Barnes & Noble Facing Wrongful Termination Lawsuit

In an April 14th opinion, a California appeals court offered a summary judgment in a Barnes & Noble wrongful termination lawsuit. The summary judgment may have branded the popular retail bookstore as having wrongfully firing an employee who had been with them for 23 years.

The opinion was handed down by the California Sixth Appellate District Chief Justice Conrad L. Rushing and associate justices, determining that the issues raised by Christine Oakes were valid issues to try in court in regards to wrongful termination claims based on gender discrimination, public policy and contractual obligations.

Oakes worked as a manager for Barnes & Noble’s West Valley-Mission Community College in Saratoga for eight years (2002-2010). At the end of this time period, she was fired. Unhappy with the termination of her employment, Oakes filed a complaint in 2012 listing various defendants: Barnes & Noble, West Valley College, Laurie Gaskin, and Rhea Kaston.

In 1999, according to the opinion, Barnes & Noble received acknowledgement that Oakes received and signed off on their company code of conduct and ethics. As Oakes signed off on the policy, the company notes that she was aware that she was free to leave Barnes & Noble at any time during her employment and that she was an “at will” employee. Oakes agreed that she understood the “at-will” employee status and agreed to no promise of tenure or any form of employment contract at that time. According to the opinion, Oakes stated that her understanding of her status as an “at-will” employee was that she had to “do something” to the company in order for them to dismiss her from employment.

Oakes claims in the lawsuit that as a manager, she was advised to use progressive discipline prior to firing anyone on staff. She was not instructed to use every disciplinary step in every case of potential termination. During her 23 years with Barnes & Noble, Oakes received annual performance reviews. From 2001 through 2008 these reviews indicated that she lacked communication skills and organizational skills necessary for her job. Yet her overall scores in her reviews met or exceeded company standards. While individual categories in her reviews usually met or exceeded company standards, she had a below standard score in fiscal matters. This is particularly true of 2009 when she reportedly ended with $66,000 of excess inventory at her bookstore. Amid student complaints, reported absence from meetings, etc. Oakes began to defend her behavior with claims of discrimination against her by Michael Renzi, a frequent contact as the college vice president’s primary liaison. In 2010, Renzi and the College President contacted Oakes’ supervisor with the decision that Oakes was not a good fit for the university.

With no alternative position with Barnes & Noble, Oakes was fired in 2010 without notice. In 2013, Barnes & Noble moved for summary judgment claiming that Oakes was an at-will employee terminated for legitimate reasons. Oakes argued gender discrimination as the company failed to protect her from alleged sexual harassment by Renzi. The court ruled that Oakes’ deposition testimony would be considered at trial as it favored neither her nor the defendants. A date for the trial has not been set.

If you have concerns regarding a potential wrongful termination, please get in touch with one of the experienced California employment law attorneys at Blumenthal, Nordrehaug & Bhowmik.

Lamar Dawson’s Lawsuit Against the NCAA, Pac-12 is Dismissed

Lamar Dawson, ex-USC football player, filed a California lawsuit against the NCAA and Pac-12 that was dismissed earlier this month by a federal judge, Judge Richard Seeborg. Dawson’s class action was filed in September 2016 seeking minimum wage and overtime pay as well as additional compensation as a result of alleged NCAA and Pac-12 Fair Labor Standards Act and California Labor Code violations.

Lamar Dawson started out at USC as a linebacker his freshman year in 2011, but was injured. His injuries disrupted his football career and he lost his shot at the NFL – mostly due to a torn ACL that occurred in 2013. He redshirted in 2014 and played in 8 games throughout the 2015 season, finishing with 31 tackles.

This decision to dismiss was reminiscent of a similar case last year involving former track and field athletes from the University of Pennsylvania. The three-judge panel in the 7th U.S. Circuit Court of Appeals in that case ruled former student-athletes at NCAA Division I schools are not technically considered employees under the rules set down by the Fair Labor Standards Act.

Dawson contended during the course of the case that his specific situation was different than the case of University of Pennsylvania’s track and field athletes because football is a revenue-generating sport (in comparison to track). The judge ruled that revenue generation as a determination of employment status is not supported legally. Seeborg set aside the policy question of how Division I FBS college football players should be compensated for what he considered a more fundamental issue determining the direction of the case and his eventual ruling: legal basis for finding them employees under the FLSA. He found none.

The NCAA and Pac-12 were not surprised by the ruling. Both had previously stated similar opinions regarding the validity of Dawson’s claim dating back to the original filing. The NCAA is pleased with the outcome and reiterated their stance that there is no legal support for college athletics participation constituting “employment” with the university. They went on to specify that playing college sports is an opportunity for students to obtain a quality education and build skills that prepare them for educational success at the college level. They concluded their thoughts on the matter by regretting the wasted funds and resources that are spent on cases such as this that will eventually be dismissed. The Pac-12 was also pleased with the ruling finding that it reaffirmed their conviction that college athletes are students – not employees.

If you have questions regarding employment status or whether or not you are misclassified on the job, please get in touch with one of the experienced California employment law attorneys at Blumenthal, Nordrehaug & Bhowmik.

Disabled Worker Files Discrimination Charges Against Citizens of Humanity

Noe Abarca, a 61-year old employee who formerly worked for Citizens of Humanity, recently won a major verdict. While the court case took over three weeks to argue, in the end he was awarded $650,000 in compensatory and punitive damages by a Los Angeles County Superior Court jury.

Noe Abarca felt he was wrongfully dismissed after a shoulder injury limited his ability to work. Prior to the injury, Abarca worked for six years at minimum wage as a quality control inspector for the well-known blue jeans label. In the jury’s opinion, Abarca was treated with malice, fraud and oppression. Plaintiff’s counsel indicates that this can be viewed as a message to employers on how to treat their employees.

According to court documents, Abarca was hired to work for Citizens of Humanity in 2006. Approximately three years later, he started to feel pain in his chest/shoulders. This made it difficult for him to lift items. Eventually, he saw a doctor who issued a restriction that Abarca not lift anything over 20 pounds. In response, Citizens of Humanity brought in another employee to handle Abarca’s loading and distribution duties and advised him to only inspect merchandise. The day after Abarca’s lifting restrictions ended, he was still feeling pain. He was fired.

Abarca’s case alleges retaliation, failure to provide reasonable accommodation and disability discrimination. The court ruled that Citizens of Humanity’s HR director was fraudulent in statements pertaining to worker’s compensation upon learning of Abarca’s injury originally as well as on the day he was terminated.

If you feel that you have been wrongfully terminated or otherwise unfairly treated on the job, please get in touch with one o the experienced California employment law attorneys at Blumenthal, Nordrehaug & Bhowmik.

California Supreme Court Limits Rights to Jury Trial for Whistleblower Claims in Health Care

California Health and Safety Code section 1278.5(g) protects health care workers and medical staff from discrimination and retaliation for reporting unsafe patient care and conditions. Recently, the California Supreme Court held that it does not go so far as to provide a right to a jury trial. Claims brought under Section 1278.5(g) do not entitle the parties to a jury trial, but this does not prevent a jury trial on a related claim for wrongful termination that is in violation of public policy.

Consider Shaw v. Superior Court (THC-Orange County, Inc.), Case No. S221530:

In considering Shaw v. Superior Court on April 10, 2017, The California Supreme Court decided that an employee seeking damages for alleged whistleblower retaliation under the law noted above did not have the right to a jury trial. In the case, a Human Resources Coordinator filed a lawsuit against their former employer, a hospital, alleging that she was wrongfully terminated. She claimed that she was fired in retaliation for complaining that the hospital employed unlicensed and/or uncertified health care professionals who did not appropriately complete competencies as required.

She asserted a second cause of action for wrongful termination in violation of public policy seeking an array of damages: compensatory and emotional distress damages, front pay, back pay, lost benefits, lost bonuses, punitive and exemplary damages, prejudgment interest, attorneys’ fees, costs and civil penalties, etc. While the lower courts denied requests for a jury trial, the Court of Appeal reversed, determining that the employee could file a petition for an extraordinary writ seeking appellate review of the trial court’s order without waiting until after the trial on appeal to contest the denial. 

They also ruled that Section 1278.5(g) does not afford a right to a jury trial. As the issue is not expressly addressed in the statute, the Court considered statutory language alongside legislative history reasoning that the court and not a jury must rule on this claim due to the statute expressly providing specific remedies. These specified remedies include: reinstatement, reimbursement of lost wages and benefits and legal costs. These are equitable remedies traditionally decided by a court and others deemed “warranted” by a court. Additionally, legislative history of the statute, specifically amendments made in 2007 allowing courts to fashion other remedies as needed to cover the full spectrum of harm endured by non-employee claimants, indicated the need for a court’s decision.

Despite not being entitled to a jury trial on the Section 1278.5(g) claim, the employee could still seek a jury trial under the Tameny claim based on public policies. The trial court would need to hear both claims side by side and allow the jury to decide the Tameny claim and then the court would determine remaining issues.

While this decision means that employees can get around the absence of a jury trial under Section 1278.5(g) simply through a second Tameny claim based on the same public policies, some remedies would be unavailable. When using a Tameny claim, attorneys’ fees and civil penalties are not available. And in some instances, this type of claim may not be applicable depending upon the plaintiff/defendant relationship.

If you have questions or concerns regarding a potential workplace retaliation situation and you need the assistance of an experienced California employment law attorney, please get in touch with us at Blumenthal, Nordrehaug & Bhowmik.

Derrel’s Mini Storage Settles California Discrimination Lawsuit

A Fresno based self storage facility named Derrel’s Mini Storage, Inc. recently settled an employment and housing discrimination case with the California Department of Fair Employment and Housing (DFEH). Charlyn Foote, a former employee, was pregnant when she along with her husband, Kyle Foote, agreed to be resident managers at the company’s Bakersfield, California site. The case brought against Derrel’s Mini Storage was based on the policies applicable to facility managers, specifically, the fact that the policy in place when the Footes were employed and in residence would have banned their baby from housing during hours of operation and on weekends.

California State mandated that the policy violated the Fair Employment and Housing Act (FEHA), designed to protect the rights of Californians seeking, obtaining and holding housing, free of discrimination due to familial status and to seek, obtain, and hold employment without discrimination based on sex. Derrel’s responded to these assertions with arguments that the FEHA doesn’t apply when housing is employer-provided and issued as a condition of employment. They also presented business justifications for the policy. Mediation was attempted unsuccessfully and the DFEH filed suit.

Recently, the state announced the case had reached a settlement. Under the terms of the settlement agreement, Derrel’s Mini Storage has agreed to revise the policies in question that regulate onsite housing provided for facility managers. The new policies would be designed to ensure that facility managers could safely work and live on site with their families.

This case is important as it confirms that the FEHA extends throughout all California housing – including housing that is provided to employees as a condition of employment.

If you have questions about whether or not the terms of your employment are discriminatory or if you are experiencing discrimination in the workplace, please get in touch with one of the experienced California employment attorneys at Blumenthal, Nordrehaug & Bhowmik.

Garbage Man’s Wrongful Termination Lawsuit Recycled by 9th Circuit

A former Manhattan Beach sanitation worker seeking legal recourse for age discrimination and wrongful termination will get his day in court after a federal appeals panel ruled that he could proceed. Gilberto Santillan filed the age discrimination lawsuit against a waste disposal company, USA Waste of California, subsidiary of Waste Management Inc., the franchise waste hauler for all residents and businesses in the city.

The Ninth Circuit Court of Appeals voted unanimously to allow Santillan to proceed with the two wrongful termination claims. Santillan alleges that he was discriminated against due to his age and then retaliated against for seeking legal counsel. District Court ruled in favor of the waste company, ruling Santillan’s claims could not proceed. The new ruling undermines the district court’s ruling and allows Santillan to proceed – potentially in front of a jury.

Santillan wasn’t just any “garbage man” He was what many might describe as a landmark of Manhattan Beach. He worked the route in the city for 32 years and many of the local residents have actively reached out to support his claims. Santillan’s legal representation pointed towards this strong local backing as being reflected in the Ninth Circuit’s opinion. The court opinion actually referenced various letters of support from local residents indicating that they were taken very seriously.

Santillan started working for USA Waste in 1979, and handled the Manhattan Beach route for his entire time with the company. In March 2011, the city was considering whether they should renew their agreement with Waste Management or contract another hauler. Santillan’s personal service and record with the company and the city became a key theme in the campaign in support of retaining Waste Management’s services.

For 30 years with the company, Santillan was rarely disciplined, but in 2009 a new route manager for Manhattan Beach took over and Santillan ran into problems. Fro 2009 to 2011, the new manager attempted to discipline Santillan six times. Santillan was fired in December 2011. The company claims they fired Santillan because he was involved in multiple accidents in 2011, three of which were self-reported. The resident living at the damaged property at the time of the firing stated in an interview that the firing was an over-reaction. She continued by praising Santillan’s driving skills, as the street was narrow and touch to navigate.

The Ninth Circuit overruled the trial judge’s holding that Santillan’s case lacked the qualifications needed for an age discrimination claim, noting that Santillan, who speaks very little English, was one of two or more older, Spanish-speaking employees that were terminated when the new supervisor took over the Manhattan Beach route. Santillan’s replacement was estimated to be 13 years younger with 20 less years of experience on the job.

Extensive discovery will be needed prior to the start of trial.

If you feel you have been wrongfully terminated, please get in touch with one of the experienced California employment law attorneys at Blumenthal, Nordrehaug & Bhowmik.

“Guerrilla” Tennis Scandal has Wrongful Termination Lawsuit Headed Back to Court

Previously released news regarding the “guerilla” tennis scandal leading up to the termination of ESPN tennis commentator, Doug Adler, ended with his subsequent wrongful termination lawsuit filing. Now, Adler’s wrongful termination lawsuit is headed back to court.

Adler was allegedly fired from his job as a tennis commentator for ESPN for using a word on the air that he claims he never used. Adler is an acknowledged tennis expert and former All-American player turned commentator for ESPN. He covered numerous tennis events, but the one event pertaining to this discussion is the 2017 Australian Open. Adler was on air describing the aggressive style of play used by Venus Williams, one of the competitors in the match. Adler claims he used the word “guerilla,” a term known to describe aggressive tennis play.

Not surprisingly, viewers heard the word “gorilla” and assumed Adler was making a demeaning and racist comment in reference to Williams, who is African American. After receiving complaints and unable to ignore the negative backlash from the incident, ESPN fired Adler. Adler claims he was wrongfully terminated. He claims that the network was not sympathetic considering that the two words, guerilla and gorilla, spelled differently and meaning two very different things, sound exactly the same.

The wrongful termination lawsuit was filed in California state court in February 2017. On March 16th, 2017, Adler’s wrongful termination suit was moved to federal court on grounds that Adler and the Defendants, ESPN, hail from two different states. This provides the federal district court with jurisdiction in the case. ESPN also assumed that the damages the plaintiff will be seeking would surpass the $75,000 cap observed by the state court in such cases.

Yet the case met with a surprising issue when US District Court Judge Percy Anderson felt that the defendant’s statement that co-defendants Mark Gross and Jamie Reynolds resided in Connecticut “upon information and belief” of ESPN was sufficient. Judge Anderson saw this as insufficient for the purposes of the court to qualify residence and establish citizenship. As diversity jurisdiction no longer qualifies, Adler’s wrongful termination lawsuit is heading back to state court in California.

Adler has yet to specify amounts he will be seeking for damages and recovery. ESPN worked up a figure of at least $148,000 using their estimated calculations of lost wages, emotional distress, punitive damages, legal fees, etc. Although, Adler’s representation has previously pointed out that it is impossible to place a value on the loss of your professional reputation. It was further noted that ESPN, Adler’s employer, essentially labeled him a racist and terminated his employment over a comment that was, at worst, misunderstood.

If you have questions about wrongful termination or what qualifies as a wrongful termination lawsuit, please get in touch with an experienced California employment law attorney at Blumenthal, Nordrehaug & Bhowmik.