Weekly Law Resume - February 2014: Employment Law – Wrongful Termination – Retaliation – Jury Instruction

by Low, Ball & Lynch

Romeo Mendoza v. Western Medical Center Santa Ana
Court Of Appeal, Fourth District (January 14, 2014)

In the Harris decision, the California Supreme Court held that CACI No. 2500 (the Federal Employment and Housing Act (“FEHA”) disparate treatment/discrimination instruction) did not accurately state the law by instructing the jury to determine whether discrimination was “a motivating factor/reason” for an employee’s termination. The Court held that the jury should instead determine whether discrimination was “a substantial motivating factor/reason.” Effective June, 2013, the Judicial Council modified CACI 2430 (wrongful discharge in violation of public policy) to reflect the Court’s ruling, i.e., the causation element was modified to require the employee to prove the alleged violation of public policy was a substantial motivating reason for discharge. In Mendoza, the Appellate Court overturned a verdict in favor of the plaintiff because the trial court had instructed the jury with the 2012 version of CACI No. 2430.

Plaintiff Romeo Mendoza (“Mendoza”) had been employed as a nurse by the hospital for more than 20 years. He was an intermediate-level supervisor with an excellent performance record. In October, 2010, he reported to a hospital supervisor that he was being sexually harassed by a higher ranking hospital supervisor Del Erdmann (“Erdmann”) who had been hired in April of 2010. Both Mendoza and Erdmann were gay men. Mendoza accused Erdmann of making inappropriate comments, physical contact and lewd displays. A cursory investigation was conducted. Erdmann stated that Mendoza consented to his conduct and participated in mutual interactions. Mendoza and Erdmann were the only two individuals identified with personal knowledge as to what occurred between them. Upon completion of the investigation, both Mendoza and Erdmann were fired. The written notice of termination cited the parties with “unprofessional conduct.” The individuals who participated in the decision to terminate concluded that both parties were complicit in inappropriate and unprofessional behavior. Mendoza sued for wrongful termination in violation of public policy. The jury found defendants liable. Defendants filed a timely notice of appeal.

The Appellate Court noted that with one exception, the elements of Mendoza’s claim were undisputed by the parties on appeal. The crux of the case was causation. Mendoza claimed his report of sexual harassment caused defendants to fire him. In other words, defendants retaliated against him for accusing his superior of sexual harassment. Defendants asserted their belief that Mendoza willingly participated in sexual misconduct on the job as their motivation for firing Mendoza. Mendoza’s report only “caused” his firing in the sense that it alerted defendants to Mendoza’s misconduct. Relying on Harris, the Appellate Court determined that the jury instruction provided was not correct. The employee should have been required to show that the alleged violation of public policy was a substantial motivating factor, rather than simply a motiving factor. According to the court, such a standard more effectively ensures that liability will not be imposed based on evidence of mere thoughts or passing statements unrelated to the disputed employment decision. At the same time, proof that the alleged violation of public policy was a substantial motivating reason for the employee’s discharge triggers the deterrent purpose and exposes the employer to liability, even if other factors would have led the employer to make the same decision at the time. The judgment in favor of Mendoza was reversed.

In a footnote, the Appellate Court discussed what an employer is expected to do when faced with a scenario in which two employees provide conflicting accounts of inappropriate conduct. The employer should conduct a thorough investigation and make a good faith decision based on the results of the investigation. Employers should reject the notion that liability can be avoided by simply firing every employee involved in the dispute. Advice as to what constitutes a thorough investigation by employers in response to claims of sexual harassment, discrimination and /or retaliation is available from Low, Ball & Lynch’s Employment Law Group.

For a copy of the complete decision see:


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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