Holmes v. Petrovich Dev. Co., 191 Cal. App. 4th 1047 (2011)

Gina Holmes sued her employer for harassment based on pregnancy, retaliation, constructive discharge, violation of the right to privacy and intentional infliction of emotional distress. The trial court granted summary adjudication to the defendants with respect to the claims for harassment, retaliation and constructive discharge, and a jury decided against Holmes with respect to the claims for invasion of privacy and intentional infliction of emotional distress. The Court of Appeal affirmed the judgment in favor of the employer, concluding there was “an absence of evidence from which a reasonable jury could objectively find that Petrovich created a hostile work environment for a reasonable pregnant woman.” The Court also concluded there was not sufficient evidence of constructive discharge or retaliation. Finally, the Court held that the trial court did not abuse its discretion by denying Holmes’ motion in limine to prevent defendants from introducing at trial emails that she had sent to her attorney on the company’s computer. Noting that Holmes had used her employer’s email account to communicate with her attorney after she was warned that it was to be used only for company business and that emails were not private, the Court affirmed that Holmes had no reasonable expectation of privacy in the emails she sent to her attorney any more than she would have if she were “consulting her attorney in her employer’s conference room, in a loud voice, with the door open, so that any reasonable person would expect that [her] discussion of her complaints about her employer would be overheard by him.” See also People v. Nazary, 191 Cal. App. 4th 727 (2011) (videotape from a hidden camera of employee being confronted by management for suspected embezzlement and theft were properly shown to the jury because employee “could reasonably expect that [the confrontation] might be overheard or recorded”).

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Photo of Tony Oncidi Tony Oncidi

Anthony J. Oncidi is the co-chair of the Labor & Employment Law Department and heads the West Coast Labor & Employment group in the firm’s Los Angeles office.

Tony represents employers and management in all aspects of labor relations and employment law, including…

Anthony J. Oncidi is the co-chair of the Labor & Employment Law Department and heads the West Coast Labor & Employment group in the firm’s Los Angeles office.

Tony represents employers and management in all aspects of labor relations and employment law, including litigation and preventive counseling, wage and hour matters, including class actions, wrongful termination, employee discipline, Title VII and the California Fair Employment and Housing Act, executive employment contract disputes, sexual harassment training and investigations, workplace violence, drug testing and privacy issues, Sarbanes-Oxley claims and employee raiding and trade secret protection. A substantial portion of Tony’s practice involves the defense of employers in large class actions, employment discrimination, harassment and wrongful termination litigation in state and federal court as well as arbitration proceedings, including FINRA matters.

Tony is recognized as a leading lawyer by such highly respected publications and organizations as the Los Angeles Daily JournalThe Hollywood Reporter, and Chambers USA, which gives him the highest possible rating (“Band 1”) for Labor & Employment.  According to Chambers USA, clients say Tony is “brilliant at what he does… He is even keeled, has a high emotional IQ, is a great legal writer and orator, and never gives up.” Other clients report:  “Tony has an outstanding reputation” and he is “smart, cost effective and appropriately aggressive.” Tony is hailed as “outstanding,” particularly for his “ability to merge top-shelf lawyerly advice with pragmatic business acumen.” He is highly respected in the industry, with other commentators lauding him as a “phenomenal strategist” and “one of the top employment litigators in the country.”

“Tony is the author of the treatise titled Employment Discrimination Depositions (Juris Pub’g 2020; www.jurispub.com), co-author of Proskauer on Privacy (PLI 2020), and, since 1990, has been a regular columnist for the official publication of the Labor and Employment Law Section of the State Bar of California and the Los Angeles Daily Journal.

Tony has been a featured guest on Fox 11 News and CBS News in Los Angeles. He has been interviewed and quoted by leading national media outlets such as The National Law JournalBloomberg News, The New York Times, and Newsweek and Time magazines. Tony is a frequent speaker on employment law topics for large and small groups of employers and their counsel, including the Society for Human Resource Management (“SHRM”), PIHRA, the National CLE Conference, National Business Institute, the Employment Round Table of Southern California (Board Member), the Council on Education in Management, the Institute for Corporate Counsel, the State Bar of California, the California Continuing Education of the Bar Program and the Los Angeles and Beverly Hills Bar Associations. He has testified as an expert witness regarding wage and hour issues as well as the California Fair Employment and Housing Act and has served as a faculty member of the National Employment Law Institute. He has served as an arbitrator in an employment discrimination matter.

Tony is an appointed Hearing Examiner for the Los Angeles Police Commission Board of Rights and has served as an Adjunct Professor of Law and a guest lecturer at USC Law School and a guest lecturer at UCLA Law School.