Metropolitan News-Enterprise


Tuesday, November 15, 2011


Page 1


Veteran Cannot Sue Supervisors for Anti-Military Bias




A statute prohibiting employment discrimination against veterans cannot be used to sue supervisors, the Court of Appeal for this district has ruled.

Div. Three Thursday granted a writ of mandate ordering dismissal of two supervisors at Safway Services, LLC from a suit by Mario Pantuso. The Iraq War veteran claims the company, which rents and sells scaffolding, violated Military and Veterans Code Sec. 394 by giving him negative evaluations because he informed it of his upcoming deployment, refused to restore his employment when he returned after six months on active duty, and denied him an earned bonus.

Pantuso named his immediate supervisor at Safway, Mike Haligowski, and the regional manager, Greg Chomenko, as defendants., in addition to the company. The two individuals demurred on the ground that Sec. 394 applies only to employers.

The trial judge overruled the demurrer, holding that the individual supervisors were “persons” within the meaning of the statute, which provides in part that “[n]o person shall discriminate against any officer, warrant officer or enlisted member of the military or naval forces of the state or of the United States because of that membership,” and that  “[n]o employer or officer or agent of any corporation, company, or firm, or other person, shall discharge any person from employment because of the performance of any ordered military duty or training….”

But Justice Richard Aldrich, writing for the Court of Appeal, noted that the legislation creating the section is silent on whether the Legislature intended to permit a  holding of individual liability. That being the case, the jurist said, the language should be given the same meaning as similar language in other legislation.

Aldrich cited the Fair Employment and Housing Act, which makes it illegal for an employer to discriminate on the basis of race, gender, disability or other prohibited characteristic. The law defines an employer as a “any person regularly employing five or more persons, or any person acting as an agent of an employer, directly or indirectly,” but the Supreme Court has held that a supervisor who is not an owner of the business is not an employer.

The high court, in a pair of decisions, reasoned that extending FEHA liability to supervisors would be unlikely to enhance an employee’s potential recovery, but would subject supervisors to potentially ruinous liability, including for actions necessarily required by the nature of their positions, and that had the Legislature intended such a result, it would have said so explicitly.

Aldrich wrote:

“As both the FEHA and section 394 are anti-discrimination statutes, the logic for declining to hold individuals personally liable for discrimination and retaliation under the FEHA should apply to section 394.”

The jurist further noted that a federal judge in the Northern District of California reached the same conclusion regarding Sec. 394 last year.

Aldrich acknowledged that the federal counterpart to Sec. 394, the Uniformed Services Employment and Reemployment Rights Act of 1994, has been interpreted by the Department of Labor as being applicable to discrimination by supervisors. But the USERRA language on which that interpretation is based, which extends the definition of employer to a person who “has control over employment opportunities, including…a person, institution, organization, or other entity to whom the employer has delegated the performance of employment-related responsibilities,” has no analogue in Sec. 394, the justice reasoned.

He also noted that Pantuso could have sued under USERRA, but did not.

John Morris, James M. Peterson and Victoria E. Fuller of Higgs, Fletcher & Mack represented the supervisors on appeal, while Allen B. Felahy, Oscar Ramirez, Boris Sorsher and Zack Domb of the Felahy Law Group represented Paluso.

The case is Haligowski v. Superior Court (Pantuso), B231310.


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