Tuesday, December 11, 2012
Court Vacates Pregnancy Bias Award Against Lucasfilm
By a MetNews Staff Writer
The First District Court of Appeal yesterday vacated a jury’s award of damages in a case brought by the daughter-in-law of San Francisco attorney and former city Supervisor Angela Alioto.
Div. Two held that retired Superior Court Judge Lynn O’Malley Taylor, sitting by assignment, committed prejudicial error by rejecting certain jury instructions requested by Lucasfilm.
Julie Gilman Veronese is the wife of Joseph Alioto Veronese, the son of Angela Alioto, and the grandson of Joseph L. Alioto, a now-deceased attorney and mayor of San Francisco. Joseph Alioto Veronese is also an attorney, and he and Angela Aliota represented his wife throughout the case and as co-counsel on appeal.
The defendant, Lucasfilm, is a privately-held film and entertainment company founded by George Lucas of Star Wars fame.
Lucas lives in San Anselmo, on a complex with as many as nine houses on it. Sarita Patel serves as the manager of the estate.
In 2008, Veronese was offered a one-month trial position as Patel’s assistant, but soon learned she was pregnant with twins. As a result, her start date was postponed.
At the end of July, Veronese miscarried one of the twins and her start date was again postponed.
During this same period of time, there was construction work taking place on the estate. Patel sent an email to the human resources department at Lucasfilm in which she complained about the anger of Lucas’ neighbors and wrote:
“I personally am afraid to bring on a pregnant person and how important the stress that is around here can affect health . . . . I’m thinking I should have Julie do a project … for one month. There is no way I can see someone in this condition following me around and not have it affect her health.”
Patel testified that she was also concerned about Veronese being exposed to dust and paint fumes.
The human resources department agreed with the tryout plan, but shortened the period to three weeks, beginning in mid-August, in order to accommodate Patel’s vacation (which Patel did not take).
In response to the shortened trial period, Veronese sent Patel an email, which read in part:
“I hope you understand that by shortening my contract, not only does it create a sense of doubt in my mind about Lucas’ commitment to me, it tells me that I am being set up to fail. I can’t help but think that things have changed because I am pregnant.”
Patel said at trial that the email raised “red flags.” She thought that Veronese felt she was “entitle[d],” that she was not service-oriented, and that she had unreasonable expectations.
She communicated her concerns in an email to Veronese in which she said:
“I have been ultra sensitive to not exposing you to things and have actually worked every weekend to try and get the possibly toxic smells out of the house. I wanted no paint fumes no heavy sanding on the porch. No toxic environment. … To hear you say you think things have changed because of your pregnancy is just unbelievable to me because I was trying to help you.”
Patel testified that after several telephone discussions, she and Veronese agreed that the position would not be a good fit.
Lucasfilm hired someone else for the position and Veronese filed a complaint with the Department of Fair Employment and Housing and obtained a right-to-sue letter.
After an 11-day jury trial and three days of deliberation, the jury returned with its special verdict, finding in favor of Veronese on her claims of pregnancy discrimination, failure to prevent discrimination, and wrongful termination in violation of public policy, and for Lucasfilm on her claims for retaliation and failure to accommodate a disability.
Veronese was awarded $93,830 for past economic damages and $20,000 for non-economic damages, a total of $113,830. The judge later awarded Veronese $1,157,411 in attorney fees.
At issue on appeal were the special instructions Taylor did and did not give to the jury.
One instruction proposed by Lucasfilm would have read:
“You may not find that Lucasfilm discriminated or retaliated against Julie Gilman Veronese based upon a belief that Lucasfilm made a wrong or unfair decision. Likewise, you cannot find liability for discrimination or retaliation if you find that Lucasfilm made an error in business judgment. Instead, Lucasfilm can only be liable to Julie Gilman Veronese if the decisions made were motivated by discrimination or retaliation related to her being pregnant.”
Justice James Richman, writing for the panel, said it was prejudicial error not to give the instruction because Patel was entitled to exercise her business judgment, without second guessing.
Another instruction at issue was one Veronese proposed and Taylor gave. That instruction read:
“A potential hazard to a fetus or an unborn child is not a defense to pregnancy discrimination.”
The sole authority Veronese cited in support of the instruction was Automobile Workers v. Johnson Controls, Inc. (1991) 499 U.S. 187, in which the Supreme Court held that a policy that extended to any woman capable of bearing children could not pass muster.
But, wrote Richman, “Lucasfilm had no such policy, and no policy was involved here, only one 36-year-old pregnant woman who had already miscarried one twin.”
He added that while the instruction was no doubt accurate in the abstract, it could be interpreted as saying Lucasfilm could not have a conscience, adding:
“The instruction could be interpreted as telling the jury that any potential hazard to an unborn child is necessarily irrelevant to the employer’s legitimate decision making. That cannot be.”
The panel also found that while the jury found in favor of Veronese on her cause of action for failure to prevent and investigate a FEHA violation, there was no instruction as to the required elements of the claim, which constituted error.
“As best we can tell, it appears that Judge Taylor began to instruct about this. However, Veronese’s counsel interrupted, suggesting to Judge Taylor that she was repeating an instruction already given. Though this was inaccurate, Judge Taylor stopped reading, and the jury was never instructed on the elements of the claim. “…
Lucasfilm also proposed two modified CACI instructions that distinguished between the claim that Veronese was terminated from the tryout and the claim that she was not hired (or promoted) to the permanent position.
But Taylor did not give an instruction indicating that these were two separate claims.
Richman said that lumping the two claims together suggested that the damages for both claims should be the same, which was not necessarily the case:
“For example, even if Veronese had been discriminatorily discharged from the 30-day temporary position, it was possible that Lucasfilm would not have hired her for the permanent position. … In sum, failing to differentiate between the claims prevented the jury from considering whether, in the end, the alleged discrimination caused Veronese all of the claimed injury.”
Presiding Justice Paul Haerle and Justice James Lambden concurred.
Angela Alioto told the Marin Independent Journal the appellate decision was a “boggling” interpretation by three male judges, and that though she was “tempted” to take the case to the state Supreme Court, she has decided not to.
“It’s so upsetting,” she told the newspaper, “that three men in a position of power could think this way in 2012. No pregnant woman is safe in the workplace with this attitude, the attitude of these three men.”
The case is Veronese v. Lucasfilm, Ltd.; A129535.
Copyright 2012, Metropolitan News Company