Metropolitan News-Enterprise


Friday, June 23, 2017


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Employment Discrimination Judgment for Employer Reversed

C.A. Says Anti-Gay Bias Allegedly Evinced by Company’s CAO May Be Ascribed To the Company Though the CEO Directed the Firing of the Plaintiff


By a MetNews Staff Writer


The Court of Appeal for this district has scuttled a summary judgment in favor of an employer sued for discrimination and wrongful discharge by a former executive who was insolent, frequently absent, and made inappropriate comments to employees, with the reversal hinged on the plaintiff’s evidence that a perception that he was “too gay” contributed to his discharge.

Div. Seven, in an opinion Wednesday by Presiding Justice Dennis Perluss, pointed to alleged anti-gay comments by a senior executive in the company. Although it was not that executive who fired the employee, Perluss speculated that his bias could have been an influencing factor.

He acknowledged that the employer, Toyota Motor Credit Corporation (“TMCC”)—a subsidiary of Japan’s Toyota Motor Corporation—made an adequate showing of “a legitimate, nondiscriminatory reason for discharging” its 14-year employee, Joseph Husman, and that its reason was “nonpretextual.”

However, that did not entitle TMCC to summary judgment, he said, but rather, shifted the burden of persuasion to Husman “to show his termination was also substantially motivated by impermissible bias.” Perluss declared that “Husman satisfied that burden,” requiring that the causes of action for discrimination, in violation of the Fair Employment and Housing Act, and for wrongful discharge be tried.

He found no bases for causes of action based on retaliation. The opinion directs that on remand, they be summarily adjudicated in favor of TMCC.

Alleged Bias

Perluss pointed to alleged bias on the part of David Pelliccioni, TMCC’s chief administrative officer and senior vice president of sales, marketing and operations. It was not Pelliccioni who fired Husman, however; it was George Borst, TMCC’s chief executive officer.

With respect to Pelliccioni’s alleged bias, the jurist said:

“Husman presented evidence that Pelliccioni harbored stereotypical views of gay men and articulated clear opinions as to what he considered appropriate gender identity expression, observing at various times that Husman had made ‘a very clear statement’ about his sexual orientation and should cut his hair, as well as ridiculing him for wearing a scarf as an accessory when it was not cold outside. Husman argues these remarks, while possibly not patently offensive to a non-gay observer, revealed that Pelliccioni viewed him as ‘too gay’ and incompatible with Toyota’s corporate culture, even if a less obviously gay employee would be acceptable.”

Perluss set forth these facts, concerning the decision to fire Husman:

“Borst testified he made the decision to terminate Husman…and called Pelliccioni from his car to tell him of his decision. He instructed Pelliccioni to provide a generous separation package to allow Husman to leave with dignity.”

Effect of Bias

In an effort to tie the bias which Pelliccioni was asserted to harbor to Borst’s decision to terminate the employment of Husman, Perluss said:

 “[E]ven if Pelliccioni’s remarks were not made in the direct context of the termination decision, given Pelliccioni’s position it is difficult to deny that any bias he felt or expressed toward Husman had the capacity to affect management’s perceptions of Husman’s performance and attitude, as well as exacerbate Husman’s own increasingly alienated behavior.”

He added:

“Notwithstanding Borst’s plain sway over his subordinate executives, hiring, promotion and firing decisions…were made by consultation with members of a management committee, thereby offering substantial opportunity for other executives to influence Borst’s perceptions…. Indeed, Borst’s claim he made the decision unilaterally is incompatible with the record’s depiction of how management operated at Toyota.”

‘Same Actor’ Evidence

Perluss acknowledged that Borst, the person who fired Husman, was the same person who had caused his advancement, through the years, in the company, including putting him in charge of the diversity program.

He said this was “a factual pattern cited by a number of courts as ‘same-actor’ evidence susceptible to a strong inference the actor harbors no discriminatory motive,” but added:

“While once commonly relied on by courts affirming summary judgment against a plaintiff alleging discriminatory action, the same-actor inference has lost some of its persuasive appeal in recent years.”

Perluss remarked:

“While this is a close case, especially in light of the evidence of Toyota’s ongoing efforts to promote diversity and inclusion, the trial court’s failure to look behind the company’s assertions of moral right and Borst’s purportedly autonomous role in the decision to fire Husman was error….”

The opinion reverses a decision by Los Angeles Superior Court Judge Holly E. Kendig.

The case is Husman v. Toyota Motor Credit Corporation, 17 S.O.S. 3206.

Patricio T.D. Barrera of Barrera & Associates represented Husman.

James A. Zapp, Paul W. Cane, Jr. and Felicia A. Davis of Paul Hastings were attorneys for TMCC.

Zapp said yesterday that his client has decided to seek review in the California Supreme Court.

He declared:

“We continue to be firm in our position that Mr. Husman’s claims are baseless and without merit.”

The lawyer said that TMCC “is committed to diversity” and has never “tolerated discrimination of any kind.”

He stressed that the Court of Appeal decision does not state that there was discrimination, but only “that there was a triable issue of fact.” 

Zapp said it is “very clear that Mr. Borst made his decision alone.”

As to alleged bias on the part of Pelliccioni, he related that the remarks attributed to him are denied, except for a single reference by him to Husman’s scarf, made in a different context from what was portrayed.

Perluss at three points in the opinion used the phrase “too gay,” without making clear whether someone at TMCC was being quoted, Husman used those words, or the phrase was his own. Zapp said they words were not attributable to anyone at TMCC, and that he doesn’t recall Husman using the words.

Addressing that point, Barrera said:

“Basically, the phrase ‘too gay’ was not a quote. The phrase is based on Plaintiff’s contention, as supported by the evidence, that Toyota turned on him because he was acting ‘too gay’ with respect to his advocacy in 2011 prior to termination for gay rights in the workplace.”


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