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Clark v. Superior Court., No. D077711, 2021 WL 1050057 (Cal. Ct. App. Mar. 19, 2021)
Summary: Employee exhausted her administrative remedies despite failing to identify her employer’s proper legal name in her DFEH complaint.
Facts: Plaintiff Alicia Clark filed an administrative complaint with the Department of Fair Employment and Housing (“DFEH”) that alleged her former employer, Defendant Arthroscopic & Laser Surgery Center of San Diego, L.P., had committed various acts of employment discrimination against her. In her DFEH complaint, Plaintiff did not correctly record Defendant’s business name, instead listing two variants of its registered business name. After Plaintiff filed a civil action, Defendant brought a motion for summary adjudication, which the trial court granted as to all of Plaintiff’s Fair Employment and Housing Act (“FEHA”) claims on the basis that Plaintiff named the wrong entity in her DFEH complaint and failed to correct the error. Plaintiff filed a petition for writ of mandate.
Court’s Decision: The California Court of Appeal granted the petition and directed the trial court to vacate its order granting summary adjudication, holding that Plaintiff had sufficiently exhausted her administrative remedies against Defendant. The court held that Plaintiff clearly and unequivocally intended to name Defendant as a respondent, even though she did not use Defendant’s proper legal name and instead used two names very similar to Defendant’s actual fictitious business name. The court also noted that no reasonable person could think that Plaintiff intended to identify any entity other than Defendant as a respondent, because the body of Plaintiff’s DFEH complaint named her managers, supervisors, coworkers, job title, and period of employment at Defendant; with that information, the court reasoned that any administrative investigation into Plaintiff’s DFEH complaint would have identified Defendant as the intended respondent.
Practical Implications: Though employers should preserve any and all defenses when facing a claim of employment discrimination, they should not count on obtaining technical victories based on minor inaccuracies in a plaintiff’s Charge of Discrimination with the DFEH or EEOC.
Curtis v. Superior Court, No. B292967, 2021 WL 1115484 (Cal. Ct. App. Mar. 24, 2021)
Summary: The identity of an attorney’s non-testifying expert may be entitled to absolute or qualified attorney work product protection.
Facts: Robert Curtis, an attorney whose practice did not focus on employment law, represented a business client in defense of an underlying employment action. Curtis consulted as a non-testifying expert, a plaintiff’s bar attorney (“Doe 1”), to assist in the defense of his business client. During the course of one such consultation, Doe 1, who was a member of the California Employment Lawyers Association (“CELA”), provided Curtis with information that Doe 1 had acquired from a CELA distribution list (“Listserv”). This information came from a posted message on the Listserv from the plaintiff’s attorney in the underlying employment action, wherein he provided a “colorful account of the strategies and factors [he] believed had contributed” to a jury verdict for plaintiff in that action. Curtis then used that information to oppose a motion for attorneys’ fees filed by the plaintiff in the underlying employment action. Upon discovering that information from its online portal had been used by a non-member, CELA filed its own lawsuit against Doe 1 for breach of contract, alleging that the Listserv is a members-only distribution subject to a confidentiality agreement, and that Doe 1 had breached that confidentiality agreement. CELA set to ascertain Doe 1’s name and subpoenaed Curtis for deposition. Curtis refused to provide Doe 1’s name, per his own attorney’s instruction, under the attorney work product doctrine. CELA moved to compel Curtis’s response to the question, arguing that Doe 1’s identity was only entitled to qualified work product protection. The trial court granted CELA’s motion to compel. Curtis appealed.
Court’s Decision: Preliminarily, the California Court of Appeal noted that the appeal was not proper because discovery orders are generally not appealable. However, because of the unusual circumstances, the court opted to construe the appeal as a petition for writ of mandate.Turning to the merits of the writ, the court observed that there was a dearth of relevant authority. Nevertheless, adopting and applying the reasoning of Coito v. Superior Court, 54 Cal. 4th 480 (2012), the court held that in the context of an attorney’s identification of a non-testifying expert, the objecting party may be entitled to protection under the work product privilege if it can make a preliminary or foundational showing that identifying the non-testifying expert would reveal the attorney’s tactics, impressions, or evaluation of the case, or would result in opposing counsel taking undue advantage of the attorney’s industry or efforts. If the disclosure would reveal the attorney’s tactics, impressions, or evaluation of the case, the information would be entitled to absolute work production protection; if the disclosure would allow opposing counsel to take undue advantage of the attorney’s efforts or impair the privacy necessary for the attorney to investigate not only the favorable but unfavorable aspects of the case, a qualified protection would apply. In this case, the court held that while there could be repercussions from disclosing the name of the expert, it would not reveal anything about Curtis’s representation of his client in the underlying matter, and thus did not qualify for absolute work product protection. The court found that Doe 1’s identity was, nevertheless, still entitled to qualified work product protection, but that CELA had carried its burden to compel disclosure. The court, accordingly, denied the petition for writ of mandate.
Practical Implications: Absolute attorney work product protection only attaches when disclosure of such information would reveal the attorney’s tactics, impressions, or evaluation of the case. Negative repercussions of disclosure alone are not enough to entitle an attorney to refuse to disclose with absolute protection.
Freyd v. University of Oregon, 990 F.3d 1211 (9th Cir. 2021)
Summary: Evidence showing that comparable jobs were substantially similar to plaintiff’s and statistical evidence of pay disparities raised triable issues to defeat summary judgment of plaintiff’s Equal Pay Act claim and disparate impact claim under Title VII.
Facts: Plaintiff Jennifer Freyd, a professor of psychology at Defendant University of Oregon, filed a lawsuit against Defendant alleging, among other claims, gender discrimination in violation of Title VII and violation of the Equal Pay Act (“EPA”) based on Defendant’s policy and practice of granting “retention raises” to faculty as an incentive to remain with Defendant when they are being courted by other academic institutions. Plaintiff alleged that this practice created a disparate impact because female professors are less likely to engage in negotiations for such raises and, even if they do, they are less successful at obtaining them. Plaintiff put forth evidence that she was making between $14,000 and $42,000 less per year than four of her male colleagues (“comparators”) with whom she was of comparable rank and tenure, as well as statistical evidence conducted by herself and Defendant that showed a pay disparity between female and male professors in the Psychology Department. The district court granted summary judgment in favor of Defendant, finding that: (1) Plaintiff failed to show that she and the alleged comparators performed substantially equal or comparable work, (2) her statistical evidence was insufficient to show disparate impact, and (3) Defendant established that the at-issue practice was job-related and a business necessity. Plaintiff appealed.
Court’s Decision: The Court of Appeals for the Ninth Circuit affirmed in part and reversed in part. First, the court reversed the grant of summary judgment as to Plaintiff’s EPA claim. The court found that a plaintiff must show that the jobs being compared, not the individuals holding the jobs, are substantially equal. The panel concluded that, viewing the evidence in the light most favorable to Plaintiff, a reasonable jury could find that she and her comparators shared the same “overall job.” The court declined to hold as a matter of law that the different responsibilities among Plaintiff and her comparators rendered their jobs so unique that they could not be compared for purposes of the EPA. Second, the court reversed the grant of summary judgment as to Plaintiff’s disparate impact claim under Title VII. The court explained that even if the facially neutral practice challenged by a plaintiff under a disparate impact theory is job related and consistent with business necessity, a plaintiff may still prevail if she can show that the employer refused to adopt an alternative practice that still served business need, but had a less disparate impact. The court found that Plaintiff’s statistical evidence was sufficient, that there was conflicting evidence as to whether retention raises were necessary and job related, and that the district court analyzed the wrong practice – Plaintiff was not challenging the practice of retention raises, but the practice of such raises without increasing the salaries of other professors of comparable merit and seniority. Accordingly, Plaintiff should have been allowed to proceed on these two claims.
Practical Implications: Employers should take care not only to assess whether a business practice is necessary and job related, but also whether there is another practice that still serves business need, but has a less disparate impact. If an employer can identify such an alternative practice, it should consider implementing that practice absent a compelling reason to the contrary to better protect itself from potential disparate impact lawsuits.
