Metropolitan News-Enterprise

 

Monday, March 8, 2021

 

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Court of Appeal:

2016 Law Did Not Bar 2016 Firing Based on 2015 Conduct

Bedsworth Says Employer Did Not Unlawfully Retaliate by Discharging Employee Based on Requests for Time Off Where Requests Were Made Prior to Effective Date of Amendment to Statute Rendering Such Conduct Protected

 

By a MetNews Staff Writer

 

A nonsuit was properly granted on a retaliation claim brought by a man whose requests for time off based on injuries he had received in a bicycle accident was not protected conduct when he made his requests, though it was protected by statute at the time he was fired, Div. Three of the Fourth District held on Friday.

The accident occurred on Nov. 29, 2015, and requests for time-off were made by project manager Keith Gierut in December of that year. On Jan. 1, 2016, Government Code §12940 was amended to provide that an employer may not “retaliate or otherwise discriminate against a person for requesting accommodation under this subdivision, regardless of whether the request was granted.”

Applied Medical Resources Corp. fired Gierut on Jan. 11, 2016.

Gierut argued that Orange Superior Court Judge James L. Crandall erred in granting a nonsuit to the employer because the conduct complained of—terminating his employment—occurred after the effective date of the statutory provision. Disagreeing, Acting Presiding Justice William W. Bedsworth said, in an unpublished opinion:

“Gierut alleged he was fired for things he did in 2015. That is the relevant time period.

“A failure to show engagement in protected activity results in a failure to make out a prima facie case of retaliation….At the time Gierut asked for time off, such a request was not protected activity. Both protected activity and an adverse employment action are necessary for a viable retaliation claim.”

2013 Opinion

Bedsworth cited the Oct. 16, 2013 Court of Appeal opinion by then-Justice Jeffrey Johnson of this district’s Div. One in Rope v. Auto-Chlor System of Washington, Inc. for the proposition that the firing of an employee based on requests for time off would not give rise to an action for retaliation. That portion of the opinion was abrogated by the Legislature, he said, in adding Subd. (m)(2) to §12940—and noted that the amendment “was not retroactive because it represented a change in the law, not a mere clarification.”

The firing of him in January, 2016, Gierut contended, was the last act in a “continuing course of conduct,” giving rise to application of the new statutory provision to the entire train of events. Bedsworth responded:

“This case, however, does not involve a ‘continuing course of conduct.’ Instead, it involves two discrete acts: requesting an accommodation by an employee and an adverse employment action by an employer. The employee’s act of requesting time off was entirely completed before the effective date of the new statute.”

Wrongful Discharge Claim

Crandall allowed a wrongful termination claim to go to the jury over Applied’s protest that it was duplicative of the retaliation claim. The jury found for Applied on that and other causes of action.

Applied argued on appeal that even if Crandall had allowed the claim for retaliation, in violation of the Fair Employment and Housing Act, to go to the jury, it would not have mattered because, in light of the verdict on wrongful termination, it would have found against Gierut as to retaliation. Gierut countered that the two causes of action are not identical, pointing to distinguishing features.

Bedsworth responded:

“There is an insurmountable problem with this argument.  It is raised for the first time on appeal, and it was not developed until Gierut’s reply brief. We do not entertain legal theories that were not first introduced in the lower court.”

Lack of Credentials

Bedsworth made note of testimony by Gierut’s supervisor, Mike Talle, that the reason for the firing was unrelated to Gierut’s injury or requests for time off stemming, rather, from shoddy attendance and blunders, as well as lacking credentials for the job. The jurist commented:

“As it turned out, Talle was right.  Gierut had misrepresented both his experience and his education on his resume.”

In a footnote, he explained the inclusion of those facts, saying:

“Although we do not consider defense evidence when reviewing a nonsuit, we include this information for completeness and to suggest an explanation for the verdict.”

Bedsworth’s opinion was signed by Justice Richard M. Aronson. Justice Eileen C. Moore wrote a concurring opinion in which she said that “Gierut has not established any prejudice from the alleged error,” elaborating:

“The jury’s finding on the wrongful termination claim shows that it rejected the theory underpinning the retaliation claim.”

She added:

“I would have affirmed the trial court solely on this ground.”

The case is Gierut v. Applied Medical Resources Corp., G057922.

Gierut was represented by Stuart B. Esner of the Pasadena firm of Esner, Chang & Boyer and by Richard E. Donahoo of Donahoo & Associates in Tustin. Applied’s attorneys on appeal were Steven M. Zadravecz and Victoria E. Cho of Jones Day’s Irvine office and Nathaniel P. Garrett of its San Francisco office.

 

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