In the wake of the California Supreme Court's Harris Decision, A FEHA Claimant Must Show Discrimination was a "Substantial Motivating Factor" and An Employer Waives its Mixed-Motive Defense by Failing to Assert It in Its Answer
It now should be clear to employers in California that the litigation rules are different as to what must be presented in discrimination lawsuits to succeed. Notably, just last week, in Alamo v. Practice Management Information Corp., B230909 (2nd Dist., Div. 7, Sept. 5, 2013), the California Court of Appeal held that the former versions of jury instructions – CACI Nos. 2430, 2500, 2505, and 2507 – are invalid in light of the California Supreme Court’s decision earlier this year in Harris v. City of Santa Monica, 56 Cal.4th 203 (2013), because a FEHA discrimination claimant now is required to show that the protected status was a “substantial motivating reason” for the adverse action, and not merely “a motivating reason,” as the earlier versions of the jury instructions stated. The Alamo court also held that the employer was prevented from asserting the mixed motive defense at trial, because its answer did not put the plaintiff on notice that the defense was at issue. As such, going forward, an employer always should plead at the outset of the case (assuming that there is some basis for such an assertion) that it had a legitimate non discriminatory reason for the adverse employment decision, and that it would have made the same decision even in the absence of any purported unlawful motive.
Plaintiff Lorena Alamo (“Alamo”), a clerk for Practice Management Information Corporation (“PMIC”), was tasked with billing and collecting customer payments. While Alamo was out on a pregnancy-related leave of absence, her manager, Michelle Cuevas (“Cuevas”), became aware of problems with Alamo’s prior work, including Alamo’s failure to follow up on large unpaid invoices and that she had previously made false statements to Cuevas about her work. While on leave, Alamo visited the office without permission and had an altercation with a co worker.
PMIC fired Alamo when she returned from her leave. Cuevas claimed that she recommended Alamo be fired for three independent reasons: (1) her prior performance problems, (2) her “recent act of insubordination” in visiting the office without Cuevas’ permission, and (3) her altercation with the co-worker.
Alamo sued PMIC for (1) pregnancy discrimination in violation of the California Fair Employment and Housing Act (“FEHA”) and the California Constitution; (2) wrongful termination in violation of public policy, and (3) intentional infliction of emotional distress. The trial court granted summary adjudication on the intentional infliction of emotional distress claim, and the remaining claims were tried before a jury. The jury awarded Alamo $10,000 and attorneys’ fees and costs, but denied her request for punitive damages. PMIC appealed.
On appeal, PMIC argued that the trial court erred by instructing the jury based on the standards set forth in CACI Nos. 2430, 2500, 2505, and 2507. Based on these form instructions, the court told the jury that, for Alamo to prevail on her FEHA claim, she had to show only that her pregnancy-related leave was a “motivating reason” for her discharge, not a “but for” cause of her discharge. The trial court also gave the CACI No. 2527 instruction, which stated that Alamo had to prove that she was discriminated against “because” she took a pregnancy-related leave. PMIC further argued that the trial court should have given the mixed-motive jury instruction set forth in BAJI No. 12.26 to explain that PMIC could prevail if it showed that it would have decided to terminate Alamo even in the absence of a discriminatory or retaliatory motive.
The Court of Appeal’s Decision
The Court of Appeal initially affirmed the trial court’s decision, but the California Supreme Court ordered the Court of Appeal to reconsider its decision in light of Harris. By way of background, the California Supreme Court in Harris earlier this year ruled that a FEHA claimant must “show that discrimination was a substantial motivating factor, rather than a motivating factor” in the adverse employment decision, and that CACI 2500 therefore set forth an incorrect recitation of the law. Id. at 232 (italics in original). The Harris Court further held that a mixed motive defense is not a complete defense to a FEHA discrimination claim, but only precludes an award of reinstatement, backpay, or damages. If the defense is proven, however, a claimant still could obtain declaratory or injunctive relief, as well as reasonable attorneys’ fees and costs. Id. at 234-235. Lastly, the Harris Court explained that an employer must plead its mixed-motive defense in its answer, or else the defense can be deemed waived.
After considering the standards set forth in the Harris decision, the Court of Appeal held the trial court erred in instructing the jury that discrimination need only be a “motivating” factor rather than a “substantial motivating” factor. The Alamo court noted in a footnote that the jury instructions, CACI 2430, 2500, 2505, and 2507, have since been revised to replace the phrase “a motivating reason” with the phrase “a substantial motivating reason.” CACI 2507 also was revised to define a “substantial motivating reason” as “more than a remote or trivial reason.” Notably, however, the Court of Appeal did not consider the propriety of these revisions.
Meanwhile, the Court of Appeal held that the trial court did not err in giving the CACI No. 2527 jury instruction. Although that instruction required Alamo to prove she was discriminated against “because of” her pregnancy-related leave, the Court of Appeal noted that Harris deemed the phrase “because of” to mean the same thing as “a substantial motivating factor” in the FEHA context and, thus, it still comported with the controlling standard of law.
The Court of Appeal also affirmed the trial court’s decision to refuse to provide the jury with the mixed-motive instruction set forth in BAJI No. 12.26. The Alamo court held that the employer was barred from raising that defense “because it did not plead the defense in its answer to Alamo’s complaint, nor did it assert as an affirmative defense that it had lawful reasons for discharging her.” The Court of Appeal further observed that BAJI No. 12.26 conflicts with Harris, because it states an employer “is not liable” if it prevails on its mixed-motive defense. In truth, an employer still may be liable for injunctive and declaratory relief, as well as attorneys’ fees, even if it prevails on its mixed-motive defense.
Ultimately, this decision underscores the assertions that must be made in discrimination lawsuits in California and how the parties must be careful to proceed consistent with the Supreme Court’s pronouncements of earlier this year.