Cochran v. FremantleMedia North America, Inc., No. B247541 (December 11, 2014): In a recent unpublished ruling, the California Court of Appeal affirmed a trial court’s order granting a new trial in a case brought by a game show model who was not rehired by the show after giving birth and who later sued for pregnancy discrimination. The court did not agree with the employer’s argument that no reasonable trier of fact could possibly find that the model’s pregnancy was a substantial motivating factor in the decision not to rehire her.

When Brandi Cochran started working as a model for FremantleMedia North America, Inc. (the owner of The Price is Right Productions, Inc., which produces the Price is Right game show), the show regularly booked three models to appear on camera for each episode. When Drew Carey became the show’s host, co-executive producers, Syd Vinnedge and Mike Richards, instituted a new role for models according to which the models would have microphones, would speak on camera, and would interact with Carey.

In 2008, Cochran told Kathy Greco, who was a producer, that she was pregnant and due in June of 2009. The show continued to book her for upcoming episodes, and Cochran announced that she was expecting twins while on-camera. In February, one of the twins died in utero. Cochran was hospitalized and subsequently delivered the other twin prematurely. The baby remained in the hospital for several months after birth with medical complications.

Cochran notified the show that she would not be able to appear for tapings scheduled in March or April and applied for disability benefits. In late 2009, after the baby became healthy enough to be taken off oxygen, Cochran told Greco that she was available to work again. Greco informed Cochran that the show would not rehire her because it did not need her services.

Cochran filed suit claiming pregnancy discrimination in violation of the Fair Employment and Housing Act (among other claims). The jury found for Cochran on her pregnancy discrimination claim and found that Cochran’s pregnancy was a “motivating reason” why FremantleMedia discharged or failed to rehire her. In November 2012, the jury awarded Cochran $776,994 in compensatory damages, $4,661,664 in punitive damages against FremantleMedia, and $3,107,776 in punitive damages against The Price is Right Productions, Inc. for her pregnancy bias and other claims.

Thereafter, FremantleMedia moved for a new trial and judgment notwithstanding the verdict. In the meantime, the Supreme Court of California issued its decision in Harris v. City of Santa Monica (2013), ruling that where an employee demonstrates that unlawful discrimination was a substantial motivating factor in a challenged adverse employment action, and the employer proves that it would have made the same decision absent such discrimination, a court may not award damages, back pay, or reinstatement.

FremantleMedia argued that it had proposed a jury instruction following the Harris standard that discriminatory animus must be a substantial motivating factor. The trial court, however, had instructed the jury with a “motivating factor” instruction—which was less demanding and which Harris had rejected. The trial court agreed and granted FremantleMedia’s motion for a new trial. The court also denied FremantleMedia’s motion for judgment notwithstanding the verdict, finding that the evidence was sufficient to permit the jury to find that FremantleMedia had discriminated against Cochran because of her pregnancy. The company appealed this decision.

The California Court of Appeal considered the argument that a reasonable trier of fact could not find that Cochran’s pregnancy was a substantial motivating factor in her not being rehired. According to FremantleMedia, it declined to rehire Cochran because the show’s executive producer, Richards, envisioned a different role for models than when Cochran had last worked on the show. Richards testified that he eventually would have fired Cochran—regardless of her pregnancy—when Carey became the new host.

“Despite FremantleMedia’s contention that its failure to rehire Cochran was a non-discriminatory casting choice aimed at making the show the best it could be and that rehiring Cochran would not have furthered that goal,” the court found that “there was sufficient evidence to prove pregnancy discrimination.” According to the court, Greco had conceded that Cochran “probably would not have lost her job” if she had not become pregnant. The court also considered several disparaging remarks that Greco had made to Cochran while she was pregnant. In addition, the court found that “Richards harbored pregnancy-based animus” and that Vinnedge had testified that “we’re not a ‘bad baby story’ show.”

As a result, the court concluded that a reasonable jury could find that Cochran’s pregnancy was a substantial motivating factor in FremantleMedia’s decision not to rehire her. Thus, the evidence was sufficient for the trial court to deny FremantleMedia’s motion for judgment notwithstanding the verdict. Only a retrial, the court concluded, “will establish whether Cochran’s pregnancy was, as Harris v. City of Santa Monica requires, a substantial factor in her not being rehired.”

Practical Impact

According to Dawn M. Knepper, a shareholder in the Orange County office of Ogletree Deakins, “It is remarkable that five years after her discharge, Cochran will go back for a new ‘spin at the wheel,’ and she will now be tasked with the corrected standard that unlawful discrimination must be shown to be a substantial motivating factor in a challenged adverse employment action, once the employer proves that it would have made the same decision absent such discrimination. Employers should continue to combat such claims of discrimination by ensuring that the reasons for its decisions are well documented.”

Knepper continued, “Note that Cochran was discharged 10 months after she went out on leave. Had she returned to work within seven months, she would have been eligible for reinstatement rights under California’s Pregnancy Disability Leave Law (PDLL) and the California Family Rights Act, and it would have added a whole new ‘game’ to the mix. Because of amendments to the PDLL, pregnancy discrimination is now a prolific claim, and employers must ensure they are in compliance with those requirements.”


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