California Employment Law Update : Labor and Employment Lawyers & Attorneys : Proskauer Rose Law Firm : Wage & Hour Laws, Disability, Workplace Safety

EEOC v. Prospect Airport Servs., 2010 WL 3448119 (9th Cir. 2010)

Rudolpho Lamas and Sylvia Munoz were co-workers employed by Prospect Airport Services, Inc. at McCarran Airport in Las Vegas. Lamas, whose wife died in September 2001, began working at Prospect in the spring of 2002. During the fall of 2002, Munoz, who was married, began a series of rejected sexual overtures toward Lamas. Over the course of several months, Munoz handed Lamas three or four “flirtatious notes,” stating that she was “turned on” by Lamas and that she wanted to “go out” with him. When Lamas informed their boss, Patrick O’Neill, about Munoz’s overtures, O’Neill advised Lamas to tell Munoz the romantic interest was not mutual and to notify management if Munoz “kept it up” so they could “take care of it.” Lamas followed O’Neill’s advice and told Lamas he was not interested, but Munoz did not stop and in fact increased her romantic overtures toward him, handing him a revealing picture of herself while telling him about her “crazy dreams about us in the bathtub” and confirming to Lamas – lest there be any doubt – that “seriously, I do want you sexually and romantically!” Lamas complained to another manager who did nothing to stop Munoz’s unwelcome advances, while yet another told Lamas he did not want to get involved in “personal matters.” Lamas’ co-workers made remarks to him suggesting he was gay. After four or five months of harassment and no protection from management, Lamas’ performance began to deteriorate and eventually he was terminated for “complaints about [his] job performance and negative attitude.”

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Reid v. Google, Inc., 50 Cal. 4th 512 (2010)

Brian Reid worked as Google’s director of operations and director of engineering for fewer than two years before he was terminated due to job elimination and poor performance. Reid, who was 52 years old at the time of his hire, reported to Wayne Rosing (age 55) and at times to Urs Hölzle (age 38), though he regularly interacted with other high-level employees of the company, including some who were in their late 20’s. Reid alleged that Hölzle and other employees made derogatory age-related remarks to him, saying that his ideas were “obsolete” and “too old to matter,” that he was “slow,” “fuzzy,” “sluggish,” and “lethargic” and that he did not “display a sense of urgency.” Other co-workers allegedly called Reid an “old man” and “old guy,” an “old fuddy-duddy,” told him his knowledge was “ancient” and joked that Reid’s CD jewel case office placard should be an “LP” instead of a “CD.” When Reid was informed no other positions were available for him at Google, he was told he was not a “cultural fit” at the company. 

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Mattel, Inc. v. MGA Entm’t, Inc., 2010 WL 2853761 (9th Cir. 2010)

In 2000, during his employment with Mattel, Carter Bryant pitched his idea for the Bratz line of dolls to MGA, which was one of Mattel’s competitors. The year before, Bryant had signed an employment agreement with Mattel pursuant to which he agreed to disclose and assign to Mattel all “inventions” conceived or reduced to practice at any time during his employment with Mattel. After it learned of Bryant’s involvement in the Bratz line of dolls, Mattel sued MGA, Bryant and others. Prior to the trial, which resulted in (among other things) a $10 million jury award to Mattel for copyright damages and the imposition of a constructive trust in favor of Mattel over all Bratz trademarks, the judge determined that under the employment agreement, Bryant had assigned his “ideas” (not just his “inventions”) to Mattel. 

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Narayan v. EGL, Inc., 2010 WL 3035487 (9th Cir. 2010)

Mohit Narayan and two other drivers for EGL (a global transportation, supply chain management and information services company headquartered in Texas) were California residents who provided services to EGL pursuant to independent contractor agreements that contained a Texas choice-of-law provision. Narayan and the other drivers filed a lawsuit against EGL in California alleging they were in fact employees of EGL who were deprived of overtime wages, reimbursement for business expenses, meal compensation, etc. EGL removed the case to federal court and obtained summary judgment after the district court applied Texas law and concluded plaintiffs were independent contractors and not employees. The district court also concluded the result would be the same under California law. 

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Morgan v. United Retail Inc., 186 Cal. App. 4th 1136 (2010)

Amber Morgan filed this class action lawsuit against her former employer under Cal. Lab. Code § 226, alleging United Retail had violated the law because the wage statements issued by the employer listed the total number of regular hours and overtime hours separately and did not provide the sum of the regular and overtime hours as a separate line item. During her deposition, Morgan testified she was injured by United Retail’s failure to include an additional line item showing the sum of hours worked because “[i]t makes it a little difficult to count how many hours I have been working.” 

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Lu v. Hawaiian Gardens Casino, Inc., 2010 WL 3081272 (Cal. S. Ct. 2010)

Louie Hung Kwei Lu, a card dealer at Hawaiian Gardens Casino, filed this class action challenging the casino’s tip-pooling policy that required dealers to set aside 15 to 20 percent of the tips they received, which the casino distributed to other employees who provided service to casino customers. The Supreme Court granted review in this case to determine the narrow issue of whether Cal. Lab. Code § 351 provides employees with a private right of action or whether, instead, the labor commissioner is charged with enforcing the statute. The Supreme Court held there is no private right of action under the statute but observed that a common law claim for conversion may be available to employees under appropriate circumstances. See also Gutierrez v. California Commerce Club, 2010 WL 2991875 (Cal. Ct. App. 2010) (dismissal of wage-and-hour class action on demurrer is reversed because it was “premature to make determinations pertaining to class suitability on demurrer”).

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Silguero v. Creteguard, Inc., 187 Cal. App. 4th 60 (2010)

Shortly after Creteguard hired Rosemary Silguero, her former employer (FST) contacted Creteguard and “requested the cooperation and participation of [Creteguard] in enforcing the confidentiality agreement [between Silguero and FST], including those provisions prohibiting Silguero from all sales activities for 18 months following Silguero’s departure or termination from FST.” In response to the letter from FST, Creteguard terminated Silguero’s employment even though “we believe that non-compete clauses are not legally enforceable here in California.” In her lawsuit against Creteguard, Silguero alleged the non-compete that Creteguard enforced violated Cal. Bus. & Prof. Code § 16600 and that her termination, therefore, violated the public policy of the State of California. The trial court sustained Creteguard’s demurrer to the complaint, but the Court of Appeal reversed, holding that Creteguard’s decision to honor an unenforceable non-compete violated the public policy of California as expressed in Section 16600.

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Hawn v. Executive Jet Mgmt., Inc., 2010 WL 3218520 (9th Cir. 2010)

Gregory Hawn, Michael Prince and Aric Aldrich (all pilots) were terminated by Executive Jet Management after a female flight attendant, Robin McCrea, alleged they had sexually harassed her and created a hostile work environment involving an array of conduct including sexualized banter, crude jokes and the sharing of crude and/or pornographic emails and websites. Following their terminations, plaintiffs filed this lawsuit alleging discrimination on the basis of race, sex and national origin. Plaintiffs alleged that a group of female flight attendants (that included McCrea) also traded sexual emails and participated in sexual discussions but that the employer considered the pilots’ terminations to be relatively “risk free” because the pilots were “young, white, American males.” The district court granted the employer’s motion for summary judgment, and the Ninth Circuit affirmed, holding that plaintiffs had failed to show that similarly-situated employees (the female flight attendants) had engaged in similar conduct but had received more favorable treatment by the employer. The Ninth Circuit affirmed summary judgment on one of the two grounds cited by the lower court – that the two groups were not similarly situated because the pilots’ conduct gave rise to a complaint of sexual harassment, while the flight attendants’ alleged conduct did not. (The Ninth Circuit rejected the district court’s conclusion that the two groups were not similarly situated because they reported to different supervisors.) See also Spencer v. World Vision, Inc. 2010 WL 3293706 (9th Cir. 2010) (faith-based humanitarian organization is exempt from Title VII’s prohibition against religious discrimination).

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Milan v. City of Holtville, 186 Cal. App. 4th 1028 (2010)

Tanya Milan, who worked as a water treatment operator for the City of Holtville, was injured on the job while moving a large piece of metal. After Milan applied for workers’ compensation benefits, a physician who had been retained on behalf of the city, examined her and concluded she would not be able to return to work at the water treatment plant. Shortly thereafter, the city notified Milan that because she would be unable to return to work, it had decided to offer her rehabilitation benefits, which she accepted before taking an online real estate course. Milan continued to receive a regular paycheck from the city until she was notified 18 months after the injury had occurred that the city was terminating her employment. Milan filed this lawsuit against the city, alleging it had violated the Fair Employment and Housing Act by failing to determine whether it could provide effective accommodations for her disability. 

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Thompson v. City of Monrovia, 186 Cal. App. 4th 1860 (2010)

Officer Matthew Donald Thompson sued the Monrovia Police Department for harassment and a hostile work environment arising from offensive remarks and behavior that were allegedly directed at an African-American colleague. Thompson also alleged he suffered retaliation for having reported the racism. The trial court granted summary judgment to the police department, and the Court of Appeal affirmed, holding there was no material factual dispute as to whether the department had retaliated against him. Similarly, the court affirmed summary judgment of Thompson’s claim of harassment on the grounds that he had failed to produce evidence that “he was subjected to harassing comments or conduct because of his association with or advocacy on behalf of African Americans,” that the incidents about which Thompson had complained were neither severe nor pervasive enough to be actionable and because Thompson’s racial harassment claim was barred by the statute of limitations. Finally, the court held the claim involving the department’s alleged failure to investigate harassment and retaliation had to be dismissed because it was not the basis for a “stand-alone tort” and, in any event, there was uncontroverted evidence the department had conducted an appropriate investigation. See also Henderson v. Pacific Gas & Elec. Co., 187 Cal. App. 4th 215 (2010) (plaintiff’s counsel who failed to file timely opposition to summary judgment motion could not rely on Cal. Code Civ. Proc. § 473(b) for relief); Murray v. Alaska Airlines, Inc., 2010 WL 3292968 (Cal. S. Ct. 2010) (federal agency’s investigative findings concerning whistleblower complaint should be given collateral estoppel effect when a complainant elects not to invoke his right to challenge such findings but instead initiates a separate lawsuit).

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