Court of Appeal Relies on “Motivating Factor” as Standard of Causation in FEHA Case

Alamo v. Practice Management Information Corp., No. B230909 (Cal. App. 2d, Sept. 24, 2012): In Alamo, a former employee who was fired upon her return from maternity leave brought a lawsuit for pregnancy discrimination in violation of the California Fair Employment and Housing Act (FEHA) and wrongful termination in violation of public policy. After the trial judge partially granted and partially denied the employer’s motion for summary judgment, the case was heard by a jury. The jury returned a verdict in favor of the employee and awarded her damages in the amount of $10,000. The trial judge then awarded attorneys’ fees and costs to Alamo as the prevailing plaintiff under FEHA.

On appeal, the court held that the standard for determining causation in a FEHA claim was whether the employee’s pregnancy leave was a “motivating factor” in her termination, and not the “but for” standard that the defendant asserted. The defendant also asserted that the jury should have been instructed on the mixed motives defense (i.e., that the employment decision was based on both legitimate and illegitimate motives). The appellate court noted that even assuming that the mixed motives defense was available under FEHA, the case was tried by both parties as a single motive case where the plaintiff alleged discrimination, and the defendant claimed that the termination was based on performance issues.

The defendant also appealed the award of attorneys’ fees to the plaintiff as the prevailing party under FEHA—in light of the jury rendering a general verdict. The appellate court held that the doctrine of “invited error” barred the defendant’s claim because the defendant’s attorneys chose the general verdict for tactical reasons, specifically to avoid attorneys’ fees. In addition, the court noted that the two causes of action were related since wrongful termination in violation of public policy is embodied in FEHA and “would either rise or fall with the FEHA claim,” thus making the award of attorneys’ fees appropriate.

As noted by Lara C. de Leon, of counsel in the Orange County office of Ogletree Deakins, “This decision reinforces the need for employers to tread carefully when looking to discipline or discharge an employee who is on a protected leave of absence, or who has just returned from a protected leave. In upholding the jury verdict, the court drew attention to how complex defending discrimination claims can be. In upholding the award of attorneys’ fees to the plaintiff, the decision likewise underscores how costly these matters can be.”