Employment Lawyer Case – Appeal


Court of Appeal, Second District, Division 7, Califor-nia.

Lorena ALAMO, Plaintiff and Respondent,

v.

PRACTICE MANAGEMENT INFORMATION CORPORATION, Defendant and Appellant.

No. B230909.

Sept. 24, 2012.

Review Granted Jan. 23, 2013.

Background: Former employee brought action against former employer, alleging pregnancy dis-crimination and retaliation in violation of the Cali-fornia Fair Employment and Housing Act (FEHA) andwrongful termination in violation of public poli-cy. The Superior Court, Los Angeles County, No. BC416196,Rex Hesseman, J., entered judgment on jury verdict for former employee, and former em-ployer appealed.

Holdings: The Court of Appeal, Zelon, J., held that:

  • (1) former employee was required to prove her preg-nancy-related leave was “a motivating reason” for her discharge;
  • (2) case as presented did not warrant jury instruction on mixed motive defense;
  • (3) failure of special verdict form to specify whether former employee prevailed on the statutory or common law cause of action was invited error; and
  • (4) former employee was entitled to award of attor-ney’s fees.

 Affirmed. *154 Neufeld, Marks & Gralnek and Paul S. Marks, Los Angeles, for Defendant and Appellant. Employment Lawyers Group and Karl Gerber, Sherman Oaks, for Plaintiff and Respondent.

ZELON, J.

*98 Appellant Practice Management Infor-mation Corporation (PMIC) appeals from a judg-ment in favor of its former employee, respondent Lorena Alamo, following a jury trial on Alamo’s causes of action for pregnancy discrimination and retaliation in violation of the California Fair Em-ployment and Housing Act (FEHA) and wrongful termination in violation of public policy. On appeal, PMIC argues that the trial court committed prejudi-cial error in (1) instructing the jury pursuant to CACI Nos. 2430, 2500, 2505, and 2507 that Alamo had to prove her pregnancy-related leave was “a motivating reason” for her discharge, and (2) refusing to instruct the jury pursuant to BAJI No. 12.26 that PMIC could avoid liability under a mixed motive defense by proving it would have made the same discharge deci-sion in the absence of any discriminatory or retalia-tory motive. PMIC also argues that the trial court erred in awarding attorney’s fees to Alamo as the prevailing plaintiff under FEHA where the general verdict form failed to specify whether the jury’s ver-dict was based on the statutory FEHA claim or the common law wrongful discharge claim. For the rea-sons set forth below, we affirm.

*99 FACTUAL BACKGROUND AND PROCE-DURAL HISTORY I. Civil Action

Following the termination of her employment, Alamo filed a civil action against her former em-ployer, PMIC. In her complaint, Alamo alleged three causes of action for pregnancy discrimination in vi-olation of FEHA and the California Constitution, wrongful termination in violation of public policy, and intentional infliction of emotional distress. After the trial court partially granted and partially denied PMIC’s motion for summary adjudication, the case was tried before a jury on Alamo’s statutory FEHA claim and common law wrongful discharge claim.

II. Trial Evidence

PMIC is a small company that publishes medi-cal coding and compliance books. Alamo began her employment with PMIC in July 2006 where she worked as a clerk in the collections department. She was later promoted to the position of lead collections clerk and was primarily responsible for billing and collecting payments from PMIC’s largest customers. Alamo received regular pay raises during her em-ployment, and as of January 2009, her base rate of pay was $18 per hour. Alamo’s direct supervisor was Michelle Cuevas, the Operations Manager. Cuevas in * turn reported to Gregory Trupiano, PMIC’s Execu-tive Vice–President, and to James Davis, PMIC’s founder and President.

On January 15, 2009, Alamo began a pregnan-cy-related leave of absence. Her baby was born ap-proximately two weeks later on January 27, 2009. On February 18, 2009, Alamo requested an addi-tional six weeks of maternity leave to bond with her baby, which was granted by PMIC. Alamo was scheduled to return to work on April 22, 2009.

While Alamo was on leave from PMIC, Marcell Moran was hired on a part-time temporary basis to fill Alamo’s position. Alamo had recommended that Moran fill in for her during her leave because Moran previously had worked at PMIC and remained good friends with Alamo. Moran began working in Ala-mo’s position in February 2009 and was paid $14 per hour for her part-time work. At that time, Moran was also pregnant with a due date in September 2009.

Moran was planning on moving out of the Los An-geles area before the birth of her baby and only in-tended to work at PMIC on a temporary basis while Alamo was on leave.

Prior to Alamo’s leave of absence, Cuevas had some concerns about Alamo’s performance, but did not consider any of these problems to be *100 seri-ous enough to warrant formal discipline. Cuevas tes-tified that there were times when Alamo failed to timely contact customers about invoices that were past due and Cuevas had to remind Alamo to follow up on those accounts. Cuevas also testified that Alamo at times had poor working relationships with other employees, some of whom complained that Alamo treated them rudely. In addition to orally counseling Alamo about improving her interpersonal skills, Cuevas sent an email to her subordinates in January 2007 reminding them to treat all PMIC em-ployees in a professional manner. However, Cuevas never felt that it was necessary to issue Alamo any written warnings about her performance prior to her leave.

During Alamo’s leave of absence, Cuevas be-came aware of other performance problems that caused her more concern. Cuevas specifically testi-fied that she learned Alamo had not taken any ac-tion on certain customer accounts with large unpaid invoices even though Cuevas had requested that Alamo resolve those accounts before her leave. Cuevas also testified that Alamo had told her that PMIC could not collect on two outstanding accounts because the customers were no longer in business, which Cuevas later learned was untrue. According to Cuevas, PMIC had to take a loss on some of Ala-mo’s accounts because too much time had passed to collect payment from the customer. Cuevas intended to discuss these recently-discovered performance issues with Alamo once she returned from her leave in April 2009. To that end, Cuevas advised Alamo not to return to work until April 22, 2009, when Cuevas would be back in the office from vacation.

Alamo denied that she had any performance problems at PMIC. She testified that the customer accounts that PMIC was claiming Alamo had ne-glected were actually assigned to Cuevas and that Cuevas merely had asked Alamo to assist her by following up on certain unpaid invoices, which Ala-mo did. Alamo also testified that she was never counseled by Cuevas, either orally or in writing, about her interpersonal skills in working with other employees.

In mid-April 2009, approximately one week be-fore her scheduled return date, Alamo requested and received permission from Trupiano to come into the office to have lunch with a coworker, Maria Alco-cer.*156 Alamo did not ask Cuevas for permission to visit the office at that time because it was her un-derstanding that Cuevas was on vacation. On April 17, 2009, Alamo had lunch with Alcocer in PMIC’s break room. As Alamo was leaving, she had a verbal altercation with Moran, the person filling in for her, in the hallway outside the office. The argument began because Moran wanted to know why Alamo had not given Moran her new cell phone number. According to Moran, Alamo said that she was having a lot of personal problems and did not want to talk to any-one. Alamo also said that she felt Moran was being *101 mean to their coworker, Alcocer. According to Alamo, Moran initiated the argument, yelled at her in an angry manner, and then told Alamo, “Well, that’s good, you’re going to get fired anyways.” Later that day, Alamo contacted both Trupiano and Cuevas by telephone and asked them about Moran’s statement that Alamo was going to be fired. Cuevas told Ala-mo that they would discuss the matter when Alamo returned to work the following week.

Shortly after Alamo left the office, Moran had a separate verbal altercation with Alcocer. Alcocer and Moran had been having a personality conflict for several months that escalated into an argument that day. As described by Alcocer, Moran approached her desk and began yelling at her because Alcocer re-cently had complained to Cuevas that Moran was being rude to her. Moran told Alcocer that she should talk to Moran directly about any problems between them instead of complaining to Cuevas. After the argument with Moran, Alcocer decided to take a stress-related leave of absence because she felt that Moran and another employee named Elaine Rodri-guez were being verbally abusive to her. Alcocer be-gan her leave on April 20, 2009, and she did not re-turn to work until four months later in August 2009.

On April 22, 2009, Alamo returned to work from her maternity leave. After working for about three hours, Alamo was called into a meeting with Cuevas and Trupiano and told that her employment was being terminated. According to Alamo, Cuevas said during the meeting that she felt Alamo was not doing her job and specifically mentioned one unpaid ac-count. There was no mention of Alamo’s recent visit to the office for lunch with Alcocer or to her verbal altercation with Moran. There was also no mention of Alamo’s pregnancy or maternity leave. At the end of the meeting, Cuevas explained that if Alamo signed a release waiving any claims she might have against PMIC, Cuevas would be able to provide Alamo with a positive employment reference. Ala-mo, however, refused to sign the release.

Cuevas testified that, as of April 22, 2009, she believed PMIC should terminate the employment of both Alamo and Moran, and she made that recom-mendation to her superiors, Trupiano and Davis. Cuevas explained that she did not feel that Alamo’s prior performance problems, standing alone, were serious enough to warrant termination. However, when Alamo’s history of poor performance was con-sidered with her recent act of insubordination in vis-iting the office without Cuevas’ permission and then having a verbal altercation with a coworker, Cuevas felt that termination was warranted. Cuevas admit-ted that she did not talk to Alamo about what hap-pened during the altercation before deciding that Alamo should be discharged. Cuevas further admit-ted that Alamo had received permission to visit the office from Trupiano, but testified that Alamo nev-ertheless was insubordinate in ignoring *102 Cuevas’ instruction that Alamo not return to work until the following week. Cuevas also stated*157 that she believed Alamo knew that Cuevas would not have allowed her to come into the office when Cuevas was not there given the ongoing conflict between Alcocer and Moran. Cuevas testified that her recommenda-tion to discharge Alamo had nothing to do with her pregnancy or maternity leave, but rather was based solely on Alamo’s performance and insubordination issues.

Trupiano and Davis were both involved in the final decision to terminate Alamo’s employment. Trupiano testified that he agreed with Cuevas that Alamo should be discharged based on her poor work performance and insubordination, but decided to defer to Davis as to whether Moran also should be discharged given that she had no other disciplinary issues. Davis testified that he made the decision to terminate Alamo’s employment based solely on her performance issues in neglecting her assigned cus-tomer accounts, her act of insubordination in visiting the office without Cuevas’s permission, and then engaging in a verbal altercation with a coworker. Da-vis testified that he decided not to discharge Moran for her involvement in the altercation because it was her first incident of inappropriate conduct. At trial, both Davis and Trupiano denied that Alamo was terminated for any reason related to her pregnancy or maternity leave. Following Alamo’s discharge, PMIC decided to provide her with one month of sev-erance pay not conditioned upon the signing of any release.

III. Jury Verdict and Lawyers’s Fees Award


At the conclusion of the trial, the jury returned a general verdict in favor of Alamo and awarded her damages in the amount of $10,000. With respect to Alamo’s request for punitive damages, however, the jury found that she failed to prove by clear and con-vincing evidence that PMIC acted with malice, op-pression, or fraud. Following the verdict, the trial court granted Alamo’s motion for attorney’s fees and costs as the prevailing plaintiff under FEHA and awarded her counsel attorney’s fees in the amount of $50,858.44. PMIC thereafter filed a timely notice of appeal.

DISCUSSION

PMIC raises two arguments on appeal. First, PMIC contends that the trial court committed preju-dicial error in instructing the jury on the proper standard of causation in Alamo’s claims for preg-nancy discrimination and retaliation in violation of FEHA and wrongful termination in violation of pub-lic policy. Second, PMIC claims that the trial court erred in awarding attorney’s fees to Alamo as the prevailing plaintiff under FEHA based on a general verdict that failed to identify the specific cause of action on which Alamo had prevailed.

*103 I. Alleged Instructional Error

PMIC first asserts that the trial court prejudi-cially erred in failing to properly instruct the jury on the standard of causation in a FEHA claim. PMIC specifically argues that the trial court erred in in-structing the jury pursuant to CACI Nos. 2430, 2500, 2505, and 2507 that Alamo had to prove her preg-nancy-related leave was “a motivating reason” for her discharge, rather than the “but for” cause of her discharge. PMIC also contends that the trial court erred in refusing to instruct the jury pursuant to BAJI No. 12.26 that PMIC could avoid liability under a mixed motive defense by proving it would have made the same decision even in the absence of a discriminatory or retaliatory motive. As the parties acknowledge, the question of the proper standard *158 of causation in a FEHA claim, including the availability of a mixed motive defense, is currently pending before the Cali-fornia Supreme Court in Harris v. City of Santa Monica, review granted April 22, 2010, S181004 (Harris ). Pending further guidance on this issue by the Supreme Court, we conclude that the trial court did not commit any instructional error in this case.

A. Relevant Jury Instructions

The trial court instructed the jury on the essential elements of Alamo’s causes of action with CACI No. 2430 (wrongful discharge in violation of public poli-cy), CACI No. 2500 (disparate treatment under FEHA), CACI No. 2505 (retaliation under FEHA), and CACI No. 2527 (failure to prevent discrimina-tion or retaliation under FEHA). With respect to CACI Nos. 2430, 2500, and 2505, the trial court in-structed the jury that Alamo had to prove, among other elements, that her pregnancy or taking of a pregnancy-related leave was “a motivating reason” or “a motivating factor” for her discharge. With re-spect to CACI No. 2527, the trial court instructed the jury that Alamo had to prove, among other elements, that she was subject to discrimination or retaliation “because” she took a pregnancy-related leave. The trial court also instructed the jury on the definition of “a motivating reason” with CACI No. 2507, stating that “[a] motivating reason is a reason that contrib-uted to the decision to take certain actions even though other reasons also would have contributed to the decision.”

The trial court refused PMIC’s request that CACI Nos. 2430, 2500, and 2505 be modified to state that Alamo must prove her pregnancy or taking of a pregnancy-related leave was “a substantial motivat-ing reason,” as opposed to “a motivating reason,” for her discharge. The trial court also refused PMIC’s request that CACI No. 2507 be modified to state that if the same decision would have been made in the absence of any discriminatory or retaliatory motive, then the

discrimination or retaliation was not a substantial motivating *104 reason for the decision. Finally, the trial court refused PMIC’s request that the jury be instructed on the mixed motive defense with BAJI No. 12.26, which states, in pertinent part, as follows: “If you find that the employer’s action, which is the subject of the plaintiff’s claim, was actually moti-vated by both discriminatory and non-discriminatory reasons, the employer is not liable if it can establish by a preponderance of the evidence that its legiti-mate reason, standing alone, would have induced it to make the same decision.” FN1

FN1. PMIC requested that the jury be in-structed with BAJI 12.26 in a motion in limine filed prior to trial. Although the record on appeal does not include the trial court’s ruling on the motion, it appears from the court’s discussion with counsel at a pretrial hearing on jury instructions that the court denied PMIC’s request.

B. Standard of Review

“A party is entitled upon request to correct, to correct, nonargumentative instructions on every the-ory of the case advanced by him or her which is supported by substantial evidence.” (Soule v. Gen-eral Motors Corp. (1994) 8 Cal.4th 548, 572, 34 Cal.Rptr.2d 607, 882 P.2d 298.) A court may refuse a proposed instruction that incorrectly states the law or is argumentative, misleading, or incomplete. (Shaw v. Pacific Greyhound Lines (1958) 50 Cal.2d 153, 158, 323 P.2d 391; see also Harris v. Oaks Shopping Center (1999) 70 Cal.App.4th 206, 209, 82 Cal.Rptr.2d 523 [“[i]rrelevant, confusing, incomplete or misleading instructions need not be given”].) A court also may refuse an instruction requested*159 by a party when the legal point is adequately covered by other instructions given. (Arato v. Avedon (1993) 5 Cal.4th 1172, 1189, fn. 11, 23 Cal.Rptr.2d 131, 858 P.2d 598.)

“The propriety of jury instructions is a question of law that we review de novo. [Citation.]” (Cristler v. Express Messenger Systems (2009) 171 Cal.App.4th 72, 82, 89 Cal.Rptr.3d 34.) When the contention on appeal is that the trial court failed to give a requested instruction, we review the record in the light most favorable to the party proposing the instruction to determine whether it was warranted by substantial evidence. (Ayala v. Arroyo Vista Family Health Center (2008) 160 Cal.App.4th 1350, 1358, 73 Cal.Rptr.3d 486.) In the event the trial court erred, “[a] judgment may not be reversed for instructional error in a civil case ‘unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.’ [Citation.]” (Soule v. General Motors Corp., supra, 8 Cal.4th at p. 580, 34 Cal.Rptr.2d 607, 882 P.2d 298.) “A ‘mis-carriage of justice’ exists when, after examining all the evidence, we conclude ‘ “ ‘it is reasonably proba-ble that a result more favorable to the appealing party would have been reached in the absence of error.’ ” ‘ [Citation.]” (Weaver v. Chavez (2005) 133 Cal.App.4th 1350, 1356, 35 Cal.Rptr.3d 514.)

*105 C. The trial court did not err in instructing the jury on the standard of causation with CACI Nos. 2430, 2500, 2505, 2507, and 2527.

PMIC contends that the trial court erred in in-structing the jury on the element of causation in a FEHA claim because the CACI instructions given to the jury did not express the “but for” standard of causation required under FEHA. According to PMIC, FEHA requires an employee alleging a discriminatory or retaliatory discharge to prove that his or her pro-tected status or activity was the “but for” cause of the discharge rather than “a motivating factor” in the discharge. A review of the language and legislative purpose of FEHA, as well as the relevant case law, does not support PMIC’s position.

FEHA makes it an unlawful employment prac-tice “[f]or an employer, because of race, religious creed, color, national origin, ancestry, physical disa-bility, mental disability, medical condition …, marital status, sex, … age, or sexual orientation of any per-son, … to discharge the person from employment….” (Gov.Code, § 12940, subd. (a).) FEHA also makes it an unlawful employment practice for an employer “to refuse to allow a female employee disabled by pregnancy, childbirth, or a related medical condition to take a leave for a reasonable period of time not to exceed four months and thereafter return to work,” or “to refuse to grant a request by any [qualifying] employee … to take up to a total of 12 workweeks in any 12–month period for family care and medical leave.” (Gov.Code, §§ 12945, subd. (a)(1), 12945.2, subd. (a).)

The express purposes of FEHA are “to provide effective remedies that will both prevent and deter unlawful employment practices and redress the ad-verse effects of those practices on aggrieved per-sons.” (Gov.Code, § 12920.5.) The Legislature ac-cordingly has mandated that the provisions of stat-ute “shall be construed liberally” to accomplish its purposes. (Gov.Code, § 12993, subd. (a).) As our Supreme Court has recognized, “[b]ecause the FEHA is remedial legislation, which declares ‘[t]he oppor-tunity to seek, obtain and hold employment without discrimination’ to be a civil right [citation], and ex-presses*160 a legislative policy that it is necessary to protect and safeguard that right [citation], the court must construe the FEHA broadly, not … restrictively.” (Robinson v. Fair Employment & Housing Com. (1992) 2 Cal.4th 226, 243, 5 Cal.Rptr.2d 782, 825 P.2d 767.)

The California Supreme Court has not addressed whether the CACI instructions’ use of the phrase “a motivating reason” accurately describes the standard of causation in a FEHA claim, although this issueultimately may be decided by the court in Harris. The Supreme Court has suggested in dicta, however, that “a motivating reason” or “a motivating factor” is the proper causation standard under FEHA. Spe-cifically, in *106Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 100 Cal.Rptr.2d 352, 8 P.3d 1089, the Supreme Court considered whether a defendant employer was entitled to summary judgment in a FEHA discrimination claim based on evidence that it terminated the plaintiff’s employment due to down-sizing. In rejecting the employer’s argument that downsizing alone was a sufficient non-discriminatory reason for the discharge, the court noted that “[i]nvocation of a right to downsize does not resolve whether the employer had a discriminatory motive for cutting back its work force, or engaged in inten-tional discrimination when deciding which individual workers to retain and release.” (Id. at p. 358, 100 Cal.Rptr.2d 352, 8 P.3d 1089, italics added.) As the court further explained, in a FEHA discrimination case, “the ultimate issue is simply whether the em-ployer acted with a motive to discriminate illegally.” (Ibid.)

Over the years, the California appellate courts likewise have used the phrase “a motivating factor” or “a motivating reason” in describing the standard of causation in a FEHA discrimination or retaliation claim. (See, e.g., Green v. Laibco, LLC (2011) 192 Cal.App.4th 441, 443, 121 Cal.Rptr.3d 415 [con-cluding that “there was substantial evidence sup-porting the jury’s finding that plaintiff’s complaint of sexual harassment of a colleague was a motivating reason for her discharge”]; West v. Bechtel Corp. (2002) 96 Cal.App.4th 966, 978, 117 Cal.Rptr.2d 647 [noting that “[a] discharge is not ‘on the ground of age’ within the meaning of [FEHA’s] prohibition unless age is a ‘motivating factor’ in the decision”]; Caldwell v. Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 205, 48 Cal.Rptr.2d 448 [stating that once a FEHA discrimination case is submitted to the trier of fact, it “will have only to decide the ulti-mate issue of whether the employer’s discriminatory intent was a motivating factor in the adverse em-ployment decision”].) As the Court of Appeal ex-plained in Mixon v. Fair Employment & Housing Com. (1987) 192 Cal.App.3d 1306, 237 Cal.Rptr. 884, an employee alleging race discrimination under FEHA“need not prove that racial animus was the sole motivation behind the challenged action,” but rather “must prove by a preponderance of the evi-dence that there was a ‘causal connection’ between the employee’s protected status and the adverse em-ployment decision.” (Id. at p. 1319, 237 Cal.Rptr. 884; see also Clark v. Claremont University Center (1992) 6 Cal.App.4th 639, 665, 8 Cal.Rptr.2d 151 [“The employee need not show ‘he would have in any event been rejected or discharged solely on the basis of his race, without regard to the alleged defi-ciencies….’ ”].) The language of the challenged CACI instructions incorporates this element of a “causal connection” by requiring the employee to prove that his or her protected status was “a motivating reason” for the adverse decision.

In support of its argument that FEHA requires the plaintiff to prove “but for” causation, PMIC primarily relies on *161Gross v. FBL Financial Ser-vices, Inc. (2009) 557 U.S. 167, 129 S.Ct. 2343, 174 L.Ed.2d 119 (Gross ), a case arising under the federal Age Discrimination in Employment Act *107 (ADEA) (29 U.S.C. § 621 et seq.). In Gross, the Unit-ed States Supreme Court held in a 5–4 decision that a plaintiff alleging discrimination under the ADEA must prove that age was the “but for” cause of the challenged action. (Gross, supra, at p. 176, 129 S.Ct. 2343.) However, the majority in Gross based its deci-sion on the distinct legislative history of the ADEA as compared to that of Title VII of the Civil Rights Act of 1964 (Title VII) (42 U.S.C. § 2000e et seq.). Spe-cifically, in 1991, Congress amended Title VII to provide that “an unlawful employment practice is established when the complaining party demon-strates that race, color, religion, sex, or national origin was a motivating factor for any employment prac-tice, even though other factors also motivated the practice.” (42 U.S.C. § 2000e–2(m)42 U.S.C. § 2000e–2(m).) becausE congress did not make a parallel amendment to the ADEA at that time, the Gross majority reasoned that Congress must have rejected the “motivating factor” standard for claims alleged under the ADEA. (Gross, supra, at pp. 174–175, 129 S.Ct. 2343.) Therefore, while both Title VII and the ADEA prohibit discrimination “be-cause of” a person’s membership in a protected class,FN2 a plaintiff in an ADEA case must prove that discriminatory animus was the “but for” cause of the adverse employment action, whereas a plaintiff in a Title VII case merely must establish that discrimina-tory animus was “a motivating factor” in the chal-lenged decision. Given these conflicting standards of causation that now apply under the federal an-ti-discrimination statutes, we decline to follow Gross in considering the proper standard of causation under FEHA.

FN2. Title VII specifically states that “[i]t shall be an unlawful employment practice for an employer … [¶] to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, condi-tions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin….” (42 U.S.C. § 2000e–2(a)(1), italics added.) The ADEA similarly provides that “[i]t shall be unlawful for an employer … [¶] to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with re-spect to his compensation, terms, condi-tions, or privileges of employment, because of such individual’s age….” (29 U.S.C. § 623(a), italics added.)

PMIC also relies on a handful of California cas-es to support its claim that FEHA requires a “but for” standard of causation, but only two of PMIC’s cited cases— Lyle v. Warner Brothers Television Produc-tions (2006) 38 Cal.4th 264, 42 Cal.Rptr.3d 2, 132 P.3d 211 (Lyle ) and Reeves v. Safeway Stores, Inc. (2004) 121 Cal.App.4th 95, 16 Cal.Rptr.3d 717 (Reeves )—involved claims arising under FEHA. In Lyle, the California Supreme Court noted in dicta that “ ‘[t]o plead a cause of action for [hostile work environment] sexual harassment, it is “only neces-sary to show that gender is a substantial factor in the discrimination, and that if the plaintiff ‘had been a man she would not have been treated in the same manner.’ ” [Citation.]’ ” (Lyle, supra, at p. 280, 42 Cal.Rptr.3d 2, 132 P.3d 211.) However, Lyle did not address the proper standard of causation in a FEHA discrimination or retaliation claim, nor did it state that a plaintiff in a FEHA harassment claim must prove that gender was the sole motivating factor for *108 the hostile work environment. In Reeves, the California Court of Appeal considered whether an employer may be liable for retaliatory discharge un-der FEHA when the supervisor who initiated discipli-nary proceedings that led to the discharge acted with a retaliatory animus, but the ultimate *162 deci-sion-maker had no knowledge of the plaintiff’s pro-tected activity. (Reeves, supra, at p. 100, 16 Cal.Rptr.3d 717.) The Reeves court held that “so long as the supervisor’s retaliatory motive was an actuat-ing, but-for cause of the dismissal, the employer may be liable for retaliatory discharge.” (Ibid.) Yet else-where in the opinion, the Reeves court suggested that an employer may be liable for retaliation under FEHA if the employee presents “sufficient proof to establish that retaliatory animus on the part of one or more contributors to the decision was a substantial contributing factor in bringing about his dismissal.” (Id. at p. 113, 16 Cal.Rptr.3d 717, italics added.) Thus, when read in their entirety, neither Lyle nor Reeves supports a conclusion that the “because of” language in FEHA means “solely because of” the employee’s protected status or activity.

PMIC further asserts that FEHA’s use of “a mo-tivating factor” causation standard in its housing discrimination provisions but not its employment discrimination provisions must mean that a different standard applies in an employment case. However, a review of the relevant provisions of FEHA shows that both the employment and housing sections of the statute use the same terminology—“because of”—in defining the prohibited acts of discrimination. FN3 In the housing section, FEHA further provides that “[a] person intends to discriminate if [the protected trait] is a motivating factor in committing a discriminatory housing practice even though other factors may have also motivated the practice.” (Gov.Code, § 12955.8, subd. (a).) That same language is not included in FEHA’s employment section. But given that both the employment and housing provisions expressly pro-hibit discrimination “because of” a person’s mem-bership in a protected class, we reject PMIC’s argu-ment that the Legislature must have intended for a different standard of causation to apply to FEHA’s employment provisions.

FN3. In the employment section, FEHA provides that “[i]t is an unlawful employ-ment practice … [¶] (a) For an employer, because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, or sexual orientation of any person, … to dis-criminate against the person in compensa-tion or in terms, conditions, or privileges of employment.” (Gov.Code, § 12940, subd. (a), italics added.) In the housing section, FEHA similarly states that “[i]t shall be un-lawful: [¶] (a) For the owner of any housing accommodation to discriminate against or harass any person because of the race, col-or, religion, sex, gender, gender identity, gender expression, sexual orientation, mari-tal status, national origin, ancestry, familial status, source of income, disability, or ge-netic information of that person.” (Gov.Code, § 12955, subd. (a), italics add-ed.)

PMIC suggests that the CACI instructions’ use of “a motivating reason” standard permits a jury to find in favor of the plaintiff if the challenged *109 em-ployment decision was motivated in the slightest possible way by discrimination without considering whether the employer actually acted upon such mo-tivation. We disagree. The jury was instructed, pur-suant to CACI Nos. 2430, 2500, and 2505, that it could only find in favor of Alamo if she proved by a preponderance of the evidence that her pregnancy or pregnancy-related leave was “a motivating reason” for her discharge.FN4 The jury further was instructed, *163 pursuant to CACI No. 2507, that “[a] motivat-ing reason is a reason that contributed to the decision to take certain actions even though other reasons also would have contributed to the decision.” Ac-cordingly, the instructions required Alamo to estab-lish that there was a causal connection between her protected status and the adverse employment deci-sion. The trial court did not err in instructing the jury with CACI Nos. 2430, 2500, 2505, 2507, and 2527.

FN4. CACI No. 2527, which sets forth the essential elements of a claim for failure to prevent discrimination or retaliation, does not use the phrase “a motivating reason” or “a motivating factor.” Rather, the instruc-tion required Alamo to prove she was sub-ject to discrimination or retaliation “be-cause” she took a pregnancy-related leave. This phrase actually mirrors the language of FEHA’s anti-discrimination provision which prohibits discrimination “because of” a person’s protected status. (Gov.Code, § 12940, subd. (a).)

D. The trial court did not err in refusing to instruct the jury on the mixed motive defense with BAJI No. 12.26.

Alternatively, PMIC contends that the trial court erred in refusing its request to instruct the jury on the mixed motive defense with BAJI No. 12.26. PMIC reasons that had the jury been instructed on the availability of the mixed motive defense under FEHA, it could have found in favor of PMIC based on evidence that PMIC would have made the same decision to terminate Alamo’s employment even in the absence of a discriminatory or retaliatory motive. As discussed, the question of whether a mixed mo-tive defense is available under FEHA is currently pending before the California Supreme Court in Har-ris. However, we need not decide that issue here. Even if we assume for purposes of this appeal that the mixed motive defense applies to FEHA claims, the trial court did not err in refusing to instruct the jury with BAJI No. 12.26 because this case was tried by both parties as a single motive, not a mixed mo-tive, case.

The mixed motive defense was first articulated by the United States Supreme Court in Price Water-house v. Hopkins (1989) 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (Price Waterhouse ). The plaintiff in Price Waterhouse filed a Title VII sex discrimination action against her employer after she was refused admission as a partner. The evidence at trial established that the plaintiff was denied part-nership based on both permissible factors (her lack of interpersonal skills) and impermissible factors (sexual stereotypes *110 about her lack of femininity). (Id. at pp. 250–252, 109 S.Ct. 1775.) In a plurality deci-sion, the Supreme Court rejected the argument that Title VII’s prohibition of discrimination “because of” sex required the plaintiff to prove that her gender was the “but for” cause of the adverse action. (Id. at pp. 240–242, 109 S.Ct. 1775.) Rather, the Supreme Court held that the plaintiff had to prove that “her gender played a motivating part in an employment decision.” (Id. at p. 258, 109 S.Ct. 1775.) The Su-preme Court further held that, where the employ-ment decision was the product of a mixture of legit-imate and illegitimate motives, the employer could avoid a finding of liability “only by proving by a preponderance of the evidence that it would have made the same decision even if it had not taken the plaintiff’s gender into account.” (Ibid.) FN5

FN5. In its 1991 amendments to Title VII, Congress partially ratified the Price Water-house holding by adopting the “a motivat-ing factor” standard of causation, and par-tially overruled the decision by providing that the mixed motive defense does not de-feat a finding of liability, but merely limits available remedies. (42 U.S.C. §§ 2000e–2(m), 2000e–5(g)(2)(B).) Thus, the mixed motive defense has been codified in-to Title VII, but only as a limitation on remedies rather than a complete defense to liability.

Citing Price Waterhouse, several California Court of Appeal cases have assumed without decid-ing that the mixed motive *164 defense is also available under FEHA. (See Huffman v. Interstate Brands Corp. (2004) 121 Cal.App.4th 679, 703, 17 Cal.Rptr.3d 397 (Huffman ) [mixed motive defense “limits the employer’s liability, once a plaintiff has established an unlawful motive, if the employer can show that it would have taken the same action ab-sent the unlawful motive”]; Reeves, supra, 121 Cal.App.4th at p. 111, fn. 11, 16 Cal.Rptr.3d 717 [under a mixed motive analysis, “a case goes to the jury if there is evidence that an impermissible criteri-on ‘ “ ‘was a motivating factor for any employment practice’ ” ‘ ”]; Heard v. Lockheed Missiles & Space Co. (1996) 44 Cal.App.4th 1735, 1748, 52 Cal.Rptr.2d 620 (Heard ) [“In some cases, the evi-dence will establish that the employer had ‘mixed motives’ for its employment decision. [Citation] In a mixed motive case, both legitimate and illegitimate factors contribute to the employment decision”].) None of these California cases, however, actually applied the mixed motive defense to a FEHA claim. Moreover, in referencing the mixed motive defense, the cases have recognized that there is a critical distinction between a true mixed motive case and a single motive pretext case.

In Reeves, for instance, the Court of Appeal noted that both parties had treated the plaintiff’s FEHA retaliation claim as a pretext case to “be ana-lyzed within the three-step analytical framework adopted by the United States Supreme Court in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, 802–804 [93 S.Ct. 1817, 36 L.Ed.2d 668],” and that the plaintiff “ha[d] not invoked the competing model of ‘ “ ‘mixed motive’ ” ‘ analysis.” (Reeves, supra, 121 Cal.App.4th at p. 111, fn. 11, 16 Cal.Rptr.3d 717.) Similarly, in Huffman, the Court of Appeal rejected the plaintiff’s argument that the em-ployer in a FEHA *111 discrimination claim had the burden of proof because it was a mixed motive case. (Huffman, supra, 121 Cal.App.4th at p. 702, 17 Cal.Rptr.3d 397.) As the Huffman court reasoned, “[t]his case was pled and tried as a pretext case, that is, [the employer’s] decision was a pretext for age discrimination. [The employer] never raised mixed-motive as an affirmative defense and it was never presented to the jury as a mixed-motive case. Rather, [the plaintiff] succeeded at trial in convincing the jury that [the employer’s] stated reasons for its decision were not legitimate and the real reason [the plaintiff] was demoted was because of his age…. Had this been a true mixed-motive case, the employment decision at issue would have resulted from a mixture of illegitimate and legitimate considerations.” (Ibid.)

The Price Waterhouse decision itself noted the distinction between a mixed motives case and a sin-gle motive pretext case. As Justice White explained in his concurrence, “ ‘mixed-motives’ cases … are dif-ferent from pretext cases…. In pretext cases, ‘the issue is whether either illegal or legal motives, but not both, were the “true” motives behind the decision.’ [Citation.] In mixed-motives cases, however, there is no one ‘true’ motive behind the decision. Instead, the decision is a result of multiple factors, at least one of which is legitimate.” (Price Waterhouse, supra, 490 U.S. at p. 260, 109 S.Ct. 1775 (conc. opn. of White, J.).) While a case need not “be correctly labeled as either a ‘pretext’ case or a ‘mixed-motives’ case from the beginning …, [a]t some point in the proceedings, of course, the District Court must decide whether a particular case involves mixed motives,” and instruct the jury accordingly. (Id. at p. 247, fn. 12, 109 S.Ct. 1775 (plur. opn. of Brennan, J.).) This distinction is consistent with the Use Note to BAJI No. 12.26 which cautions that the instruction “should only be used in a true mixed-motive situation,” and “does *165 not apply to the circumstances where it is claimed that a legitimate reason was in fact a pretext for unlawful action.”

Here, the record reflects that neither Alamo nor PMIC presented the case to the jury as a mixed mo-tive case. Instead, both parties defined the issue be-fore the jury solely as one of pretext. PMIC consist-ently argued that its decision to terminate Alamo’s employment was based entirely on her performance and insubordination issues, whereas Alamo main-tained that PMIC’s proffered reasons were a mere pretext for pregnancy discrimination. Indeed, in its motion in limine requesting a mixed motive instruc-tion, PMIC asserted as follows: “Let us be crystal clear about one thing: defendant PMIC did not have mixed motives. PMIC did not for a moment take into account plaintiff’s status as a recently-pregnant woman returning from maternity leave, in deciding to terminate her employment. Therefore, this case is in fact a ‘single motive’ case, where the motive was lawful and non-discriminatory…. Nonetheless, be-cause plaintiff claims discrimination, and because the case survived summary judgment, BAJI’s ‘mixed-motive’ instruction is appropriate.” During trial, PMIC continued to take the position that Ala-mo’s *112 pregnancy-related leave had nothing to do with her discharge. PMIC’s counsel thus argued to the jury that “Ms. Alamo did not lose her job because of pregnancy discrimination, because of going out on maternity leave, because of anything having to do with the fact that she got pregnant.” Alamo’s counsel, on the other hand, urged the jury to find that the de-cision-makers were not credible and that PMIC had offered only “false and pretextual reasons” for its discharge decision.

After hearing the evidence presented by both parties, the trial court had to decide what legal theo-ries were reasonably supported by the evidence and to instruct the jury accordingly. To the extent that a mixed motive defense is available under FEHA, the trial court was not required to instruct the jury on the defense where the only logical findings supported by the evidence were that “ ‘either illegal or legal mo-tives, but not both, were the “true” motives behind the decision.’ ” (Price Waterhouse, supra, 490 U.S. at p. 260, 109 S.Ct. 1775 (conc. opn. of White, J.).) The trial court reached such a determination in this case, reasonably concluding as follows: “[H]ere’s what this case comes down to…. Plaintiff’s arguing she was terminated because of her pregnancy condition. De-fendants are arguing no, we terminated her for what I’ll call performance and personality reasons. I mean, it’s an either/or. Both sides are litigating this case on that basis.” Given that both parties consistently treated the case as a single motive pretext case, the trial court did not err in refusing to instruct the jury on the mixed motive defense. FN6

FN6. In light of this conclusion, we need not address Alamo’s argument that PMIC for-feited its right to assert a mixed motive de-fense at trial by failing to raise it as an af-firmative defense in its answer.

II. Alleged Error In Attorney’s Fees Award


On appeal, PMIC also challenges the trial court’s order awarding attorney’s fees to Alamo as the pre-vailing plaintiff under FEHA. PMIC contends that the general verdict rendered by the jury cannot sup-port an attorney’s fees award under FEHA because the verdict form failed to specify whether Alamo prevailed on the statutory cause of action for viola-tion of FEHA or the common law cause of action *166 for wrongful termination in violation of public policy. We conclude that this claim likewise lacks merit.

First, PMIC’s assertion of error in the attorney’s fees award is barred by the doctrine of invited error. “The ‘doctrine of invited error’ is an ‘application of the estoppel principle’: ‘Where a party by his conduct induces the commission of error, he is estopped from asserting it as a ground for reversal’ on appeal. [Cita-tion.]” (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 403, 87 Cal.Rptr.2d 453, 981 P.2d 79.) The purpose of the doctrine is to “prevent a party from misleading the trial court and then profiting there-from in the *113 appellate court.” (Ibid.) The doc-trine “requires affirmative conduct demonstrating a deliberate tactical choice on the part of the challeng-ing party.” (Huffman, supra, 121 Cal.App.4th at p. 706, 17 Cal.Rptr.3d 397.) “[W]here a deliberate trial strategy results in an outcome disappointing to the advocate, the lawyer may not use that tactical deci-sion as the basis to claim prejudicial error.” (Mesecher v. County of San Diego (1992) 9 Cal.App.4th 1677, 1686, 12 Cal.Rptr.2d 279.)

In this case, it is clear that PMIC invited the purported error as a matter of trial strategy. The rec-ord reflects that, after waiting until the end of trial to decide whether it wanted a general or special verdict, PMIC ultimately agreed to a general verdict which its counsel prepared. In opposing Alamo’s posttrial mo-tion for attorney’s fees, PMIC then raised the same argument that it is asserting here, i.e., that the use of a general verdict form precluded the trial court from determining whether Alamo was a prevailing plaintiff under FEHA. At the hearing on the motion for attor-ney’s fees, PMIC’s counsel elaborated on the basis for this argument, explaining on the record as fol-lows: “There were good reasons for me to do a spe-cial verdict, it would make the jury think about things, but I knew about this argument that, you know, maybe you couldn’t intuit a FEHA verdict if there was a wrongful termination result. So that was a tactical reason for me as well.” Therefore, by its counsel’s own admission, PMIC agreed to a general verdict form as a deliberate tactical choice so that it could later challenge any attorney’s fees ordered by the trial court on the basis of an alleged ambiguity in the verdict form itself. Under these circumstances, PMIC has forfeited its claim of error on appeal.

Second, even assuming the claim has not been forfeited, PMIC’s argument fails on the merits. FEHA provides that, “[i]n actions brought under this section, the court, in its discretion, may award to the prevail-ing party reasonable attorney’s fees and costs….” (Gov.Code, § 12965, subd. (b).) “The basic, underly-ing purpose of FEHA is to safeguard the right of Cal-ifornians to seek, obtain, and hold employment without experiencing discrimination on account” of their membership in a protected class. (Flannery v. Prentice (2001) 26 Cal.4th 572, 582–583, 110 Cal.Rptr.2d 809, 28 P.3d 860.) An award of reason-able attorney’s fees accomplishes “the Legislature’s expressly stated purpose of FEHA ‘to provide effec-tive remedies that will eliminate these discriminatory practices.’ ” (Id. at p. 583, 110 Cal.Rptr.2d 809, 28 P.3d 860.) “Generally, the trial court’s determination of the prevailing party for purposes of awarding at-torney fees is an exercise of discretion, which should not be disturbed on appeal absent a clear showing of abuse of discretion. [Citation.]” (Kim v. Euromotors West/The Auto Gallery (2007) 149 Cal.App.4th 170, 176, 56 Cal.Rptr.3d 780.) However, “[t]he determi-nation of the legal basis for an *114 award of attor-ney fees is a question of law that we review de no-vo.” *167 ( Corbett v. Hayward Dodge, Inc. (2004) 119 Cal.App.4th 915, 921, 14 Cal.Rptr.3d 741.)

The instant case was tried before the jury on two separate, but related causes of action: (1) preg-nancy discrimination or retaliation in violation of FEHA; and (2) wrongful termination in violation of the public policy embodied in FEHA. It is well-established that “ ‘FEHA’s provisions prohibiting discrimination may provide the policy basis for a claim for wrongful discharge in violation of public policy.’ ” (Estes v. Monroe (2004) 120 Cal.App.4th 1347, 1355, 16 Cal.Rptr.3d 616; see also Stevenson v. Superior Court (1997) 16 Cal.4th 880, 897, 66 Cal.Rptr.2d 888, 941 P.2d 1157 [“FEHA’s policy against … discrimination in employment is suffi-ciently substantial and fundamental to support a tort claim for wrongful discharge”].) Moreover, “when a plaintiff relies upon a statutory prohibition to support a common law cause of action for wrongful termina-tion in violation of public policy, the common law claim is subject to statutory limitations affecting the nature and scope of the statutory prohibition….” (Stevenson v. Superior Court, supra, at p. 904, 66 Cal.Rptr.2d 888, 941 P.2d 1157.) “In other words, the viability of [the] plaintiff’s tort claim is tethered to the meaning of the FEHA.” (Estes v. Monroe, supra, at p. 1355, 16 Cal.Rptr.3d 616.)

Because Alamo’s common law claim for wrongful termination in violation of public policy was derivative of her statutory claim for violation of FEHA, the public policy claim would either rise or fall with the FEHA claim. (See Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 229, 87 Cal.Rptr.2d 487 [where plaintiff’s “FEHA claim fails, his claim for wrongful termination in violation of public policy fails”].) This means that Alamo could not have pre-vailed on either cause of action at trial unless she proved by a preponderance of the evidence that PMIC discriminated or retaliated against her in viola-tion of the statutory prohibitions set forth in FEHA. Consequently, if the jury found in favor of Alamo in her claim for wrongful termination in violation of public policy, then it must have found that PMIC’s termination of her employment was in violation of FEHA.

For these reasons, PMIC’s reliance on the deci-sion in McKenzie v. Kaiser–Aetna (1976) 55 Cal.App.3d 84, 127 Cal.Rptr. 275 (McKenzie ) is misplaced. In McKenzie, the jury returned a general verdict in favor of the plaintiff in a case that alleged multiple causes of action for breach of contract, breach of implied warranty, negligent misrepresenta-tion, and restitution. (Id. at p. 87, 127 Cal.Rptr. 275.) The plaintiff thereafter moved for an attorney’s fees award based on a provision in a written contract that allowed for the recovery of such fees in an action on the contract. (Id. at pp. 86–87, 127 Cal.Rptr. 275.) The Court of Appeal held that the plaintiff was not entitled to attorney’s fees under the contract because there was “no way to ascertain, in the absence of special jury findings, on which of *115 the theories of recovery (breach of contract, negligent misrepre-sentation, or breach of implied warranty) the jury mainly based its award to [the plaintiff].” (Id. at pp. 88–89, 127 Cal.Rptr. 275.) As the Court of Appeal further noted, “[t]hose theories do not all call for identical determinations of fact,” nor do they all constitute “an action to enforce the provisions of a contract.” (Id. at p. 89, 127 Cal.Rptr. 275.)

In this case, however, both the statutory FEHA claim and the common law wrongful discharge claim were based on the same factual and legal theory. To prevail on either cause of action at trial, Alamo had to prove that PMIC terminated her *168 employ-ment in violation of FEHA because of her pregnancy or taking of a pregnancy-related leave. By returning a general verdict in favor of Alamo and against PMIC on this issue of liability, the jury found a viola-tion of FEHA. The trial court accordingly did not abuse its discretion in awarding attorney’s fees to Alamo as the prevailing plaintiff under FEHA.

DISPOSITION

210 Cal.App.4th 95, 148 Cal.Rptr.3d 151, 12 Cal. Daily Op. Serv. 11,801, 2012 Daily Journal D.A.R. 14,480

Review Granted Previously published at: 210 Cal.App.4th 95 (Cal.Const. art. 6, s 12; Cal. Rules of Court, Rules 8.500, 8.1105 and 8.1110, 8.1115, 8.1120 and 8.1125)

(Cite as: 148 Cal.Rptr.3d 151)




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