2007-20

Correctional Officer Fails to State A Prima Facie Case of Harassment or Disparate Treatment

 In Jones v. California Department of Corrections & Rehabilitation, the California Court of Appeal affirmed summary judgment for the California Department of Correction and Rehabilitation (“CDCR”) and against plaintiff Kim Jones on her claims for gender discrimination – hostile work environment; sexual harassment; race discrimination; unlawful retaliation; assault and battery; intentional infliction of emotional distress; negligent infliction of emotional distress; and negligent supervision and retention of employees.

 Jones, an African-American female, worked as a correctional officer at Donovan Correctional Facility since 1987. She became a rock crew officer in December 2002, and supervised inmates on a work crew. She alleged that from December 2002 until December 2003, she was treated with open hostility, disrespect, and cruelty by male correctional officers. She reported these incidents to her supervisors.

 Among her complaints, Jones alleged that she was not permitted to change her work schedule, when two male officers were. When she complained, one male officer was told that the practice of changing schedules was cancelled. As a result, male officers escalated their abuse and hostile behavior towards Jones.

 One of Jones’ supervisors met with her in May 2003 and gave her a Job Expectations memorandum; he gave one to a male officer as well. In November 2003, Jones’ immediate supervisor forbade Jones and all other crew officers from completing paperwork in his office. Jones claimed that the supervisor told her to do her work where the tools were kept, an area with rats and other rodents.

 On December 3, 2003, Jones and a male officer had an altercation regarding the use of a wheelbarrow. Jones testified at her deposition that she needed the wheelbarrow for her crew, but the male officer took it. Jones was displeased and went to retake the wheelbarrow, but the male officer blocked her and refused to move. He was advised that his supervisor wanted to see him and walked away. Jones took the wheelbarrow. She then reported pain in her neck, right wrist, and shoulder for which she received medical care. Jones was placed on medical leave, has not returned to work, and collected workers’ compensation benefits.

 Jones filed Department of Fair Employment and Housing complaints against Donovan and several employees in January and September 2004, and filed her lawsuit in October 2004. CDCR filed a motion for summary judgment in September 2005, arguing that all the causes of action under the Fair Employment and Housing Act (“FEHA”) failed, because Jones could not state a prima facie case, given that none of the claimed wrongful conduct constituted an adverse action, and that any such actions were made for legitimate, nondiscriminatory reasons. The CDCR also contended that workers’ compensation statutes barred the causes of action for assault and battery, intentional and negligent infliction of emotional distress, and negligent supervision and retention of employees. The trial court granted summary judgment in favor of all defendants on all claims. Jones appealed.

 The Court of Appeal observed that not all workplace conduct that may be characterized as harassing affects a term, condition, or privilege of employment. The conduct must be both objectively and subjectively offensive. Conduct not severe or pervasive enough to create an objectively hostile or abusive work environment – an environment that a reasonable person would find hostile or abusive – is beyond FEHA’s purview. If the victim does not subjectively perceive the environment to be abusive, the conduct has not actually altered the conditions of the victim’s employment and there is no FEHA violation. The conduct must be extreme and cannot be occasional, isolated, sporadic, or trivial. The plaintiff must show a concerted pattern of harassment of a repeated, routine, and generalized nature.

 Whether an environment is hostile or abusive can be determined only by the looking at all the circumstances. The court concluded, based on the totality of the circumstances, that Jones failed to present a triable issue of material fact from which it could be inferred she suffered harassment as proscribed by FEHA.

 During her deposition, Jones was asked whether the comments and complaints her coworkers made about her were promoted by her gender or race. She repeatedly answered “No” and “I don’t know.” The absence of any nexus between the alleged harassment and her gender and race negated Jones’ FEHA claim.

 Jones’ claim also failed because she did not produce evidence that the conditions of which she complained where sufficiently severe or pervasive to constitute harassment. The trial court concluded that the incidents were akin to being a collection of isolated and objectively non-discriminatory events. The wheelbarrow incident was a one-time occurrence, unrelated to Jones’ gender. The other incidents were discrete ones or matters that were not severe. The court found no evidence that Jones’ male coworkers’ daily criticisms were severe, because, as she recounted in her deposition testimony, they amounted to no more than comments that she was not doing her job.

 Jones based her claim for discrimination on a disparate treatment theory. As with her claim for harassment, the court found no nexus between the coworkers’ conduct and Jones’ gender and race. Jones failed to produce evidence rebutting the defendants’ reasons for certain employment decisions or make a showing that they were merely pretexts for discriminatory conduct. The court found any slights or offenses Jones complained about did not rise to the level of actionable discrimination.

 With respect to her claim of retaliation, Jones had no evidence to show that she suffered any adverse change in the terms and conditions of her employment. She never experienced a loss or reduction in her classification, position, salary, benefits, and work hours; and her employment was not terminated. She could not make out a claim that she was constructively discharged because no evidence showed that CDCR intentionally created or knowingly permitted working conditions so intolerable or aggravated that a reasonable employee in her position would have felt compelled to resign. Jones merely listed several instances of claimed adverse employment actions. She did not support her allegations with any specific facts. Because she had no evidence and it was not reasonable to infer that Jones’ work conditions were materially altered, her claim for retaliation failed.

Disabled Employee’s Claims Cannot Survive Summary Judgment Absent Specific Evidence of Pretext or Denial of Requests for Accommodation

 In King v. United Parcel Service, Inc., the California Court of Appeal affirmed summary judgment against a plaintiff who alleged that he was terminated because of his blood disorder, and that he was denied accommodations, but had no specific evidence of pretext, and failed to identify any specific requests for accommodation he had made.

 The plaintiff in this case was Richard King, a 30 year employee of UPS, whose job primarily involved supervising truck drivers. King was terminated after an investigation determined that he violated UPS’s integrity policy. Specifically, federal law prohibits truck drivers from driving after they have been on duty for 60 hours in any seven consecutive days. Violation of this rule can result in severe fines and penalties, up to and including the loss of the company’s operating rights. In December, 2002, King wanted employee Jeff Lester to make a delivery. However, King’s assistant informed King that Lester could not make the delivery because he was over his hours for the week. King then called Lester into his office, and soon thereafter emerged with a new timecard, indicating that Lester had not worked over 60 hours in the previous week. A subsequent investigation by UPS determined that the new timecard had been falsified. During the investigation, Lester signed a written statement indicating that he had falsified the timecard at King’s instruction. King initially denied having done this, but exclaimed “You got me” when confronted with the original timecard. Although King’s supervisors expressed reluctance to terminate King, they felt they had no choice given the seriousness of his integrity policy violation.

 King then filed suit, and the trial court granted summary judgment. On appeal, the grant of summary judgment was affirmed. In regards to King’s FEHA discrimination claim, although it was undisputed that King had developed a blood disorder and taken a medical leave of absence within a year prior to his termination, the court found that King could not show that “he was terminated because he was disabled.” UPS met its initial burden of showing a legitimate reason for King’s discharge by presenting evidence pertaining to the falsified timecard. The court noted that, “[f]or the purposes of establishing the employer’s initial burden of proof, it does not matter whether plaintiff actually did commit an integrity violation as long as UPS honestly believed he did.” The burden was therefore on King to “present specific and substantial responsive evidence” showing that the reason given for his termination was pretextual. The court determined that the evidence submitted by King failed to meet this requirement.

 In so holding, the court first noted that King’s prior disputes with various supervisors over his hours and responsibilities did not show pretext. King argued that pretext was established by the fact that, earlier in 2002, the company had transferred him to become supervisor of the “local sort,” which required that he work from 1:00 p.m. to 10:00 p.m., rather than his normal hours of 8:00 a.m. to 6:00 pm. King did not like the new hours, and submitted a note stating that he was “quitting” the local sort, which UPS interpreted as a resignation from the company altogether. However, King later filed a grievance and was reinstated. In regards to this evidence, the Court noted that it was “not unreasonable to infer ... that [King’s] supervisors harbored a lingering resentment toward plaintiff as a result of this episode.” However, because there was no evidence that the individuals involved in that incident participated in the decision to fire King, “their bitterness or mistreatment [of King], if any, is not material to whether plaintiff was terminated because he was disabled.”

 The court also found that King’s attacks on UPS’s investigation were immaterial to the issue of pretext. Specifically, King claimed that Lester’s deposition testimony, in which he claimed not to have been interviewed by UPS until after King’s termination, and then only under “intimidating conditions,” did not establish pretext. The court stated that “[e]ven if we were to assume that someone either backdated Lester’s statement or pressured him into writing a false statement, plaintiff offers no evidence to connect the wrongdoing with any of the decision makers.”

 Additionally, the mere fact that King was fired shortly after returning from a disability leave did not establish pretext, in light of the evidence submitted by UPS that King violated its integrity policy after returning from that leave. Moreover, the individual supervisors who decided to fire King had declined to do so when King had committed more minor violations of company policy in the past. Accordingly, the court found that King had not submitted “substantial evidence” that UPS’s reason for terminating King (its perception that he had violated the company’s integrity policy) was pretextual.

 This determination regarding King’s FEHA claim was also found to be dispositive of his breach of contract cause of action. Again, the question was not whether King had in fact violated UPS’s integrity policy, but whether UPS honestly believed that he did. The court rejected King’s arguments that various flaws in UPS’s investigation could be used to show bad faith, as the court was “unwilling to compel employers to undertake a precise type of investigation as long as the process is inherently fair.” The process at issue here was inherently fair “[b]ecause neutral personnel investigated the facts, eyewitnesses provided statements, and plaintiff was given an opportunity to explain what happened.” Accordingly, the court determined that “UPS conducted an adequate investigation as a matter of law.”

 The court next addressed a claim by King for defamation, which was based on the fact that King’s supervisors addressed his subordinates about King’s termination after the fact. UPS had submitted evidence that its communications to its employees in this regard were limited, and that this information was provided to employees solely to explain to them why King was no longer with the company, and to impress upon them the importance of the company’s integrity policy. The court found that UPS had an interest in communicating this information to its employees, and that the statements were therefore privileged.

 Finally, the court addressed King’s claim that he was denied reasonable accommodations for his disability in violation of FEHA. King alleged that he was denied reasonable accommodation because he had been transferred to the “local sort” earlier in 2002, which required that he work until 10:00 p.m. King apparently learned of the blood disorder while working the “local sort” hours. When King returned from an ensuing medical leave of absence, King’s doctor cleared him to work “his regular duties and hours.” King contended that this note required that he be returned to his previous work schedule, in which he worked from 8:00 a.m. to 6:00 p.m. Yet, King never notified UPS of this interpretation of the doctor’s note. In upholding summary judgment as to this claim, the Court noted that an “employee can’t expect the employer to read his mind and know he secretly wanted a particular accommodation and sue the employer for not providing it.” Therefore, King was “obliged to tender a specific request for a necessary accommodation.” Here, although King alleged that UPS was aware of his desire to work earlier in the day, King could produce no evidence that he had specifically requested such an accommodation after developing the blood disorder. Further, King admitted during his deposition that he was able to “get the job done,” and that he had taken issue with the “local sort” hours before the onset of his disability. Accordingly, the court found that “it was incumbent upon [King] to produce clear and unambiguous doctor’s orders restricting the hours he could work” in order for this cause of action to survive summary judgment. Because he could not, summary judgment was upheld.

Employee Who Is Unavailable Due To Disability Unrelated To Work Cannot Recover Back Pay For Period Of Wrongful Demotion

 In Davis v. Los Angeles Unified School District Personnel Commission, the California Court of Appeal held that an employee cannot recover back pay during the period when he or she is unable to work due to a non-industrial disability. The court also held that the employee is not entitled to reinstatement until he or she can perform the functions of the job.

 Ennis Davis began working with the LAUSD in 1976. By 1999, he was the director of the information services branch. In July 2001, his immediate supervisor had received an anonymous memorandum accusing Davis of general wrongdoing. The accusations were investigated by LAUSD’s general counsel office and Davis was relieved of his duties and assigned to a new location. In October 2001, Davis met with one of his supervisors and a personnel representative to discuss the charges against him, which included falsification of timecards, permitting a subordinate to work two jobs, and failing to pay for personal calls made on his LAUSD cell phone. On November 8, 2001, he met with the same individuals and was presented with a notice of unsatisfactory service. Following this meeting, Davis went home. He also visited his physician who placed him on disability for an unspecified illness. Davis has been disabled since November 2001 and has not returned to work. Davis also filed a workers compensation claim which was denied as non-work related. He did not appeal this decision.

 By certified letters in November 2001, LAUSD notified Davis of a Skelly hearing where he could respond to the charges against him. He did not respond and the LAUSD assumed he did not want a hearing. Months later the letters were returned, stamped “Attempted Not Known.” The LAUSD presented a statement of charges against Davis to the Board of Education, which adopted the charges and demoted Davis to a software engineer, a lower paying job, effective December 12, 2001. The LAUSD notified David of the demotion by letter.

 By February 2003, Davis had exhausted his paid leave benefits and the LAUSD notified him by letter that he could request unpaid leave in six-month increments, not to exceed 18 months and the failure to make such a request would result in his separation from employment. Davis did not request unpaid leave and on February 8, 2003, he was effectively laid off and placed on a “reemployment list” for 39 months. If, during the 39 months, he became able to assume the duties of his prior position, he would be reemployed in that position, his break in service would be disregarded, and he would be fully restored as a permanent employee. Davis also cashed out his retirement benefits.

 Davis filed a timely appeal of his demotion with the LAUSD Personnel Commission. In February 2003, the hearing officer issued a “recommended decision” proposing that the Commission find in Davis’ favor. The hearing officer concluded the evidence did not support the charges against Davis and his superiors did not comply with the Commission’s rules for progressive discipline.

 By the end of July 2003, the Commission had reviewed the hearing officer’s findings and recommendations and rescinded Davis’ demotion; restored him to his prior position effective of the date of his demotion; held that his separation from employment was not a bar to reinstatement; ordered that he be paid the difference between the amount of his pay he should have received at the lower classification and the pay he should have received had he not been demoted including differences in sick leave pay, vacation pay, and any other benefits; rejected Davis’ request for medical costs and damages for emotional distress; directed that Davis be given a letter explaining to financial institutions the matters at issue in the proceedings; and ordered that a statement be read or given to the staff regarding Davis’ return to his prior position.

 On October 17, 2004, Davis was awarded back pay, primarily vacation based on his higher, predemotion rate of pay. There was no change in sick leave pay or other benefits. Davis did not give the LAUSD a release to return to work and he was not reinstated.

 In September 2003, Davis filed his first petition for a peremptory writ of mandate, alleging that the LAUSD had not reinstated him or paid salary that he would have received had he continued to work in his prior position. The superior court commanded the Commission to clarify its decision with respect to whether Davis was entitled to be reinstated despite his continuing disability; specify the amounts awarded to Davis; and specify the amount of accumulated leave, if any, restored to Davis.

 In January 2005, the Commission filed a return to the writ. It stated that Davis remained eligible for reinstatement if he demonstrated at any time before May 9, 2006 that he was fit for duty and complied with reemployment procedures. Davis needed to present medical clearance from his treating physician that he could return to his prior position. If Davis was medically restricted, the matter would be reviewed to determine essential job functions and reasonable accommodation. Although the Commission paid Davis backpay, his request for attorney fees, costs, damages for emotional distress, repayment of medical costs, restoration of benefit time, and reimbursement for taxes and penalties incurred as a result of early withdrawal of retirement benefits was unwarranted and unauthorized. Davis’ medical leave was not restored.

 On January 25, 2005, Davis filed his second petition alleging he was entitled to immediate reinstatement, notwithstanding his inability to return to work; full back pay from the date of demotion; and all other requested relief denied by the Commission. The trial court denied the petition, stating: (1) Davis was not entitled to be reinstated until he was medically able to resume the duties of his prior position; (2) he could not retain the status of a disabled employee for an unlimited period of time; (3) he had failed to prove that his illness was work related; and (4) he was entitled only to the disability benefits due an employee with a nonindustrial illness. Judgment was entered for the Commission and against Davis, who appealed. The Court of Appeal affirmed.

 In concluding that Davis was not entitled to immediate reinstatement, the court found that he was medically unable to return to work. Stating that reinstatement is synonymous with returning to work, the court observed that the obstacle to Davis’ reinstatement was his failure to present a medical release. The Commission had the authority to condition his reinstatement on a release from his physician and was not required to grant him an indefinite leave of absence allowing his reinstatement whenever, if ever, he might recover from a nonindustrial illness. Nor was the Commission required to reinstate Davis at full salary while he was medically unable to return to work.

 Stating that the intended effect of reinstatement is to reduce or eliminate an employer’s liability for monetary damages by returning the employee to the workplace and compensating him for actual work, the court found that reinstatement should only be ordered where the plaintiff, in returning to work, successfully performs all required duties of the position, with or without accommodation, notwithstanding any disability he might have. Reinstatement is not an opportunity to take advantage of company benefits.

 Davis, relying on Government Code section 31725, unsuccessfully argued that he should have been reinstated regardless of his ability to work. The court was not persuaded, observing that Government Code section 31725, applicable to county employees, contemplates that an employee will be reinstated to his former position upon his ability to return to work, where he has elected to take a medical leave and has not been discharged.

 Davis’ request for full back pay failed as well. Because he was unavailable for work due to his nonindustrial illness, the court found the Commission was justified in its denial of full back pay. Back pay makes an employee whole for an employer’s wrongdoing and should be awarded to an employee to give him what he would have earned less any net earnings during the time between his wrongful discharge and reinstatement. The employer is made responsible only for losses suffered by the employee as a result of the employer’s misconduct. The court found that to hold otherwise would render back pay punitive and abuse the intent of the remedy. The court should take care in not granting an employee a windfall.

 The court observed that in order to make its determination as to whether Davis was entitled to back pay, if at all, it needed to inquire as to the nature of the disability, the cause, and other issues, must be considered on a case-by-case basis. For example, where a disability is work-related or arises from an unlawful discharge and is not a usual incident of the hazards of living, the period of disability would not be excluded from back pay. Similarly, employees, terminated and who would not have been rehired, are not entitled to back pay, unless their losses result directly from unlawful conduct.

 The court also noted that where an employee is discharged for both valid (wrongful conduct) and invalid reasons (engaging in protected activity), back pay was not warranted if the decision would have been made for the valid reason, even if the invalid reason was a substantial factor in the decision. This would place the employee in a better position than he otherwise would have occupied. Even if the employer terminated the employee for an invalid reason and subsequently learned of a valid reason, back pay may be limited to the period between the discharge and the date the new information was discovered.

 Turning to Davis’ claim for back pay, the court did not rely on either Davis’ receipt of disability benefits or his statements to conclude he was unable to work. The court relied on his failure to provide a medical release to return to work, among other things. Because Davis was not discharged, but demoted, he had the option of continuing to work for the same employer. However, he took disability leave before he learned about the demotion, and was medically unable to work when the Commission upheld his appeal. His illness was not work related and was the sole cause of his inability to work.

 The measure of recovery by a wrongfully discharged employee is the salary he would have earned plus other benefits less the amount the employer proved the employee has earned or might have earned from other employment. The burden is on the employer of proving that an employee would not have had any earnings due to a nonindustrial illness. Because Davis was unavailable due to his illness he was not entitled to lost earnings during the period of his unavailability and would not have received earnings during that time, regardless of his demotion.

Court Refuses To Enforce Overbroad Contractual Provision Penalizing Company For Hiring Consultant’s Employees

 In VL Systems, Inc. v. Unisen, Inc., the California Court of Appeal refused to enforce a contractual provision that precluded a company from hiring employees away from a consulting firm it had hired.

 The defendant in this case was a company called Star Trac (the d/b/a of Unisen, Inc.). In 2004, Star Trac entered into a short-term consulting contract with a company called VL Systems, Inc. (“VLS”) for assistance in setting up a new server. At the time of the contract, VLS estimated that this work would take only 16 hours. However, VLS included in the contract a no-hire provision, under which if Star Trac hired any VLS employee within 12 months of termination of the contract’s performance period, Star Trac had to pay VLS an amount equal to 60% of the employee’s salary for one year “as liquidated damages.” VLS designed the no-hire provision to deter the hiring of its consultants by its customers, in order to “protect both VLS’s investment in its consultants and to protect its customer base.” After the contract was signed by representatives of both companies, VLS completed the project without incident.

 In April 2004, several months after the Star Trac project was completed, VLS hired an employee named David Rohnow as a senior engineer. In July 2004, Rohnow responded to a job listing at Star Trac. Star Trac then hired Rohnow in September. After Rohnow was hired, VLS sent Star Trac an invoice for $60,000, which it calculated to be 60% of Rohnow’s new salary. When Star Trac refused to pay, VLS filed a lawsuit, alleging breach of contract. The trial court enforced the no-hire provision, but found that the liquidated damages provision was unenforceable because it bore no reasonable relation to any damages suffered by VLS. The trial court instead awarded VLS 60% of what Rohnow would earn during his first six months at Star Trac, which it determined to be $28,500.

 The Court of Appeal reversed the judgment, finding the no-hire provision to be unenforceable. Although the court noted an interest in preserving freedom of contract, the parties’ agreement here was found to constitute too great an infringement on the rights of third parties. Under Business and Professions Code section 16600, employment contracts that prohibit an employee from working for a competitor when the employment has terminated are invalid, unless necessary to protect the employer’s trade secrets. Here, the agreement between VLS and Star Trac had the effect of prohibiting any of VLS’s employees from seeking employment with Star Trac for one year after the contracted work was performed. The court rejected the argument that the no-hire provision did not make it impossible for Star Trac to hire VLS’s employees, finding that no employer would hire an employee such as Rohnow if it knew that it would have to pay an amount equal to 60% of his first year’s salary to VLS. The contractual provision was therefore unenforceable because VLS was not allowed to accomplish indirectly, through this no-hire provision, what it could not accomplish directly, through non-competition agreements with its employees. The court concluded that the no-hire provision was much broader than the one that was upheld in the 1985 case of Loral Corp. v. Moyes, which operated more like a non-solicitation agreement, prohibiting one company from “raiding” the other company’s employees.

 The court also noted that VLS’s no-hire provision prohibited Star Trac from hiring Rohnow, even though Rohnow was not employed with VLS when the consulting work was performed and had only been employed with VLS for a short period of time. The court found that “[s]uch a broad provision is not necessary to protect VLS’s interests and is outweighed by the policy favoring freedom of mobility for employees,” thus reinforcing the court’s determination that the provision was unenforceable. The court did note, however, that “a more narrowly drawn clause limited to soliciting employees who had actually performed work for the client might pass muster.”

Ninth Circuit Decision Imputes Subordinate Employee’s Unlawful Bias To Employer If Subordinate Influenced Or Was Involved In Decision-Making Process

 In Poland v. Chertoff, James Poland, a long-standing employee of the U.S. Customs Service based in Portland, Oregon, complained of age discrimination against his supervisor, Gary Hillberry. The evidence presented suggested that Hillberry was preoccupied with Poland’s age, commenting that Poland was “too old” for career advancement, that the officers in the Portland office were “too old,” that Poland had a bunch of “old farts” in the Portland office who needed to “get with the times,” and more. After Poland made his complaint, Hillberry requested that the Customs Service undertake an administrative inquiry into Poland’s performance, alleging that Poland was confrontational, argumentative and disrespectful towards members of the Denver office. At the conclusion of the inquiry, the panel found that Poland engaged in unprofessional and inappropriate conduct and was confrontational, argumentative, retaliatory and ineffective as a manager. The Disciplinary Review Board found that it lacked sufficient specificity to support an adverse employment action against Poland, but decided it would be in the best interest of the Service to reassign Poland to a nonsupervisory position somewhere other than in Portland.

 At trial, the District Court found in Poland’s favor on his claims for retaliation in violation of the Age Discrimination in Employment Act (“ADEA”) and for constructive discharge. The Ninth Circuit affirmed as to the retaliation claim, holding that if the plaintiff can prove that a subordinate not only set the wheels in motion for an adverse employment action, but also directed or influenced the individual within the organization who decided what action would be taken, then the employer may be held liable for retaliation. But the Ninth Circuit reversed the judgment on the constructive discharge claim, based on legally-insufficient evidence that Poland was subjected to “intolerable” working conditions that forced him to quit.

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