Metropolitan News-Enterprise


Friday, October 30, 2009


Page 1


Appeals Court Tosses Pregnancy Discrimination Award


By SHERRI M. OKAMOTO, Staff Writer


A defendant charged with pregnancy discrimination has a complete defense if the plaintiff would have been terminated for legitimate performance reasons, this district’s Court of Appeal ruled yesterday.

Div. Eight threw out a $177,000 award in favor of former Santa Monica bus driver Wynona Harris, citing instructional error by Los Angeles Superior Court Judge Soussan G. Bruguera.

Santa Monica’s city-owned bus service, Big Blue Bus, hired Harris as a bus driver trainee in October 2004.

Shortly into her 40-day training period, Harris was involved in a minor accident, and within the 90-day probationary period which followed, she was involved in a second collision. She also reported late for work without giving her supervisor adequate warning on one occasion.

In March 2005, Harris’ supervisor gave her a written performance evaluation covering her first three months as a probationary driver which indicated “further development” was needed but told her to “Keep up the Great Job!”

About a month later, Harris again failed to report for her shift on time, and Transit Services Manager Bob Ayer met with her to discuss what had happened.

Harris said she told Ayer she had been at a juvenile court hearing with her daughter that day and she had forgotten to call the dispatcher because she was upset after learning that her daughter was being charged with a felony.

Ayer later made a recommendation to his supervisor that record of the incident should remain in Harris’ employment file. He also advised his supervisor that Harris was not meeting the city’s standards for continued employment based on her evaluation and accident and attendance record.

Harris subsequently informed her supervisor that she was pregnant. Her supervisor attended a meeting four days after this at which he received a list of probationary drivers who were not meeting standards for continued employment, which included Harris.

She was fired two days later and eventually filed suit alleging that she had been terminated due to her pregnancy. The city denied her allegations and asserted as an affirmative defense that it had legitimate, nondiscriminatory reasons to fire her as an at-will employee.

The case was tried to a jury and the city asked Bruguera to issue BAJI No. 12.26, which instructs the jury that if it finds an employer’s action “was actually motivated by both discriminatory and non-discriminatory reasons, the employer is not liable if it can establish by a preponderance of the evidence that its legitimate reason, standing alone, would have induced it to make the same decision.”

 Bruguera declined the city’s request and instead issued the Judicial Council’s California Civil Jury Instruction No. 2500, which provides that employer can be held liable if an employee’s pregnancy was a “motivating factor/reason” for her discharge.

By special verdict, the jury found by a vote of 9-3 that Harris’ “pregnancy [was] a motivating factor/reason for [the city’s] decision to discharge” her and awarded $177,905 in damages.

The city moved on multiple grounds for judgment notwithstanding the verdict and a new trial but Bruguera rejected both motions.

Harris thereafter moved for approximately $400,000 in attorney fees, which Bruguera awarded.

Writing for the appellate court, Acting Presiding Justice Laurence D. Rubin noted that because Harris was an at-will employee, “the city could fire Harris for any reason, or no reason, so long as it did not do so for an illegal reason.”

He emphasized that the circumstances which the city identified as giving it adequate cause to fire Harris were undisputed and emerged before the city knew Harris was pregnant. Any one of these circumstances, either singly or in combination, was a lawful reason for discharge, Rubin said.

Since the instructions issued to the jury permitted Harris to prevail by showing her pregnancy led to her termination, even if other factors contributed to it and did not provide the city with a complete defense if the jury found the city would have terminated Harris even if she had not been pregnant, Rubin said that the city had been prejudiced by the trial court’s failure to issue BAJI No. 12.26.

He added that CACI’s omission of a form instruction for mixed motive terminations akin to the BAJI instruction did not undermine the viability of the defense.

But Rubin concluded that the instructional error did not entitle the city to a judgment notwithstanding the verdict because Harris had offered sufficient evidence that, if believed by a trier of fact, suggested the city had fired her because she was pregnant.

Rubin was joined by Justices Madeleine Flier and Tricia Bigelow in reversing the trial court’s ruling and directing the trial court to vacate the award of attorney fees to Harris.

The case is Harris v. City of Santa Monica, B199571.


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