Top Employment Cases of 2017
| Citation | Vol. 32 No. 1 |
| Publication year | 2018 |
| Author | By Andrew Friedman, Ramit Mizrahi, and Tony Oncidi |
By Andrew Friedman, Ramit Mizrahi, and Tony Oncidi
Andrew H. Friedman is a partner with Helmer Friedman LLP in Culver City, where he primarily represents employees in all areas of employment law. Mr. Friedman is the author of a leading employment law practice guide—Litigating Employment Discrimination Cases (James Publishing, 2007). Ramit Mizrahi is the founder of Mizrahi Law, APC in Pasadena, where she represents employees exclusively. She focuses on discrimination, harassment, retaliation, and wrongful termination cases. She is Vice Chair of the California Lawyers Association Labor and Employment Law Section. She can be reached at ramit@mizrahilaw.com. Anthony J. Oncidi is a partner in and the Chair of the Labor and Employment Department of Proskauer Rose LLP in Los Angeles, where he exclusively represents employers and management in all areas of employment and labor law. His email address is aoncidi@proskauer.com.
Although there were fewer than usual employment law decisions in 2017, we did see important new developments with respect to discovery in PAGA cases, the reach of workers' compensation exclusivity/ claim preclusion, retaliation, and the California Family Rights Act.
2017 saw three interesting workers' compensation cases— two with potentially far-reaching ramifications: Ly v. County of Fresno,1 which holds that a decision from the Workers' Compensation Appeals Board can preclude a subsequent claim under the Fair Employment and Housing Act (FEHA); Light v. Department of Parks & Recreation,2 which addresses the scope of workers' compensation exclusivity; and M.F. v. Pacific Pearl Hotel Mgmt, LLC,3 which holds that workers' compensation exclusivity does not preclude a sexual harassment claim against an employer based upon the conduct of a nonemployee trespasser.
In Ly, the court of appeal gave preclusive effect in a FEHA discrimination lawsuit to prior workers' compensation rulings against the plaintiff employees and granted summary judgment to the employer. Three Laotian correctional officers sued their employer, the County of Fresno, for discrimination, harassment, and retaliation. They contemporaneously filed workers' compensation claims for psychiatric injuries arising from the same alleged acts. The WCAB administrative law judges denied the employees' claims. Then, in the employees' FEHA action, the employer moved for summary judgment, arguing that the WCAB rulings were binding.
The trial court granted summary judgment, finding that the workers' compensation proceedings were judicial in nature and that the doctrine of collateral estoppel barred the FEHA claims because: (1) each plaintiff was afforded the opportunity to present evidence and call witnesses; (2) the issues litigated were identical; and (3) each administrative law judge found that the County's actions "were nondiscriminatory, in 'good faith,' and based upon 'business necessity.'" The officers appealed. The court of appeal affirmed, holding that "[w]hile workers' compensation was not plaintiffs' exclusive remedy, once they elected to pursue that remedy to a final, adverse judgment instead of insisting on the primacy of their rights under the FEHA, the WCAB became the exclusive forum to recover for their injuries."4
Although the workers' compensation cases happened to be resolved in favor of the employer, one can easily imagine the opposite result in which the employer lost before the WCAB and that result might then became collateral estoppel/res judicata against the employer in a pending civil action arising under FEHA.
In Light, the court of appeal held that claims of intentional infliction of emotional distress based on discrimination and retaliation in violation of FEHA are not subject to workers' compensation exclusivity. Melony Light worked for the California Department of Parks and Recreation. She alleged a claim for intentional infliction of emotional distress against both the Department and her supervisor. The trial court granted summary judgment in favor of the defendants, holding that Light's claim was subject to workers' compensation exclusivity. The court of appeal reversed in part, holding that workers' compensation did not provide the exclusive remedy for alleged emotional distress arising from discrimination and retaliation, because such conduct exceeds the risks inherent in the employment relationship.
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In M.F., a housekeeping employee sued her employer, the Pacific Pearl Hotel, for sexual harassment and for failure to prevent sexual harassment in violation of FEHA after a non-employee/trespasser sexually assaulted and raped her. Pacific Pearl demurred to the complaint, arguing that M.F. had not pleaded sufficient facts to show Pacific Pearl knew or should have known about any conduct by the trespasser requiring action by Pacific Pearl or putting Pacific Pearl on notice a sexual assault might occur. Consequently, Pacific Pearl argued the complaint did not state viable claims under FEHA and the claims were barred by the workers' compensation exclusivity doctrine. The superior court agreed, sustaining Pacific's demurrer without leave to amend and dismissing M.F.'s complaint with prejudice. The court of appeal reversed, holding that the facts alleged were sufficient to state claims under FEHA for sexual harassment by a nonemployee5 and for failure to prevent such harassment (California Government Code § 12940(k)).
Bareno v. San Diego Cmty. Coll. Dist.6 is a terrific California Family Rights Act (CFRA) case for employees. Leticia Bareno was employed as an Administrative Assistant at San Diego Miramar College (the College). She required medical treatment and leave, and she requested it from her supervisor and provided supporting medical documentation. After the initial leave time ended, Bareno continued to miss work. She attempted to e-mail her supervisor a recertification of her need for additional medical leave, but the College claimed that her supervisor did not receive it. As a result, after she was out for an additional five days, the College took the position that she had "voluntarily resigned." After she received news of the decision, Bareno attempted to provide the College with information regarding the medical necessity of the leave that she had taken. The College refused to reconsider its position. Bareno sued, alleging that in effectively terminating her employment, the College retaliated against her for taking medical leave, in violation of CFRA, California Government Code § 12945.2. The College moved for summary judgment, which the trial court granted.
The court of appeal reversed. It held that "the question '[w]hether notice is sufficient under CFRA is a question of fact.'"7 The court found the following three disputed issues of material fact: (1) whether Bareno's supervisor had timely received the e-mail...
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