Eleven cases that every employment lawyer should know about

Cases filled with great weapons that can be used to defeat summary judgments, obtain better fee awards, win appeals, and help refute many thorny defense arguments

Norman Pine
2016 June

(1.) Donchin v. Guerrero

(1995) 34 Cal.App.4th 1832 [41 Cal.Rptr.2d 192]

Whenever inferences may be needed to oppose a summary judgment (or in other analogous situations), be familiar with my favorite summary judgment case: Donchin v. Guerrero. It holds that a false exculpatory statement about a matter reflects the speaker’s consciousness of guilt. In turn, the existence of that presumed guilt creates an inference unfavorable to the guilty party. And, that inference, by itself, is enough to defeat summary judgment.

For example, in a wrongful termination or disability discrimination setting, assume that the decision-maker claimed he/she did not know that the plaintiff had a given disability. Assume further that there is hard proof in the record that the decision-maker did in fact have notice of plaintiff’s disability. Under Donchin, the false exculpatory statement would constitute affirmative evidence that the decision-maker terminated plaintiff because of plaintiff’s disability. The logic of this is that – had it not been so – the decision-maker would have had no reason to lie about not knowing of plaintiff’s disability.

The U.S. Supreme Court affirmed the general outlines of this principle in Reeves v. Sanderson Plumbing (2000) 530 U.S. 133, 147, 120 S.Ct. 2097

[P]roving the employer’s reason false becomes part of (and often considerably assists) the greater enterprise of proving that the real reason was intentional discrimination”). In appropriate circumstances, the trier of fact can reasonably infer from the falsity of the explanation that the employer is dissembling to cover up a discriminatory purpose. Such an inference is consistent with the general principle of evidence law that the factfinder is entitled to consider a party’s dishonesty about a material fact as “affirmative evidence of guilt.

The power of this case is simply enormous!

(2.) Pantoja v. Anton

(2011) 198 Cal.App.4th 87 [129 Cal.Rptr.3d 384]

I consider Pantoja one of the most influential employment law cases of the past decade. Besides greatly expanding existing law regarding the admissibility (indeed propriety) of “me too” evidence in employment cases, Pantoja contains numerous additional gems – far too many to summarize here but enough to compel all serious plaintiffs’ lawyers to pour over its pages to fill in key portions of their trial brief notebooks. Such gems include the court’s limits on the abuse of in limine motions to decimate plaintiff’s cases and limits on the abuse of Evidence Code section 352 motions.

Justice Rebecca Wiseman’s sweeping (and brilliant) opinion reversed a defense verdict in a sexual harassment and discrimination case and remanded for re-trial. Perhaps most important, the Court concluded that the trial judge had improperly and prejudicially excluded “me too” evidence (i.e., evidence of harassment or discrimination experienced by employees other than the plaintiff.) Pantoja flatly rejected the severe limitation the trial judge had imposed, i.e., that Pantoja could only introduce acts which occurred while Pantoja was employed and which took place in her presence. (Pantoja, supra, 198 Cal.App.4th at 94, 99.) In so ruling, Justice Wiseman engaged in a thorough analysis of Evidence Code section 1101 which deals with so-called “character evidence” and explained how that statute properly works. She also demonstrated how, pursuant to subdivision (c) of Evidence Code section 1101, one can get valuable “me too” evidence in to impeach the defendant’s credibility. (Pantoja, supra, 198 Cal.App.4th at 118.)

The Court also rejected the claim that, even if admissible, the “me too” evidence should be barred by Evidence Code section 352 because its prejudicial impact outweighs its probative value. (Pantoja, supra, 198 Cal.App.4th at 118.) Although recognizing that some risk of prejudice existed, the Court concluded that “[a] limiting instruction could have mitigated this risk sufficiently.” (Ibid.)

Finally, the Court struck a powerful blow against the defense tactic of repressing large portions of plaintiff’s case through the abuse of the in limine process. In Pantoja, for instance, the defense had obtained an in limine ruling barring any mention of the defendant’s use of the word “Mexicans.” (Pantoja, supra, 198 Cal.App.4th at 123.) The trial court believed that the references should be barred because they did not prove, in and of themselves, that Pantoja’s termination was due to her race. (Ibid.)

Justice Wiseman flatly rejected this logic. (Pantoja, supra, 198 Cal.App.4th at 123.) In so ruling, she quoted the following key language from a concurring opinion in R & B Auto Center, Inc. v. Farmers Group, Inc. (2006) 140 Cal.App.4th 327, 372: “‘An in limine motion that seeks to exclude all evidence pertaining to part or all of a cause of action based on an argument that plaintiff lacks evidence to support part or all of the cause of action is but a disguised motion for summary adjudication.’” (Pantoja, supra, 198 Cal.App.4th at 122, emphasis added.) Pantoja applied that same reasoning to “a motion in limine that claims only that a plaintiff cannot prove her case with a specified item of evidence, as opposed to claiming the item of evidence is inadmissible.” (Id. at p. 123.)

(3.) Ketchum v. Moses

(2001) 24 Cal.4th 1122 [104 Cal.Rptr.2d 377]

Ketchum is not an employment law case (it involved fees under the anti-SLAPP statute). But no case is more essential to any employment attorney who takes a FEHA case on contingency and who is seeking reasonable attorney fees. This California Supreme Court case sets the defining standard for any discussion of multipliers. Although the opinion nominally states that awarding multipliers is a matter of discretion, the logic of the opinion dictates the opposite. The Court pointed out the virtual necessity of awarding multipliers to compensate for contingent risk in cases brought under fee-shifting statutes such as the FEHA. In particular, the Court reversed the Court of Appeal, which had wrongfully concluded the trial court lacked the ability to award a 2.0 multiplier to compensate for “the contingent risk of non-payment and the exceptional quality of representation . . . .” (Id. at 1129.)

The Court’s explanation made clear that unless a multiplier is used, a contingency attorney can never be fairly compensated for the great risk and certain delay compared to his or her hourly-fee counterpart. This is because the “unadorned lodestar” (reasonable hourly rate times reasonable hours spent) “reflects the general local hourly rate for a fee-bearing case; it does not include any compensation for contingent risk [or other factors].” (Id. at 1138, Court’s emphasis.) Thus, if paid no more than the lodestar – in cases involving risk of non-payment at all – the contingency lawyer would never receive the true “market value” of his or her services and would be reluctant to accept fee award cases. Therefore, Ketchum should be used to argue that a multiplier must be the norm, and failure to award one must depend on some extraordinary circumstances.

Ketchum also contains a warning about when a multiplier for exceptional representation should be applied. The Court concluded that such a multiplier is appropriate only when the quality of representation far exceeds the quality of representation that would have been provided by an attorney of comparable skill and experience billing at the hourly rate used in the lodestar calculation. The Court warns that otherwise, the fee would result in unfair double counting and would be unreasonable.

(4.) Horsford v. Board of Trustees

(2005) 132 Cal.App.4th 359 [33 Cal.Rptr.3d 644]

This is one of my favorite cases because it has life-saving holdings in so many different, yet important, areas. Perhaps its greatest utility is its analysis of the limits on rulings that are reviewed under an “abuse of discretion” standard (e.g., the amount of attorneys’ fees that should be awarded.) Many people assume that when the “abuse” standard is applicable, it is a waste of time to even bother appealing.

Horsford provides a resounding “NO” to that proposition so long as some underlying legal error can be shown. This is because any statutory grant of judicial discretion must be measured against the specific law granting that discretion. In short, even an otherwise reasonable decision, if rooted in a mistaken legal premise, amounts to abuse of discretion. As Horsford explained, a court could reasonably mistake the scope of its discretion and form a reasoned decision stemming from that reasonable mistake, “[b]ut a reasoned decision based on the reasonable view of the scope of discretion is still an abuse of judicial discretion when it starts from a mistaken premise, even though nothing about the exercise of discretion is, in ordinary-language use of the phrase, ‘beyond the bounds of reason.’” (132 Cal.App.4th at 393, citation omitted.)

Likewise, Horsford contains perhaps the best expression of Ketchum’s analysis of multipliers. For instance, Horsford held that “the market value” of counsel’s services “must take into consideration” the certainty of long delay even if successful, the significant risk of ultimate non-payment, and the negative impact that handling large cases on a contingent basis can have on firms in precluding them from performing services that would generate needed revenue. (132 Cal.App.4th at 399-400, emphasis added.) It then warned of the serious societal consequences that would flow if these concerns were not properly accounted for:

[A] failure to fully compensate for the enormous risk in bringing even a wholly meritorious case would effectively immunize large or politically powerful defendants from being held to answer for constitutional deprivations, resulting in harm to the public.

(Id. at 400.)

(5.) Yanowitz v. L’Oreal USA, Inc.

(2005) 36 Cal.4th 1028 [32 Cal.Rptr.3d 436]

Success in winning employment cases often stands or falls upon a showing that plaintiff suffered an actionable adverse action (e.g., termination, demotion.) Untold cases have been lost for want of proof of this element.

Fortunately, Yanowitz was decided. There, the California Supreme Court liberalized the test for determining what level of adverse action was sufficient to support a retaliation claim. In the process, it also stressed that real-world considerations were controlling. In particular, Yanowitz held that courts “need not ... decide whether each alleged retaliatory act constitutes an adverse employment action in and of itself,” but instead must evaluate whether the “totality of the circumstances” of a “pattern of systematic retaliation” “is reasonably likely to impair a reasonable employee’s job performance or prospects for advancement or promotion.” (Id. at 1055-1056.)

One great by-product of the decision was that Yanowitz signaled that adverse action issues are normally not susceptible to summary adjudication because “[r]etaliation claims are inherently fact specific, and the impact of an employer’s actions in a particular case must be evaluated in context.” (Id. at 1052.) Thus, “the determination of whether a particular action or course of conduct rises to the level of actionable conduct should take into account the unique circumstances of the affected employee as well as the workplace context of the claim.” (Ibid.)

Yanowitz contains other wonderful gems. The Court concluded that even when there is no clear, big adverse action, a series of smaller events (collectively) can constitute the necessary adverse action. This conclusion flowed naturally from the fact that adverse action “must be interpreted liberally and with a reasonable appreciation of the realities of the workplace...” (Id. at 1054, emphasis added.) Thus adverse action applies:

. . . not only to so-called ‘ultimate employment actions’ such as termination or demotion, but also the entire spectrum of employment actions that are reasonably likely to adversely and materially affect an employee’s job
performance or opportunity for advancement in his or her career. . .

(Id., italics added).

The Court, adopting a “totality of the circumstances” approach, refused to carve up each separate incident into an isolated act. Rather, it held that courts “need not decide whether each alleged retaliatory act constitutes an adverse action in and of itself” because:

Contrary to L’Oreal’s assertion that it is improper to consider collectively the alleged retaliatory acts, there is not requirement that an employee’s retaliatory acts constitute one swift blow, rather than a series of subtle, yet damaging, injuries.

(Id. at 1055, emphasis added).

The Court then held that a mere five specific acts, when viewed “collectively,” were a sufficient “pattern of systematic retaliation” that “creates a factual dispute that cannot be resolved at the summary judgment stage.”

(Id. at 1055 & 1060.)

The importance of Yanowitz was later well-illustrated in Patten v. Grant Joint Union High Sch. Dist. (2005) 134 Cal.App.4th 1378, a case that emphasized the key importance of the “realities of [the particular] workplace.” (Patten, 134 Cal.App.4th at 1389.) There, applying Yanowitz, the Court of Appeal found that actionable adverse action was shown when plaintiff suffered a lateral transfer from one principal position to a different principal position at another school – even without any change in wages, benefits or duties. (Id. at 1386-1389, emphasis added.)

(6.) Salas v. Sierra Chemical Co.

(2014) 59 Cal.4th 407 [173 Cal.Rptr.3d 689]

In Salas, the California Supreme Court expressly declared that, with limited exceptions, the federal Immigration Reform and Control Act of 1986 (8 U.S.C. § 1101 et seq.) (“IRCA”) does not preclude California courts from enforcing state law protections for unauthorized [aka “undocumented”] aliens who work here. In addition, the Court held that other important statutory protections (embodied in Senate Bill No. 1818) for unauthorized aliens are likewise not preempted.

This opinion is important to all plaintiffs’ lawyers for a variety of reasons. For instance: (1) most immediately, it provides substantive and procedural protections to plaintiffs who are suing under a wide variety of statutes; (2) in these days of ever-expanding bad preemption law decisions, this opinion provides significant ammunition to plaintiffs’ lawyers seeking to avoid assertions that their claims are preempted by federal law; and (3) the Court held that, even if an unauthorized alien has lied or submitted false documentation to obtain the job, that fact was not an absolute bar to the employee being able to prosecute cases for violations of California labor laws or employment laws, whether under the “after-acquired evidence” rule or the unclean hands doctrine.

At issue was Senate Bill 1818 which created a number of statutes similar to Government Code section 7285 which provides in pertinent part that:

The Legislature finds and declares the following:

(a) All protections, rights, and remedies available under state law, are available to all individuals regardless of immigration status who have applied for employment, or who are or who have been employed, in this state.

(b) For purposes of enforcing state labor, employment, civil rights, and employee housing laws, a person’s immigration status is irrelevant to the issue of liability, and in proceedings or discovery undertaken to enforce those state laws no inquiry shall be permitted into a person’s immigration status [with one exception].

(Italics added by Supreme Court.)

The Supreme Court, itself, described why its decision on preemption is so significant and the “dramatic” effect that a different decision would have produced. The Court observed:

A conclusion that Congress has occupied the field would dramatically affect state laws such as those regulating workers’ compensation, minimum wages, working hour limits, and worker safety. We therefore conclude that [IRCA] is not so pervasive as to leave no room for any state law on the same subject.

(59 Cal.4th at 423, emphasis added.)

Moreover, the Court also pointed out two other significant aspects of its holding. First, it noted that its failure to allow unauthorized workers to pursue employment claims would immunize bad employees, thereby reducing their costs of business:

The resulting lower employment costs would encourage employers to hire workers known or suspected to be unauthorized aliens, contrary to the federal law’s purpose of eliminating employers’ economic incentives to hire such workers . . .

(Id. at 426, citations omitted, emphasis added.)

Second, the Court pointed out that if it had allowed the plaintiff to be denied the protections of state law, “‘unscrupulous employers would be encouraged to hire aliens unauthorized to work in the United States” which in turn would give them “a strong incentive to ‘look the other way’ and exploit a black market for illegal labor.” (Ibid., emphasis added.)

(7.) Clark v. Claremont University Center

(1992) 6 Cal.App.4th 639 [8 Cal.Rptr.2d 151]

This wonderful employment-law case is filled with great tidbits, including two essential tools for a plaintiff to combat typical employer defenses. One such defense involves the situation where the plaintiff has some workplace deficiencies that would legally justify his termination. Clark clarifies that these deficiencies do not, in and of themselves, dispel the inference that the employment decision may actually have been an unlawful one. Assuming that there is also evidence supporting the employer’s unlawful action (e.g., race discrimination), it is for the jury to decide whether the employment decision would have differed but for the unlawful factor.

Another favorite defense for which Clark provides a ready answer involves the claim that the actual decision-maker did not have the illegal intent at issue in the litigation. In Clark, for instance, plaintiff was denied tenure because of his race, but plaintiff’s candidacy was reviewed de novo by each successive evaluator. The court concluded, however, that regardless of the de novo review of plaintiff’s candidacy, it was permissible for a jury to consider that an evaluation at any one level, if based on discrimination, influenced the decision-making process, thereby infecting the ultimate decision. Accordingly, a plaintiff need not prove intentional discrimination at every stage of the review process. This holding is huge.

As the California Supreme Court later elaborated in Harris v. City of Santa Monica (2013) 56 Cal.4th 203, determining whether the defendant would have fired the plaintiff anyway (i.e., despite the defendant’s discriminatory intent) is for the jury to resolve with the defendant required to carry the burden of proof. (Harris is too important and too complex to be treated in this article and deserves a much more extended discussion in a future article.)

(8.) Hope v. California Youth Authority

(2005) 134 Cal.App.4th 577 [36 Cal.Rptr.3d 154]

Hope is a great hostile-work-environment decision. Among other things, its importance flows from the great holding and language it contains concerning which party has the burden of proof with respect to mitigation of damages in the employment law context. Prior to Hope, defendants had argued that the pro-plaintiff mitigation case law in the breach of contract area did not apply in employment law cases. Hope smashed that argument. It held that in employment cases (as well as others) the defendant bears the burden to affirmatively prove that the employee has earned, or with reasonable effort might be able to earn, monies from other employment. Likewise, a defendant seeking to discharge its proof of the amount of mitigation of damages must prove that the other employment was comparable or substantially similar to that of which the employee has been deprived. Additionally, defendants may not seek to mitigate damages based upon an employee’s rejection of (or failure to seek) other available employment of a different or inferior kind.

Hope is also quite useful in that it affirmed an employment law judgment in which plaintiff recovered large economic ($917,104) and non-economic ($1 million) damages solely on theories of harassment and retaliation. The defense challenged plaintiff’s future lost earnings because (in its view) plaintiff would have been terminated for poor performance for excessive absences. However, the court prevented the defense from insulating itself from the effects of its harassment and/or retaliation, concluding that the jury “could have properly found that any performance problems and excessive absences were attributable to [defendant’s] unlawful harassment.” (Id. at 594.) This holding will be useful in many other cases in which defendants somehow damaged plaintiff’s ability to fully perform.

(9.) Romano v. Rockwell International, Inc.

(1996) 14 Cal.4th 479 [39 Cal.Rptr.2d 20]

One of the most important jobs of any California employment lawyer is to head-off the defendant’s constant and inevitable attempts to cite federal decisions – and there are a ton of bad ones – even when there is ample controlling California authority. Unfortunately, defendants’ task is made easier by the language in numerous California opinions that note that FEHA is “modeled after” Title VII and/or the ADA and therefore federal authority is useful and/or instructive in interpreting California’s statutory scheme.

It is against this backdrop that I have selected Romano as one of my favorite cases. It contains some very useful language for defeating reliance on federal law in certain situations. There, the California Supreme Court held that the statute of limitations for a claim under the FEHA is triggered by the employee’s actual termination, not mere notice of the impending termination. This ruling repudiated federal authority, including United States Supreme Court authority. It also rejected defendant’s attempted reliance on federal case law and its argument that California decisions often rely on federal authority in interpreting the FEHA.

Our Supreme Court concluded that it was not bound by the federal decisions “because they interpret a federal statutory scheme [Title VII] not at issue here.” (Id. at 497, emphasis added.) Romano also anchored its ruling upon the language in the FEHA that stated its “remedial purpose” was to safeguard employees from discrimination and elsewhere in the FEHA declaring that the terms of the FEHA are to be interpreted “liberally.” (Id. at 493.)

Similarly Romano concluded that, for the tort of wrongful termination in violation of public policy, the statute of limitations likewise begins to run from the date of the actual termination.

(10.) Speegle v. Board of Fire Underwriters of the Pacific

(1946) 29 Cal.2d 34 [17 P.2d 867]

In this case, the California Supreme Court adopted wonderful, pro-plaintiff language from Bigelow v. RKO Radio Pictures, Inc. (1946) 327 U.S. 251, 265, about damages and the difficulties in their calculation. Although Speegle was an antitrust case, not an employment case, the Court expressly expanded the application of its analysis beyond the arena of antitrust litigation.

The Speegle Court acknowledged the difficulties in proving economic damages and concluded that the wrongdoer may not object to plaintiff’s reasonable estimate of the cause of the injury and of its amount (supported by whatever evidence may be available.) Defendants cannot demand a more exacting standard, for the reasons stated in Bigelow: “‘The most elementary conceptions of justice and public policy require that the wrongdoer shall bear the risk of the uncertainty which his own wrong has created . . . . That principle is an ancient one . . . and is not restricted to proof of damage in antitrust suits, although their character is such as frequently to call for its application.’”

(11.) Soule v. General Motors Corp.

(1994) 8 Cal.4th 548 [34 Cal.Rptr.2d 607]

Although Soule is not an employment law case, it contains critically-important language concerning prejudicial error that any respondent must be aware of. In Soule, the California Supreme Court dispelled the notion that per se error could exist in any but a rare category of cases. Among other things, the Court expressly refused to create such a per se rule of automatic reversal or ‘inherent’ prejudice applicable to any category of instructional error in civil cases. The Court, instead, reiterated the necessity to examine the entire case, including the evidence, to determine whether the asserted error resulted in a “miscarriage of justice.” Absent that determination, “[n]o form of civil trial error justifies reversal and retrial, with its attendant expense and possible loss of witnesses, where in light of the entire record, there was no actual prejudice to the appealing party.”

[Authors Note: This article is a greatly expanded version of a presentation I made at the 2009 Annual convention of the California Employment Lawyers Association. The title was: “Norm Pine’s list of 7 essential cases for use in appellate court.”]

Norman Pine Norman Pine

Norman Pine is a founder of the appellate firm Pine Tillett Pine, specializing in plaintiff-side appeals with an emphasis on employment matters. Norm Pine has been editor of the Advocate Employment Law issue since 2001 when he took over for legendary employment lawyer Joe Posner. He and his wife and law partner, Beverly Tillett Pine, founded the appellate firm of Pine and Pine, predecessor to Pine Tillett Pine.  Norm was named CAALA’s Appellate Lawyer of the Year in 2003 and, jointly with Beverly, won CELA’s “Joe Posner” award in 2008.

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