California Employment Law Notes

• Publication year: 2021
• Author: By Anthony J. Oncidi

CALIFORNIA EMPLOYMENT LAW NOTES

By Anthony J. Oncidi

Anthony J. Oncidi is a partner in and the Co-Chair of the Labor and Employment Department of Proskauer Rose LLP, where he exclusively represents employers and management in all areas of employment and labor law. His telephone number is (310) 284-5690 and his email address is aoncidi@proskauer.com. (Mr. Oncidi has authored this column since 1990.)

NINTH CIRCUIT REJECTS "PARAMOUR PREFERENCE" LIABILITY ARISING FROM SUPERVISOR'S ROMANTIC RELATIONSHIP WITH ANOTHER EMPLOYEE

Maner v. Dignity Health, 9 F.4th 1114 (9th Cir. 2021)

William "Bo" Maner worked as a biomedical design engineer in the obstetric and gynecological laboratory of Dr. Robert Garfield for several decades. Shortly after he joined the lab, Maner learned that Garfield and another researcher, Dr. Leili Shi, were engaged in a long-term romantic relationship. After Maner's position was eliminated based upon the employer's assertion of his poor performance and the lab's lack of funding, he filed a complaint alleging Title VII sex discrimination asserting that Dignity Health had protected Shi (a female) from the impact of reduced lab funding by terminating Maner (a male); Maner also alleged unlawful retaliation for protesting Garfield's "favoritism" toward Shi at the expense of other employees. The district court granted Dignity Health's motion for summary judgment, and the Ninth Circuit affirmed dismissal, holding that an employer, who singles out a supervisor's paramour for preferential treatment, does not discriminate against other employees "because of [their] sex." The Court reasoned that "the motive behind the adverse employment action [was] the supervisor's special relationship with the paramour, not any protected characteristics of the disfavored employees," although the Court noted that such activity is "certainly unfair to similarly situated workers and more than likely harms morale." The Court affirmed dismissal of the retaliation claim on the ground that Maner had failed to establish a causal connection between his alleged complaint and the elimination of his job.

$3.5 MILLION EMOTIONAL DISTRESS AWARD WAS "SHOCKINGLY DISPROPORTIONATE" TO EVIDENCE OF HARM

Briley v. City of W. Covina, 66 Cal. App. 5th 119 (2021)

Jason Briley worked for the City of West Covina as a deputy fire marshal. During his employment, Briley complained that various city officials, including his former supervisor, had ignored his reports of safety issues and engaged in misconduct. The city investigated Briley's complaints and concluded they were unfounded. However while that investigation was still pending, the city commissioned a second investigation of allegations that Briley had repeatedly engaged in misconduct and unprofessional behavior. At the conclusion of the second investigation, Briley's employment was terminated. In this lawsuit, Briley alleged whistle-blower retaliation under Cal. Lab. Code § 1102.5. At trial, the jury awarded Briley over $500,000 in lost wages, $2 million in past emotional distress damages, and $1.5 million in future emotional distress damages. The jury did so even though Briley's attorney had asked the jury to award only $1.5 million in past and $1.5 million in future emotional distress damages.

The Court of Appeal held that "the jury's total award of $3.5 million in noneconomic damages [was] shockingly disproportionate to the evidence of Briley's harm and cannot stand." Although Briley testified that the termination was "pretty devastating" and that he had had some "sleep-related issues," there was no evidence that any of the problems Briley described was particularly severe. The Court held that $1,700 per day for past emotional distress damages was excessive, and determined that Briley's tearful demeanor on the witness stand may have resulted in passion rather than measured judgment on the part of the jury. Further, the Court held that the $1.5 million award of future noneconomic damages "stands on even shakier ground," because the $500,000 in economic damages the jury awarded should have eliminated any remaining financial concerns tied to his termination, and "also vindicated Briley and counteracted any false or unfair allegations against him." The Court further determined that Briley's counsel's "personal attack" on the city's counsel, such as calling him a "liar," shortly before the jury began its deliberations may have prejudiced the jury against the city. The Court vacated the damages award and remanded the case for a new trial unless Briley accepted a reduction of the awards to $1 million in past emotional distress damages and $100,000 in future emotional distress damages (i.e., a total reduction of $2.4 million).

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EMPLOYEE NONSOLICITATION CLAUSE DOES NOT VIOLATE ANTITRUST LAW...