Is employee's verdict finding employer retaliated in violation of public policy in terminating him reversible and subject to retrial based on jury's instruction that retaliation was "a motivating reason" rather than "a substantial motivating reason?"
In Mendoza v. Western Medical Center Santa Ana (filed 1/14/14) G047394, plaintiff served as a staff nurse at defendants' hospital for more than 20 years. At times, he was supervised by fellow employee Del Erdmann, a per diem house supervisor since April 2010. Both men are gay. Mendoza complained to defendant's human resource department that Erdmann had harassed him with inappropriate comments, physical contact, and lewd displays starting in August 2010. Mendoza denied he had consented to this activity, Erdmann claimed he had. Defendants investigated and determined that both should be terminated; with respect to Mendoza, defendant cited him for "unprofessional conduct" in that he was complicit with Erdmann in engaging in inappropriate sexual behavior while on duty.
Plaintiff prevailed at trial on his claim of retaliation in violation of public policy; he was awarded $238,328. The trial court had instructed the jury with the 2012 version of CACI No. 2430 that the plaintiff must prove that his report of sexual harassment was "a motivation reason," for plaintiff's termination. Defendants had objected to this instruction. As the California Supreme Court later determined in Harris v. City of Santa Monica Target="_blank" (2013) 56 Cal.4th 203, the correct instruction is that plaintiff needed to prove that such was "a substantial motivating reason." Defendants appealed claiming the instruction constituted prejudicial error, and that because no substantial evidence supported the verdict, they were entitled to a defense verdict as a matter of law. The Court of Appeal, Fourth Appellate District, Division Three, reversed for prejudicial error, but denied the request for a defense judgment, remanding for retrial.
The appellate court focused on the causation requirement as the crux of the case. That concept gets a bit slippery here. Plaintiff claimed his report of sexual harassment caused defendants to fire him. Defendants cited their belief that he had willingly participated in sexual misconduct on the job as their motivation reason for termination. What gets tricky is that even under defendants'stated motivation, Mendoza's report did cause the firing in the indirect sense that he alerted them to what they ultimately determined was misconduct on plaintiff's part.
So defendants not only claimed that Harris disapproved of the instruction given by the trial court, but also that the instruction given, and its corresponding special verdict form, may have made the verdict inevitable because it allowed the jury to infer retaliatory intent based on a causal finding that Mendoza's report of sexual harassment even though their concern was misconduct revealed to them by this triggering report. They suggest that a more appropriate instruction would be plaintiff must prove that defendant acted based on the prohibited motivating reason and not the permitted motivating reason.