Metropolitan News-Enterprise


Friday, February 8, 2013


Page 1


High Court Delivers Mixed Ruling in Mixed-Motive Job-Bias Case

Worker Gets No Damages, but May Get Fees and Equitable Relief, Court Says




An employee fired for a combination of legitimate and discriminatory reasons cannot recover damages if the employer would have taken the adverse action based on the non-discriminatory reasons alone, the state Supreme Court ruled yesterday.

In a 6-0 decision, however—Justice Marvin Baxter recused himself after the case was argued—the court held that a plaintiff in such a mixed-motive case may obtain injunctive and declaratory relief, as well as costs and attorney fees.

The ruling will send the case of former Santa Monica bus driver Wynona Harris back to the Los Angeles Superior Court, where she originally won a $177,000 jury award for pregnancy discrimination.

Div. Eight of this district’s Court of Appeal had reversed, 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.

Minor Accident

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, according to testimony.

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 a 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 that 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.

Jury Instructions

Bruguera rejected the city’s requested instruction, BAJI No. 12.26, under which an employer with mixed motives “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.” 

She instead gave the Judicial Council’s California Civil Jury Instruction No. 2500, which provides that the 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 judge subsequently awarded the plaintiff approximately $400,000 in attorney fees.

The Court of Appeal, however, concluded that the BAJI instruction stated the correct rule in mixed-motive cases. It said the trial judge correctly denied the city’s motion for JNOV, since there was sufficient evidence to support a finding of discrimination, but that the instructional error required a new trial.

Liu’s Opinion

Justice Goodwin Liu, writing yesterday for the Supreme Court, said “a jury in a mixed‑motive case alleging unlawful termination should be instructed that it must find the employer’s action was substantially motivated by discrimination before the burden shifts to the employer to make a same-decision showing, and that a same-decision showing precludes an award of reinstatement, backpay, or damages. “

It will be up to the trial judge on remand to determine whether there was sufficient evidence of mixed motive to warrant the instruction in Harris’ case, the justice said.

Liu noted that under the Fair Employment and Housing Act, a plaintiff seeking monetary relief must show that he or she suffered discrimination “because of” the person’s race, sex, disability, sexual orientation, or other protected characteristic. 

While it “would tend to defeat the preventive and deterrent purposes of the FEHA to hold that a same-decision showing entirely absolves an employer of liability when its employment decision was substantially motivated by discrimination,” Liu explained, the law was not intended to provide “an unjustified windfall” for a plaintiff who would have suffered the same adverse result regardless of the illegal bias.

In such cases, the justice said, the act’s deterrent purpose may be served by awarding declaratory relief and/or an injunction against repetition of the discriminatory practices, and by “requiring an employer to absorb the costs of litigation for which its own wrongdoing is substantially responsible” by shifting responsibility for attorney fees and court costs.

The case was argued in the Supreme Court by Deputy City Attorney Barbara C. Greenstein for Santa Monica, Paul W. Cane Jr. of Paul, Hastings, Janofsky & Walker’s San Francisco office for amici in behalf of the city, and David M. deRubertis of The deRubertis Law Firm in Studio City for the plaintiff.

The case is Harris v. City of Santa Monica, 13 S.O.S. 722.


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