Public policy wrongful termination claim not necessarily duplicative of FEHA retaliation claim
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Tuesday, May 26, 2020

Public policy wrongful termination claim not necessarily duplicative of FEHA retaliation claim

By Mike Vanderboom, J.D.

The district court had dismissed the young woman’s public policy wrongful discharge claim, finding that it necessarily was duplicative of her FEHA claims that her employer had fired her after she claimed a supervisor sexually harassed and assaulted her.

In an unpublished decision, the Ninth Circuit overruled the dismissal of a young female employee’s claim for wrongful termination in violation of public policy, finding that it was not necessarily duplicative of her Title VII and California Fair Employment and Housing Act (FEHA) retaliation claims, which arose in the context of sexual harassment by a supervisor. The appeals court concluded that her claim for wrongful termination in violation of public policy had a legally sufficient evidentiary basis, it was not redundant, and dismissal was not harmless. The jury could have found that her employer terminated the employee in retaliation for her complaints of sexual harassment, despite having found that she was not terminated in retaliation for both her participation in the employer’s investigation and her allegations of sexual assault, as required by her FEHA claim. Consequently, the appeals court vacated the award of a number of fees and remanded the case for further proceedings. The court also addressed a number of evidentiary and procedural claims resulting from the original trial (Early v. Keystone Restaurant GroupMay 20, 2020, per curiam, unpublished).

Sexual harassment results in multiple claims at trial. The entry-level female employee worked for a restaurant group where she was sexually harassed by a manager. Through her father acting as guardian ad litem, she sued her employer for, among other grounds, three retaliation-based claims: Title VII retaliation, California FEHA retaliation, and wrongful termination in violation of public policy based on retaliation. At the close of the original trial, the employer moved for judgment as a matter of law regarding two of the employee’s three theories of wrongful termination. The district court dismissed the public policy claim, holding that this claim was duplicative of the FEHA claim. The employee was not provided a meaningful opportunity to respond. However, the employee ultimately won a $50,000 judgment at trial.

On appeal. Following trial, the employee appealed a number of the district court’s rulings, including the dismissal of the wrongful termination claim. The employer filed a cross-appeal regarding the district court’s fee and cost awards. The Ninth Circuit upheld the district court’s rulings on the evidentiary and procedural matters, but it overturned the dismissal of the employee’s third, public-policy based retaliation claim. As this claim was remanded, multiple fee awards were also vacated to be re-considered following the new trial.

Public policy-based wrongful termination claim. Deeming a claim redundant or unnecessary is not a proper ground for dismissal, noted the appeals court, provided that the evidence introduced at trial supports the claim. The jury instructions for each claim required proof of retaliation as an element, but each presented a different basis supporting that theory of retaliation. Based on evidence presented at trial, the employee’s claim for wrongful termination in violation of public policy had a legally sufficient evidentiary basis—in other words, the jury could have found that she was terminated in retaliation for her complaints of sexual harassment, despite having found that she was not terminated in retaliation for both her participation in the employer’s investigation and her allegations of sexual assault, as required by her FEHA claim.. Therefore, the claim was not redundant, and its dismissal was not harmless, as a jury should have been allowed to consider this theory.

Dissent. Judge Bress issued a partial dissent from the court’s ruling, arguing that the appeals court’s argument on this issue was not one the employee advanced on appeal. The dissent also contended that the employee’s counsel conceded in the district court that the public policy wrongful discharge claim was duplicative of the FEHA retaliation claim. The dissent also contended that it would be inconsistent for a jury to find that the employee was retaliated against in violation the FEHA claim, but not find for her on the wrongful termination claim.

The majority opinion responded directly to this issue, however, stating that because each claim was supported by a different theory of retaliation, a jury could in fact have found for the employee on the wrongful discharge claim, even if it did not find for her on the FEHA claim.

The case is No. 3:19-cv-00382.

Attorneys: Jocelyn Burton (Burton Employment Law) for Jason Early and Sarah Early. Lonnie Domonic Giamela (Fisher Phillips, LLP) for Keystone Restaurant Group, LLC and Sonic Industries, LLC.

Companies: Keystone Restaurant Group, LLC; Sonic Industries, LLC

Cases: Retaliation SexualHarassment Discrimination SexDiscrimination Discharge StateLawClaims AlaskaNews ArizonaNews CaliforniaNews HawaiiNews IdahoNews MontanaNews NevadaNews OregonNews WashingtonNews

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