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"A motivating reason" properly instructs jurors on the basis to find job termination was discriminatory; "invited error" precludes attack on attorney's fee award.

October 31, 2012
By Justice Steven Vartabedian (Ret.) on October 31, 2012 6:00 AM |

job termination.jpgPlaintiff Lorena Alamos was terminated from her position of collection clerk with defendant Practice Management Information Corporation. She took 8 weeks off from her job for pregnancy/maternity leave. She came to the workplace about one week prior to her agreed date of return to have lunch with a friend. While there, she got into an argument with the person who was temporarily replacing her. She was terminated the day she returned to work. The initial reason stated for her termination by her supervisor, Cuevas, was Cuevas discovered during her leave that she had gotten behind on some accounts. Cuevas later testified this job performance issue alone was not serious enough to justify termination; that her visit to the office was an additional reason. Both she and the executives who eventually approved of the termination claimed her pregnancy or maternity leave was not in any way a reason for her termination.

At trial of the lawsuit brought by plaintiff, the jury was instructed that an element of plaintiff's proof was to prove her maternity leave was "a motivation reason" for her discharge. Defendant requested a "mixed motive" instruction to the effect that the employer is not liable if it proved that, among the reasons for terminating plaintiff, there was a legitimate reason, standing alone, that would have caused the same decision. The trial judge refused the defense's requested instruction. The jury proceeded to render a general verdict in favor of plaintiff and awarded her $10,000. The trial judge additionally awarded Fair Employment and Housing Act (FEHA) prevailing plaintiff attorney's fees in the amount of $50,858.

Defendant appealed. In Alamos v. Practice Management Information Corp. (filed 9/24/12, pub. ordered 10/18/12) 2012 DJDAR 14480, the Court of Appeal, Second Appellate District, Division Seven, affirmed.

Defendant's first assertion on appeal was that the trial court prejudicially erred in failing to properly instruct the jury on the standard of causation in a FEHA claim. It criticizes the CACI instructions on "a motivating reason," saying that instead the BAJI instructions concerning motives would properly set forth a defendant's mixed motive defense that the same termination decision would have been made in the absence of the discriminatory motive. The appellate court noted that this issue is currently pending before the California Supreme Court in Harris v. City of Santa Monica. However, the high court's dicta in other cases strongly suggests that "a motivating reason" is the proper causation standard. As the court stated in Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 358: "[T]he ultimate issue is simply whether the employer acted with a motive to discriminate illegally."

In any event, in the present case, defendant never claimed it had a mixed motive that included the motive of terminating plaintiff because of her pregnancy or maternity leave. Because both parties consistently claimed there was but a single motive to terminate (while disagreeing as to what that motive was--a factual question that the jury decided in favor of plaintiff), the trial court had no reason to give the mixed-motive instruction even if it were a correct statement of law.

Defendant additionally appeals the trial court's attorney's fees order. It claims that, because the verdict form failed to specify whether plaintiff prevailed under FEHA or the common law cause of action alleged by plaintiff, it cannot be said that plaintiff was successful on a FEHA cause of action that statutorily provides for attorney's fees. In addition to the court's noting that all causes of actions were FEHA-related and the resolution of the facts in this case meant that the jury either found liability on all of the causes of action or on none of them, defendant invited error, if any. The nature of the invited error is that it failed to object to the verdict form and in fact drafted it.

Aside from the legal issue in this case that has yet to be finally determined by the Supreme Court, I see this opinion as a good example of trial strategy gone bad. If counsel's' strategy at trial fails (here, the strategy to claim no mixed motive and to try to avoid liability for the opponent's attorney fees by "sandbagging" the verdict form), counsel should not expect that strategy to be saved by a legal argument on appeal that is not supported by the actions taken in the trial court.