2006-9

California Court of Appeal Rejects FEHA Disability Claims Of Plaintiff Who Was Terminated After Lengthy Leave Of Absence.

In Williams v. Genentech, Inc., 2006 DJDAR 5589 (Cal. App. May 11, 2006)(1), the California Court of Appeal affirmed the dismissal on summary judgment of disability-related claims under the state Fair Employment and Housing Act ("FEHA") by Plaintiff Rochelle Y. Williams, a former receptionist at Genentech, Inc.

Williams? job duties included screening visitors and distributing security badges. Rona Rios was her supervisor, but at the end of September 2000, Rios was promoted to the position of manager and Patricia Marasco became Williams? supervisor. Marasco reported to Rios, who reported to Arlene Thompson, the senior manager of telecommunications and transportation.

Receptionists were given daily "Per Alerts" regarding instructions to follow upon approach of particular people. On October 16, 2000, a woman identified in a Per Alert entered the lobby. Although it was not part of the Per Alert protocol, when Williams contacted security, she spoke to them in code, telling them "hurry and bring the pizzas," and "it was a sad movie and [the woman] was crying." On October 18, 2000, Marasco and Rios met with Williams, and reprimanded her for speaking in code. Williams began to cry uncontrollably and hyperventilate, and she had to be transported to the emergency room, where she was diagnosed as suffering an exacerbation of asthma.

Williams commenced a medical leave that day. On October 20, Williams? physician certified her as unable to work until October 28, noting she had job-related stress. Near the beginning of Williams? medical leave, she told Laura Bridgman, the Human Resources manager, that she felt "harassed" and unfairly treated by Rios. In November 2000, while still on leave, she told Bridgman that she did not want to return to work in a position under Rios. Bridgman investigated Williams? claim but found no improper conduct.

Williams? leave was extended several times. Between April 12 and May 15, her physician diagnosed her as suffering from anxiety and depression and removed her from work as "totally incapacitated." She was released to return to work without restrictions effective May 16, 2001.

Genentech?s written family and medical leave policy provided for six months of paid medical leave, and, consistent with the California Family Rights Act ("CFRA"), eligible employees would be placed in the same or equivalent position upon their return to work if their leave did not exceed 12 weeks in a 12-month period. If an employee?s CFRA/Family Medical Leave Act ("FMLA") leave extended beyond 12 weeks, Genentech would not guarantee that a position would be available, but the employee would be provided 60 days following the employee?s return to work to locate a position for which the employee was qualified, and Genentech would pay the employee her full salary during the first 30 days of that 60-day period.

During Williams? medical leave, her position was covered by temporary receptionists, but this resulted in inadequate coverage. Bridgman, Marasco, Rios and Thompson discussed the need for a regular, full-time employee to fill Williams? position. They determined that having a temporary agency employee fill this position was not a viable option due to the extensive training required, lack of qualified persons, and high turnover of temporary employees. They also questioned whether Williams would actually return to work in March, as she was then scheduled. There was no discussion about Williams? reaction to or inability to handle the criticism delivered at the October 18, 2000 meeting, and they did not consider that issue in assessing and recommending that her position be filled. Upper management approved the decision to fill Williams? position.

On January 31, 2001, Bridgman notified Williams that Genentech received notice from Williams? doctor stating that she was disabled and unable to work through March 5. Bridgman?s letter also notified Williams that she had exhausted her 12-week position guarantee as of January 16, and that upon her expected return to work in March, she would be entitled to look for another position for 60 days, and Genentech would provide her with services to assist her. Bridgman sent another such notice on March 21, 2001. Genentech filled Williams? position on February 26.

Upon Williams? return to work May 16, 2001 through July 2001, there were no vacant receptionist positions at Genentech. Williams interviewed for several non-receptionist positions for which she was not adequately credentialed, and she was not placed in such positions. Because Williams was not hired for any position at Genentech during her 60-day job search period, her employment was terminated effective July 16, 2001.

On July 9, 2002, Williams filed a complaint against Genentech with the Department of Fair Employment and Housing ("DFEH"), alleging she had suffered race and disability discrimination. The claim alleged that on May 16 and July 16, 2001, Genentech denied her return to work and terminated her because of her race (African-American) and disability (stress-related). A right to sue issued on July 10, 2002.

Williams then filed her lawsuit, alleging that Genentech discriminated against her by filling her position while she was on "stress leave," and refusing to hire her to a vacant position upon her return to work. The complaint alleged causes of action under the FEHA for race discrimination, disability discrimination, failure to accommodate, and failure to engage in the interactive process. It also alleged violation of the Unruh Act, breach of contract, and intentional infliction of emotional distress. The lower court granted Genentech?s motion for summary judgment.

The Court of Appeal found that Williams exhausted her administrative remedies as to her disability discrimination claim regarding Genentech?s decision to fill her position. Relying on Yanowitz v. L?Oreal USA, Inc., 36 Cal.4th 1028 (2005), the Court of Appeal found that the continuing violations doctrine applied. The court concluded that a reasonable trier of fact could find that Genentech?s adverse actions in filling her position, failing to extend her leave status until a receptionist position was available, failing to accommodate her, and failing to rehire her were all similar acts demonstrating that Genentech?s July 16, 2001 termination of her employment was due to her disability. Moreover, a reasonable trier of fact could find that Williams was not on notice until her termination that her efforts to maintain employment at Genentech would be futile.

However, the court found a reasonable inference that Williams was unable to perform the essential functions of her job at the time of the termination decision. This inference was based on the fact that on January 22, 2001, a week before the decision was made to fill Williams? position, her doctor extended her medical leave until March 5, and that between April 12 and May 15, 2001, her physician diagnosed her as suffering from anxiety and depression and determined she was "totally incapacitated" and unable to work. The court also found that Williams failed to establish a prima facie case regarding whether Genentech?s failure to hire her for other positions constituted disability discrimination. At any rate, the undisputed evidence established that Genentech had legitimate, nondiscriminatory reasons for failing to hire Williams for other positions because she did not have the requisite qualifications. The court found that Williams failed to rebut Genentech?s showing.

As for her failure to accommodate claim, the court found that although her DFEH complaint did not specifically assert a failure to accommodate, Williams exhausted her administrative remedies. The court noted that under the "like or reasonably related" doctrine, the allegations in a civil action are within the scope of the administrative charges filed if those allegations are within the scope of the administrative investigation that can reasonably be expected to grow out of those charges of discrimination. Thus, where an administrative investigation would likely have encompassed the claim alleged in the civil complaint, there is no exhaustion of remedies bar.

The court found that Williams nonetheless failed to establish that Genentech failed to accommodate her alleged disability. Williams essentially argued that Genentech failed to accommodate by not granting her November 2000 request to serve under a manager other than Rios when she returned to work; not holding her position open for her until she was released to return to work; and, after she was released to return to work in May 2001, not placing her in a vacant position. However, the court noted that an employer has the discretion to choose between "effective accommodations," and may choose the accommodation that is less expensive or easier for the employer to provide. Even if Williams requested to return to work under a different supervisor or manager, she presented no evidence that she was ready or able to return to work at the time of her request.

The court also concluded that Williams failed to raise a triable issue as to the reasonableness of Genentech?s decision to fill Williams? position while continuing her on medical leave. As for Genentech?s failure to place her in a vacant position upon her release to return to work, the court found that Williams? claim failed because the undisputed evidence established that between May 2001, when she returned to work, and July 2001, when she was terminated, there were no vacant positions at Genentech for which she was qualified.

As for Williams? claim that Genentech failed to engage in the interactive process, the court found that Williams exhausted her administrative remedies, as an investigation into Williams? disability discrimination claim likely would have encompassed her cause of action based on the interactive process. However, summary judgment was properly granted on this claim since at the time Williams made the inquiry for a new supervisor, Rios was no longer Williams? supervisor, and Williams presented no evidence suggesting that the accommodation Genentech had already provided was ineffective.

Finally, the court found that the Unruh Act is confined to discriminations against recipients of a business establishment?s goods, services or facilities. Thus, the court concluded that Williams could not rely on the Unruh Act to pursue her employment-related claims.

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Right To Privacy Of Class Members Who Contacted Plaintiffs' Counsel Outweighs Employer's Right To Discover Their Identities.

In Tien v. Superior Court, 2006 DJDAR 5838 (Cal. App. May 17, 2006)(2), the Court of Appeal overturned a trial court order requiring plaintiffs in a putative class-action lawsuit to disclose the identities of class members who contacted plaintiffs? counsel, and held that the class members? privacy rights outweighed the defendant?s right to discover this information.

Petitioner Kevin Tien and another individual filed a putative class action lawsuit against Tenet Healthcare Corporation. They sought relief on behalf of current and former hourly employees of Tenet who were allegedly denied meal and rest breaks, as well as proper payment for overtime. In July 2004, plaintiffs served two special interrogatories, one asking for the number of potential class members, and the other asking for their names, addresses, and telephone numbers. Tenet responded that there were approximately 50,000 class members, but it objected on various grounds to the interrogatory requesting their names and contact information.

In February 2005, the parties resolved the discovery dispute by stipulating to an order under which a neutral letter was to be sent to a random sample of class members selected by Tenet pursuant to an agreed-upon procedure. Under the stipulated order, Tenet was to provide the necessary mailing labels to a neutral third-party retained to handle the mailing.

The letter, which was sent to approximately 3,300 class members, advised the potential class member that a lawsuit was filed on behalf of certain current and former employees of Tenet in California and explained the claims. The letter advised the employee that if he or she wanted "more information," he or she should call plaintiff?s counsel. The letter further advised the employee that calling would not have any negative effect on their employment.

In August 2005, Tenet served special interrogatories, one of which requested the names and contact information for all class members who contacted plaintiffs? counsel in general and in response to the letter. Plaintiffs moved for a protective order, claiming the information sought was protected by the attorney-client privilege, the attorney work product doctrine, and the privacy rights of those class members who contacted plaintiffs? counsel.

The trial court denied plaintiffs? motion for a protective order. Acknowledging that compelling disclosure of the names of the class members who contacted plaintiff?s counsel would impact their privacy rights, it concluded those rights were outweighed by Tenet?s right to the discovery. With respect to the attorney-client privilege claim, the trial court observed that a client?s identity generally is not protected, and no exception applied to this case. The trial court?s order did not expressly discuss plaintiffs? attorney work-product contention. The trial court stayed its order for 30 days to permit plaintiffs to advise the affected class members so they would have time to "seek exemption" from the order.

Plaintiffs? counsel sent a letter to the 82 class members who had contacted counsel?s office, asking whether they would consent to the release of their identities. Of the 82 individuals, 24 consented to the disclosure of their identities, 24 refused to consent, and 34 did not respond. Plaintiffs stated they intended to disclose the names of those class members who had consented to disclosure, but they sought "guidance" from the trial court regarding the remaining class members.

The trial court reaffirmed its ruling and ordered plaintiffs to provide Tenet with the requested information concerning the class members who had consented to disclosure and those who had not responded to the letter from plaintiffs? counsel within 15 days. As to identifying information for those who had expressly stated they did not consent to disclosure, the trial court stayed its order for an additional 30 days to allow counsel time to seek appellate review. Plaintiffs filed a writ petition challenging the trial court?s order to the extent it required disclosure of the names of, and contact information for, the class members who did not expressly consent to disclosure (approximately 60 persons).

The Court of Appeal found that the discovery sought by Tenet was relevant, as it is reasonable to assume that at least some of the class members who contacted plaintiffs? counsel may have relevant information about the issues in the case. It was also reasonable to assume that at least some of these class members had more information than other class members who did not contact plaintiffs? counsel.

The appellate court further found that compelling disclosure of the identities of class members who contacted plaintiffs? counsel did not violate the attorney work-product doctrine. The court noted that it failed to see how the names of class members who contacted plaintiffs? counsel constitute the work product of plaintiffs? counsel, as it was merely the passive recipient of some telephone calls in response to the letter.

The court also found that compelling disclosure of the identities of class members who contacted plaintiffs? counsel did not violate the attorney-client privilege, as disclosing the names of class members who contacted plaintiffs? counsel would not disclose any personal, confidential information. Rather, it would disclose only that they were members of a class who may have been denied some employment benefits, a fact already known to Tenet. The court found that while it would also disclose that they contacted plaintiffs? counsel, this fact, in and of itself, would reveal nothing confidential.

However, the court held that compelling disclosure of the identities of class members who contacted plaintiffs? counsel would violate their privacy rights. The court noted that compelling disclosure of the identity of persons who consult with counsel implicates their right of privacy. Thus, the party seeking discovery must demonstrate a "compelling" need for the disclosure, balancing the right of a civil litigant to discover relevant facts, on the one hand, and the right of the third parties to maintain reasonable privacy regarding their sensitive personal affairs, on the other.

The court concluded that the privacy rights of the class members who contacted plaintiffs? counsel outweighed any interest Tenet may have in learning their identity. Tenet offered no compelling need to learn the identities of the class members who contacted plaintiffs? counsel. In making its determination, the court noted that Tenet knows the identity of all class members, including the approximately 3,300 who received the initial letter, and that it is free to contact class members to determine if they have any information they wish to share. Finally, the court noted that since Tenet should know how it compensated its employees and whether it provided them with meal and rest breaks, Tenet should be aware of most of the relevant facts in the case.

The court rejected Tenet?s argument that since the initial letter specifically advised its recipients that contacting plaintiffs? counsel would not have any negative effect on their employment with any Tenet-related facility that the class members had no basis to expect that their identities would remain confidential or to fear retaliation. The court noted that, if anything, the statement could be construed by its recipients as an assurance that the contact would not be disclosed to their employer.

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Ninth Circuit Orders Unsealing Of Confidential Documents Attached To Summary Judgment Motion.

In Kamakana v. City & County of Honolulu, 2006 DJDAR 5946 (9th Cir. May 18, 2006)(3), Kenneth Kamakana, a detective in the City of Honolulu's Police Department ("HPD"), claimed he was transferred in retaliation for reporting to his superiors and the FBI misconduct and illegal acts by other HPD officers. Upon commencement of discovery, the magistrate approved a stipulated protective order, which restricted access to discovery materials to parties and counsel and limited their use solely for the litigation. Among other things, the City served the United States, a third party, with requests for witness depositions and documents.

The district court granted the parties' motion to file their summary judgment pleadings under seal, but reserved the right to unseal if, upon reviewing the sealed materials, it determined that the documents should be available to the public. The district court denied, in large part, the City's motion and Kamakana's cross-motion for partial summary judgment, and the case settled.

In the interim, the Honolulu Advertiser newspaper filed a motion to intervene for the limited purpose of unsealing the judicial record. The magistrate granted the motion to intervene and ordered the parties to submit all materials they wished to keep sealed with an explanation of "good cause." Transcripts the United States submitted and some documents the City submitted were ordered unsealed. The City immediately filed a motion to reconsider.

The magistrate later amended her order, and noted that consistent with the Ninth Circuit's decision in Foltz v. State Farm Mutual Auto Ins. Co., 331 F.3d 1122 (9th Cir. 2003), "the presumption of access is not rebutted where documents which are the subject of a protective order are filed with the court as attachments to summary judgment motions" and that "to retain any protected status for documents attached to a summary judgment motion, the proponent must meet the ?compelling reasons' standard and not the lesser ?good cause' determination."

Rather than assert "compelling reasons" to keep its documents sealed, the City asserted that the magistrate had not given the City enough notice to make such a showing. The United States only argued that the newspaper had not objected to the United States' proposed redactions.

Relying on Foltz, the magistrate found no "compelling reason" that rebutted the presumption of public access and directed the production of most of the City's documents that were under seal. As to the United States, the magistrate required the unsealing of all the documents it had asked to keep protected, granting redactions related to the home addresses and Social Security numbers of law enforcement officers and Kamakana. In advance of the deadline to produce the documents, the Ninth Circuit granted a request for an emergency stay and intervention on appeal.

The Ninth Circuit noted that there exists a general right to inspect and copy public records and documents, including judicial records and documents to ensure citizens are able to keep a watchful eye on the workings of public agencies. Unless a particular court record is one "traditionally kept secret," i.e., grand jury transcripts or warrant materials, there is a strong presumption in favor of access. A party seeking to seal a judicial record then bears the burden of overcoming this strong presumption by meeting the "compelling reasons" standard set forth in Foltz.

The court noted that in general, "compelling reasons" sufficient to outweigh the public's interest in disclosure and justify sealing court records exist when such "court files might have become a vehicle for improper purposes," such as to gratify private spite, promote public scandal, circulate libelous statements, or release trade secrets. The mere fact that the production of records may lead to a litigant's embarrassment, incrimination, or exposure to further litigation will not, without more, compel the court to seal its records.

The strong presumption of access to judicial records applies fully to dispositive pleadings, including motions for summary judgment and related attachments. The "compelling reasons" standard is invoked, even whereas here, the dispositive motion, or its attachments, were previously filed under seal or protective order.

However, the Ninth Circuit noted that in the case of non-dispositive motions, the usual presumption of the public's right of access is rebutted because those documents are often unrelated, or only tangentially related, to the underlying cause of action. Thus, a particularized showing under the "good cause" standard of Rule 26(c) of the Federal Rules of Civil Procedure would suffice to warrant preserving the secrecy of sealed discovery material.

Applying the "compelling reasons" standard to the City's documents attached to its summary judgment motion, the Ninth Circuit found that it had failed to carry its burden of articulating a compelling reason for keeping the attached documents under seal. The Ninth Circuit found that the "compelling reasons" standard applied to the United States's documents, despite the fact it was only a third party, and that while the United States specifically identified the redactions it sought, it failed to provide specific compelling reasons to justify the redactions.

The Ninth Circuit further rejected the United States' argument that transcripts are "traditionally kept secret" and therefore subject to seal. The court found that even "traditionally kept secret" documents are not sacrosanct. The court also found that it is also insufficient to show, as the United States argued, that a document merits sealing because it would be exempt from disclosure under the Freedom of Information Act.

As for the documents attached to the nondispositive motions, the Ninth Circuit adopted the lower court's finding of no "good cause" to keep the documents under seal.

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1. Opinion by Simmons, J., joined by Jones, P.J. and Gemello, J.

2. Opinion by Cooper, P.J., joined by Rubin and Boland, JJ.

3. Opinion by McKeown, J., joined by Beezer and Hawkins, JJ.