Former University Employee Ordered to Pay $100,000 in Attorneys’ Fees for Bringing Frivolous FEHA Action

Robert v. Stanford University, H037514 (February 25, 2014): The California Court of Appeal recently affirmed an award of $100,000 in attorneys’ fees to a prevailing employer in a case where a former employee brought a frivolous and unsubstantiated claim of discrimination under the Fair Employment and Housing Act (FEHA). The Court of Appeal upheld the award, even though the trial court had not issued a separate written order regarding the attorneys’ fees, because the trial court had made express oral findings on the record and applied the appropriate standards.

Francis Robert was hired by Stanford University in 1997. In 2008, he was fired for sexually harassing a female Stanford employee. According to facts from Robert’s unsuccessful appeal of the restraining order obtained by Stanford, Robert had become preoccupied with and was stalking the assistant coach of the Stanford women’s soccer team. His actions—sending unwelcome text messages, appearing at the same restaurants that she frequented, driving past her house, being seen in her neighborhood even after she had moved from Palo Alto to San Francisco—became increasingly aggressive to the point that she feared for her safety. After Stanford conducted a full investigation and workplace threat assessment by a psychologist, the university issued a stay-away order directing Robert to stay away from the female employee, both on and off campus, and warned him that he would be fired if he violated the order. Robert was observed violating the order and was fired in 2008. The university obtained a restraining order against Robert in 2009.

In 2010, Robert sued Stanford under FEHA for race discrimination based on his Native American ancestry, but failed to provide any evidence to support his claim. The jury returned a verdict for the defense in 15 minutes. The trial court also found Robert’s FEHA claim had been “frivolous and vexatious” and awarded $100,000 to Stanford for its attorneys’ fees pursuant to California Government Code section 12965(b). Although Stanford had incurred over $235,000 in attorneys’ fees defending Robert’s lawsuit (which had included other claims), the award was made for the amount that the university had to spend to defend the FEHA claim. Robert appealed the decision.

The Court of Appeal affirmed the award for attorneys’ fees and rejected the judicially-created requirement of reversing an award for attorneys’ fees for lack of an express written finding. The court found that because the trial court applied the appropriate standard and made an oral finding, there was no cause for a reversal.

According to Gregory Cheng, a shareholder in the San Francisco office of Ogletree Deakins: “It is not common for prevailing employers to be awarded attorneys’ fees under FEHA. However, this decision serves as a reminder that employers have the option of pursuing attorneys’ fees against plaintiffs who bring frivolous claims under FEHA.”