Personal Injury Lawyer Blog

Sex Discrimination Case Filed Against Sacramento-Area Store, Part 6 of 19

September 2, 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 is harassed by the other people as well. That same day, Plaintiff is called into the manager’s office seven times by Amy Jones. Each time it is to ask Plaintiff to change her shirt. Plaintiff’s shirt was appropriate when she arrived to work, but Ms. Jones insists she change. Every time Ms. Jones gives Plaintiff a shirt but calls her in a short time later to make her change again.

Finally, Plaintiff is again threatened with her job over her pregnancy and complaints of harassment. The assistant store leader, Paul Chan calls Plaintiff into his office. Also present is Ms. Jones and Mr. Hermisillo. Mr. Chan falsely claims that Plaintiff gave poor customer service. Plaintiff did not and tells him so. Instead, Plaintiff gave great customer service. Mr. Chan yells at Plaintiff. Plaintiff says she is being harassed over her pregnancy and is stressed out and feels backed into a comer. In response to her complaint of harassment, Mr, Chan tells Plaintiff that she is a bad person and don’t give him that shit about harassment. Mr. Chan yells “don’t give that fucking shit about harassment.”

Plaintiff starts to feel ill and starts to cramp and bleed over her pregnancy. Plaintiff tells Mr. Chan that she is not feeling good and cramping over her pregnancy and wants to see a doctor. In response, Mr. Chan tells Plaintiff that she should go on disability or quit. Plaintiff tells Mr. Chan that she has restrictions and he tells her to quit or go on disability. Plaintiff again asks to leave and go to the hospital and that Mr. Chan is stressing her out with the harassment. Mr. Chan responds do not give me that shit about harassment, go back to work. Mr. Chan tells Plaintiff to go back to work, this is just a verbal warning and not discipline. Plaintiff again says she cannot go back to work because she is cramping and bleeding and wants to go to the doctor. Then, Mr. Chan yells “you’re suspended until further notice.”

Employee At Sacramento Company Sues For Retaliatory Firing, Part 4 of 7

August 31, 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 sexual harassment case and its proceedings.)

PLAINTIFF’S SEVENTH CAUSE OF ACTION FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS IS NOT BARRED

In some exceptional circumstances a separate civil action may lie where the employee’s injury results from employer conduct that is outside the normal risk of employment. The Workers’ Compensation Act does not preempt such actions. Charles J. Vacanti, M.D., Inc. v. State Comp., Ins. Fund (2001) 24 Cal.4th 800, 819-820. Sexual harassment in the workplace is not a normal incident of employment. Therefore, a claim for damages based on sexual harassment is not preempted by the Worker’s Compensation Act. Accardi v. Superior Court (1993) 17 Cal.App.4th 341, 347; Murray v. Oceanside Unified School Dist., (2000) 79 Cal.App.4th 1338, 1363.

Similarly, discrimination on the basis of race, religion, age or gender is not a normal incident of employment, and therefore workers’ compensation is not the exclusive remedy for injury from such discriminatory conduct. Jones v. Los Angeles, Comm. College District (1988) 198 Cal.App.3d 794, 802 (holding that a claim for emotional and psychological damages is not barred where distress was allegedly caused by employer’s illegal discriminatory practices.) Discrimination in employment is not a normal incident of employment. A claim for damages under the Fair Employment and Housing Act (FEHA) ( Gov. Code, § 12900 et seq.) is not preempted by the workers’ compensation act. Accardi v. Superior Court, 17 Cal. App. 4th 341, (1993). Here Plaintiff is the victim of sex discrimination. See Accardi at p. 347.

The Legislature …did not intend that an employer be allowed to raise the exclusivity rule for the purpose of deflecting a claim of discriminatory practices. Id. at 353. Thus, a claim for emotional and psychological damage, arising out of employment, is not barred where the distress is engendered by an employer’s illegal discriminatory practices. Id. … [S]ection 132a does not provide an exclusive remedy and does not preclude an employee from pursuing FEHA and common law wrongful discharge remedies. Moorpark v. Sup. Ct., 18 Cal. 4th 1143, 1998.

Sacramento Traffic Collision Report Subject Of Scrutiny In Medical Malpractice Case, Part 2 of 2

August 31, 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 medical malpractice 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.

In Morales v. Thompson (1959) 171 Cal. App.2d 405, 407, the appellate court, citing former Vehicle Code section 488 (the predecessor to V.C. section 20013), noted that “the trial court properly precluded a police report plaintiff’s attorney sought to introduce…” As explained in Summers v. Burdick (1961) 191 Cal. App.2d 464, 470, Vehicle Code sections 488 and 488.5 (now sections 20012 to 20015, inclusive), preclude police reports from being admitted into evidence.

In addition, any witness statements contained within the report are inadmissible hearsay, and not subject to any recognized exception. Evidence Code section 1200, et seq.

Not only is the traffic collision report inadmissible, but the plaintiff should be precluded from introducing statements contained therein through the back door by way of their experts. As explained by the court in the recent case of Garibay v. Hemmat (2008) 161 Cal. App.4th 735, 743, an “expert opinion may not be based on assumptions of fact that are without evidentiary support or based on factors that are speculative or conjectural…” The expert in that case based his opinions from medical records which were hearsay, and therefore, the court concluded that the expert’s opinion based on assumptions of fact without evidentiary support has no evidentiary value. Id.

The court in Garibay disapproved of the back door method of admitting otherwise inadmissible evidence through experts: Physicians can testify as to the basis of their opinion, but this is not intended to be a channel by which testifying physicians can place the opinion of out-of-court physicians before the trier of fact. Id. In other words, experts should not be used as a method to put inadmissible evidence before the jury. “[T]he expert’s opinion may not be based on assumptions of fact without evidentiary support…” People v. Richardson (2008) 43 Cal.4th 959.

Pregnant Employee Files Action For Sex Harassment, Part 5 of 19

August 31, 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.)

DUE TO THE HARASSMENT PLAINTIFF NEARLY LOSES HER BABY AND IS THEN PLACED ON A MONTH-LONG MEDICAL LEAVE

Because of the harassment, Plaintiff is placed on bed rest after almost losing her baby. During the second meeting, Plaintiff starts to cramp and bleed relating to her pregnancy. She is concerned about her pregnancy and goes to the doctor that a short time later. She nearly loses her baby after having a threatened abortion also known as a threatened miscarriage. She is placed immediately on bed rest. The bed rest last for about a month, which Plaintiff provides all the doctors’ notes for to Defendant.

Plaintiff is placed on about a month long medical leave because of her pregnancy. As stated above, Plaintiff’s doctors place her on bed rest for about one month. She is also placed on further doctor’s restrictions including no lifting over 10 lbs, no long walking, no vacuuming or strenuous activity. She is placed on a Pregnancy disability leave/FMLA leave by Defendant. Her first day back was around June 21, 2006.

.

DFEH Claim filed By Sacramento Firefighter, Part 7 of 19

August 31, 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.)

B. Failure to Accommodate / Failure to Engage in the Interactive Process

Tellingly, the defendant’s moving papers are completely devoid of any argument in favor of its assertion that plaintiff failed to identify acts in support of his claims for failure to accommodate or failure to engage in the interactive process within one-year of the June 10, 2005 DFEH filing. This is because the heart of those claims occurred within the one-year statutory period. This is consistent with the jury’s special verdict.

The chain of events started when plaintiffs treating physician released him to return to work, without restrictions, on February 2, 2004. The defendant did not permit plaintiff to return from his medical leave of absence. Instead, on February 26, 2004, the defendant directed plaintiff to take a fitness-for-duty evaluation. On April 6, 2004, the evaluator concluded that plaintiff was presently unfit, but offered no opinion on his prognosis. Regardless, on April 26, 2004, the defendant submitted an application for involuntary retirement without even consulting plaintiff. Again, this was done even though the City had no information about Mr.Carter’s prognosis for recovery. The jury found that this was an act of disability discrimination and retaliation.

Thereafter, Mr.Carter made good faith attempts to overturn the impact of the fitness-for-duty evaluation by attempting to engage the defendant in the interactive process. He did this on August 10, 2004, by submitting a note from his treating doctor indicating that he had been re-evaluated, that his perceived mental health issues were in remission, and that he was ready to return to work. It is well settled that providing an employee a protected leave of absence (and allowing the employee to return from a medical leave when he or she is healed) is a form of reasonable accommodation under the FEHA. See Hanson v. Lucky Stores (1999) 74 Cal.App.4th 215, 226; EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship, #915-002 (10/17/2002). Despite this medical release, however, the City did not accommodate Mr.Carter (i.e. it did not allow him to return from his medical leave). Mr.Carter also made good faith efforts to convince the City to send him to an independent physician for evaluation of his ability to function as a firefighter, despite any perceived mental disability. Director Moore rejected that reasonable request for accommodation on July 12, 2004:

Sacramento Insurance Company Engaged In Bad Faith With Accident Victim, Part 7 of 11

August 30, 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 SEPARATE STATEMENT OF UNDISPUTED FACTS AND DEFENDANT’S SUPPORTING EVIDENCE ARE IMPROPER AND OBJECTIONABLE ON NUMEROUS GROUNDS AND SHOULD BE STRICKEN.

As plaintiffs demonstrate in their separately filed objections to defendant’s evidence offered in support of defendant’s undisputed facts, much of defendant’s evidence is objectionable hearsay or is offered without foundation, or without a showing of personal knowledge, or violates the best evidence rule. The evidentiary items to which plaintiffs object should be stricken on the grounds stated for each item. Defendant’s motion cannot succeed with the paltry unobjectionable evidence that remains, evidence which supports only the most basic notions about the nature of the case. The court should deny defendant’s motion because it is not supported by competent evidence.

DEFENDANT’S MOTION FOR SUMMARY ADJUDICATION OF ISSUES SHOULD BE DENIED BECAUSE IT FAILS TO IDENTIFY, WITH PARTICULARITY, THE EVIDENCE SUPPORTING EACH ISSUE DEFENDANT WISHES TO HAVE ADJUDICATED IN ITS FAVOR.

Defendant’s motion for summary adjudication of issues (Motion at page 34) fails to
identify with any particularity the evidence upon which defendant relies for each of the four issues it desires to have adjudicated in its favor. Rather, for each issue, defendant mechanically incorporates by reference Undisputed Material Facts Nos. 1 through 104 as if fully set forth herein. The rules (not to mention fundamental due process considerations) require that a defendant seeking summary adjudication separately identify each claim, cause of action, affirmative defense or issue of duty and each supporting material fact with respect to said claim, cause of action, affirmative defense or issue of duty in a two column format with citations to exhibits, titles, page numbers and line numbers. See California Rules of Court, rules 3.150(C),(d). Defendant has done none of this.

Employee From Sacramento Sues For Workplace Harassment, Part 4 of 19

August 30, 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 FINDS OUT SHE IS PREGNANT AND DISCLOSES HER PREGNANCY TO HER SUPERIORS AND MANAGEMENT AND THERE IS AN IMMEDIATE NEGATIVE REACTION

Plaintiff finds out she is pregnant and discloses her pregnancy to management. Plaintiff found out she was pregnant in May of 2006. In mid-May of 2006, Plaintiff informed her supervisors that she was pregnant. That included telling Paul Chan.

Immediately after disclosing her pregnancy Plaintiff is treated poorly because of her pregnancy. On May 12, 2006, Plaintiff is issued a verbal warning and placed on an action plan for telling employees she was pregnant. Defendant’s admits that one of the reasons for the verbal discipline on May 12, 2006 had to do with Plaintiff discussing her pregnancy. There is no policy against telling employee about a pregnancy, yet Plaintiff was still disciplined. An employee should not be disciplined for telling people she is pregnant. Nonetheless, she was disciplined.

HER PREGNANCY HAD COMPLICATIONS FOR WHICH SHE REQUESTS ACCOMMODATION AND IS TREATED POORLY AS A RESULT

Plaintiff’s pregnancy required some accommodations. Plaintiff was told by her doctor to avoid any heavy lifting of items over ten pounds. She informed her co-worker and management about that issue in late May of 2006. Her supervisors admit to knowing of Plaintiff’s lifting request. Plaintiff is told by management to tell employees to lift items for her and do not lift herself. Nonetheless, employees refuse to help her. Her supervisors start to act very cold and distant to her right after she asked for the accommodation as well.

Within a few days of disclosing her pregnancy and asking for accommodation, Plaintiff is harassed by her supervisor and she is not wanted because of her pregnancy. In later May of 2006, Plaintiff is called into Mr. Davis’s office. He accuses her of false things such as swearing at a customer. Ms. Smith never swore at a customer. Instead, she always treated each customer with great respect. In that conversation, Mr. Davis starts yelling at Plaintiff. He tells her that he does not want her there because she is pregnant and she should either quit or go on disability.

Mr. Davis yells at Plaintiff that she cannot handle the job because she is pregnant and that she should quit. Plaintiff responds that he is harassing her because she is pregnant and to stop yelling at her. He continues to yell at her, telling her to quit or go on disability over her pregnancy. Mr. Davis tells Plaintiff that pregnant women have hormones and attitudes and she should quit or go on disability.

Physician In Sacramento Sued For Causing Birth Injury, Part 5 of 5

August 29, 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 birth injury case and its proceedings.)

In its next First Amendment pronouncement, in Keenan v. Superior Court (2002) 27 Cal 4th 413, 117 Cal.Rptr. 2d 1, our Supreme Court held facially unconstitutional the “Son of Sam” law, Civil Code Section 2225(b)(l), concluding that these provisions of the California statute are facially invalid under both the free speech clause of the First Amendment in the Federal Constitution, as applied to the states through the 14th Amendment and the Liberty of Speech clause, of the California Constitution, Article I, Section 2, Subdivision(a).

Just about one year ago, the U.S. Supreme Court, in Tory v. Cochran (2005) 542 U.S. 965, struck down an injunction issued by a judge of this court (and upheld by the Court of Appeal), prohibiting petitioners from picketing, displaying signs, placards or other written or printed material, and from orally uttering statements about one Johnnie L. Cochran, Jr. and about Cochran’s law firm in any public forum .

In so holding, the Supreme Court found that the injunction …. amounts to an overly broad prior restraint upon speech, lacking plausible justification, and that “Prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights.” (Tory. supra) (Emphasis added.) (Citations omitted. )

Then, just two months ago, in ARP Pharmacy Services, Inc. v. Gallagher Bassett Services, Inc. (2006) 135 Cal.App.4th 841, Justice Epstein, for Div. 4 of our 2nd District, affirmed a courageous (conservative Republican) judge, (Stephen Peterson, who sits in Van Nuys) who held unconstitutional, strictly on 1st Amendment grounds, Civil Code. Section 2527, a statute compelling speech, with severe consequences for its violation.

Insurance Application Omissions Lead To Suit By Sacramento Accident Victim, Part 6 of 11

August 28, 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.)

THE COURT OF APPEAL’S PUBLISHED DECISION ON PLAINTIFFS’ APPEAL FROM THE FIRST GRANT OF SUMMARY JUDGMENT IN THIS CASE AND ITS DETERMINATION THAT THE CASE PRESENTS DISPUTED MATERIAL FACTS THAT CAN ONLY BE RESOLVED BY TRIAL CONSTITUTES LAW OF THE CASE AND BARS A SECOND GRANT OF SUMMARY JUDGMENT IN DEFENDANT’S FAVOR.

In Sally Lawrence v. California Physicians’ Service, 158 Cal.App.4th 452, 69 Cal.Rptr.3d 789, 2007 Cal.App. LEXIS 2083 [mod. January 22, 2008, with no change of judgment, ___ Ca.App.4th ___ (2008)], the Court of Appeal stated as follows: We conclude [Health and Safety Code] section 1389.3 precludes a health services plan from rescinding a contract for a material misrepresentation or omission unless the plan can demonstrate (1) the misrepresentation or omission was willful, or (2) it had made reasonable efforts to ensure the subscriber’s application was accurate and complete as part of the precontract underwriting process.

Because both of these issues turn on disputed facts, the trial court’s summary judgment ruling cannot stand. We also conclude a triable issue of fact exists whether Blue Shield engaged in bad faith, and that the Lawrences adequately alleged a cause of action for intentional infliction of emotional distress. We therefore reverse the judgment. Id., at pp. 459-460.

Defendant’s present motion for summary judgment, of necessity, plows the same ground defendant covered in its first motion, i.e., to succeed, the present motion must address the same material issues that were relevant the first time defendant brought its motion. But the Court of Appeal has plainly declared that summary judgment is not appropriate or available in this case because, in its considered opinion, plaintiffs have already demonstrated the existence of disputed facts. Ibid.

Sex Harassment Claim Filed Against Roseville Employer, Part 3 of 19

August 27, 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.)

THERE WERE NO PLANS TO FIRE PLAINTIFF PRIOR TO HER DISCLOSING HER PREGNANCY

For Plaintiff’s entire employment, up to the time she disclosed she was pregnant, she was considered at least an average worker. Plaintiff started working for Whole Food in April of 2004. As detailed below, she disclosed her pregnancy in May of 2006. From the time of her hiring in April of 2004 through May of 2006, when she disclosed her pregnancy, she was considered at least an average employee. Further, an admitted fact is that there were no plans whatsoever to fire Plaintiff prior to her disclosing her pregnancy. No one told Mr. Davis they wanted Ms. Smith fired prior to disclosing her pregnancy. Her supervisors never recommended she be disciplined or fired prior to her disclosing her pregnancy. In fact, her supervisors testified they did not have any problems with her performance prior her disclosing her pregnancy.

Per company policy, most of Plaintiff’s discipline record was removed and she is not even on a final warning by the time she disclosed her pregnancy. Defendant has a drop off policy, where after a period of time any discipline drops off and no longer counts against the employee for discipline purposes. How the policy works is any verbal or written discipline drops off after one year. And a final drops to a 2nd corrective after six months and drops off totally after another year. Under that policy, the 7/1/04, 10/26/04, 11/15/04, and the 5/25/05 counseling had completely dropped off. Further, the 12/22/04 and 2/21/05 counseling were dropped down to corrective counseling. At the time that Plaintiff discloses her pregnancy, she is not on any final warning.