engage with Reed about the purported inadequacies or give her an opportunity to augment the doctor's information to support the request for accommodation. Approximately five months after she was placed on unpaid leave, Avis finally obtained an independent medical opinion that agreed with the opinion of Reed's doctor. Even though it provided no further information as to the reason for the accommodation, Avis finally accepted the opinion and agreed to grant an accommodation. However, it looked at its "seasonal" need and placed Reed on a severely reduced work schedule that removed her from eligibility to bump another employee with less seniority when Avis laid off four employees the following month, including Reed.

Following a Notice of Opportunity for Further Argument (NOFA), the Fair Employment and Housing Commission found in favor of the Department and against Avis for unlawful inquiries about the employee's disabilities, failure to engage in the interactive process, denial of reasonable accommodation, and failure to take all reasonable steps necessary to prevent discrimination. (Gov. Code, § 12940, subds. (f), (k), (m) & (n).) The Commission ordered an award of $89,863.70 ($14,863,70 in back pay and $50,000 in emotional distress damages to Reed; and $25,000 in administrative fine to the General Fund), plus affirmative relief of postings and training for management personnel regarding reasonable accommodation.

Appellant Curexo Technology Corporation (Curexo) appeals from the denial of its motion to compel arbitration of employment-related claims brought by Curexo's former employee, respondent Ramesh C. Trivedi (Trivedi). Curexo contends the trial court erred in finding that the arbitration clause contained in the parties' employment agreement was both procedurally and substantively unconscionable. Alternatively, Curexo argues that if the arbitration clause was properly found unconscionable, the trial court abused its discretion in refusing to sever the offending provisions of the arbitration clause and to enforce the remainder. We affirm.

Two female tenants sued their landlord after the resident manager of their apartment building entered their apartment in their absence, opened their dresser drawer and removed and sniffed their underwear. The tenants alleged a single cause of action under the Unruh Civil Rights Act (Civ. Code, § 51) and other sections of the Civil Code that provide the right to be free from violence or intimidation by threat of violence based on sex and that prohibit sexual harassment. The trial court sustained the landlord's demurrer to the complaint without leave to amend and dismissed the case. We affirm the order of dismissal.

The lawsuit underlying this appeal arises from the City of Boise, Idaho's communal assumption almost twenty years ago of shared responsibility for the care and housing of a vulnerable sector of its population — the homeless.

In connection with the City's legislative objectives, Community House, Inc. ("CHI") leased from the City in 1994 as part of a public/private partnership a building that CHI operated as a homeless shelter and as low-income transitional housing. In 2004, CHI and the City agreed to terminate the lease agreement and CHI's right to manage the building. In 2005, the City leased the building to the Boise Rescue Mission ("BRM"), an organization that operates the facility as a homeless shelter for single men and that includes in its activities Christian religious services and pre-meal prayers. In 2007, the BRM purchased the facility pursuant to an option contained in the lease agreement.

After CHI agreed to terminate its lease but before the City's new lease with the BRM, CHI, along with several individual plaintiffs, filed a civil rights complaint under 42 U.S.C. § 1983 against the City and the Boise City Council, alleging, among other things, that the anticipated lease of the building to the BRM violated the First Amendment's anti-Establishment Clause and the federal Fair Housing Act ("FHA"). CHI additionally named as defendants the following individuals: (1) David Bieter, the mayor of the City of Boise; (2) Maryann Jordan, Elaine Clegg, Vernon Bisterfeldt, David Eberle, Jerome Mapp, and Alan Shealy, members of the Boise City Council; (3) Bruce Chatterton, the Director of Planning and Development Services; and (4) Jim Birdsall, the Manager of Housing and Community Development.

The City, the City Council, and the individual defendants moved for summary judgment. Of relevance to this limited appeal, the district court denied summary judgment to the individual defendants as a group, determining that they were not entitled either to legislative or qualified immunity. Cmty. House, Inc. v. City of Boise, 654 F. Supp. 2d 1154, 1165-66 (D. Idaho 2009) ("Cmty. House II"), The court determined that genuine issues of material fact precluded qualified immunity on the Establishment Clause claims, but because the individual defendants did not explicitly raise at that time a qualified immunity defense with respect to the FHA claims, the court did not consider that issue. Id.

We are now faced with the second interlocutory appeal in this case. Because the individual defendants appeal from a denial of summary judgment on the basis of immunity, we have jurisdiction pursuant to 28 U.S.C. § 1291 and the collateral order doctrine. Robinson v. York, 566 F.3d 817, 821 (9th Cir. 2009).

We hold that Mayor Bieter and the members of the City Council are entitled to absolute legislative immunity for their actions in promoting and approving the lease and sale of Community House to the BRM. Additionally, municipal employees Chatterton and Birdsall as individuals are entitled to qualified immunity because at the time the City approved the lease and sale, a reasonable official would not have known that such actions would violate the Establishment Clause or the FHA. We therefore reverse and remand to the district court for further proceedings consistent with this opinion.

On December 1, 2008 — faced with (1) a large current state budget deficit that was projected to grow to more than $40 billion by the end of the 2009-2010 fiscal year, and (2) the very serious prospect that by as early as February 2009 the state would run out of cash to pay its ordinary expenses — the Governor of California declared a fiscal emergency, called the Legislature into special session, and submitted to the Legislature a comprehensive plan to address the budget problem. The Governor's budget plan included, among many other cost-saving features, two proposed statutory provisions that would direct the Department of Finance and the Department of Personnel Administration to implement, for the remainder of the 2008-2009 fiscal year and for the entire 2009-2010 fiscal year, a mandatory one-day-a-month unpaid furlough of most state employees employed by the executive branch, a proposal that would save the state approximately $37.5 million per month by reducing by approximately 5 percent the wages paid to each of the affected employees.

Two and one-half weeks later, on December 18, 2008, the Legislature passed its own proposed comprehensive budget legislation, comprising 15 separate budget-related bills. Among many other differences from the Governor's proposal, the Legislature's alternative plan did not include the Governor's recommended furlough provision.

On December 19, 2008, the Governor issued the executive order that lies at the heart of the present litigation, instructing the Department of Personnel Administration to implement, beginning on February 1, 2009, and continuing through June 30, 2010, a mandatory two-day-a-month unpaid furlough of most state workers employed in the executive branch.

Shortly after the Governor's issuance of this executive order, a number of employee organizations — the recognized, exclusive bargaining representatives of a majority of the workers employed by the State of California — filed three separate, but similar, lawsuits, contending that the Governor lacked authority to implement unilaterally an involuntary furlough of represented state employees that reduced such employees' hours and earnings by approximately 10 percent. The trial court, acting on an expedited basis, treated the three cases as related, heard argument in the cases together, and thereafter issued a single ruling rejecting the broad attacks made by the employee organizations on the executive order and concluding that the Governor possessed the authority to impose the furlough in response to the fiscal emergency facing the state.

The employee organizations (hereafter sometimes referred to as plaintiffs) appealed from the trial court's ruling. After briefing in the Court of Appeal was completed and the three cases were consolidated for purposes of oral argument and decision, but before the Court of Appeal set the matter for oral argument or issued a decision, we exercised our authority pursuant to article VI, section 12, subdivision (a) of the California Constitution to transfer the consolidated matter to this court for oral argument and decision.

For the reasons explained below, we conclude that, under existing constitutional provisions and statutes, the Governor on December 19, 2008, possessed authority to institute a mandatory furlough of represented state employees, reducing the earnings of such employees, only if specifically granted such unilateral authority in an applicable memorandum of understanding entered into between the state and the employee organization representing the affected employees. Although there is considerable doubt whether the applicable memoranda of understanding granted the Governor such authority, we further conclude that even if the Governor lacked authority to institute the challenged furlough plan unilaterally, plaintiffs' challenge to the furlough plan now before us must be rejected. In mid-February 2009 — shortly after the furlough program went into effect — the Legislature enacted, and the Governor signed, legislation that revised the Budget Act of 2008 (2008 Budget Act) by, among other means, reducing the appropriations for employee compensation contained in the original 2008 Budget Act by an amount that reflected the savings the Governor sought to obtain through the two-day-a-month furlough program. The February 2009 legislation further provided that the specified reduction in the appropriations for employee compensation could be achieved either through the collective bargaining process or through "existing administration authority." That phrase, in the context in which the revised budget act was adopted and in light of the provision's legislative history, reasonably included the furlough program that was then in existence and that had been authorized by the current gubernatorial administration. In particular, the bill analyses considered by the Legislature made specific reference to furlough-related reductions of employee compensation costs. Under these circumstances, we conclude that the Legislature's 2009 enactment of the revisions to the 2008 Budget Act operated to ratify the use of the two-day-a-month furlough program as a permissible means of achieving the reduction of state employee compensation mandated by the act.

Accordingly, we conclude that the 2009 budget legislation validated the Governor's furlough program here at issue, and reject plaintiffs' challenge to that program.

When is a new employer a "successor in interest" to a former employer under the Family and Medical Leave Act of 1993 ("FMLA"), 29 U.S.C. §§ 2601-2654? The answer matters because an employee is not eligible for the protections of the FMLA until he or she has worked for a particular employer for at least 12 months, and the term "employer" "includes . . . any successor in interest of an employer." 29 U.S.C. § 2611(4)(A)(ii). Today we adopt the persuasive reasoning of Grace v. USCAR, 521 F.3d 655 (6th Cir. 2008), and apply the regulations promulgated by the United States Department of Labor ("DOL") at 29 C.F.R. § 825.107. After doing so, we conclude that Plaintiff Christina Sullivan is not entitled to FMLA benefits because her new employer, Defendant Dollar Tree Stores, Inc. ("Dollar Tree"), for whom she worked for less than 12 months, is not a successor in interest of her former employer, Factory 2-U. Accordingly, we affirm the summary judgment in Dollar Tree's favor.

Today we consider a student's First Amendment challenge to a community college sexual harassment policy. First Amendment cases raise "unique standing considerations," Ariz. Right to Life Political Action Comm. v. Bayless, 320 F.3d 1002, 1006 (9th Cir. 2003), that "tilt[ ] dramatically toward a finding of standing," LSO, Ltd. v. Stroh, 205 F.3d 1146, 1155 (9th Cir. 2000). Despite this lowered threshold for establishing standing and the disturbing facts of this case, we conclude that the student failed to make a clear showing that his intended speech on religious topics gave rise to a specific and credible threat of adverse action from college officials under the college's sexual harassment policy. Because the student failed to carry the burden of proving he suffered an injury in fact, he does not satisfy the "irreducible constitutional minimum of standing" necessary to challenge the policy. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992).

Plaintiff Bryan Braswell, a firefighter employed by Defendant Shoreline Fire Department ("Shoreline") who formerly practiced as a paramedic with Shoreline under Defendant Gary Somers' medical license, filed this action under 42 U.S.C. § 1983. Plaintiff alleges that he had a property interest in his employment with Shoreline and a liberty interest in pursuing his profession as a paramedic and that Defendants deprived him of those interests without due process when they removed him from his paramedic position without providing adequate notice and a hearing. Plaintiff also alleges that Dr. Somers tortiously interfered with his employment. The district court granted summary judgment to Defendants. Reviewing de novo, Dietrich v. John Ascuaga's Nugget, 548 F.3d 892, 896 (9th Cir. 2008), we affirm except with respect to the alleged liberty interest. As to that claim, we reverse and remand.

The request for judicial notice is granted. The petition for review is granted. Further action in this matter is deferred pending consideration and disposition of a related issue in California Attorneys, Administrative Law Judges and Hearing Officers in State Employment, et al. v. Schwarzenegger, et al., S182581 [Does the Governor have the authority to furlough the state employees at issue in this case by executive order?] (see Cal. Rules of Court, rule 8.512(d)(2)), or pending further order of the court. Submission of additional briefing, pursuant to California Rules of Court, rule 8.520, is deferred pending further order of the court. Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, Moreno, and Corrigan, JJ.

On Friday, July 23, 2010, Attorney General Eric Holder signed final regulations revising the Department's ADA regulations, including its ADA Standards for Accessible Design. The official text was published in the Federal Register on September 15, 2010.

The revised regulations amend the Department's Title II regulation, 28 C.F.R. Part 35, and the Title III regulation, 28 C.F.R. Part 36. Appendix A to each regulation includes a section-by-section analysis of the rule and responses to public comments on the proposed rule. Appendix B to the Title III regulation discusses major changes in the ADA Standards for Accessible Design and responds to public comments received on the proposed rules. The Department's Final Regulatory Impact Analysis will be posted on this page as soon as it is available.

These final rules will take effect March 15, 2011. Compliance with the 2010 Standards for Accessible Design is permitted as of September 15, 2010, but not required until March 15, 2012. The Department has prepared fact sheets identifying the major changes in the rules.

Title II: Final Rule amending 28 CFR Part 35: Nondiscrimination on the Basis of Disability in State and Local Government Services (HTML) | (PDF)  (as published in the Federal Register September 15, 2010)

Title III: Final Rule amending 28 CFR Part 36: Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities (HTML) | (PDF) (as published in the Federal Register September 15, 2010)

Appendix B to Final Title III Regulation:

Appendix B: Analysis of the 2010 ADA Standards (HTML) | PDF format

Fact Sheets: 

Highlights of the Final Rule to Amend the Department of Justice's Regulation Implementing Title II of the ADA

Highlights of the Final Rule to Amend the Department of Justice's Regulation Implementing Title III of the ADA

Adoption of the 2010 Standards for Accessible Design

Plaintiff Robert Sandell appeals from a judgment entered after the court granted summary judgment in favor of defendant Taylor-Listug, Inc. (Taylor-Listug) on Sandell's claims for disability and age discrimination. Sandell was employed as vice-president of sales at Taylor-Listug, a guitar manufacturer, from 2004 to 2007.

Approximately six months into his employment at Taylor-Listug, Sandell suffered a stroke after receiving a chiropractic adjustment. Sandell returned to work at Taylor-Listug in late 2004. During the remainder of Sandell's employment at Taylor-Listug, he required a cane to walk, and his speech was noticeably slower than it had been prior to his stroke. Taylor-Listug's chief executive officer terminated Sandell's employment in late 2007, a few days after Sandell's 60th birthday, citing displeasure with Sandell's performance as vice president of sales.

The trial court concluded that there were no triable issues of fact with respect to Sandell's discrimination claims, and granted summary judgment in favor of Taylor-Listug. Having reviewed the record presented on summary judgment, we conclude that Sandell presented evidence sufficient to establish a prima facie case of disability and age discrimination, and in response to Taylor-Listug's proffer of legitimate nondiscriminatory reasons for terminating his employment, Sandell presented sufficient evidence to raise a triable issue of fact as to whether the motivation for his termination was discriminatory. We therefore reverse the judgment of the trial court and remand the matter for further proceedings.

This is a sexual harassment case in which a male employee was the victim of a female co-worker.

[¶] . . . [¶]

The district court granted summary judgment against the plaintiff, so we recite the facts in accord with the cognizable evidence presented by the plaintiff, to determine whether, if a jury accepted his account, he could recover. We review summary judgment de novo.

[¶] . . . [¶]

Prospect's actions were not enough to establish an affirmative defense for Prospect. "If the employer fail[s] to take even the mildest form of disciplinary action the remedy is insufficient under Title VII."101 Prospect did nothing about Munoz, instead telling Lamas to console himself by saying "I'm too sexy for my shirt." Men as well as women are entitled under Title VII to protection from a sexually abusive work environment.102 Lamas submitted evidence that Prospect knowingly denied him protection.

REVERSED.

The Equal Employment Opportunity Commission ("EEOC") filed suit under the Americans with Disabilities Act ("ADA") alleging that UPS Supply Chain Solutions ("UPS") failed to provide reasonable accommodations for Mauricio Centeno's deafness because UPS did not provide him with a sign language interpreter for certain staff meetings, disciplinary sessions, and training. The district court granted summary judgment to UPS on all claims. The EEOC appeals the district court's decision. We find that there are genuine issues of material fact as to whether UPS unlawfully discriminated against Centeno by failing to make reasonable accommodations. We therefore reverse and remand.

The doctrine of collateral estoppel, or issue preclusion, is firmly embedded in both federal and California common law. It is grounded on the premise that "once an issue has been resolved in a prior proceeding, there is no further fact-finding function to be performed." (Parklane Hosiery Co. v. Shore (1979) 439 U.S. 322, 336, fn. 23.) "Collateral estoppel . . . has the dual purpose of protecting litigants from the burden of relitigating an identical issue with the same party or his privy and of promoting judicial economy, by preventing needless litigation." (Id. at p. 326, fn. omitted.)

We granted the request of the United States Court of Appeals, Ninth Circuit, to answer the following question of California law pertaining to collateral estoppel: Should issue-preclusive effect be given to a federal agency's investigative findings, when the subsequent administrative process provides the complainant the option of a formal adjudicatory hearing to determine the contested issues de novo, as well as subsequent judicial review of that determination, but the complainant elects not to invoke his right to that additional process, and the agency's findings and decision thereby become a final, nonappealable order by operation of law? (See Murray v. Alaska Airlines, Inc. (9th Cir. 2008) 522 F.3d 920 (Murray v. Alaska).)

The Ninth Circuit has furnished the following statement of facts and procedural history (substantially reproduced here with minor nonsubstantive and stylistic modifications) to more fully explain the context in which the question arises. (Murray v. Alaska, supra, 522 F.3d at pp. 921-922.)