Sacramento Injury Lawyer Blog

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this workplace/sex discrimination case and its proceedings.)

B. Failure to Accommodate / Failure to Engage in the Interactive Process
Tellingly, the defendant's moving papers are completely devoid of any argument in favor of its assertion that plaintiff failed to identify acts in support of his claims for failure to accommodate or failure to engage in the interactive process within one-year of the June 10, 2005 DFEH filing. This is because the heart of those claims occurred within the one-year statutory period. This is consistent with the jury's special verdict.

The chain of events started when plaintiffs treating physician released him to return to work, without restrictions, on February 2, 2004. The defendant did not permit plaintiff to return from his medical leave of absence. Instead, on February 26, 2004, the defendant directed plaintiff to take a fitness-for-duty evaluation. On April 6, 2004, the evaluator concluded that plaintiff was presently unfit, but offered no opinion on his prognosis. Regardless, on April 26, 2004, the defendant submitted an application for involuntary retirement without even consulting plaintiff. Again, this was done even though the City had no information about Mr.Carter's prognosis for recovery. The jury found that this was an act of disability discrimination and retaliation.

Thereafter, Mr.Carter made good faith attempts to overturn the impact of the fitness-for-duty evaluation by attempting to engage the defendant in the interactive process. He did this on August 10, 2004, by submitting a note from his treating doctor indicating that he had been re-evaluated, that his perceived mental health issues were in remission, and that he was ready to return to work. It is well settled that providing an employee a protected leave of absence (and allowing the employee to return from a medical leave when he or she is healed) is a form of reasonable accommodation under the FEHA. See Hanson v. Lucky Stores (1999) 74 Cal.App.4th 215, 226; EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship, #915-002 (10/17/2002). Despite this medical release, however, the City did not accommodate Mr.Carter (i.e. it did not allow him to return from his medical leave). Mr.Carter also made good faith efforts to convince the City to send him to an independent physician for evaluation of his ability to function as a firefighter, despite any perceived mental disability. Director Moore rejected that reasonable request for accommodation on July 12, 2004:

Continue reading "DFEH Claim filed By Sacramento Firefighter, Part 7 of 19" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this workplace/sex discrimination case and its proceedings.)

The defendant claims that the two discriminatory acts identified above occurred prior to June 10, 2004, and are thus not actionable. Specifically, the defendant contends that plaintiff was sent to a fitness for duty evaluation on February 26, 2004, and that an involuntary retirement application was filed on April 26, 2004. Unfortunately for the defendant, that doesn't tell the whole story. On August 10, 2004, Mr.Carter was re-evaluated by his treating physician, and released to be returned to work without restrictions. The release indicated that Mr.Carter's episode of Major Depression was in complete remission. Critically, the next day, on August 11, 2004, the City sent Mr.Carter for a fitness for duty evaluation. That date is well within one-year of the filing of the DFEH charge, which was filed on June 10, 2005.

Moreover, when Mr.Carter objected to attending the August 11th evaluation, which was scheduled for August 17th, the City solicited a follow-up fitness for duty evaluation on Mr.Carter from Dr. Stephanie Z.. That follow-up fitness-for-duty report was issued on September 4, 2004. Again, this date is well within one-year of the June 10, 2005 DFEH charge.

It should also be noted that although the City submitted an involuntary retirement application for consideration on April 26, 2004, that application was pursued and pending from April 26, 2004 all the way until January 20, 2005. Thus, a discriminatory and retaliatory retirement application was actively pursued both before June 10, 2004 (the one-year point) as well as after June 10, 2004. That means that the retirement application, which the jury clearly found was an act of retaliation and disability discrimination, was actively pursued by the City well into the one-year statutory period.

Continue reading "Sacramento Firefighter Pushed To Early Retirement, Part 6 of 19" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this workplace/sex discrimination case and its proceedings.)

PLAINTIFF IDENTIFIED NUMEROUS ACTS OF DISCRIMINATION AND RETALIATION WITHIN THE 1-YEAR LIMITATIONS PERIOD
With respect to plaintiff's disability discrimination and retaliation claims, he identified numerous acts that occurred within one-year of the filing of his DFEH Charge. Therefore, the jury's determination that his complaint with the DFEH was timely is easily explainable. That is, even if you ignore the continuing violation doctrine, plaintiffs disability discrimination and retaliation claims are still timely.

A. Disability Discrimination and Retaliation Claim
The Special Verdict Form on these causes of action asked if plaintiff filed a timely complaint of discrimination with the California Department of Fair Employment and Housing. The answer was: Yes.
The defendant claims the jury's finding on timeliness is impossible because the two acts plaintiff identified, as set forth in Special Verdict Question #4, #5 and #10 occurred more than one year prior to the filing of the DFEH administrative charge. Special Verdict Question #5 reads as follows:

Was the City's purported belief that Michael Carter had a perceived mental disability a motivating reason for the City's decision to send Michael Carter for a fitness for duty evaluation and/or subsequently apply for an involuntary disability retirement?
Question #10 reads as follows:

Continue reading "Sacramento Firefighter Sues For Retaliatory Firing, Part 5 of 19" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this workplace/sex discrimination case and its proceedings.)

STANDARDS GOVERNING MOTION FOR NEW TRIAL RULING
A new trial shall not be granted upon the ground of insufficiency of the evidence to justify the verdict or other decision ...unless after weighing the evidence the court is convinced from the entire record, including reasonable inferences therefrom, that the court or jury clearly should have reached a different verdict or decision. See, CCP §657. The California Constitution limits the power of the trial court to grant a new trial unless, after 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. See Rutter Group's Civil Trials and Evidence; 18:352 (2007); California Constitution, Article VI, Section 13; Maher v. Saad (2000) 82 Cal.4th 1317, 1324. Given the state of the evidence, the only miscarriage of justice that could possibly result would be if the jury's verdict were thrown out.

TIMING OF EVENTS
A detailed timeline of the evidence at trial is attached to the Declaration of Tom Barry, and is part of the Memorandum of Points & Authorities in Opposition to the JNOV. The chronology helps illustrate the continuity of the unlawful employment acts, and clearly demonstrates that unlawful activity continued into the one-year statutory period.

THE FEHA'S STATUTE OF LIMITATIONS IS LIBERALLY CONSTRUED
The provisions of the California Fair Employment and Housing Act shall be construed liberally for the accomplishment of the purposes thereof. See Government Code §12993(a). In accordance with this overall objective, it is well settled that the section 12960(d) administrative statute of limitations must be liberally construed. In Romano v. Rockwell International (1996) 14 Cal.A4th 479, 494, the California Supreme Court stated the following: In order to carry out the purpose of the FEHA to safeguard the employee's right to hold employment without experiencing discrimination, the limitations period set out in the FEHA should be interpreted so as to promote the resolution of potentially meritorious claims on their merits. Similarly, while discussing the timeliness of filing an administrative charge with the Department of Fair Employment and Housing, the California Supreme Court stated the following:

Continue reading "Firefighter From Sacramento Files Suit For Wrongful Termination, " »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this workplace/sex discrimination case and its proceedings.)

2) With respect to acts that occurred prior to June 10, 2004 (and this would include the initial referral for a fitness-for-duty evaluation and the submission of an involuntary retirement application) the jury had evidence that these acts were sufficiently linked to a course of retaliatory and discriminatory conduct that continued into the one-year limitations period, and were thus actionable as well under the continuing violation doctrine.

3) The statute of limitations on a FEHA claim only begins to run when an alleged adverse employment action acquires some degree of permanence or finality. See Yanowitz v. L'Oreal, supra, at 1058. The jury had sufficient evidence to conclude that the City's decision to send Mr.Carter to a fitness for duty evaluation and apply for an involuntary disability retirement did not acquire a degree of permanence or 22 finality until well within the one-year statutory period, and perhaps as late as the date the retirement took effect on January 20, 2005.

4) As detailed by the California Supreme Court in Romano v. Rockwell, the statute of limitations in a case like the present one is not triggered by the date on which Mr.Carter was notified of the City's intent to terminate him (the April 26th submission of involuntary retirement papers) but rather the date of actual separation, which was January 20, 2005-a date well within the one-year limitations period. This is because of equitable tolling considerations that encourage informal conciliation. See Richards, supra, at 820.

Continue reading "Employment Action Filed Against Sacramento Fire Dept., Part 3 of 19" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this workplace/sex discrimination case and its proceedings.)

To sum up plaintiff's position, there are at least four independent reasons that support the jury's determination that plaintiff filed a timely charge with the Department of Fair Employment and Housing:
1) The jury had evidence to find that actionable conduct occurred within one-year of the June 10, 2005 administrative filing with the DFEH. These acts included:

a) Sending Mr.Carter to a fitness for duty evaluation on August 11, 2004.

b) Soliciting a follow-up fitness for duty evaluation on September 4, 2004.

c) Pursuing what the jury determined was a retaliatory and discriminatory disability retirement application from April 26, 2004 through January of 2005, despite many opportunities to retract the application, and/or take acts that would potentially have eliminated the need for the Retirement Board to act.

d) Failing to accommodate Mr.Carter from April 26, 2004 (the date the retirement application was submitted) all the way through the end of his employment in January of 2005. This included the City's decision on July 12, 2004, to refuse plaintiff's reasonable request to have his perceived mental disability and capacity to work evaluated by an independent physician. This also included the City's ongoing failure to consider transferring Mr.Carter to a vacant position outside the Fire Department. It also included the City's ongoing failure to consider extending Mr.Carter' medical leave rather than moving forward (unnecessarily) with a retirement application that the jury determined was discriminatory and retaliatory. Finally, it included the City's failure to allow Mr.Carter to return from a mental health leave of absence on multiple occasions, despite releases 23 from his physician on February 2, 2004, as well as August 10, 2004.

Continue reading "Sacramento Fire Department Sued For Discrimination, Part 2 of 19" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this workplace/sex discrimination case and its proceedings.)

Plaintiff's Opposition to Defendant City of Sacramento Fire Department's Motion for a New Trial

INTRODUCTION AND SUMMARY OF THE ARGUMENT
The defendant's Motion for a New Trial is based on recycled arguments that have already been rejected by both the Trial Court and the Jury. As the court will recall, the jury in this case rendered a nearly unanimous verdict in plaintiff's favor on each of his four causes of action, resulting in a Judgment against the Defendant in excess of 1 million dollars.

The defendant's central argument is premised on getting the Court to adopt an extremely strict approach to the statute of limitations. Any such interpretation would be directly at odds with multiple California Supreme Court decisions, which have repeatedly held that the FEHA's statute of limitations is to be interpreted liberally to promote the resolution of potentially meritorious claims on the merits. See Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028; Richards iv CH2M Hill, Inc. (2001) 26 Cal.4th 798; Romano v. Rockwell (1996) Cal.4th 479.

The defendant's argument can be fairly summarized as follows: The FEHA provides for a one-year statute of limitations, which is set forth in Government Code §12960. Plaintiff filed his charge with the Department of Fair Employment and Housing on June 10, 2005. Therefore, the argument goes, plaintiff is prohibited from suing on discriminatory or retaliatory acts that occurred prior to June 10, 2004. It should be noted that the defendant made precisely the same argument in its Motion in Limine #4. Plaintiff opposed the motion, contending that not only were there discriminatory and retaliatory acts that occurred within 1-year of the June 10, 2005 DFEH charge, but that acts occurring before June 10, 2004 were actionable due to the continuing violation doctrine, as described in the landmark California Supreme Court case of Yanowitz v. L'Oreal. The Court denied defendant's Motion in Limine #4, and the case proceeded to trial.

Continue reading "Sacramento Firefighter Sues For Workplace Discrimination, Part 1 of 19" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this medical negligence case and its proceedings.)

The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in a personal injury case present such issues to the court.

Defendant's Opposition Motion cont.

b. The Allegations Do No Support a Claim for Negligent Infliction of Emotional Distress (NIED)Based on a Bystander Witness Theory.

The third case relied on by Cindy Jones is Ochoa v. Superior Court, supra, 39 Cal.3d 159. Ochoa is a bystander witness case. Plaintiffs were the surviving parents of Rudy Ochoa, who as an inmate in the Santa Clara County juvenile hall. His parents visited him and found him extremely ill. The mother spoke with authorities, expressing concern that her son was not receiving necessary treatment. His mother was at his bedside and made repeated requests that her son receive medical treatment, including requesting that she be allowed to take him to a private physician. She remained at her son's bedside. The son died. The Supreme Court held that the mother could assert a cause of action for NIED as a bystander witness because she had personally witnessed the failure of the medical personnel at the juvenile hall to provide medical care to her son. The court further held that the father could not assert the claim because he had not witnessed the lack of care but had only been told of the situation by his wife.

To recover for NIED as a bystander witness, a plaintiff must be present at the scene of the injury-producing event at the time it occurs and is then aware that it is causing injury to the victim. (Thing v. LaChusa, supra, 48 Cal.3d at pp. 667-668.) In Bird v. Saenz, supra, 28 Cal.4th at pp. 920-921, the Supreme Court reiterated the Thing requirement that the plaintiff be present at the scene of the injury-producing event at the time it occurs, and contemporaneously be aware that it was causing injury to the victim. In Bird, the plaintiffs were in the waiting room while their mother was negligently operated on, with the result the Bird plaintiffs had no sensory perception whatsoever of the [injury-producing event] at the time it occurred. (28 Cal.4th at p. 917.)

Continue reading "Infection At Sacramento Hospital Leaves Child Severely Injured, Part 4 of 4" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this medical negligence case and its proceedings.)

The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in a personal injury case present such issues to the court.

Defendant's Opposition Motion cont.

Burgess v. Superior Court, supra, 2 Cal.4th 1064, has no application to this action. Burgess is limited to the question addressed by the Supreme Court: Can a mother recover damages for negligent inflicted emotional distress against a physician who entered into a physician-patient relationship with her for care during labor and delivery if her child is injured during the course of the delivery? (2 Cal.4th at p. 1069.) The court went on to state: Because the professional malpractice alleged in this case breached a duty owed to the mother as well as the child, we hold that the mother can be compensated for emotional distress resulting from the breach of the duty. For public policy reasons that have been previously articulated by this court, however, these damages do not extend to emotional distress due to loss of affection, society, companionship or similar harm that the mother may incur in adjusting to and living with the child's impairments. (Ibid.) This is not a birth injury case. This is also not a case where a physician or other health care provider has a duty owed to two patients at the same time as a obstetrician does in the case of a delivery. Burgess does not support a claim by Cindy Jones that she can recover damages for exposing her family to a contagious disease.

Molien v. Kaiser Foundation Hospitals, supra, 27 Cal.3d 916, also has no application here. There, the family member, the husband of the patient, sued based on the emotional distress he suffered when his wife, following the dictate of the health care provider, informed him that she had a sexually transmitted disease.

Continue reading "Infected Child From Sacramento Sues Her Doctor, Part 3 of 4" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this medical negligence case and its proceedings.)

The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in a personal injury case present such issues to the court.

Defendnat's Opposition Motion cont.

CINDY JONES CANNOT RECOVER FOR ANY ALLEGED LOSS OF HER DAUGHTER'S CONSORTIUM.
It appears that Cindy Jones is attempting to recover damages she allegedly suffered because her daughter became infected. This appears to be a loss of consortium claim. It is well-settled that a parent cannot recover damages for the loss of a child's consortium. (Baxter v. Superior Court, supra, 19 Cal.3d 461.) The motion to strike should be granted.

CINDY JONES DOES NOT HAVE A CLAIM FOR NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS.
In the opposition, Cindy Jones asserts that she has a valid cause of action for negligent infliction of emotional distress ( NIED ) because Defendants failed to diagnose, treat and warn Plaintiffs of the impending danger to which she unknowingly exposed family members and the public. Plaintiff relies on Burgess v. Superior Court (1992) 2 Cal.4th 1064; Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916; and Ochoa v. Superior Court (1985) 39 Cal.3d 159. These cases do not support a claim for negligent infliction of emotional distress by Cindy Jones.

Continue reading "Sacramento Physician Sued For Negligence, Part 2 of 4" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this medical negligence case and its proceedings.)

The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in a personal injury case present such issues to the court.

Reply of Defendant Universal Hospital to Plaintiffs' Opposition to Defendant's Motion to Strike Portions of Complaint

INTRODUCTION.
This action is premised on care rendered to plaintiff Cindy Jones. Cindy Jones contends that Cedars-Sinai and the other defendants provided negligent care to her regarding a bump on her left hand. Cindy Jones alleges that she was negligently notified that she did not test positive for a highly contagious strain of staphylococcus (MRSA), causing her to fail to take precautionary measures and to unknowingly expose her family, including her daughter, the minor plaintiff, Tammy Jones, to the MRSA, resulting in the daughter's hospitalization. The first cause of action is asserted by Cindy Jones relating to the care she received at Universal Hospital in Sacramento, under Code of Civil Procedure sections 435 and 436, to strike from paragraph 12 of the first cause of action, page 3:27 to page 4:2, of the complaint:

Therein Plaintiff unknowingly exposed her family, including Co-Plaintiff Tammy Jones, and the general public to the highly contagious strain of MRSA, resulting in the infection and hospitalization of Tammy Jones.

These allegations have nothing to do with the claim by plaintiff Cindy Jones for negligence. Cindy Jones is seeking to recover damages for the loss of her daughter's consortium. Recovery of such damages is precluded by Baxter v. Superior Court (1977) 19 Cal.3d 461. If plaintiff Cindy Jones is trying to recover damages for negligent infliction of emotional distress as a bystander witness of the injuries allegedly suffered by her daughter, she has not alleged any facts showing that she had a contemporaneous awareness of any injury at the time it was occurring as required under Thing v. LaChusa (1989) 48 Cal.3d 644, 667-668 and Bird v. Saenz (2002) 28 Cal.4th 910, 920-921.

Continue reading "Sacramento Family Sues For Medical Negligence, Part 1 of 4" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of this wrongful death case and its proceedings.)

Relatedly, the courts have recognized that the potential for jury confusion and prejudice is particularly acute in cases like this one, where the plaintiff proposes to spend far more time talking about conduct that affected other parties than the conduct that affected the plaintiff. The risk of prejudice from other acts evidence increases tremendously when the plaintiff is permitted to make that evidence the centerpiece of her punitive damages presentation. Holdgrafer, 160 Cal. App. 4th at 934. The Second District, for example, noted that [t]he vast majority of the evidence presented in the punitive damages phase, and counsel's arguments to the jury, related to evidence of conduct that did not harm the plaintiffs.

Plaintiffs' counsel began his closing argument by recounting the evidence in great detail, the court noted, and it dominated the rest of his presentation. Id. For that reason, the court concluded, the improper admission of other-acts evidence was particularly prejudicial and resulted in a miscarriage of justice. See also State Farm, 538 U.S. at 420, 423 (noting that [f]rom their opening statements onward the Campbells framed this case as a chance to rebuke State Farm for its nationwide activities, but identified scant evidence of repeated misconduct of the sort that injured them ); Durham, 360 S.C. at 653 ( Further, the evidence is inflammatory, especially in light of the fact that the [other acts] evidence was the only evidence admitted during the punitive damages phase. ).

Continue reading "Tobacco Company Sued By Sacramento-Area Woman, Part 7 of 7" »