Labor & Employment Law Update

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1 , California 90071, California Wrongful Termination/Retaliation for First Quarter 2007 WRONGFUL TERMINATION Catherine Coble, Esq. Public employer has immunity against direct liability for wrongful termination in violation of public policy. Ross v. San Francisco Bay Area Rapid Transit District, 146 Cal.App.4 th 1507 (January 24, 2007, First District, Division One (San Francisco)) George Ross, a 26 year veteran with the San Francisco Bay Area Rapid Transit (BART), was working as a central maintenance supervisor and staffed a trouble desk with another supervisor. During a morning shift in December 2001, there were confrontations with technicians regarding a BART directive that they wear orange vests in addition to their usual BART uniforms. The technicians left their shift that morning, claiming to be sick, but Ross denied he was involved in the confrontations. Ross was interviewed three times regarding the work stoppage, but he maintained he did nothing wrong and refused to sign a prepared admission that he had been untruthful and uncooperative. After BART gave Ross notice of a termination hearing, he filed for stress disability and failed to appear at the hearing. The hearing officer found Ross responsible for the work stoppage and recommended his termination. Because BART could not terminate Ross while he was on disability leave, it reduced his discipline to a 45 day suspension without pay. Ross filed for a voluntary retirement after unsuccessfully trying to negotiate a stay of suspension pending arbitration. Ross filed a complaint with the Department of Fair Employment and Housing (DFEH), alleging that he was terminated because he was the oldest employee in his job category, he unionized lower management, and because he was partially disabled. He received a right to sue letter and filed a civil complaint against BART for wrongful Catherine Coble is an Associate in Burke Williams & Sorensen LLP s Labor & Employment Law Practice Group.

2 , California termination in violation of public policy (Tameny claim), and for age and disability discrimination in violation of the Fair Employment and Housing Act (FEHA). The trial court granted BART s motion for summary judgment and Ross appealed. The Court of Appeal upheld the trial court s ruling, finding that BART was immune from Ross wrongful termination claim because public entity tort liability requires a statutory, rather than common law, basis. The gravamen of all of Ross claims was that, acting out of discriminatory and retaliatory motives, BART employees initiated and prosecuted administrative proceedings to discipline or discharge Ross based on accusations they knew to be false. Such acts by employees are immune from liability under Cal. Government Code section 821.6, and therefore BART was immune from liability under section , California

3 , California 90071, California University terminated doctor for insubordination rather than for his advocacy of appropriate medical care. Sarka v. The Regents of the University of California, 146 Cal.App.4 th 261 (December 28, 2006, Second District, Division Three ()) For 14 years, George Sarka, M.D. worked as a primary care physician at UCLA s student health center. Although he was a board certified neurologist, Dr. Sarka was limited to primary care physician duties at the health center. However, during his employment, Dr. Sarka became known for ordering extensive tests for his patients which overwhelmed the center s resources and staff. UCLA issued memoranda to Dr. Sarka in 2000 and 2001, reminding him of his duties and responsibilities as a primary care physician as his supervisors found his practice style was wasteful of resources and medically unjustified. When Dr. Sarka failed to comply with the university s direction, he was terminated in August Dr. Sarka filed a grievance challenging UCLA s decision to terminate him for failure to modify his approach to patient care. The administrative hearing officer upheld the termination and Dr. Sarka filed a writ of administrative mandate with the Superior Court. The Superior Court denied his writ and Dr. Sarka appealed to the Court of Appeal, claiming that the hearing officer and trial court failed to properly apply Business and Professions Code section 2506, which prohibits employers from penalizing physicians principally for advocating medically appropriate health care. The California Medical Association filed an amicus curiae brief in support of Dr. Sarka. The Court of Appeal affirmed the trial court decision, finding that Dr. Sarka was not terminated for advocating appropriate medical care, due to his insubordination in failing to adhere to UCLA s repeated direction that he utilize resources more judiciously. The Court found that UCLA s policies were medically appropriate for student health care at a large university.

4 , California This case shows that even when a plaintiff has a statutory protection, like the Business and Professions code which protected Dr. Sarka from termination for advocating appropriate medical care, an employer can terminate an employee if it can show it had a legitimate, legal reason for doing so. In this case, UCLA had memoranda spanning two years documenting its instructions to Dr. Sarka that he needed to comport with UCLA policy. This documentation was critical and underscores that it is prudent to follow progressive discipline and properly document facts supporting a decision to terminate an employee for unsatisfactory performance., California

5 , California 90071, California RETALIATION Series of warning notices, exclusion from meetings, use of offensive language and accusation of blackmail directed at gay employee who complained about harassment was sufficient to support finding of adverse employment action for claim of sexual orientation discrimination and retaliation under FEHA. Jones v. The Lodge at Torrey Pines Partnership, 147 Cal.App.4 th 475 (February 7, 2007, Fourth District, Division One (San Diego)) Scott Jones began working for the partnership that owned the Lodge at Torrey Pines as a cashier/host in He worked his way up the organization, in 2000 achieving the position of outlet manager (responsible for the restaurant, bar, and catering) for the Lodge at Torrey Pines (LTP). His immediate supervisor was LTP Food and Beverage Director Jean Weiss. Weiss and kitchen manager Jerry Steen began telling sexual jokes, sexually explicit statements and degrading remarks about female employees. Weiss would also use inappropriate language and tell Jones that people like him were better at decorating. Several female employees complained to Jones about Weiss and Steen, saying that they would call them bitch and leer at them. Jones complained to Weiss about Steen, but Jones claimed that Weiss threatened to fire him if he complained to Human Resources about the work environment in the department. In 2001, Jones sent a memorandum to Weiss asking him to please refrain from your unprofessional remarks. Shortly thereafter a female employee told Jones she wanted to lodge a written complaint about the gay-bashing jokes from Weiss and Steen about Jones and his partner. The next day Jones met with the Human Resources Director for LTP s parent company and complained about sexual orientation discrimination and sexual harassment at LTP. Jones became emotional during the two-hour meeting and Fulks told Jones to call Weiss to say he would not be coming to work that day. The next day, Weiss issued an Employee Warning Notice to Jones for failing to give adequate notice of his absence. Weiss then issued a

6 , California 90071, California memorandum regarding concerns about Jones work performance. Weiss also stopped talking to Jones and excluded him from weekly LTP management meetings, which he used to attend. Weiss and Steen also continued to use offensive language, and Jones complained to Fulks who apparently did nothing. Jones doctor then placed him on disability leave for on the job harassment. When Jones leave expired, Fulks placed him on paid administrative leave while they tried to determine where Jones could work. Fulks tried to convince Jones to take a position at another hotel owned by the partnership, but Jones refused, because LTP was the premier hotel and any other position would be a demotion. Jones met with Fulks and mentioned that he had met with someone at the DFEH to discuss the working environment at LTP. Jones claimed that Fulks then accused him of blackmailing the hotel and offered him $10,000 to drop the case. Jones came back to work, where he was again excluded from meetings and received additional employee warning notices. In January 2002, Jones submitted his letter of resignation. Jones sued LTP for constructive discharge in violation of public policy, sexual orientation harassment, sexual orientation discrimination, retaliation, and intentional infliction of emotional distress. The case went to a jury trial and the jury awarded Jones $1,395,000 against LTP and $155,000 against Weiss for his individual liability for retaliation under FEHA. The trial judge granted Defendants motion for judgment notwithstanding the verdict and plaintiff appealed. The Court of Appeal reversed, finding that there was sufficient evidence to support the jury s finding that Jones suffered an adverse employment action through the employee warning memoranda, exclusion from meetings, use of offensive language and allegation of blackmail directed at him. The Court applied the totality of the circumstances reasoning of Yanowitz v. L Oreal USA, Inc. (2005) 36 Cal.4 th 1028, to determine that retaliation claims are inherently fact-specific and that in this case the evidence supported a finding that Jones had suffered an adverse employment action. This case demonstrates that appellate courts are reluctant to reverse a jury s findings, even when a trial court is willing to do so. It also shows that post-yanowitz courts are looking to the totality of a plaintiff s work experience to determine what constitutes an adverse

7 employment action so employers must be especially attentive when dealing with protected employees to avoid retaliation claims., California Burke Williams & Sorensen, LLP, California

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