Richey v. AutoNation, Inc., 182 Cal. Rptr. 3d 644 (Cal. S. Ct. 2015)

Avery Richey worked for Power Toyota Cerritos, part of the AutoNation consortium of automobile dealerships, for approximately four years before allegedly injuring his back while moving furniture at his home. Following the injury, Richey applied for and was granted a medical leave of absence (which was extended on multiple occasions) under the California Family Rights Act (“CFRA”) and the federal Family and Medical Leave Act. Approximately one month before Richey allegedly injured his back, he began working on plans to open his own seafood restaurant, and Richey’s supervisors at Power Toyota had met with him to discuss his performance and attendance problems and their concern that he had become “distracted.” Power Toyota had a written policy prohibiting employees from engaging in outside work while out on an approved CFRA leave of absence. After a Power Toyota employee observed Richey “sweeping, bending over, and hanging a sign using a hammer” at his restaurant while on leave, the company fired him. Richey exhausted his administrative remedies under the California Fair Employment and Housing Act and filed a civil action in court against his employer for racial discrimination, harassment, retaliation for taking CFRA leave and failure to reinstate him following CFRA leave. The civil action was compelled to arbitration, based upon the parties’ express agreement to have all employment disputes arbitrated.

After an 11-day hearing, the arbitrator rejected all of Richey’s claims and concluded that “Power Toyota [could legally] terminate Mr. Richey if it has an ‘honest’ belief that he is abusing his medical leave and/or not telling the company the truth about his outside employment.” Richey sought to vacate the award on the ground that the arbitrator committed reversible legal error by accepting Power Toyota’s honest belief defense. The trial court denied Richey’s motion to vacate the award; the Court of Appeal reversed the trial court’s judgment, concluding that the arbitrator violated Richey’s right to reinstatement under the CFRA; and the California Supreme Court in this opinion reversed the Court of Appeal on the ground that any error that the arbitrator may have committed did not deprive Richey of an unwaivable statutory right to reinstatement because the arbitrator found that he was dismissed for violating his employer’s written policy prohibiting outside employment while on medical leave.

Email this postTweet this postLike this postShare this post on LinkedIn
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;, 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.