Employer May be Liable for Refusing to Accommodate Employee's Request to Care for Disabled Family Member

An employer may be held liable under the Fair Employment and Housing Act (FEHA) for refusing to accommodate an employee’s request to modify his work schedule to permit him to care for a disabled family member.

Luis Castro-Ramirez worked as a delivery driver for Dependable Highway Express, Inc. (DHE). When he was hired, he advised the company that he had a handicapped child he needed to care for in the evenings and, for that reason, was unable to work shifts later in the day. For three years, supervisor Winston Bermudez accommodated Castro-Ramirez’s request. When supervisor Boldomero Munoz-Guillen replaced Bermudez, that accommodation ended. Munoz-Guillen consistently assigned Castro-Ramirez to afternoon delivery routes that interfered with his caretaking responsibilities. When Castro-Ramirez eventually refused to take an afternoon route, he was terminated. Castro-Ramirez sued DHE for disability discrimination, failure to prevent discrimination, and retaliation under FEHA, as well as wrongful termination in violation of public policy. The trial court granted summary judgment in favor of DHE.

Castro-Ramirez appealed, arguing he was protected under FEHA.

The court of appeal reversed, holding that the trial court erred in granting summary judgment to DHE. FEHA provides a cause of action for associational disability discrimination. FEHA defines “physical disability,” at Gov. Code §12926(o), as including a perception “that the person is associated with a person who has, or is perceived to have” a physical disability. Accordingly, when FEHA forbids discrimination based on a disability, it also forbids discrimination based on a person’s association with someone who has a disability. FEHA’s mandate for reasonable accommodations thus includes accommodations required by employee due to his or her association with a disabled person. Thus, Castro-Ramirez’s need for scheduling accommodation was relevant to and did not bar his discrimination claim. Because Castro-Ramirez presented facts giving rise to triable issues of facts as to both discriminatory motive and pretext and retaliation, the grant of summary judgment in favor of DHE was error. Justice Grimes dissented, declining to find that an employer could be held liable under FEHA for failing to accommodate a nondisabled employee’s need to care for a disabled family member.

Castro-Ramirez v. Dependable Highway Express, Inc.; Second District; August 30, 2016.


Lack of Evidence Dooms Public Record Act Copy Charge

California Public Records Research, Inc. (CPRR) sought a writ of mandate to compel the County of Stanislaus to reduce the fees it charged for copies of official records. CPRR alleged the fees of $3 for the first page and $2 for each subsequent page exceeded the county’s cost of providing the service and therefore violated Gov. Code §27366, which states that copying fees “shall be set by the board of supervisors in an amount necessary to recover the direct and indirect costs of providing the product or service...”

The trial court denied CPRR’s petition, finding, among other things, that the county’s board of supervisors did not abuse its discretion in setting the copying fees.

CPRR appealed, contending there was insufficient evidence to support a finding that the fees charged were based on the actual costs of providing the copies. CPRR contended, for example, that there was no evidence showing it cost the county $33 to provide a copy of a deed of trust on the standard 16-page form.

The court of appeal reversed, holding that the trial court erred in denying CPRR’s petition.

The evidence showed the board of supervisors based its decision on a 2001 study that estimated staff spent an average of three minutes processing a copy request and further estimated productive staff time cost the county about $0.99 per minute. Multiplying these two figures, the 2001 study estimated it cost the county an average of $2.97 to process a request for a copy of an official record.

The problem with the board’s decision was that the 2001 study presented information on a per document basis, not a per page basis. Despite the lack of cost-per-page information, the study recommended charging $3 for the first page copied and $2 for each subsequent page.

The absence of evidence addressing costs on a per page basis and the estimate that it cost the county $2.97 to process the average copy request compelled the court to conclude the record lacked evidence showing that the fees charged per page reflected the county’s actual costs. The information in the 2001 study affirmatively showed it did not take five minutes or cost the county $5 to provide a copy of a two-page document. This affirmative showing was coupled with a complete lack of evidence that it took 15 minutes or cost the county $15 to provide a copy of a seven-page document; that it took 45 minutes or cost the county $45 to provide a copy of a 22-page document; or that it took over an hour or costs the county $61 to provide a copy of a 30-page document.

The county’s board of supervisors abused its discretion when it set the copying fees. The court directed the trial court to vacate its decision denying the writ and to instead issue a writ of mandate directing the board to comply with §27366 by resetting the copying fees “in an amount necessary to recover the direct and indirect costs” of providing the copies.

California Public Records Research, Inc. v. Couinty of Stanislaus


Police Department Denied Pursuit Policy Immunity

The Fourth District has held that a police department’s inability to show that its officers had received, read, and understood the department’s vehicular pursuit policy precluded a finding that the department was immune from liability for a bystander’s injuries sustained as the result of a high speed police chase.

During a high speed police chase, bystander Mike Morgan was struck and killed by the suspect’s vehicle. His wife and daughter, Rosemary Morgan and Michelle Luna, filed a wrongful death action against the Beaumont Police Department and the City of Beaumont.

The trial court granted the city’s motion for summary judgment, concluding it was immune from liability under Veh. Code §17004.7, which immunizes public entities from liability for injuries resulting from police pursuits of suspected criminals. In granting the motion, the court found the department had a "policy and procedure in place" for purposes of §17004.7.

The court of appeal reversed, holding that the city failed to show compliance with §17004.7.

Section 17004.7(b)(1) provides that a public entity is immune from liability for injuries resulting from a high speed chase where the public entity “adopts and promulgates a written policy on, and provides regular and periodic training on an annual basis for, vehicular pursuits..." It was undisputed here that the department had a vehicular pursuit policy that complied with the minimum standards set forth in §17004.7(c). At issue, the court found, was whether the department had both "adopted and promulgated" such a policy and "provided regular and periodic training on an annual basis" on its policy, as required in subdivisions (b)(1), (2) and (d). The court found the city failed to show such compliance.

Section 17004.7(b)(2) unambiguously requires that "all peace officers of the public agency certify in writing that they have received, read, and understand" the agency's vehicle pursuit policy. Here, however, according to the city’s own witnesses, the department’s officers had been notified of the policy and a “vast majority” of them had confirmed by email their “receipt” of the policy. Even if all the officers had so certified, the court found, mere receipt was insufficient to comply with §17004.7(b)(2). The officers also had to confirm having both read and understood the policy. In the absence of any evidence from the department that its officers had received, read, and understood the department’s vehicular pursuit policy, the trial court’s grant of summary judgment in favor of the department was error.

Morgan v. Beaumont Police Department


California Implements New Anti-Harassment, Anti-Discrimination Policy Regulations Effective April 1

Effective April 1, 2016, new regulations under the Fair Employment and Housing Act (“FEHA”) will require employers to develop or modify written antiharassment and discrimination policies.

The new regulations require employers to develop and distribute a written harassment, discrimination and retaliation prevention policy. (2 Cal. Code Regs. §11023.) Employers are already required to distribute either the DFEH-185 Brochure or a policy in compliance with Government Code section 12950.

The purpose of adding these new requirements is to elaborate on an employer’s obligation under Government Code section 12940(k) to take reasonable steps to prevent and promptly correct discriminatory and harassing conduct. The California Fair Employment and Housing Council (“FEHC”) claims the new regulation combines case law and “best practices” to create “a concise, user-friendly regulation that would eliminate ambiguity and the need to research a vast amount of fragmented information on one’s own.” (FEHC Proposed Amendments to the Fair Employment and Housing Act Regulations, Initial Statement of Reasons (2014), p. 3.)


Despite Receiving Nominal Damages, Civil Rights Plaintiff Entitled Attorneys Fees

The court of appeals affirmed in part and vacated in part an order of the district court and remanded. The court held that a plaintiff was entitled to attorney fees in his civil-rights action to invalidate a city's ordinances that banned amplified speech on public sidewalks.

Steve Klein filed a complaint against the City of Laguna Beach under 42 U.S.C. §1983 to invalidate aspects of city ordinances that prohibited the use of sound-amplification devices on public sidewalks. Klein won two appeals in the litigation. The district court awarded Klein nominal damages on three of his four as-applied claims. Klein then moved for attorney fees under both state and federal law. The court found that Klein was a prevailing party under §1988, but denied attorney fees under (I)Farrar v. Hobby(I), 506 U.S. 103 (1992), which held that a prevailing party who seeks a large compensatory award but receives only nominal damages may not be entitled to fees. The court also found that Klein was not entitled to fees under California law because it had entered judgment for the city on Klein’s state claims.

The court of appeals affirmed in part, vacated in part, and remanded, holding that Klein was entitled to attorney fees under federal law.

(I)Farrar(I) created a narrow exception to the standard 12-factor procedure in (I)Hensley v. Eckerhart(I), 461 U.S. 424 (1983), namely, when a plaintiff seeks compensatory damages but receives no more than nominal damages, the court may lawfully award low fees or no fees without either reciting the (I)Hensley(I) factors on reasonableness or calculating the lodestar. Here, the district court found that the (I)Farrar(I) applied to Klein because he received only nominal damages.

However, the court pointed out that Klein's primary goal was to legalize amplified speech in the city, not to recover private compensatory damages. Thus, under Ninth Circuit precedent, without a request for compensatory damages, Klein had no chance of receiving a significant monetary payout. Klein's complaint alleged that both facially and as applied, the ordinances violated the free-speech provisions of the federal and state constitutions.

Further, under Cal. Civ. Code §52, Klein sought only $4,000 as nominal, not compensatory, damages because the statute guaranteed that specified minimum regardless of actual damages. Thus, Klein's attempt to recover those statutory damages did not make him a plaintiff to whom (I)Farrar(I) applied. In any event, Klein’s request for relief under state law had no bearing on the legal framework that applied to §1988 motions because that provision rewards plaintiffs who prevail on federal claims.

In addition, (I)Hensley(I) asserted that “the most critical factor in determining the reasonableness of a fee award is the degree of success obtained.” That was the basis of the (I)Farrar(I) exception. In this case, however, when the relief Klein sought was compared with the results he achieved, it was clear that he succeeded. As the court pointed out in one of Klein's earlier appeals, the city voluntarily repealed all challenged portions of the sound ordinance as a result of Klein's lawsuit.

However, the court rejected Klein's argument that he was entitled to attorney fees under Cal. Code Civ. Proc. §1021.5. The court acknowledged that when California plaintiffs prevail in federal court on California claims, they may obtain attorney fees under §1021.5. Nonetheless, Klein was only a prevailing party on his federal claims. Thus, the federal common law of attorney fees applied.

Klein v. City of Laguna Beach