A plaintiff asserting a claim against his employer for a failure to accommodate him in accordance with the Americans with Disabilities Act has the burden of proving that his employer could have made a reasonable accommodation that would have enabled him to perform the essential functions of his job. The deposition testimony of a corporate designee is an evidentiary admission, but it is not a binding judicial admission. The jury is still allowed to consider other evidence to correct, supplement or explain that testimony.
Snapp v. BNSF Railway Company - filed May 11, 2018
Cite as 2018 S.O.S. 15-35410
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Monday, May 14, 2018
Thursday, May 10, 2018
Maldonado v. Epsilon Plastics, Inc.
When an employer is accused of having improperly implemented an alternative work schedule, the employer bears the burden of proving compliance with the procedural requirements to adopt that schedule. Workers who receive an award of damages for overtime that was unpaid because of an employer's improper adoption of an alternative work schedule have the burden of proving the number of hours they worked, which required them to prove whether they had worked through scheduled meal breaks. An employer's subjective good faith belief that wages were not due is insufficient to show the employer did not willfully fail to pay wages to an employee within the meaning of Labor Code Sec. 203. Evidence an employer made no inquiry into whether its successor had properly adopted an alternative work schedule is sufficient to defeat the employer's claim of good faith. Inaccurate wage statements alone do not justify penalties. Wage statements should include the hours worked at each rate and the wages earned, but when there is a wage and hour violation, the hours worked will differ from what was truly earned. Only the absence of the hours worked will give rise to an inference of injury, since the absence of accurate wages earned will be remedied by the violated wage and hour law itself.
Maldonado v. Epsilon Plastics, Inc. - filed April 18, 2018, publication ordered May 8, 2018, Second District, Div. Eight
Cite as 2018 S.O.S. 2210
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Maldonado v. Epsilon Plastics, Inc. - filed April 18, 2018, publication ordered May 8, 2018, Second District, Div. Eight
Cite as 2018 S.O.S. 2210
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Wednesday, May 9, 2018
Contractors' State License Bd. v. Superior Court
Contractors' State License Bd. v. Superior Court (CA1/1 A153684, filed 4/26/18, pub. ord. 5/9/18) Licensing Board Disciplinary Proceeding/Apex Deposition
The Contractors’ State License Board (the Board) seeks a writ of mandate and a stay to prevent the “apex deposition” of David R. Fogt. Fogt is the Board’s Registrar of Contractors, a position which makes him the Board’s secretary and chief executive officer. After real party in interest, Black Diamond Electric, Inc. (BDE), noticed Fogt’s deposition in a declaratory judgment action BDE had brought against the Board, Fogt sought a protective order to prevent the deposition. Respondent court denied the motion for a protective order, and the Board now seeks writ review.
We conclude that under well-established California law, the head of a government agency, such as Fogt, generally is not subject to deposition. “An exception to the rule exists only when the official has direct personal factual information pertaining to material issues in the action and the deposing party shows the information to be gained from the deposition is not available through any other source.” (Westly v. Superior Court (2004) 125 Cal.App.4th 907, 911 (Westly).) We hold that this exception does not apply in this case. We therefore grant the Board’s petition and issue a peremptory writ in the first instance, as we previously informed the parties was possible. (See Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 177–180 (Palma).)
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The Contractors’ State License Board (the Board) seeks a writ of mandate and a stay to prevent the “apex deposition” of David R. Fogt. Fogt is the Board’s Registrar of Contractors, a position which makes him the Board’s secretary and chief executive officer. After real party in interest, Black Diamond Electric, Inc. (BDE), noticed Fogt’s deposition in a declaratory judgment action BDE had brought against the Board, Fogt sought a protective order to prevent the deposition. Respondent court denied the motion for a protective order, and the Board now seeks writ review.
We conclude that under well-established California law, the head of a government agency, such as Fogt, generally is not subject to deposition. “An exception to the rule exists only when the official has direct personal factual information pertaining to material issues in the action and the deposing party shows the information to be gained from the deposition is not available through any other source.” (Westly v. Superior Court (2004) 125 Cal.App.4th 907, 911 (Westly).) We hold that this exception does not apply in this case. We therefore grant the Board’s petition and issue a peremptory writ in the first instance, as we previously informed the parties was possible. (See Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 177–180 (Palma).)
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Monday, May 7, 2018
Arnaudo Brothers v. ALRB
Arnaudo Brothers v. ALRB (CA5 F072420B 5/4/18) Agricultural Labor Relations Board/Unfair Labor Practice
This writ proceeding addresses decisions by the Agricultural Labor Relations Board (Board) that an agricultural employer committed unfair labor practices by refusing to bargain with, and provide information to, the United Farm Workers of America (Union). The employer’s defense was that in the early 1980’s, the Union expressly disclaimed any interest in representing the bargaining unit—a disclaimer reinforced by the Union’s 30 years of inactivity. The Board rejected the employer’s disclaimer defense to the failure to bargain charge, finding the purported disclaimer was not clear and unequivocal. The Board awarded make whole-relief based on the determination that the employer’s litigation of the disclaimer issue did not further the policies and purpose of the Agricultural Labor Relations Act of 1975 (Lab. Code, §§ 1140-1166.3).[1] The employer contends the Board erred in rejecting its disclaimer defense and in awarding make-whole relief.
In August 2017, we issued a decision concluding the Board properly rejected the employer’s disclaimer defense to the charge that employer failed to bargain with the Union, but erred in determining make-whole relief was “appropriate” for purposes of section 1160.3. The California Supreme Court granted review pending its decisions in Gerawan Farming, Inc. v. Agricultural Labor Relations Bd. (2017) 3 Cal.5th 1118 (Gerawan) and Tri-Fanucchi Farms v. Agricultural Labor Relations Bd. (2017) 3 Cal.5th 1161 (Tri-Fanucchi). In March 2018, the Supreme Court directed us to vacate our decision and reconsider the matter in light of Tri-Fanucchi, which reinstated an award of make-whole relief that this court had vacated.
Having received supplemental briefs and replies to the supplemental briefs, we conclude the Board did not err when it (1) identified and applied the rules that define when a certified union has made a disclaimer of interest in representing the bargaining unit; (2) determined the statement by the Union representative that “we’re through with you” (if made) was not a clear and unequivocal disclaimer of interest; and (3) concluded the Union’s subsequent conduct consistent with a disclaimer could not render the equivocal disclaimer effective. On the question of make-whole relief, the principles set forth in Tri-Fanucchi compel the conclusion that the Board properly exercised its broad discretionary authority when it awarded make-whole relief in this case.
We therefore affirm the Board’s decisions.
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This writ proceeding addresses decisions by the Agricultural Labor Relations Board (Board) that an agricultural employer committed unfair labor practices by refusing to bargain with, and provide information to, the United Farm Workers of America (Union). The employer’s defense was that in the early 1980’s, the Union expressly disclaimed any interest in representing the bargaining unit—a disclaimer reinforced by the Union’s 30 years of inactivity. The Board rejected the employer’s disclaimer defense to the failure to bargain charge, finding the purported disclaimer was not clear and unequivocal. The Board awarded make whole-relief based on the determination that the employer’s litigation of the disclaimer issue did not further the policies and purpose of the Agricultural Labor Relations Act of 1975 (Lab. Code, §§ 1140-1166.3).[1] The employer contends the Board erred in rejecting its disclaimer defense and in awarding make-whole relief.
In August 2017, we issued a decision concluding the Board properly rejected the employer’s disclaimer defense to the charge that employer failed to bargain with the Union, but erred in determining make-whole relief was “appropriate” for purposes of section 1160.3. The California Supreme Court granted review pending its decisions in Gerawan Farming, Inc. v. Agricultural Labor Relations Bd. (2017) 3 Cal.5th 1118 (Gerawan) and Tri-Fanucchi Farms v. Agricultural Labor Relations Bd. (2017) 3 Cal.5th 1161 (Tri-Fanucchi). In March 2018, the Supreme Court directed us to vacate our decision and reconsider the matter in light of Tri-Fanucchi, which reinstated an award of make-whole relief that this court had vacated.
Having received supplemental briefs and replies to the supplemental briefs, we conclude the Board did not err when it (1) identified and applied the rules that define when a certified union has made a disclaimer of interest in representing the bargaining unit; (2) determined the statement by the Union representative that “we’re through with you” (if made) was not a clear and unequivocal disclaimer of interest; and (3) concluded the Union’s subsequent conduct consistent with a disclaimer could not render the equivocal disclaimer effective. On the question of make-whole relief, the principles set forth in Tri-Fanucchi compel the conclusion that the Board properly exercised its broad discretionary authority when it awarded make-whole relief in this case.
We therefore affirm the Board’s decisions.
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Davis v. County of Fresno
Davis v. County of Fresno (CA5 F073151 5/3/18) Public Safety Officers Procedural Bill of Rights
Plaintiff James Davis was dismissed from his employment as a supervising juvenile correctional officer based on findings of insubordination, discourteous treatment of a subordinate, wrongfully assuming supervisorial duties over his wife despite several admonitions to the contrary, exaggerating the hours he worked on multiple time cards, and other misconduct. Davis’s administrative appeal of his dismissal was denied by the Civil Service Commission (Commission) of the County of Fresno (County). Davis filed a petition for a writ of administrative mandamus requesting the superior court to set aside the Commission’s decision. The superior court denied the petition.
On appeal, Davis contends County violated his constitutional due process rights by failing to provide him a copy of all materials upon which the disciplinary action was based prior to his Skelly hearing. Davis also contends County’s failure to produce complete copies of reports and witness interviews conducted during the internal affairs investigation into his alleged misconduct violated the Public Safety Officers Procedural Bill of Rights Act, Government Code section 3300 et seq. (POBRA).
We conclude the materials delivered prior to Davis’s Skelly hearing satisfied the requirements of due process applicable before disciplinary action is imposed. In contrast, we conclude County violated Davis’s right under POBRA to receive “any reports or complaints made by investigators or other persons.” (§ 3303, subd. (g).) We interpret the term “any reports” to include the incident reports and interview transcripts attached to a September 2012 memorandum prepared by a special probation investigator who looked into a retaliation complaint made by another officer against Davis. Davis’s alleged discourteous treatment of this officer was one of the grounds for his dismissal.
The issue of the appropriate remedy for a violation of POBRA is committed to the broad discretion of the superior court. Here, the record does not compel this court, as a matter of law, to reinstate Davis with backpay. Furthermore, there exists a wide range of remedies and we make no comment as to the merits of any of the possible remedies the trial court might select. Therefore, we remand this matter to the superior court and direct it to decide in the first instance the appropriate remedy.
We therefore reverse the judgment.
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Plaintiff James Davis was dismissed from his employment as a supervising juvenile correctional officer based on findings of insubordination, discourteous treatment of a subordinate, wrongfully assuming supervisorial duties over his wife despite several admonitions to the contrary, exaggerating the hours he worked on multiple time cards, and other misconduct. Davis’s administrative appeal of his dismissal was denied by the Civil Service Commission (Commission) of the County of Fresno (County). Davis filed a petition for a writ of administrative mandamus requesting the superior court to set aside the Commission’s decision. The superior court denied the petition.
On appeal, Davis contends County violated his constitutional due process rights by failing to provide him a copy of all materials upon which the disciplinary action was based prior to his Skelly hearing. Davis also contends County’s failure to produce complete copies of reports and witness interviews conducted during the internal affairs investigation into his alleged misconduct violated the Public Safety Officers Procedural Bill of Rights Act, Government Code section 3300 et seq. (POBRA).
We conclude the materials delivered prior to Davis’s Skelly hearing satisfied the requirements of due process applicable before disciplinary action is imposed. In contrast, we conclude County violated Davis’s right under POBRA to receive “any reports or complaints made by investigators or other persons.” (§ 3303, subd. (g).) We interpret the term “any reports” to include the incident reports and interview transcripts attached to a September 2012 memorandum prepared by a special probation investigator who looked into a retaliation complaint made by another officer against Davis. Davis’s alleged discourteous treatment of this officer was one of the grounds for his dismissal.
The issue of the appropriate remedy for a violation of POBRA is committed to the broad discretion of the superior court. Here, the record does not compel this court, as a matter of law, to reinstate Davis with backpay. Furthermore, there exists a wide range of remedies and we make no comment as to the merits of any of the possible remedies the trial court might select. Therefore, we remand this matter to the superior court and direct it to decide in the first instance the appropriate remedy.
We therefore reverse the judgment.
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Hernandez v. Rancho Santiago Community College Dist.
Hernandez v. Rancho Santiago Community College Dist. (CA4/3 G054563 5/3/18) FEHA Interactive Process/Reasonable Accommodation
Plaintiff Marisa Hernandez worked for defendant Rancho Santiago Community College District on and off for a number of years without any complaints about her performance. In 2013, she was hired as an administrative assistant. During her one-year probationary period, her performance was to be evaluated at three months, seven months, and 11 months. At the completion of 12 months of probation, she would be considered a permanent employee. Eight months into her probationary period and with the district’s consent, she went on a temporary disability leave to have surgery to replace a knuckle on a finger she injured while working for the district prior to her most recent hiring. She was scheduled to return to work on, or shortly after, the anniversary of her hiring date. The district, however, terminated her while she was on the approved leave, because her performance had not been reviewed.
Hernandez sued the district under the California Fair Employment and Housing Act (the FEHA) (Gov. Code, § 12940, subds. (m), (n)), contending it failed to make reasonable accommodation for her medical condition and failed to engage in an interactive process. At the conclusion of the court trial, the court found in Hernandez’s favor and awarded her $723,746 in damages. The trial court found the district could have accommodated her by extending her probationary period, by deducting the four months she was on disability leave from her probationary period, or by adding the time away from work to the probationary period, and, contrary to the district’s position, the district would not have been required to make Hernandez a permanent employee on the anniversary of her hiring. The district appeals, contending it had to terminate Hernandez’s probation and employment because if it did not, she would have become a permanent employee without having had her performance evaluated. We affirm the judgment.
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Plaintiff Marisa Hernandez worked for defendant Rancho Santiago Community College District on and off for a number of years without any complaints about her performance. In 2013, she was hired as an administrative assistant. During her one-year probationary period, her performance was to be evaluated at three months, seven months, and 11 months. At the completion of 12 months of probation, she would be considered a permanent employee. Eight months into her probationary period and with the district’s consent, she went on a temporary disability leave to have surgery to replace a knuckle on a finger she injured while working for the district prior to her most recent hiring. She was scheduled to return to work on, or shortly after, the anniversary of her hiring date. The district, however, terminated her while she was on the approved leave, because her performance had not been reviewed.
Hernandez sued the district under the California Fair Employment and Housing Act (the FEHA) (Gov. Code, § 12940, subds. (m), (n)), contending it failed to make reasonable accommodation for her medical condition and failed to engage in an interactive process. At the conclusion of the court trial, the court found in Hernandez’s favor and awarded her $723,746 in damages. The trial court found the district could have accommodated her by extending her probationary period, by deducting the four months she was on disability leave from her probationary period, or by adding the time away from work to the probationary period, and, contrary to the district’s position, the district would not have been required to make Hernandez a permanent employee on the anniversary of her hiring. The district appeals, contending it had to terminate Hernandez’s probation and employment because if it did not, she would have become a permanent employee without having had her performance evaluated. We affirm the judgment.
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Sali v. Corona Regional Med. Ctr.
Sali v. Corona Regional Med. Ctr. (9th Cir. 15-56460 5/3/18) Wage and Hour/Class Certification
The panel reversed the district court’s denial of class certification in a putative class action alleging employment claims against Corona Medical Center and UHS of Delaware, Inc; and remanded.
Plaintiffs Marlyn Sali and Deborah Spriggs moved for certification of seven classes of Registered Nurses, alleging they were underpaid by Corona as a result of certain employment policies and practices. The district court denied certification under Fed. R. Civ. P. 23 of each of the proposed classes on multiple grounds. The panel held that the district court’s determination, that plaintiffs failed to demonstrate their injuries were typical of the proposed classes, was premised on an error of law.
The panel held that the district court erred by striking a declaration at this preliminary stage, and the district court may not decline to consider evidence solely on the basis that the evidence is inadmissible at trial. The panel agreed with the district court’s conclusion that plaintiff Spriggs was not an adequate class representative because she was not a member of any class she sought to represent.
The panel held, however, that plaintiff Sali was an adequate class representative, and Spriggs’s inadequacy was not a valid basis to deny class certification. The panel held that the district court abused its discretion by concluding that attorneys from the law firm Bisnar Chase could not serve as adequate class counsel. The panel also held that at this early stage of the litigation, the district court’s decision on this issue was premature, but the district court was not precluded from considering counsel’s prior sanctions as evidence of inadequacy if they continue to neglect their duties.
The panel held that the district court erred by denying certification of the proposed rounding-time and wage statement classes on the basis that they failed Rule 23(b)(3)’s predominance requirement. First, the panel held that the district court’s determination that individual questions predominated in the claims of the proposed rounding-time class was based on an error of law. Under California law, the district court erred by interpreting time “actually worked” to mean only time spent engaged in work-related activities because time is compensable when an employee is working or under the control of his or her employer. Second, the panel held that the district court’s determination - that individual questions predominate in the claims of the proposed wage-statement class - was premised on legal error. The district court erred by concluding that damages for members of the wage statement class would require an individualized determination because California Labor Code specifies that a violation of § 226 is a per se injury.
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The panel reversed the district court’s denial of class certification in a putative class action alleging employment claims against Corona Medical Center and UHS of Delaware, Inc; and remanded.
Plaintiffs Marlyn Sali and Deborah Spriggs moved for certification of seven classes of Registered Nurses, alleging they were underpaid by Corona as a result of certain employment policies and practices. The district court denied certification under Fed. R. Civ. P. 23 of each of the proposed classes on multiple grounds. The panel held that the district court’s determination, that plaintiffs failed to demonstrate their injuries were typical of the proposed classes, was premised on an error of law.
The panel held that the district court erred by striking a declaration at this preliminary stage, and the district court may not decline to consider evidence solely on the basis that the evidence is inadmissible at trial. The panel agreed with the district court’s conclusion that plaintiff Spriggs was not an adequate class representative because she was not a member of any class she sought to represent.
The panel held, however, that plaintiff Sali was an adequate class representative, and Spriggs’s inadequacy was not a valid basis to deny class certification. The panel held that the district court abused its discretion by concluding that attorneys from the law firm Bisnar Chase could not serve as adequate class counsel. The panel also held that at this early stage of the litigation, the district court’s decision on this issue was premature, but the district court was not precluded from considering counsel’s prior sanctions as evidence of inadequacy if they continue to neglect their duties.
The panel held that the district court erred by denying certification of the proposed rounding-time and wage statement classes on the basis that they failed Rule 23(b)(3)’s predominance requirement. First, the panel held that the district court’s determination that individual questions predominated in the claims of the proposed rounding-time class was based on an error of law. Under California law, the district court erred by interpreting time “actually worked” to mean only time spent engaged in work-related activities because time is compensable when an employee is working or under the control of his or her employer. Second, the panel held that the district court’s determination - that individual questions predominate in the claims of the proposed wage-statement class - was premised on legal error. The district court erred by concluding that damages for members of the wage statement class would require an individualized determination because California Labor Code specifies that a violation of § 226 is a per se injury.
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