Personal Injury Lawyer Blog

Sacramento Firefighter Sues To Prevent Forced Retirement, Part 13 of 19

September 15, 2009 | by Moseley Collins

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this workplace/sex discrimination case and its proceedings.)

Significantly, in Yanowitz the California Supreme Court addressed this tolling concept as it relates to the continuing violation doctrine: In Richards, we recognized that a strict approach to the statute of limitations could encourage early litigation, and that in order to minimize the filing of unripe lawsuits and to promote the conciliatory resolution of claims, the FEHA statute of limitations should be interpreted liberally to allow employers and employees an opportunity to resolve disputes informally. Id., at 1057. That is precisely what plaintiff tried to do: That is, he tried to convince the City not to move forward with his retirement application in a variety of ways, but had no success. This had the effect of delaying the triggering of the statute of limitations on plaintiff’s disability and retaliation claims. As the California Supreme Court stated in Richards:

[I]t is contrary to the purposes of the FEHA to interpret its statute of limitations to encourage premature litigation at the expense of informal conciliation…

In Richards, the employer argued that the statute of limitations on a FEHA discrimination claim began running at the time the employee was notified that the employer intended to discharge him, rather than on the official date of the discharge, and that as a result, the employee’s claims were untimely because they were filed more than one-year after notification. Here, the City is really making the same argument. The City claims that the FEHA’s statute of limitations began running on the day plaintiff became aware that the City was seeking his retirement (April 26th, when the retirement application was submitted) rather than on the day the employment relationship was actually severed, which wasn’t until January 20, 2005.

Roseville Employer Sued For Workplace Harassment Of Pregnant Employee, Part 11 of 19

September 14, 2009 | by Moseley Collins

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this workplace harassment/sex discrimination case and its proceedings.)

PLAINTIFF HAS AMPLE EVIDENCE TO DEMONSTRATE A TRIABLE ISSUE OF FACT ON HER RETALIATION CLAIMS (CLAIMS 3, 4, 11, 12)

PLAINTIFF HAS DIRECT EVIDENCE OF RETALIATION

As stated above, summary judgment is not appropriate when there is direct evidence of intentional retaliation. Godwin, 150 F.3d 1217, 1221. Direct evidence consists of discriminatory statements or actions by the employer. Coghlan v. American Seafoods Co., LLC, (9th Cir. 2005) 413 F.3d 1090, 1095. Discriminatory or retaliatory remarks do not have to be made it the direct context of an employment decision to be direct evidence of discrimination. Chuang v. University of California Davis. 225 F.3d at 1115. Single statements are enough to provide probative evidence of discrimination. Sinai v. New England Telephone& Telegraph Co., (1993) 3 F.3d 471, 474.

Here, the direct evidence is clear. First, both Mr. Davis and Mr. Chan constantly told Plaintiff to quit or go on disability over her pregnancy and accommodation requests. Second, the other comments that were made (i.e., We don’t give a shit about your claims of harassment; pregnant women have hormones and attitudes; and you should quit or go on disability; can’t ask for help to lift things, etc.) were made by Mr. Davis and Mr. Chan as well right before she was fired. Third, when Plaintiff asked to go to the doctor she was suspended to not going back to work.

There is also direct evidence of hostility to pregnant employees with accommodation requests. When evidence establishes the employer’s animus towards the class that plaintiff belongs, this is considered direct evidence and defeats summary judgment. Id.; see also Cordova v. State

Farm Ins., (9th Cir. 1997) 124 F.3d 1145, 1149. The evidence shows that Plaintiff was discipline for talking about her pregnancy, which was the first step in the discipline that led to her firing.

Automobile Accident Involving Sacramento Driver And Bicyclist, Part 2 of 3

September 14, 2009 | by Moseley Collins

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident/personal injury case and its proceedings.)

The intersection in question is, to say the least, unusual. There is a stop light that controls north and southbound traffic on River Drive. This light is visible for quite some distance (particularly at night). At the time of this accident the newly-constructed roadway had only recently been opened to traffic. It was an ancillary project as part of the Central Freeway Replacement. It is disputed whether there was or was not a stop sign for the bicycle path portion of River Drive. Plaintiff contends there was no sign in place at the time of the accident.

The investigating officer testified at deposition as follows:
Q. Is there a stop sign at the corner at that Frontage road, that you’re aware of?

A. I don’t believe so….And I don’t believe there’s a stop sign there, but I’m not a hundred percent sure. It’s not indicated in the report. So I would say, there is no stop sign there.

Photographs-of the intersection taken well after the accident do show a stop sign, although it is substantially obscured by trees which were planted along the right curb of the bicycle path. Various photographs of the accident scene demonstrate its appearance (copies of which are available for review). These photographs likewise illustrate the problematic nature of the intersection.

Defendant contends the portion of the River Drive roadway to the right of the divider is not a bicycle path. They prefer to call it a frontage road. The nature of the roadway and its use is a question of fact.

Firefighter From Sacramento Fights For Job, Part 12 of 19

September 13, 2009 | by Moseley Collins

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this workplace/sex discrimination case and its proceedings.)

THE STATUTE OF LIMITATIONS WAS TOLLED WHILE PLAINTIFF FOUGHT FOR HIS JOB
A. Retaliation and Discrimination

In Yanowitz, the California Supreme Court held that in a retaliation case.. the statute of limitations begins to run when an alleged adverse employment action acquires some degree of permanence or finality. Id., at 1058. In other words, the statute did not begin running as soon as plaintiff was sent to a fitness for duty exam, or as soon as the City applied for an involuntary retirement. The statute only began running once those acts acquired some degree of permanence or finality. Unlike a straight termination, where the damage is immediate and permanent, the damage caused by the City’s acts was not permanent or final at the time that they occurred. Plaintiff remained an employee of the City of Sacramento, even after the retirement application was submitted on April 26, 2004. Plaintiff made realistic efforts to make sure that the City’s retaliatory acts did not become permanent or final.

There was no “permanence” to his predicament until plaintiff was formally retired in January of 2005. Prior to that, Plaintiff remained an employee, and he did everything in his power to return to work. That is, he did everything he could to make sure that his predicament didn’t become permanent. He made good faith attempts to overturn the impact of the fitness-for-duty evaluation by submitting notes from his doctor indicating that his mental health issues were in remission. He filed a grievance challenging the fitness for duty evaluation. He made good faith efforts to convince the City to send him to an independent physician for evaluation of his working capacity.

Workplace Discrimination Suit Filed By Pregnant Sacramento Woman, Part 10 of 19

September 12, 2009 | by Moseley Collins

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this workplace harassment/sex discrimination case and its proceedings.)

Once a prima facie case of discrimination is established, the burden is on the employer to offer a legitimate nondiscriminatory reason for the adverse employment action. Id. To accomplish this, the [employer] must clearly set forth, through the introduction of admissible evidence, the reasons for the [employee’s] rejection. Sada v. Robert F. Kennedy Medical Center, 56 Cal.App.4th at 148; Caldwell v. Paramount Unified School District. 41 Cal.App.4th 189, 202-03 (1995).

If the employer meets its burden of proffering legitimate reasons for the adverse action, then the burden shifts back to the employee to show pretext. See University of So. Calif., 222 Cal.App.3d at 1036. A plaintiff can show pretext in two ways: (1) indirectly by showing that the employer’s proffered reason for termination is unworthy of credence because it is internally inconsistent or otherwise not believable, or (2) directly, by showing that unlawful discrimination more likely motivated the employer, or (3) a combination of both (1) and (2). Chuang, 225 F.3d at 1123; Hersant v. California Department of Social Services. 57 Cal.App.4th 997, 1004-05 (1997).

As a general matter, the plaintiff in an employment discrimination action need produce very little evidence in order to overcome an employer’s motion for summary judgment. Chuang, 225 F.3d at 1123. The U.S. Supreme Court made clear that a plaintiff’s prima facie case, combined with sufficient evidence to reject the employer’s reason for the termination, is sufficient to sustain a finding of liability for discrimination. Reeves v. Sanderson Plumbing Products. Inc., (2000) 530 U.S. 133, 148.

Sacramento Bicyclist Injured In Car Collision, Part 1 of 3

September 12, 2009 | by Moseley Collins

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident/personal injury case and its proceedings.)

Plaintiff’s Trial Brief
Factual Background and Disputed Issues

This is a traffic collision personal injury action that arises from an October 31, 2006 accident. Plaintiff, Paul Nathan, was riding on the bicycle path portion of River Drive. Defendant, Tina Lu, was driving on River Drive after having exited Highway 50 on her way home from working in El Dorado Hills. Plaintiff’s portion of River Drive is divided from the main lanes by a divider. At the intersection of River Drive and Ridge defendant made a right hand turn across the path of plaintiff’s bicycle. The bike’s front wheel struck the car and Mr. Nathan was thrown over the car and onto the pavement.

Both vehicles had been moved before the investigating officer arrived. Mr. Nathan was taken from the scene via ambulance prior to being interviewed by the officer. There were no skid marks noted by the officer, no debris in the street noted and thus no accurate means of determining the point of impact or the point of rest of either the vehicle or of Mr. Nathan’s bicycle.

Defendant asserted plaintiff had ridden into the street from the sidewalk. The officer concluded the bicycle had been traveling on the sidewalk and thus entered the intersection in the crosswalk.

Firefighter From Sacramento Alleges Workplace Discrimination, Part 11 of 19

September 11, 2009 | by Moseley Collins

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this workplace/sex discrimination case and its proceedings.)

Significantly-and fatally for the defendant’s statute of limitations argument-the jury returned a verdict in favor of the plaintiff on his claim for failure to engage in a good faith interactive process and failure to accommodate-both of which were clearly based primarily on events that occurred within one-year of the June 10, 2005 DFEH filing. Moreover, the interactive process and failure to accommodate claims were so closely connected to the disability discrimination and retaliation claims as to be almost derivative of them. It was plaintiffs contention that the City’s failure to accommodate him and failure to engage him in the interactive process was simply part of a retaliatory and discriminatory course of conduct that was designed to prevent him from returning to work. Indeed, the defendant’s failure to accommodate plaintiff and failure to engage him in the interactive process had the effect of cementing the impact of the retaliatory and discriminatory application for disability retirement. Put another way, the result of the City’s failure to accommodate Mr.Carter and failure to engage him in a good faith interactive process, was that the City persisted into the one-year statutory period with what the jury found was a discriminatory and retaliatory retirement application. A jury had every reason to conclude that these various acts of discrimination were sufficiently similar in kind to establish a continuing violation.

In summary, based on the chronology of events at trial, which is outlined in Section III, it is clear that a jury found that the defendant committed numerous unlawful acts within the limitations period, and that these acts were sufficiently similar in kind to the discriminatory and retaliatory acts that occurred prior to June 10, 2004 [particularly the initial fitness-for-duty referral (2/26/04) and the submission of a disability retirement application (4/26/04)] to constitute a continuing violation.

It should be pointed out that the California Supreme Court has interpreted this “sufficiently similar in kind” prong of the continuing violation test liberally, “recognizing … that similar kinds of unlawful employer conduct, such as harassment or failures to reasonably accommodate, may take a number of different forms.” See Richards, supra, at 823.

Sacramento Woman Dies From Brain Injury, Part 1 of 4

September 10, 2009 | by Moseley Collins

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this brain injury/personal injury case and its proceedings.)

The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in a personal injury case present such issues to the court.

Defendant Radio Roseville’s Motion in Limine No. 3: to Exclude Evidence or Argument Regarding Whether the Volume of Water Consumed at the Radio Contest Could or Would be Expected to Cause Brain Damage

INTRODUCTION

As the court is aware, the lawsuit brought by Sherrie Johnson’s family has been consolidated with a lawsuit brought by three other contestants, Paul Smith, Steven Davis, and Mike Jones (the Smith Plaintiffs). The Smith Plaintiffs seeks recovery for injuries they say were caused by the Hold Your Wee for a Wii contest, allegedly consisting of feeling nauseated after the contest in addition to feeling emotional distress.

In both 2007 and 2008 (long after the contest had concluded), each of the Smith Plaintiffs stated under oath that they sought recovery solely for emotional distress. The Smith Plaintiffs pursued these claims despite the fact that they sought no treatment for emotional distress between March of 2007 and the spring of 2009 (in fact, Steven Davis did not see a therapist at all in the months following the contest). In March of 2009, the Smith Plaintiffs changed counsel to be represented by Dewey, Cheatham and Howe, which also represents the Johnson family.

Sacramento Car Accident Victim Also Victimized By Insurance Company’s Bad Faith, Part 11 of 11

September 10, 2009 | by Moseley Collins

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this automobile accident/insurance coverage case and its proceedings.)

Defendant’s underwriters state that they act as soon as they receive the relevant medical records. Yet underwiter Ms. Smith did not act in this case after receiving Dr. Xavier W.’s medical report concerning Bob Lawrence on March 2, 2001. See defendant’s statement of facts, fact numbers 62-65. She could have rescinded the contract based on that information but chose not to do so. Instead, she waited three more months to act, during which time Mr. Lawrence sustained injuries which defendant later chose not to cover. She did this, too, without alerting plaintiffs that there was a possibility their coverage might be terminated. Had she informed them of this possibility in a timely manner, plaintiffs could have obtained replacement coverage that would have been in effect at the time of Bob Lawrence’s automobile accident.

Furthermore, Ms. Smith testified that her practice was to rescind a contract if allowing the coverage to continue would cost Blue Shield more money, but not otherwise. In addition, upon recent review of defendant’s first motion for summary judgment, it appears that Ms. Smith and Ms. Bird have submitted declarations in support of the present motion that are materially different from those they submitted the first time around. Plaintiffs will utilize the additional time they request herein (argument III, infra), in part, to examine these apparent discrepancies in more detail.

Another serious matter is defendant’s intentional omission of parts 4-9 of Sally Lawrence’s paper application from the online version of the application which defendant includes in its motion. The omission is significant for several reasons. First, the omitted parts contain critical information regarding Sally Lawrence’s irritable bowel condition, her treatment history and Blue Shield’s consequent duty to make further inquiry before issuing coverage. The language of those parts also reinforces plaintiffs’ contention that Sally Lawrence believed the balance of the application applied to her only and not to Steve. Those parts also contain evidence that Mr. Shulman was a Blue Shield agent and that he falsely attested that he had asked each question in the application exactly as set forth.

Sacramento Firefighter Files Retaliation And Discrimination Claim, Part 10 of 19

September 9, 2009 | by Moseley Collins

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this workplace/sex discrimination case and its proceedings.)

1) Sufficiently Similar in Kind

Plaintiff presented evidence that retaliatory and discriminatory acts that were extremely similar in kind occurred both before and after the one-year limitations period. For instance, the City sent Mr.Carter to a fitness-for-duty evaluation on February 26, 2004 (before the one-year period), as well as on August 11, 2004, and again on September 4, 2004 (after the one-year period). The City submitted a discriminatory and retaliatory retirement application on April 26, 2004 (before the one-year period) and pursued that same discriminatory and retaliatory application after June 10, 23 2004 (into the one-year period). On February 2, 2004 (before the one-year period) the defendant refused to allow plaintiff to return from a mental health leave of absence, despite a release from his treating physician.

The same thing occurred on August 10, 2004 (into the one-year period). The defendant arbitrarily refused to process plaintiff’s grievance over the fitness for duty conclusion in May of 2004 (before the one-year period) as well as on July 12, 2004 (into the one year period). The defendant refused to accommodate plaintiff both before and after June 10, 2004. The defendant refused to engage plaintiff in the interactive process both before and after June 10, 2004. This group of facts, standing alone, is sufficient for the jury to have found a continuing violation with respect to all four of plaintiff’s causes of action.

Significantly, the retaliatory and discriminatory acts that were identified at the trial of the matter all had one thing in common: they were intended to prevent plaintiff from returning to work.[FN5] The same thing was true of his claims for failure to accommodate and failure to engage in the interactive process. When the City repeatedly refused plaintiffs reasonable requests for accommodation it prevented him from returning to work. When the City failed to engage plaintiff in a good faith interactive process it prevented him having a fair chance to discuss returning to work in some capacity. When the City retaliated against plaintiff by sending him to a fitness for duty evaluation on February 26, 2004 and August 11, 2004, it prevented him from returning to work.