+Maternity case heads for retrial

Daily Journal

Monday, September 9, 2013

“Maternity case heads for retrial”

Order is first decision of its kind to apply state Supreme Court ruling

By Laura Hautala

A state appellate court has ordered a retrial in a pregnancy discrimination lawsuit after applying a recent landmark ruling that states a jury can only find an employer liable if discrimination was a “substantial motivating factor” in a worker’s firing.

The order is the first published decision to apply the state Supreme Court’s February ruling in Harris v. City of Santa Monica to decide whether a retrial is merited.

The case had to do with a billing clerk who was fired three hours after she returned to work from maternity leave at a small Los Angeles publishing company. A jury awarded her $10,000 in damages, and the court awarded attorney fees of more than $50,000.

But, “in accordance with Harris, we now hold that the trial court prejudicially erred in instructing the jury,” wrote Justice Laurie D. Zelon, who authored Thursday’s opinion. Harris said that asking jurors to find whether discrimination was a “motivating factor” in a termination was not sufficient – the discriminatory motivation needed to be “substantial.” Alamo v. Practice Management Information Corp., 2013 DJDAR 11998 (Cal. App. 2nd Dist. Sept. 5, 2013).

“It followed the precise contours of the Harris decision,” said Paul S. Marks, a defense attorney at Neufeld Marks PC who represented the publishing company. “However, every case has a different factual and procedural posture, and one can never tell if there’s some unusual aspect of the case that would have distinguished it from Harris.”

Attorneys who handle so-called “mixed motive” cases, where more than one factor may have brought about a firing or disciplinary action, are looking to the decision for clarity in how they must instruct juries.

Plaintiffs’ attorney Michael Rubin of Altshuler Berzon LLP in San Francisco said the appellate courts had no option but to remand similar cases, “because the Supreme Court in Harris – without explaining the difference between a motivating factor and a substantial motivating factor – decided it was enough to require remand in that case.” Rubin was not involved in Alamo.

However, Karl A. Gerber, an attorney at Employment Lawyers Group in Sherman Oaks who represented the plaintiff, said his client’s case was very different from Harris.  

“It wasn’t a mixed motive case,” he said. “They said they fired her because she was a disturbance, not because she was on maternity leave.”

Gerber said he would be surprised to hear a defense attorney argue that their client had some discriminatory intent, but that it wasn’t “substantial.”

Nonetheless, Zelon’s decision Thursday precludes the publishing company from making that argument in the retrial. Paul W. Cane, a partner at Paul Hastings LLP in San Francisco who defends companies in wrongful termination lawsuits, said that part of the decision was dispiriting. Cane was not involved in Alamo but argued before the Supreme Court on behalf of the city of Santa Monica in Harris.

“Defendants, beware,” Cane said. “Every defendant, out of an abundance of caution, should be including a dual-motive affirmative defense.”

Karl Gerber has been in the front line of Employment Discrimination Cases since 1993. Call his our office and find out if you have a case 877-525-0700 toll free.