A bus driver alleged that she was fired by the City of Santa Monica because of her pregnancy in violation of the prohibition on sex discrimination in California’s Fair Employment and Housing Act (FEHA). The Supreme Court held that under the FEHA, when a jury finds that unlawful discrimination was a substantial factor motivating a termination of employment, and when the employer proves it would have made the same decision absent such discrimination, a court may not award damages, back pay, or an order of reinstatement. But the employer does not escape liability. In light of the FEHA‘s express purpose of not only redressing but also preventing and deterring unlawful discrimination in the workplace, the plaintiff in this circumstance could still be awarded, where appropriate, declaratory relief or injunctive relief to stop discriminatory practices. In addition, the plaintiff may be eligible for reasonable attorney‘s fees and costs.
The case is Wynona Harris v. City of Santa Monica.
The City claimed that she had been fired for poor job performance. At trial, the City asked the court to instruct the jury that if it found a mix of discriminatory and legitimate motives, the City could avoid liability by proving that a legitimate motive alone would have led it to make the same decision to fire her. The trial court refused the instruction, and the jury returned a substantial verdict for the employee. The Court of Appeal reversed, holding that the requested instruction was legally correct and that refusal to give it was prejudicial error. The California Supreme Court concluded that the Court of Appeal was correct in part. Therefore, the Supreme Court affirmed the Court of Appeal‘s judgment overturning the damages verdict in this case and remanded it for further proceedings.
Santa Monica‘s city-owned bus service, Big Blue Bus, hired Wynona Harris as a bus driver trainee in October 2004. Shortly into her 40-day training period, Harris had an accident, which the City deemed preventable. Although no passengers were on her bus and no one was injured, the accident cracked the glass on the bus‘s back door. When the City hired Harris, it gave her its Guidelines for Job Performance Evaluation, which said preventable accidents are an indication of unsafe driving and that those who drive in an unsafe manner will not pass probation.
In November 2004, Harris successfully completed her training period, and the City promoted her to the position of probationary part-time bus driver. As a probationary driver, Harris was an at-will employee. At some point during her first three-month probationary evaluation period (the record is not clear when), Harris had a second preventable accident in which she sideswiped a parked car and tore off its side mirror. According to Harris, she hit the parked car after swerving to avoid a car that had cut her off in traffic.
On February 18, 2005, Harris reported late to work and received her first “miss-out.” The job performance guidelines defined a miss-out as a driver‘s failure to give her supervisor at least one hour‘s warning that she will not be reporting for her assigned shift. The guidelines noted that most drivers get one or two late reports or miss-outs a year, but more than that suggested a driver had a reliability problem. The guidelines further provided that a miss-out would result in 25 demerit points and that probationary employees are allowed half the points as a permanent full time operator, which is 100 points.
On March 1, 2005, Harris‘s supervisor gave her a written performance evaluation covering her first three months as a probationary driver from mid-November 2004 to February 14, 2005. As to Harris‘s overall performance rating, her supervisor indicated “further development needed.” Harris testified at trial that her supervisor told her she was doing a good job and would have received a “demonstrates quality performance” rating but for her November accident.
On April 27, 2005, Harris incurred her second miss-out. She had accompanied her daughter to a juvenile court hearing and failed to timely notify her dispatcher that she would be late for a rescheduled 5:00 p.m. shift. Harris testified that the stress from her daughter‘s hearing caused her to forget to notify the dispatcher. Transit services manager Bob Ayer investigated the circumstances of Harris‘s miss-out, and on May 4 or 5, 2005, Ayer recommended to his supervisor, the bus company‘s assistant director, that the miss-out should remain in Harris‘s file. Ayer testified that the assistant director asked him to examine Harris‘s complete personnel file. He did so and told the assistant director that the file showed Harris was not meeting the city‘s standards for continued employment because she had two miss-outs and two preventable accidents, and had been evaluated as needing further development.
On May 12, 2005, Harris had a chance encounter with her supervisor, George Reynoso, as she prepared to begin her shift. Seeing Harris‘s uniform shirt hanging loose, Reynoso told her to tuck it in. Harris confided to Reynoso that she was pregnant. Harris testified that Reynoso reacted with seeming displeasure at her news, exclaiming: “Wow. Well, what are you going to do? How far along are you?” He then asked her to get a doctor‘s note clearing her to continue to work. Four days later, on May 16, Harris gave Reynoso a doctor‘s note permitting her to work with some limited restrictions. (Neither party argued the restrictions were relevant to Harris‘s case.) The morning Harris gave him the note, Reynoso attended a supervisors‘ meeting and received a list of probationary drivers who were not meeting standards for continued employment. Harris was on the list. Her last day on the job was May 18, 2005.
In October 2005, Harris sued the City, alleging that the City fired her because she was pregnant, a form of sex discrimination. The City denied her allegations and asserted as an affirmative defense that it had legitimate, nondiscriminatory reasons to fire her as an at-will, probationary employee.
The City asked the court to instruct the jury “If you find that the employer‘s action, which is the subject of plaintiff‘s claim, was actually motivated by both discriminatory and non-discriminatory reasons, the employer is not liable if it can establish by a preponderance of the evidence that its legitimate reason, standing alone, would have induced it to make the same decision…”
The court refused to give the instruction. Instead, the jury was instructed that Harris had to prove that her pregnancy was a “motivating factor/reason for the discharge.” “Motivating factor” was further defined as “something that moves the will and induces action even though other matters may have contributed to the taking of the action.” The jury found that pregnancy was a motivating reason for the City‘s decision to discharge her and awarded her $177,905 in damages, of which $150,000 were for ―non-economic loss, including mental suffering.
This case is generally good news for employers and it illustrates the need to educate supervisors and managers about what they should not say to pregnant employees. This training should be in a broader context that includes training related to employees with disabilities, as well as other types of discrimination.
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