Court Protects Employee from Employer Seeking to Recover Expert Fees.

On March 28, 2012, the California Court of Appeal in Baker v. Mulholland Security and Patrol, Inc. [2012 DJDAR 4093] held that an employee who lost his discrimination, harassment and retaliation suit by summary judgment entered against him was not required thereupon to pay the employer's expert witness fees.


The defendant made the argument before the trial court following judgment that Government Code Section 12900 et seq. of the "Fair Employment and Housing Act" [FEHA] permits an employer to recover expert witness fees as "costs of litigation" even if the employee was "reasonable" and was not "frivolous or vexatious" in bringing the anti-discrimination, anti-harassment, and anti-retaliation suit. 


The Baker court noted that the California Courts of Appeal are split on the question of whether the "ordinary costs of appeal" [i.e., non-expert costs] are recoverable by a prevailing employer in a FEHA case when the case is reasonable in the inception, and "not vexatious or frivolous."  [citing the conflicting decisions of Perez v. Co. of Santa Clara and Knight v. Hayward Unified School Dist., with Cummings v. Benco Building.] 


The Baker Court elected to follow federal cases that placed "expert witness" fees in the same category as "attorneys fees" in Title VII cases where the employer prevailed.  The Court reasoned that "expert witness fees" are not "ordinary litigation costs" but are the subject of special cost shifting statutes.  


The recovery of attorneys fees and expert witness fees are not matters of right, but reside with the discretion of the court as to amount.  Govt. C. Section 12965(b).  "Ordinary costs of litigation" are however recoverable as a matter of right to a prevailing party.  The Baker Court of Appeal held that the Trial Court was incorrect in awarding expert witness fees without making a finding that the employee brought the suit unreasonably, frivolously, or for a vexatious purpose.  

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Weapon of Choice: The CPRA Option

In a previous article, I covered a case holding that evidence of harassment by the defendant of other persons before the employment and harassment alleged by the current employee is nonetheless admissible.  This type of evidence is loosely described as "me too" evidence, and is offered to show a pattern of harassing behavior.  See Pantoja v. Anton (Aug. 9, 2011) 2011 DJDAR 11962.

The first hurdle for the employee rights attorney is obtaining the information during discovery.  Only then does the question of admissibility at trial arise. 

In the usual practice of employment law, the way to obtain employment records of a non-party employee is by a subpoena.  This procedure includes a notice to the third party employee that his personnel records are being sought.  A subpoena for employment records requires this prior notice to allow the third party employee to object to the subpoena.  A timely objection places the burden upon the party issuing the subpoena to show the court good cause for the production.

But these "prior notice" and "burden of showing cause" provisions are not part of the the California Public Records Act (CPRA) (Gov. Code, § 6250 et seq.)  Tactically, the Employee Rights Attorney may want to use the CPRA to get California government employee documents without the usual inevitable privacy objections by the defense attorney [or third party employee] in response to a subpoena.  

The information is often relevant to the issue of how the government agency has responded to other discrimination or harassment complaints, whether the individual employee accused of harassment has been accused previously, investigated previously, or found guilty previously.  The information may also reveal that the Government Agency has taken a lax approach to complaints that had substantial merit.  The Plaintiff's theory will be that the failure to take earlier corrective action allowed the perpetrator to harass others, including the current complainant.  

Prior harassment complaints against a government employee recently have bee held to be of substantial public interest requiring an agency to disclose its investigation report and letter of reprimand under the CPRA.   The policy behind the CPRA was deemed to have outweighed the employee's privacy interest in his records.  See Ari Marken vs Santa Monica-Malibu Unified School District, No. B231787 (Cal.App. Dist.2 01/24/2012).  In Marken, a parent sought the personnel records of a school District teacher accused some years earlier of sexually harassing a 13 year old female student.  The District, although not required, gave the teacher prior notice of intent to produce the records.  The teacher sought to prevent the disclosure, and was rebuffed by both the trial court and the Court of Appeal.  The Court noted that the government employer is required to comply with disclosure in compliance with short time limits of the CPRA.  

My overall reading of the CPRA is that it is designed to facilitate and favor disclosure of public records, including "private" personnel records if relevant to a discrimination or harassment issue.  It should be the employee attorney's weapon of choice in obtaining personnel records involving public employees.  Stipulations by counsel to redact or limit the scope of disclosure may advance the essential purpose of quickly obtaining an investigative report that will establish the employer's knowledge of the offending employee's continuing misconduct.  

Sherlock Holmes Would Be Appalled: Workplace Investigations?

Federal and state statutes and case law generally anticipate that a workplace investigation is an important employer tool that will prevent discrimination and harassment, and even result in some discipline of offenders.  I'm sorry to say I have a different impression of just how these investigations actually work.  They are more often used by employers as "weapons of defense" rather than as "tools of prevention."

Federal law has long given an employer an affirmative defense that an employer is not liable for harassment which is not reported by the alleged victim [at least in cases where there has been "no tangible economic harm."].  California follows an affirmative defense of "Avoidable Consequences."  To the extent the harassment victim could have herself or himself prevented the harassment by reporting it to the employer, the employee is barred from recovery of damages for the period of non-reporting.  Bottom line:  the courts want employers to police themselves.

Instead, many Human Resource departments place their priority on creating legal documents under the direction of legal counsel. The result is an nearly inevitable conclusion of "no evidence" to support the allegations or at best, that there is "some information" of inappropriate conduct but not sufficient to find discrimination or harassment.  These findings, unsurprisingly, seem more likely to be made when the accused is high in the management hierarchy.   In my 17 years of employment law practice, I have not seen one investigation conclude that sexual harassment or other discrimination have occurred.

I really wonder what standard many so called "investigators" actually use in reaching conclusions of "no harassment.".  While proof by admissible evidence in court is not required (or desirable), it seems to me that the standard, at least in California, is whether the employer "acted reasonably" in making a decision to discipline (or forego discipline) of an accused.  That "reasonableness" standard has to be examined in the context of the legal definitions of harassment.  An investigator who does not at least know what "harassment" and "discrimination" are under the law is in a very poor position to reach conclusions.

I have had situations where my clients explain to me that they felt they were under cross-examination by the "investigator" who seemed to challenge their accusation by demanding that my client must have a direct statement by the discriminator of dislike of persons of my client's age, race, or gender.  That is not the law itself, which allows for indirect and circumstantial evidence, such as different treatment, and lack of evidence to support disciplinary action against the protected employee.

Also, many investigators seem to think that by surprising the employee with the investigation, they somehow get better, more reliable information.  Surprising an employee simply serves to get unreliable and incomplete information because the employee has not had time to recollect and organize the information.  The situation is even worse then an attorney is selected to conduct the investigation.  Then the questions seem even more adversarial.

For example, one client shared with me that the interrogator asked repeatedly:  "Is that all the information you have to support your charge of harassment?"  or  "Is there anything else you can think of that would support your charge?" or even:  "What evidence do you have that discrimination occurred?"  These are "deposition style" questions used to "lock in" a witness early to a position to prevent more information coming to light later as the employee remembers other matters.  The questions are not intended or designed to elicit all the facts impartially.   The reason the questions are unfair is that most employees do not know the legal definitions of discrimination and harassment, and think they must have direct evidence, and so will answer:  "Well, I guess that's all.  I don't know of anything else."  If you are an employee in such an "investigation" be sure to say "I may think of more later, and I will let you know," or "I felt these actions were discriminatory, and so I'm listing them all, even if you don't agree."

Another gripe of mine is that an investigation delayed is no investigation at all.  The investigation is part of a general duty to prevent discrimination and harassment, and to take prompt corrective action.  There are two goals:  protect employees from discrimination, and yes, let the harasser and others like him or her know that such conduct is punished.  I have seen many H.R. departments simply ignore or casually respond to complaints that the law requires to be promptly investigated.  The result is liability upon the employer for failure to prevent harassment or retaliation that may thereafter occur.

In conclusion, if Sherlock Holmes were asked why many workplace investigations fail to meet the requirements of the law, I suspect he would answer:  "Elementary my dear Watson."  

A Class Act: Women Take on Wal-Mart by the Thousands.

So what do hundreds of thousands of women have in common at Wal-Mart?  They are class action plaintiffs proceeding in a case for gender discrimination against the retail behemoth.  The U.S. Supreme Court has accepted Wal-Mart's appeal to hear the issue of whether the class action certification was properly granted.  Among other matters, there must be an economy of disposition of the class claims because the claimants have factual and legal issues in common.  The conservative position is that they have nothing in common but their gender and that they work for Wal-Mart.  The liberal position is that they were all treated with a common systemic practice of limiting promotion and pay opportunities because they were women.  This case will decide the future of massive future class actions, and whether they will have an impact on how companies operate.  Will this one be scored for David or Goliath?  We should find out in mid 2011.  New York Times Article

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Paper Weight Trumps Weight of the Evidence???

That expression "couldn't see the forest for the trees" assumed new meaning in a recent blockbuster case, Nazir v. United Airlines (2009 Cal.App. LEXIS 1659). The meaning might be that the forest was ravished by the paper tonnage needed to support the exchange of court filings in the case.

Ah...text and sub-text. First the text: A Motion for Summary Judgment by the Employer to obtain "summary adjudication" (Trial by Paper) of issues raised by the employee: discrimination, retaliation, and intentional infliction of emotional distress. The Trial Court granted the motion. So far, nothing unusual.

Except . . . a bulldog plaintiff's attorney appealed, and the resulting "subtext" was anything but usual. The Court of Appeal excoriated the defense firm, and particularly the defense attorney who had been admonished for similar behavior before. ("excoriated": to be taken to the wood shed). The Court of Appeal had little nice to say about the Trial Court for that matter, pointing out that its blanket sustaining of 763 of 764 evidentiary objections by the Defendant, viewed together with its overruling of all of the employee's 47 objections had, well, the appearance of, shall I say it, bias. Here's some interesting data cited by the Court that should bring all tree huggers to the front lines: The employer's motion consisted of 1056 pages, including 196 pages of "separate statement", while the employee's opposition was about 3,000 pages long! The employee's opposition included a "separate statement" of 1894 pages. What does all this mean? Not much, stated the Court of Appeal, because the content was largely trivial and unrelated to the core issues of the case. What disturbed the Court of Appeal was that "looking at the forest", basic issues of discrimination and retaliation are not susceptible to determination by paper war.

Therein is the value of the case for employees. The lengthy decision is replete with language that discourages the granting of summary judgment in discrimination and retaliation cases. The Court of Appeal affirmed procedural safeguards for the employee who might otherwise have to hire his own team of loggers to produce an opposing mountain of paper.

As Shakespeare noted, and I think the Nazir Court would join: "Brevity is the soul of wit".


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Dear Union: "Do me no favors!"

Dear Union: "Do me no favors!" Unions that explicitly include discrimination in their list of covered disputes to be resolved by Arbitration clauses found in their collective bargaining agreements are not necessarily helping their membership. The reality is that weak unions fail to carry the cases of their membership through the grievance exhaustion process necessary to get to arbitration, with the result that major rights are lost. The Supreme Court has rather dismissively stated that the employee who thus loses his rights against the employer can then pursue a "Failure of Duty of Fair Representation" against the Union. This cause of action is virtually non-existent for a number of reasons, one of which is the high standard of proof imposed on the employee, and the other is the lack of an attorney fees provision for the prevailing employee. If you are a Union employee, and realize how lax your Union generally is in "fighting back", discourage your Union leadership from including discrimination in its list of violations included within the scope of your collective bargaining agreement.

To read more about the recent U.S. Supreme Court case on this point:

From: U.S. Supreme Co



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She Didn't Make the Cut

This could be the beginning of a dark thriller. A nursing home worker wears a knife concealed under her closing. The employee is part of a group that requires the knife to be worn at all times. A number of mysterious deaths occur at the nursing home.

But no, the thriller turns into a more mundane drama of the EEOC v. the Nursing Home for denying a baptized Sikh from wearing a kirpan. A kirpan is a ceremonial knife worn by Sikhs as a religious symbol. It is not used to cut feeding tubes or terrorize co-employees. Somehow, the nursing home management, perhaps due to an onset of contagious dementia, felt that it had to make the workplace safe from all knife wielding employees, and so allegedly gave Baljit Kaur Bhandal an ultimatum, shed the knife, or shed the job. She elected the latter, and sued her employer for constructive termination based on religious discrimination.

Currently, the matter is just a suit, but the EEOC says the Nursing Home acted with malice, and deserves to be punished. Stephen King could have much more fun with this than the EEOC.

EEOC v. Heartland Employer Services, LLC, No. 08 CV 00460, complaint filed E.D. Cal. Sacramento, Feb. 28, 2008.


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get redressed!"
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