Norton v. San Bernardino City Unified School District, No. G049496 (October 9, 2014): A California Court of Appeal recently overturned a jury verdict against an employer on the basis that the jury was incorrectly instructed to decide whether race was a motivating factor in the employee’s termination, rather than a substantial motivating factor. However, the court upheld a judgment against the employee’s supervisor for racial harassment.

Edward Norton, who is Caucasian, was hired by the San Bernardino City School District in 1995 as the director of the building services department. Until that time, the department had had serious performance issues and Norton was asked to “straighten” out the department’s problems. By 1999, he had tackled many of the department’s issues and had received outstanding evaluations. In 1999, the district’s leadership changed when Arturo Delgado became superintendent. Norton began reporting to Mel Albiso, Delgado’s assistant. Norton alleged that with the change in leadership, the district began favoring unqualified Hispanic employees and applicants. Norton complained about this practice several times between 2000 and 2002.

According to Norton, in 2002 he was given a letter of reprimand, and in 2003 he was placed on administrative leave. His duties were assumed by a Latino man who did not meet the qualifications of the position such as having a four-year degree. Norton filed an administrative complaint. Meanwhile, the district discharged Norton after charging him with numerous policy violations. Norton filed a lawsuit against the district and also appealed his termination. Norton was reinstated after a hearing officer found that he was wrongly terminated.

However, when Norton returned to work, he was given menial tasks and kept out of meetings. After further litigation, his original job duties were reinstated by court order in 2008. He alleged that Albiso frequently threatened to terminate his employment and set Norton up to fail by giving him an unmanageable amount of work while denying him access to financial and contract information. In 2008, Norton sued the school district, the superintendent, and Albiso for discrimination, harassment, and retaliation (among other claims).

After a 39-day trial, the jury found the district liable for discrimination and Albiso liable for harassment. The district and Albiso appealed.

The California Court of Appeal reversed the judgment against the district on the basis that the jury instructions were incorrect and prejudicial. The court noted that at trial, the district presented substantial evidence that the adverse employment actions taken against Norton were for reasons unrelated to his race—such as Norton being disciplined and counseled for poor interpersonal skills (which included shouting and swearing at union officials). The court held that in light of that evidence, the jury should have been instructed to decide whether Norton’s race was a substantial motivating factor in the district’s decision to discharge him, as opposed to a motivating factor. However, the Court of Appeal affirmed the jury’s racial harassment verdict against Albiso, finding that it was supported by sufficient evidence.

According to a shareholder in the Los Angeles office of Ogletree Deakins: “Any good termination will be supported by evidence of the legitimate business reasons for that termination. Employers should pay careful attention to documenting those legitimate business reasons and the importance of the non-discriminatory reasons for the termination so that they can take advantage of the standard made clear by the California Supreme Court’s decision in Harris v. City of Santa Monica (2013) and its progeny, including this case: employees must show that discrimination was a ‘substantial’ motivating factor, not just a factor, motivating the termination decision.”

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