Johnson v. Pacific
International Bearing
Filed 12/27/12
Johnson v. Pacific International Bearing CA1/1
OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits
courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
RICK JOHNSON, JR.,
Plaintiff and
Appellant,
v.
PACIFIC INTERNATIONAL BEARING, INC., et al.,
Defendants and
Respondents.
A129774
(Alameda County
Super. Ct. No.
HG07335830)
Plaintiff Rick Johnson, Jr., appeals
from a judgment in favor of his former
employer, Pacific International Bearing, Inc. (Pacific), and its president,
Kevin M. Sweeney,
title="">[1] entered after a jury trial
on Johnson’s disability discrimination claims against them under the
(Gov. Code,
title="">[2] § 12900 et seq.).
Johnson contends the trial court
prejudicially erred by (1) denying his motions for a directed verdict, judgment
notwithstanding the verdict (JNOV), and new trial; (2) allowing Pacific to
contest liability based on its asserted lack of knowledge of Johnson’s medical
condition; (3) ruling improperly on Pacific’s use of after-acquired evidence;
(4) dismissing three of his causes of action after the close of evidence; and
(5) improperly awarding costs against him.
We find no error, and affirm the judgment.
I. FACTUAL AND PROCEDURAL
BACKGROUND
After being terminated from his
employment with Pacific on April 10, 2007, Johnson sued Pacific, alleging seven
causes of action under FEHA and a single cause of action under the Labor
Code: (1) disability discrimination
(Gov. Code, § 12940, subd. (a)); (2) failure to make reasonable
accommodations (§ 12940, subd. (m)); (3) making a verbal expression
of a discriminatory limitation on the exercise of rights (§ 12940, subd.
(d)); (4) failure to prevent discrimination
or retaliation (§ 12940, subd. (k)); (5) retaliation
(§ 12940, subd. (h)); (6) refusal to conduct interactive process
(§ 12940, subd. (n)); (7) seeking unauthorized access to medical history
(§ 12940, subd. (f)); and (8) making untruthful representations in
giving an employment reference (Lab. Code, § 1050).
A jury trial began on May 4, 2010. After the close of
Johnson’s case-in-chief, the trial court granted Pacific’s motions for nonsuit
on Johnson’s claims under Labor Code section 1050 (untruthful employment
reference) and Government Code section 12940, subdivision (f) (seeking
unauthorized access to medical records).
After the close of evidence, the court granted Pacific’s motion for a
directed verdict on Johnson’s section 12940, subdivision (d) claim for
unlawful limitation of rights, and denied Johnson’s motions for directed
verdicts on his claims under section 12940, subdivisions (h), (m), and (n)
for retaliation, failure to accommodate, and failure to engage in the
A.
1. Pretermination
Events
Pacific is a small bearing
distribution company founded by Sweeney in 1992. On the date of Johnson’s termination, it had
six employees besides Sweeney. Pacific’s
primary business was to market and sell high precision radial ball bearings to
machine tool companies and some medical companies. In January 2006, after Johnson submitted a
resume in response to a Craigslist advertisement and Sweeney interviewed him,
Sweeney hired Johnson as an inside salesman.
It was especially important to Sweeney that Johnson had experience in
the industry, having previously worked for a bearing manufacturing company,
Nippon Bearing Corporation (NB). It was
also important that Johnson had at least some college experience as well as a
high school diploma, as represented on his resume.
Johnson’s primary responsibilities
at first were to process orders for existing Pacific clients and assist the
company’s outside sales effort. It was
verbally agreed when Johnson was hired that once he learned more about
Pacific’s business, he would be moved to an outside sales position, be given a
company vehicle, and travel with Sweeney to China where Pacific was working on
a new project outside of its main business.
In September 2006, as planned, Johnson was moved to a commissioned
position as an outside salesman with a company car and credit card, and an
annual salary of $50,000, plus commissions on gross sales. Sweeney’s standard goal for outside salesmen
was $30,000 per month in sales. Although
Johnson did not meet this goal in 2006, he forecasted his 2007 annual sales
would be $3 million, which Sweeney scaled back to $500,000, or just over
$41,000 per month. Johnson did not come
close to making his monthly sales goals at any time during his employment by
Pacific. Pacific’s other outside
salesman, Jim Bustos, did achieve his sales goals.
In December 2006, Pacific conducted
its annual inventory, which involved a physical count of all warehoused
inventory. Although Sweeney gave Johnson
permission to take time off during the inventory due to conflicting family
obligations, Johnson did not take the time off.
Johnson testified he was injured doing lifting during the inventory and
felt a burning, stabbing pain. According
to Johnson, he told Sweeney he was very sore and asked if he could ease up on doing
a lot of the heavy lifting. By Johnson’s
account, Sweeney disregarded his complaint, telling him “not to be a pussy,â€
they needed to get the inventory done, and he was just “out of shape.†Sweeney denied this conversation took place
and denied Johnson ever complained to him of any pain related to participating
in the inventory. Sweeney worked with
Johnson during much of the inventory, and saw no indication of pain,
discomfort, or limitation on his part.
After the inventory, Johnson asked
for time off to spend time with a dying uncle in San Diego. He was gone for a week after Christmas for
that reason. In February 2007, he took
another week both to visit the same uncle in his last days and, according to an
e-mail he sent to Sweeney, to stay for the uncle’s funeral. When Johnson returned to work the following
week, Sweeney had a conversation with him about the “funeral†in which,
according to Sweeney, Johnson also told him his uncle had not yet died.
whether he could trust anything Johnson had told him, including Johnson’s
stated reason for requesting time off after Christmas. Sweeney also decided he needed to monitor
Johnson’s sales activities more closely.
He was concerned that many of the accounts Johnson was targeting were
too small or needed products Pacific was not selling, so he began to mentor
Johnson and redirect him toward more productive efforts.
In February 2007, Johnson asked
Sweeney for a $15,000 increase in his base salary to be offset by changing his
commission structure, but Sweeney declined.
On February 28, Johnson told Sweeney he had a job offer from his former
employer and a Pacific business partner, NB, paying $65,000, but that he was
going to turn it down. Sweeney did not
believe Johnson had received the offer, and found it interesting the purported
offer was for the same salary Johnson was seeking from Sweeney. Johnson copied Sweeney on an e-mail
purportedly declining NB’s offer, but Sweeney interpreted the communications
Johnson had from NB as a job rejection, not a job offer.
with him about the offer and considered firing Johnson at that point, but he
was close to hiring a general manager and wanted to bring that person in before
making the decision to terminate Johnson.
On Monday, April 2, Johnson called
in sick. He sent Sweeney an e-mail
explaining he was ill from a hot dog he had eaten at a baseball game the day
before, and mentioning his brother, who attended the game with him, had the
same illness. Sweeney testified he
believed Johnson purposely missed that day because it was the start date for
the newly hired general manager, Marj Davis, and Johnson was being
disrespectful to her. Sweeney sent Johnson the following message: “The amount of personal time off you have
taken since December until now far exceeds what is tolerable. Please minimize all future time off for any
reason.†According to Sweeney, Johnson
had used all or nearly all of his accrued time off by April 2, and Sweeney was
put off by the series of explanations Johnson had given for taking time
off. Sweeney testified he did not mean
by his e-mail that Johnson could not take time off even if he was sick. However, according to Johnson, Sweeney
expressed disdain that Johnson was ill, made statements at an employee meeting
that “gastric testing†should be a mandatory requirement for employees if
Johnson’s April 2 symptoms were a reason to miss work, and told Johnson he
should be in working even if he needed to “put diapers on [his] ass.â€
On April 6, Sweeney and Johnson
exchanged e-mails over a scheduled performance review for Johnson and other
employees. Sweeney sent out an e-mail to
the employees that Davis would be handling all human resource and payroll
issues, including approving time off for vacation and sick days. In reply, Johnson asked if Davis would be
giving him his review. Sweeney
responded, “[D]o you want it to be [her]?,†intending a little sarcasm. Johnson replied in part as follows: “In the future I wouldn’t mind it being Marj
I like her, but at the moment she don’t no [sic]
boo about me or what I’m bringing to the table or what I have done for the last
1-in a half [sic] while employed at
[Pacific]. [¶] You must remember Chief, my last job I went 4-years with no
pay increase and I will never go down that road again. [¶] So for now it’s
all you Daddy-O . . . .â€
Sweeney was irritated by Johnson’s
response, including the way Johnson addressed him, the fact he again seemed to
be asking for an increase in his base pay which Sweeney had already rejected,
and the fact Johnson seemed to be trying to get his way by an implied threat to
leave. Sweeney replied: “I thought I made it clear that your income
is based on performance. I will do a
review with you and have Marj present but I don[’]t give raises based on need
nor threats.†At that point, Johnson
backed down, denied he wanted to make this a “big deal†or was making any
threat, and wrote to Sweeney that he did not think there was any need for a review. Sweeney and Johnson exchanged several more
e-mails on April 6, in which Sweeney insisted on the need for Johnson to be
reviewed and Johnson kept requesting the review be postponed, explaining he
already knew Sweeney thought his performance was subpar so a review was
unnecessary. Sweeney finally stated the
review was required and would take place on April 13. In his own mind, Sweeney thought it was
likely Johnson would be terminated from employment on the 13th.
On April 10, at 8:36 a.m., Sweeney
sent Davis an e-mail, copied to Johnson, instructing her to go on certain sales
calls with Johnson. Johnson replied to
Sweeney at 8:47 a.m.: “Kevin, [¶] You
clam [sic] the changes lately here
are for the better, yet instead of you & I setting down properly [to] bring
me up to par with what your [sic]
trying to accomplish instead of out of the blue making me put Marj in front of
my key accounts I have been working makes me think of what you are truly trying
to do I’m know [sic] rookie Kevin.
[¶] We need to talk before I go to Dionex today.†Twenty-four minutes later, at 9:11 a.m.,
Johnson sent Sweeney the following e-mail:
“Kevin, [¶] During inventory here at work back in December 2006 I got a
hernia but did not take no action [sic]
did not want to miss work as I know how up set [sic] that makes
you[.] [M]y doctor Dr. Fishenfield [
number] told me as long as it does not hurt and does not grow lets [
last week now & is truly why I missed work last Monday April 2, 2007 it is
hurting badly & keeping me up all night in pain. [¶] I talked to my
Doctor and he has stated I must go now to see the surgeon Dr. Garland [Garland’s
telephone number] or it could become a much bigger problem. [¶] My doctor
is faxing over a note to support all the above. [¶] Marj can go to Dionex
I told Leonid we would be there between 10:00 & 10:30 and I have canceled
my meeting with Kabir he said he understands.â€
Sweeney testified he was meeting
with Davis from 9:00 a.m. to 9:30 a.m. and did not read Johnson’s 9:11 a.m.
e-mail when it was sent. Johnson sent
another e-mail at 9:30 a.m. stating:
“I’m off to the doctors and will support today’s visit with a note.†Johnson entered Sweeney’s office as Davis was
leaving it. According to Sweeney, he had
just begun to read Johnson’s 9:11 a.m. e-mail before Johnson came into his
office. Sweeney testified the
conversation was brief, lasting no more than four minutes. He recalled Johnson said he was leaving the
office for his doctor’s appointment, and indicated he had hurt himself during
the inventory. Sweeney expressed
disbelief and said “that was four or five months ago.†Sweeney did not believe Johnson had to leave
for a medical reason, but thought that was another of his lies, made up after
their first exchange of e-mails that morning to avoid having to go out on sales
calls with Davis. Sweeney stated he had
no understanding from his conversation with Johnson that Johnson was going to
the doctor that morning for a hernia. He
understood only that Johnson was claiming he was hurt during the December
inventory. Sweeney testified he told Johnson
things were not working out and fired him on the spot. At trial, Sweeney explained that he
fired Johnson because his sales performance was poor and because “he was
somebody who I simply didn’t trust any longer.â€
Johnson offered a different version of these
events. He testified he went to Sweeney’s office after sending
the 9:11 a.m. e-mail and was going to knock on the door, but he returned to his
office after he saw Sweeney and Davis were reading the e-mail. According to Johnson, Sweeney called him at
9:30 a.m. and told him to “get [his] ass†to Sweeney’s office. Johnson testified he tried to explain his
medical condition to Sweeney, but Sweeney cut him off, raised his voice, became
angry, started shouting at him, and even followed him out the door to the
parking lot in an intimidating manner after he had fired him. Sweeney describes a much quieter, more
professional interaction.
3. Events
After Termination
Johnson left the office but had to
wait outside for his wife to pick him up since he no longer could use the
company car. While he was outside,
Pacific employee, Danny Olgerson, took Johnson a fax that had come in on the
general office fax machine. After later
learning a fax had been taken out to Johnson, Sweeney instructed his
administrative assistant, Tara Orender, to check the fax log and to call the
office that had sent the fax, which turned out to be Dr. Fishenfeld’s office,
and request the sender to resend whatever document had been faxed to Pacific
that morning. Orender made the call, but
after checking with Johnson, Fishenfeld’s office did not resend the fax.
On the day of his termination,
Johnson drove himself to NB where he met with two NB managers, explained his
situation, and applied for a position.
Johnson testified NB was initially interested in offering him a position,
but nothing came of it. Pacific had an
ongoing business relationship with NB, and Sweeney met or spoke with NB
representatives at least once in the days after Johnson applied for a job. Sweeney testified he was asked about Johnson
during a business call with NB, but he declined to discuss the subject. A private investigator hired by Johnson’s
attorney called Sweeney on June 11, 2007, pretending to be a prospective
employer doing a reference check on Johnson.
The investigator testified that in response to her questions, Sweeney became
increasingly angry and sarcastic, telling her among other things that Johnson
was “one of the worst†employees he ever had, and was a “litigious-type personâ€
and a “poor†performer. Sweeney also
told her it was “not his intention to dissuade anyone from hiring Mr. Johnson,â€
and he (Sweeney) was “not . . . a very good resource . . .
to determine whether or not [Johnson] should be hired.†Sweeney did not deny making the statements to
which the investigator testified.
4. Johnson’s
Surgery
Dr. Fishenfeld testified he saw
Johnson on September 1, 2006, and noted Johnson had pain associated with an
epigastric hernia he had had since early childhood. He explained the epigastric area is under the
breast bones in the stomach area, and a hernia is a bulge coming out of the
abdominal wall. Fishenfeld next heard
from Johnson about this issue on April 10, 2007 at about 8:15 a.m., when
Johnson called his office to report he had been having worsening pain from the
hernia for two weeks. Fishenfeld made an
emergency referral to a surgeon, Dr. Gartland, to have Johnson seen right
away. Fishenfeld had his office fax a
note to Johnson stating, “Disability for Today,†so that Johnson could leave
work to see the surgeon. Johnson saw
Gartland on the afternoon of April 10.
Gartland determined Johnson had an incarcerated
epigastric hernia that was not life-threatening, and scheduled him for surgery
on April 19. Johnson had his surgery on
that date.
B.
On June 10, 2010, the jury returned
unanimous defense verdicts on Johnson’s causes of action for disability
discrimination, failure to make reasonable accommodations, failure to prevent
discrimination or retaliation, retaliation, and failure to engage in an
interactive process. By special verdict
on each cause of action, the jury found as facts that (1) Pacific did not know
or think Johnson had a physical disability prior to or at the time of his
termination; (2) Johnson was not subject to discrimination based on a known or
perceived physical disability on the date of his termination, nor was he
subject to retaliation; (3) Johnson did not request a reasonable accommodation
for a known or perceived physical disability prior to or at the time of his
termination; and (4) Johnson did not have a known or perceived physical
disability before or at the time of his termination.
Following entry of judgment on the
nonsuit, directed verdict, and jury verdicts, the court denied Johnson’s
motions for a JNOV and new trial.
Johnson timely appealed to this court.
Johnson contends the trial court
prejudicially erred by (1) denying his motions for a directed verdict, JNOV,
and new trial; (2) allowing Pacific’s “defenseâ€
that it had no knowledge of Johnson’s medical condition; (3) ruling
improperly in various respects concerning Pacific’s use of after-acquired
evidence; (4) granting nonsuits and a directed verdict on three of his causes
of action; and (5) improperly awarding costs against him.
of Johnson’s Posttrial Motions
Johnson asserts he was entitled to
directed verdicts on his causes of action for retaliation, failure to
accommodate, and failure to engage in the interactive process, based on
“admissions . . . by Sweeney that it was Johnson telling him that he
had a hernia and needed to see a surgeon . . . that motivated
[Sweeney] to fire him . . . .â€
On the same grounds, he asserts the court erred in denying his motions
for JNOV and new trial as to all causes of action. According to Johnson, as long as he believed
in good faith he had a physical disability under the law, Sweeney’s belief or
disbelief of the information Johnson gave him was irrelevant to his FEHA
claims.
The trial court’s denial of a
directed verdict is reviewed under the substantial evidence standard. “Only if there was no substantial evidence in
support of the verdict could it have been error for the trial court earlier to
have denied [the plaintiff’s] motion for directed verdict.†(Howard
v. Owens Corning (1999) 72 Cal.App.4th 621, 630 (Howard), italics omitted.)
In determining whether the judgment was supported by substantial
evidence, “we must consider all of the evidence in the light most favorable to
the prevailing party, giving it the benefit of every reasonable inference, and
resolving conflicts in support of the judgment.†(Ibid.) Unless it can be said as a matter of law that
no other reasonable conclusion is legally deducible from the evidence, the
trial court cannot grant a directed verdict.
(Dailey v. Los Angeles Unified
Sch. Dist. (1970) 2 Cal.3d 741, 745.)
The standards of review of rulings on motions for directed verdict,
JNOV, and new trial are essentially the same, in that under each motion, our
task is to determine whether there is substantial
evidence to support the court’s ruling.
(Howard, at pp. 629–630.)
We begin with the trial court’s
analysis of the trial evidence in its written order denying Johnson’s JNOV
motion: “Plaintiff agues that the Court
impermissibly allowed evidence and argument that Defendant did not believe or
perceive that Johnson was suffering from any physical disability
. . . . Plaintiff argues that Defendant’s belief that Mr.
Johnson was not suffering from an actual or perceived disability is not a
defense in a FEHA claim for discrimination based upon actual or perceived
disability or . . . for failure to make reasonable accommodation.
. . . The jury’s verdicts are supported by the evidence at trial
including the undisputed evidence that, despite a life-long hernia condition,
Mr. Johnson was able to perform daily activities of life, including working as
a salesperson; that Mr. Johnson never told Defendant or anyone at [Pacific] of
his hernia condition until the morning he was terminated; that Mr. Johnson did
not request Mr. Sweeney [to] allow him time to see his doctor that day, but
simply informed Mr. Sweeney that he was leaving work forthwith to see his
doctor; that after he was terminated from [Pacific], Mr. Johnson drove his wife
to work and had a meeting with a prospective employer (who did not observe Mr.
Johnson to be in any discomfort or pain that morning) before seeing a doctor
later that day; that Mr. Johnson did not have surgery for several days after
being seen by his doctor. Defendants did
not dispute that Mr. Johnson suffers from a long term hernia condition. Defendants disputed whether Mr. Johnson was
in fact disabled, as defined by FEHA, the morning he was terminated, whether
Mr. Johnson’s need for immediate medical attention was sincere or simply a ruse
to avoid meetings that had been set up for him that morning; and disputed
terminating Mr. Johnson on the basis of a perceived disability or refusing to
reasonably accommodate him. The Court
finds substantial evidence in the record to support the jury’s determinations
that Plaintiff was not suffering from a disability as defined in FEHA and that
Mr. Johnson was not terminated on the basis of a known or perceived disability
or violated other FEHA provisions and requirements.â€
It is settled that an employer is
not ordinarily liable under FEHA for failing to accommodate a disability of
which it has no knowledge. The law does
not require the employer to be clairvoyant.
(Arteaga v. Brink’s, Inc.
(2008) 163 Cal.App.4th 327, 349; King v.
United Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 443.) Thus, section 12940, subdivision (m)
makes it unlawful for an employer “to fail to make reasonable accommodation for
the known physical . . .
disability of an . . . employee.â€
(Italics added.) Subdivision (n)
of the statute makes it unlawful to fail to engage in an interactive process to
determine reasonable accommodations for an employee with a “
disability or known medical condition.â€
(Italics added.) The employer’s
knowledge, belief, or perception that the employee has a physical or mental
disability is a required element under all of the relevant pattern jury
instructions used for FEHA causes of action.
(See CACI Nos. 2505, 2507, 2527, 2541, 2546.)
Here, there was substantial evidence
based on Sweeney’s testimony, that of other Pacific employees, and Johnson’s
own admission, that Johnson never claimed to have a hernia or other limiting
physical disability at any time until the day he was terminated. Even on that day, Johnson communicated
nothing about his hernia or need to see a doctor until after he had responded
angrily to Sweeney’s e-mail informing him Davis would be going on certain sales
calls with Johnson. In fact, his e-mail
to Sweeney at 8:47 a.m. indicated he was still planning to go on a sales call
to Dionex that day. Johnson’s claim that
Sweeney admitted firing him because he told Sweeney he had a hernia and needed
to see a surgeon is simply not a fair characterization of Sweeney’s
testimony. Sweeney testified he fired
Johnson because he believed he was a poor salesman who was making up yet
another lie to gain some perceived advantage over his employer, not because
Johnson said he needed to see a doctor.
If jurors credited Sweeney’s account of the events leading up to the
termination, as they apparently did, Sweeney’s asserted disbelief of Johnson’s
claim was entirely reasonable in the circumstances.
Moreover, substantial evidence also
negates Johnson’s claim he had a good faith belief he was physically disabled
on the morning of April 10, 2007.
Although a contrary inference was also possible, the jury could have
reasonably inferred from the same circumstances that make Sweeney’s disbelief
reasonable—Johnson’s past deceptions, his lack of apparent symptoms of disability
or activity limitations before or on the 10th, the sequence of events occurring
on that day—that Johnson in fact was
engaged in an intentional deception about the severity of his medical condition
when he was terminated, in order to avoid having to make sales calls with
Davis. Sweeney’s good faith disbelief of
Johnson and Johnson’s asserted good faith are two sides of the same evidentiary
coin. Johnson’s assumption his medical
evidence automatically trumped conflicting evidence as to his subjective good
faith is misplaced.
title="">[9]
Johnson argues an employer is deemed
to know an employee has a disability as soon as the employee tells the employer
about the condition, citing language to that effect in Faust v. California Portland Cement Co. (2007) 150 Cal.App.4th 864
(Faust). Faust
reversed a summary judgment granted to the employer in a disability
discrimination case. (
knowledge of whether the plaintiff had a disability. (Id.
at p. 887.) In finding a triable
issue of fact on that point, the appellate court relied on a doctor’s work
status report dated two weeks before the date of termination stating the
plaintiff was unable to perform his regular job duties and recommending he be
given a leave of absence. (
The record showed extensive communication between the employer and the
plaintiff’s representatives about the doctor’s report before he was
terminated. (Id. at pp. 870–872.)
Faust
is distinguishable first on procedural grounds.
The issue in Faust was whether
the information the employee provided created a triable issue of fact as to the
employer’s knowledge of the employee’s disability. But to succeed on his motions for a directed
verdict, JNOV, or new trial, Johnson had to meet a much different
standard. He had to show his evidence of
his communications with Sweeney on the day of his termination established
Pacific’s knowledge of his disability without regard to any contrary evidence
or inferences allowed to be presented to the jury. (See Hauter
v. Zogarts (1975) 14 Cal.3d 104, 110; Code Civ. Proc., § 657, subds. (1),
(6), (7).) Faust does not establish the showing required to meet the latter
standard, which is much higher than merely establishing the existence of an
issue of fact.
Faust
is also distinguishable on its facts.
The evidence relied upon by the appellate court showed unequivocally the
facts pertinent to understanding the employee’s disability were provided to and
taken into account by the employer in advance of its decision to terminate the
employee. Here, in contrast, there was
substantial evidence that when Sweeny fired Johnson he (1) knew only Johnson
claimed he had hurt himself during the inventory and was leaving for a medical
appointment related to that injury, and (2) reasonably disbelieved both
claims. Johnson admitted at trial he
“told no one at [Pacific] about [his] alleged injury†until the date Sweeney
fired him. The dictum Johnson quotes
from Faust—stating an employer
“ ‘knows an employee has a disability when the employee tells the employer
about his condition, or when the employer otherwise becomes aware of
[it]’ â€â€”is a correct shorthand statement of the law as far as it goes, but
it is not particularly illuminating or persuasive on the facts before us. (Faust,
supra, 150 Cal.App.4th at p. 887, quoting Schmidt v. Safeway Inc. (D.Or. 1994) 864 F.Supp. 991,
997.)
Flait
v. North American Watch Corp. (1992) 3 Cal.App.4th 467 also does not
support Johnson’s position.
summary judgment to the employer on the plaintiff’s claim he was discharged in
retaliation for efforts to prevent a subordinate from being sexually
harassed. (Id. at p. 474.) The
Court of Appeal held, “Whether Flait’s belief that Berger was being harassed
was reasonable, in good faith and sincere, as he claims it was, is a
credibility question that cannot be resolved by summary judgment.†(Id.
at p. 477.) Flait does not hold or suggest a plaintiff’s good faith belief he
was engaging in a protected activity is sufficient in itself to prove a
retaliation case and require a directed verdict in his favor. To the contrary, it suggests that issue may
present a credibility question, as it did in this case.
We do not hold an employer’s
subjective belief about the validity of an employee’s disability claim is a
defense to FEHA liability. But the
employer’s knowledge of the employee’s disability, and discriminatory or
retaliatory motive for taking adverse action, are material issues under
FEHA. (Brundage v. Hahn (1997) 57 Cal.App.4th 228, 236;
Cal.4th 317, 355.) Here, if Sweeney’s
testimony is credited, he received his first, cryptic notice of Johnson’s
injury claim literally seconds before he reached the decision to fire him,
bringing to a head for Sweeney a series of events that had thoroughly eroded
any trust he might otherwise have had in what Johnson was telling him. On this state of the evidence, the trial
court committed no error by denying Johnson’s motions for a directed verdict,
JNOV, and new trial. It was for the jury
to decide whether Johnson had a known or perceived physical disability and
whether Sweeney’s adverse actions were taken on the basis of such disability. Substantial evidence supported the jury’s
verdicts on those issues, and there was no error of law in admitting the
evidence or instructing the jury on the applicable law.
reduce his FEHA case to the sole question of whether he acted in good faith is based on a misapprehension of the law and
the evidence.
B.
Verdict Form
Johnson reiterates his arguments against what he labels Pacific’s
“disbelief defense†under a separate argument heading faulting the trial court
for misleading the jury by permitting “impermissible defenses, evidence,
argument, explanations, instructions, and [a] verdict form†embodying that
“defense.†For the reasons discussed in
the previous section, we do not view Pacific’s position on this issue as a
“defense,†and believe the trial court properly left it for the jury to decide
whether Pacific knew of Johnson’s asserted disability or fired him because of
it. We will not repeat that discussion here.
Under the same argument heading, Johnson
also maintains the trial court committed evidentiary, instructional, and legal
error by permitting Pacific to introduce evidence and assert a defense stemming
from Johnson’s admission during his deposition in this case that he lied about
his level of education on the job resume he submitted to Sweeney. Johnson asserts this evidence was irrelevant
and inadmissible because Sweeney made an offer to reinstate him in his old
position after learning of the misrepresentation. Pacific asserts the after-acquired evidence
was relevant and admissible on three issues: mitigation and calculation of
damages, impeachment of Johnson’s credibility, and the affirmative defense of
after-acquired evidence.
The evidence in issue included (1)
testimony by an executive recruiter with experience filling sales positions in
the bearing industry that he had never placed or had a company hire a person
for positions similar to those sought by Johnson who did not have a high school
diploma, (2) cross-examination of Johnson about his deposition testimony in
which he initially falsely claimed he had gotten his G.E.D. and resisted
identifying the resume he submitted to Sweeney, and (3) Sweeney’s testimony he
would have fired Johnson as a matter of company policy had he known Johnson did
not have a high school diploma.
The after-acquired-evidence doctrine
is explained in Murillo v. Rite Stuff
Foods, Inc. (1998) 65 Cal.App.4th 833, 842 (Murillo).) In general, the
doctrine “serves as a complete or partial defense to an employee’s claim of
wrongful discharge. It comes into play
when, after an employee’s termination, the employer learns of employee
wrongdoing that would have resulted in the employee’s discharge in any event.†(Ibid.) To invoke this doctrine, the employer must
establish (1) the wrongdoing was of such severity the employee in fact would
have been terminated on those grounds alone if the employer had known of it,
and (2) such firing would have occurred as a matter of settled company policy. (Id.
at pp. 845–846.) Here, Sweeney so
testified. Sweeney also testified and
was cross-examined about the reinstatement offer made to Johnson. He explained he made the offer on advice of
counsel as a matter of litigation strategy, in the expectation Johnson would
turn it down.
“A party is entitled upon request to
correct, nonargumentative instructions on every theory of the case advanced by
[it] which is supported by substantial evidence.†(Soule
v. General Motors Corp. (1994) 8 Cal.4th 548, 572.) In our view, Pacific came forward with
substantial evidence to support the after-acquired-evidence defense, and the
related instruction and verdict form.
Sweeney’s offer of reinstatement to Johnson at most presented a
credibility issue for the jury. It was
for the jury to decide whether it believed Sweeney’s explanation of his purely
tactical reasons for making the offer, or his assertion he would have fired
Johnson as a matter of company policy for submitting a false resume.
To the extent Johnson now claims
error in the specific wording of the instruction and verdict form, the issue is
moot. The jury never reached Pacific’s
affirmative defense based on after-acquired evidence. In any event, the instruction and verdict
form given, based on CACI No. 2506, tracked the applicable legal requirements
set forth in Murillo and other
cases. Johnson fails to offer a coherent
argument explaining why the instruction and verdict form were legally
incorrect, or showing a reasonable probability the jury could have been misled
by them.
We also find no abuse of discretion
in admitting evidence pertaining to Johnson’s lack of a high school diploma on
the issue of damages. Johnson claimed
damages from his inability to find comparable work. Pacific was entitled to put in evidence such
as the recruiter’s testimony to explain why Johnson might be having
difficulties finding employment in the field that he did not experience before
he corrected his resume to reflect his true educational status.
Finally, Johnson placed his
credibility in issue by testifying.
(Evid. Code, § 780; Susan S.
v. Israels (1997) 55 Cal.App.4th 1290, 1297.) Matters relevant to credibility include the
witness’s admission of untruthfulness.
(Evid. Code, § 780, subd. (k).)
Pacific was therefore entitled to cross-examine Johnson about his false
resume and untruthful deposition testimony to attack his credibility as a
witness. (See, e.g.,
234, disapproved on another ground in People
v. Letner and Tobin (2010) 50 Cal.4th 99, 141–142 [proper under Evid. Code,
§ 780, subd. (k) to cross-examine witness about false statements she made to
police].)
We find no error or prejudice in the
trial court’s rulings and instructions with respect to evidence pertaining to
Johnson’s resume, educational status, or deposition testimony.
C.
Johnson challenges the nonsuits and directed verdict granted to
Pacific on his causes of action for intentional
misrepresentation to a potential employer (Lab. Code, § 1050), making
of an unlawful medical inquiry (Gov. Code, § 12940, subd. (f)), and
expression of discriminatory limitation on the exercise of rights
(§ 12940, subd. (d)).
The standard for a trial court
granting a motion for a directed verdict is the same as the standard for
granting a motion for nonsuit. (
68 Cal.App.4th 243, 262–263.) “A
directed verdict [or nonsuit] may be granted only when, disregarding
conflicting evidence, giving the evidence of the party against whom the motion
is directed all the value to which it is legally entitled, and indulging every
legitimate inference from such evidence in favor of that party, the court
nonetheless determines there is no evidence of sufficient substantiality to
support the claim . . . of the party opposing the motion, or a
verdict in favor of that party.†(
1. Nonsuit
on Labor Code Section 1050 Claim
Labor Code section 1050
provides: “Any person, or agent or
officer thereof, who, after having discharged an employee from the service of
such person or after an employee has voluntarily left such service, by any
misrepresentation prevents or attempts to prevent the former employee from
obtaining employment, is guilty of a misdemeanor.†Labor Code section 1054 authorizes a private
right of action for treble damages for violations of section 1050. To make a prima facie case for relief under
section 1050, Johnson had to come forward with substantial evidence supporting
each of the following: (1) Pacific
representations with the intent of
preventing Johnson from obtaining employment, (3) Johnson was
to Johnson. (See CACI No. 2711.)
Johnson offered no direct evidence
Sweeney had made any representation to NB about him, false or otherwise. He produced evidence Sweeney had contacts
related to Pacific’s ongoing business relationship with NB in the days
following his termination, before NB turned down his job application. According to the NB employee who met with
Johnson on April 10 and with whom Johnson corresponded about the job openings
at NB—assistant branch manager, Hiroyuki Yokoyama—he had a telephone call and
business meeting with Sweeney in the days immediately after Johnson was fired,
during which he inquired about Johnson.
Yokoyama testified Sweeney declined to discuss Johnson or the circumstances
surrounding his termination. This
testimony was confirmed by Sweeney and by Marj Davis, who was no longer a
Pacific employee when she testified. Beyond that, Johnson cites, among other
things: (1) the February 2007 e-mail
from NB’s branch manager, Nick Nakajima, responding to Johnson’s job inquiry in
highly ambiguous language Johnson construes as a job offer; (2) evidence NB had
two open positions when Johnson visited the company on the day of his
termination in April 2007; (3) his allegation, not put in evidence for its
truth, and denied by Pacific coworker Danny Olgerson, that Olgerson overheard
Sweeney on April 10, 2007 giving Johnson an unfair reference in response to an
inquiry from NB; and (4) the assertedly false statements Sweeney made to
Johnson’s private investigator. Johnson
contends he provided enough evidence to support an inference Sweeney knowingly
made false statements to NB about him with the intent to stop NB from hiring
him, causing NB to decline to extend him a job offer in April 2007.
We are not persuaded. First, the evidence is insufficient to
support an inference NB would have hired Johnson back under any
circumstances. According to NB’s
vice-president, Yutaka Kojima, NB had let Johnson go due to poor performance
and a personality conflict. He testified
all hires in San Jose had to be approved by him, and he “didn’t have an
interest in†hiring Johnson again for any position at NB and would not have
hired him. Johnson’s evidence at most
suggests NB politely accepted his employment application. It fails to show anyone concerned at NB had
any real interest in hiring back an employee who had previously been terminated
from the company due to performance issues, and who had just been terminated
from a sales position at another company.
Second, the evidence does not
support an inference Sweeney knowingly made any false statements to NB about
Johnson. There was no admissible
evidence Sweeney gave Johnson a negative reference, much less a knowingly false
one intended to harm him. The statements
Sweeney made under prompting by Johnson’s private investigator were not
positive, but they were not provably false either. Further, the inference Sweeney must have
volunteered similar statements to NB is simply too speculative to create a jury
issue.
Finally, as we read Labor Code
section 1050 and the elements required to sustain a cause of action under it,
Johnson must come forward with evidence Sweeney made a specific representation alleged to be false, not that he
inferentially must have made some
misrepresentation, the content of which cannot be proven. An unspecifiable representation is simply not
amenable to proof it was false, or that it was known to be false when it was
made, or that it was a substantial factor in the third party’s decision not to
hire the plaintiff. Allowing inferential
evidence such a representation must have been made to support a cause of action
under Labor Code section 1050 would be inherently unfair to the defendant who
would be unable to meet the plaintiff’s case with evidence the unspecified
representation was true, believed to be true when made, or was inconsequential
to the prospective employer’s decision.
Thus, even if the evidence did support an inference Sweeney must have
made some negative representation to
NB about Johnson—which is all Johnson is claiming he can prove—it would still
be insufficient to support the cause of action alleged.
To the extent Johnson asserts
Sweeney intentionally interfered with a potential job offer from James Oswiany of
IKO International, the evidence is even thinner. There was no evidence Sweeney made any false
statements to Oswiany about Johnson.
Oswiany in fact testified he did not offer Johnson a job in 2007 because
his boss, IKO’s regional manager, was not impressed with Johnson. He testified the only thing Sweeney said to
him about Johnson was that IKO should talk to him about a job. Johnson cites evidence IKO had a business
relationship with Pacific, Oswiany wanted to interview Johnson in 2006 but
would not hire him in 2007 after a preliminary interview, and the local bearing
industry is “[s]omewhat†close-knit.
This falls substantially short of a prima facie showing Sweeney made a
specific, knowingly false statement to Oswiany that caused him to change his mind
about hiring Johnson.
For all of these reasons, the trial
court did not err in granting Pacific a nonsuit on Johnson’s Labor Code cause
of action.
2. Nonsuit
on Section 12940, Subdivision (f) Claim
Section 12940, subdivision (e)
provides it is an unlawful employment practice “for any employer
. . . to make any inquiry whether an
applicant has a mental
disability or physical disability or medical condition, or to make any
inquiry regarding the nature or severity of a physical disability, mental
disability, or medical condition.â€
(Italics added.) Subdivision (f)
makes it unlawful for an employer to make such an inquiry about an employee. Johnson
alleges Sweeney’s unsuccessful attempt on April 10, 2007 to get Dr.
Fishenfeld’s office to resend the documents that had been faxed to Pacific
earlier that day was an unlawful inquiry under section 12940, subdivision (f).
In our view, no substantial evidence
supported this cause of action. Pacific
did not make an inquiry of Dr. Fishenfeld’s office about Johnson’s disability
or medical condition or status. It made
an inquiry about a fax sent to the company fax machine. There was no testimony Sweeney knew what the
fax contained or who had sent it when he asked his administrative assistant to
have it resent. Dr. Fishenfeld’s medical
assistant testified the caller from Pacific (Sweeney’s administrative
assistant) did not ask her for medical records or files, only that she re-fax
whatever she had sent earlier. It is
true that Johnson’s 9:11 a.m. e-mail to Sweeney had provided his doctors’
telephone numbers and stated his doctor was faxing over a note to support his
injury claim. Even if we infer Sweeney
was aware of this when he asked his assistant to retrieve the fax , it would
only show Sweeney reasonably believed the fax was intended for him to see. It would be perverse to hold Sweeney liable
for seeking to retrieve a fax sent to his company’s fax machine that he would
have had no knowledge of or interest in except for Johnson’s implicit
invitation for him to see it. Moreover,
Dr. Fishenfeld’s office did not in fact fax anything to Pacific in response to
the request. Johnson cannot plausibly
claim he suffered any harm or damage as a result of the fruitless inquiry. The trial court did not err in granting a
nonsuit on this claim.
3. Directed
Verdict on Section 12940, Subdivision (d) Claim
Section 12940, subdivision (d)
states in relevant part it is unlawful for an employer “to print or circulate . . .
any publication, or to make any non-job-related inquiry of an employee
. . . that expresses, directly or indirectly, any limitation,
specification, or discrimination as to . . . physical disability
. . . [or] medical condition, . . . or any intent to make
any such limitation, specification, or discrimination.†In support of this cause of action, Johnson
cites a potpourri of alleged statements made and policies instigated by Sweeney
discouraging employees and specifically, Johnson himself, from taking sick days
or claiming to be too sick to work.
Insofar as it might potentially
apply to the evidence Johnson cites, we read subdivision (d) of section 12940
to be addressing two categories of employer conduct—the printing or circulation
of publications, and the making of non-job-related inquiries of employees. Johnson’s evidence involves neither. He cites statements Sweeney allegedly made to
him or others, a couple of e-mails Sweeney sent to Johnson about his sick time
, and a computer-posted work calendar that would show who was taking vacation
or out sick on each work day.
In our view, none of this evidences
a “publication†or “non-job-related inquiry†by Sweeney that would constitute a
violation of section 12940, subdivision (d).
While an e-mail disseminated to multiple employees might constitute a
“publication,†an e-mail from Sweeney to Johnson alone does not rise to that
level. A posted work calendar listing
who was out sick that day in a six-person office might qualify as a
publication, but it would be a stretch to characterize it as expressing a
limitation based on medical condition or disability. We need not decide whether Sweeney’s verbal
statements to Johnson about his use of sick days were or were not job-related,
or did or did not express a limitation about a medical condition or
disability. The statements were not
inquiries. They were assertions of fact
and directives. If the Legislature
intended any negative, one-to-one
communication by an employer to an employee about a health-related issue to
come within section 12940, subdivision (d), it could easily have chosen
language to accomplish that result. We
will not stretch the statutory language to cover the factual record before us.
The trial court did not err in
directing a verdict on this cause of action.
D.
The trial court awarded Pacific
$30,000 in costs. Johnson contends an
award of costs to an employer in a FEHA case is impermissible. He further contends—without supporting explanation
or argument in his opening brief—the
amount of the award includes unnecessary and unsubstantiated costs and is
beyond his ability to pay.
Costs are awardable to prevailing
employer-defendants in FEHA cases. (
(2005) 132 Cal.App.4th 121, 134–136; Perez
v. County of Santa Clara (2003) 111 Cal.App.4th 671, 679–682.) The plaintiff in such cases may, however,
seek to prove “such an award would impose undue hardship or otherwise be
unjust, and should therefore not be made.â€
(Knight, at pp. 135–136.) While Johnson states in conclusory fashion
the award was inequitable and excessive, he offers no specific arguments in his
opening brief explaining why that is the case.
v. Bank of America (1998) 67 Cal.App.4th 779, 784–785 [contentions on
appeal forfeited when not supported by reasoned argument and citations to
authority].)
The judgment is affirmed.
_________________________
Margulies, J.
We concur:
_________________________
Marchiano, P.J.
_________________________
Dondero, J.
name="_ftn1" title="">[1] The defendants will be referred to collectively hereinafter as
“Pacific.â€
name="_ftn2" title="">[2] All further statutory references are to the Government Code unless
otherwise specified.
