2002-19

CALIFORNIA CASES

A. Veganism Is Not Religious Creed Within Meeting Of The California Fair Employment And Housing Act.

In Friedman v. Southern California Permanente Medical Group (2002) Daily Journal D.A.R. 10633 (9/17/02) the California Court of Appeals, Second Appellate District held that veganism was not a religious creed within the meaning of the FEHA.

In plaintiff's original complaint, he alleged that he was a strict vegan and as such he believed that all living beings must be valued equally, and that it is immoral and unethical for humans to kill and exploit animals, even for food, clothing and the testing of product safety for humans. The complaint further alleged that such use is a violation of natural law and the personal religious penance on which plaintiff bases his foundational creeds.

Plaintiff was offered a position with Kaiser Permanente, however, was advised that prior to his becoming an employee, he would need a mumps's vaccine. Plaintiff alleged that he could not be vaccinated with the mumps's vaccine because it is grown in chicken embryo's. To be vaccinated, plaintiff alleged, would "violate his system of beliefs and would be considered immoral by him." Defendant withdrew their offer of employment and plaintiff filed a complaint alleging religious creed discrimination. The Trial court then sustained defendant's demurrer without leave to amend plaintiff's causes of action for religious creed discrimination and retaliation in violation of the FEHA.

The Appellate Court affirmed the Trial Court. The Appellate Court held that to secure FEHA protection, the "beliefs, observances or practices must have a place of importance parallel to that of traditionally recognized religions." The Court stated that objective analysis examines whether a religion addresses fundamental and ultimate questions, as comprehensible in nature, and often can be recognized by certain formal and external signs. The Court found to be veganism not to be a religious creed within the meaning of FEHA. There is no allegation or evidence that addresses the meaning of human existence, purpose of life or matters of life and death. The Court stated that veganism is limited to the single subject of valuing animal life and not sufficiently comprehensive. It is not asserted that it derives from a power or being which all else is subordinate. Additionally, the Court found there were no formal or external signs of religion, no leaders, services, structures or articles of faith.

B. Doctrine Of Inevitable Disclosure Is Contrary To California Law.

In Schlage Lock Company v. J. Douglas Whyte (2002) Daily Journal D.A.R. 10594 (9/16/02), the California Court of Appeals, rejected the inevitable disclosure doctrine. The doctrine of inevitable disclosure permits a trade secret owner to prevent a former employee from working for a competitor despite the owner's failure to prove the employee has taken or threatens to use trade secrets. Under that doctrine, an employee may be enjoined by demonstrating the employee's new job duties will inevitable cause the employee to rely upon knowledge of the former employer's trade secrets.

The appellate court rejected the doctrine in that it found it to be contrary to California law and policy because creates an after the fact covenant not to compete restricting employee mobility.

Whyte worked for Schlage as their Vice President of sales. He signed a confidentiality agreement to protect Schlage's proprietary information and agreed to abide by Schlage's code of ethics, which forbids disclosure of confidential information for personal or non company uses. Whyte did not sign a covenant not to compete. Whyte departed Schlage on June 16, 2000. On June 25, 2000, Whyte became Qwikset vice president of sales. His job duties at Qwikset were substantially similar to those at Schlage. Schlage and Qwikset competed intensely for shelf space at the Home Depot. Litigation ensued with Whyte seeking damages for interference with contract and Schlage claiming misappropriation of trade secrets. Ultimately, the trial court entered in a minute order denying Schlage's request for a preliminary injunction and granting Whyte's motion to dissolve the temporary restraining order. The appellate affirmed the lower court rejecting the doctrine of inevitable disclosure.

The court stated "lest there be any doubt about our holding, our rejection of the inevitable disclosure doctrine is complete. If a covenant not to compete (which would include, for example, a non-solicitation clause), is part of the employment agreement, the inevitable disclosure doctrine cannot be invoked to supplement the covenant, alter its meaning, or make an otherwise unenforceable covenant enforceable. California law concerning enforcement and non-competition agreements, not the inevitable disclosure doctrine, would measure the covenant scope, meaning and validity." . . . "Regardless whether a covenant not to compete is part of the employment agreement, the inevitable disclosure doctrine cannot be used as a substitute for proving actual or threatened misappropriation of trade secrets." The court further found that the evidence failed to prove actual or threatened misappropriation of trade secrets in this case.

C. Court Properly Sustained Demurrers Where Tenured Professor Failed To Challenge Tenure Revocation In Employment Termination By Way Of Administrative Mandamus.

In Gutkin v. University of Southern California (2002) Daily Journal D.A.R. 10364 (9/10/02) the California Court of Appeals Second Appellate District upheld the lower court's demurrer without leave to amend. In this case, Gutkin brought a civil action for damages to challenge the revocation of his tenure and termination of his employment as a tenured professor at University of Southern California.

The court found that it was undisputed that the University's faculty handbook required a hearing before a tenured faculty member could be dismissed, and further, that Gutkin had such a hearing. It is precisely the faculty handbook's requirement of the hearing that renders the hearing "required by law" for purposes of administrative mandamus. The court thus found that the trial court properly sustained defendant's demurrers, and did not abuse its discretion in denying leave to amend, because Gutkin failed to challenge the University's tenure and grievance procedure by way of administrative mandamus.

UNITED STATES COURT OF APPEALS - NINTH CIRCUIT

A. Where Agency Reach Merits Of Claim, Despite Employees Failure To Comply With Request For Information, Administrative Remedies Are Presumed Sufficiently Exhausted.

In Jasch v. Potter (2002) Daily Journal D.A.R. 10545 (9/13/02) the Trial Court granted the United States Parcel Services' Motion to Dismiss concluding that Jasch failed to exhaust his administrative remedies because he refused to cooperate with USPS investigations. Jasch, a mail handler, was denied an advancement to a supervisory position. He filed a complaint with the EEOC alleging Title VII discrimination. However, despite a request for an affidavit from Jasch, he never provided one. USPS completed its investigation and issued Jasch a right to sue letter. It issued a final decision finding no discrimination and dismissed the complaint. Jasch did not appeal the decision to the EEOC but filed the complaint in Federal District Court.

The Ninth Circuit however reversed and remanded the case. The Court found that a complainant's failure to cooperate in the administrative process precludes exhaustion when it prevents a determination on the merits. However, this rule does not apply here because Jasch's participation in the investigation provided sufficient evidence to permit USPS to examine his discrimination claim. The exhaustion requirement was not meant to be a procedural roadblock but rather gives an agency an opportunity to right any wrong. By reaching the merits of Jasch's claim, despite his failure to provide an affidavit, administrative remedies are presumed sufficiently exhausted to permit his suit in Federal Court.

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B. Court Failed To Make Detailed Factual Findings Regarding Discrimination Claim Under American With Disabilities Act.

In Zivkovic v. Southern California Edison Company (2002) Daily Journal D.A.R. 10537 (9/13/02), plaintiff had filed a complaint alleging that Edison discriminated against him during the hiring process for a meter reader job. A bench trial was held in which the evidence showed that plaintiff, who was hard of hearing, applied for the position of meter reader at Edison. Plaintiff passed the written qualifying test but no interview was scheduled. This occurred in 1991. Then in 1993, plaintiff filled out another application. Plaintiff retook the test and passed. Plaintiff testified that he was interviewed by two Edison employed who intimated that he has passed the interview and would be given a job when there was an opening.

On April 16, 1997, plaintiff met again with Edison representatives. Although Edison representative Rudy Rea admitted to reviewing part of plaintiff's application, he was not aware before this meeting that plaintiff had a hearing problem. Plaintiff had difficulty understanding the questions and Rea could tell he was hard of hearing. Rea testified that he allowed plaintiff to read the questions but he nevertheless failed to provide responsive answers. Plaintiff testified that no one showed him any of the questions during the interview. At the end of the interview, plaintiff stated he could of done better if an interpreter was provided. They had noted on his interview scoring sheet that plaintiff may have done better on the interview if a sign language interpreter had been present. Plaintiff then reported for a subsequent June interview with Ed Sumptner, a project manager. Plaintiff admitted that he had never asked for an interpreter, but expected an interpreter to be present based on his prior statements of being hard of hearing. Sumptner testified that plaintiff had no apparent difficulty understanding the questions even though they sometimes had to ask the questions twice. Plaintiff was subsequently declined a position. Plaintiff's complaint alleged that Edison engaged in discriminatory hiring practices in violation of the Americans With Disability Act. The District Court concluded that Edison offered to have an interpreter available yet plaintiff declined. Edison prevailed.

The Ninth Circuit vacated and remanded the case. The Ninth Circuit found that the Court improperly ruled in Edison's favor without resolving any factual findings. The Ninth Circuit found that the Court's conclusion was not supported by plaintiff's testimony. Once an accommodation is requested or the employee recognizes the possible need for an accommodation, the employer is under duty to engage in a "interactive process" with the employee to determine an appropriate accommodation. The interactive process was in order when plaintiff indicated he was hearing impaired. On remand, the Ninth Circuit stated that the District Court must ascertain whether Edison inappropriately engaged in the interactive process, whether Edison offered plaintiff a reasonable accommodation, and whether Edison committed discrimination.

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