Aguilar v. Avis Rent-A-Car System, Inc

Decision Date21 May 1996
Docket NumberRENT-A-CAR,No. A069353,A069353
Citation53 Cal.Rptr.2d 599,45 Cal.App.4th 933
CourtCalifornia Court of Appeals Court of Appeals
PartiesPreviously published at 45 Cal.App.4th 933, 50 Cal.App.4th 28 45 Cal.App.4th 933, 50 Cal.App.4th 28, 70 Fair Empl.Prac.Cas. (BNA) 1477, 71 Empl. Prac. Dec. P 44,841, 64 USLW 2773, 96 Cal. Daily Op. Serv. 3619, 96 Daily Journal D.A.R. 5899 Oscar AGUILAR, et al., Plaintiffs and Respondents, v. AVISSYSTEM, INC., et al., Defendants and Appellants.

Edwin L. Currey, Jr., Albert P. Bedecarre, Mary Bossart Halfpenny, Bronson, Bronson & McKinnon, San Francisco, for plaintiffs and respondents.

Joanne Dellaverson, Joel P. Kelly, Donna M. Rutter, McKenna & Cuneo, San Francisco, for defendants and appellants.

KING, Associate Justice.


In this case we hold that an injunction prohibiting a manager's continued use of racist epithets in the workplace, where such use was sufficiently severe or pervasive to alter the conditions of the victims' employment and create an abusive work environment, does not violate the constitutional proscription against prior restraints, because the injunction targets conduct amounting to employment discrimination as a "secondary effect" of such speech within the meaning of R.A.V. v. St. Paul (1992) 505 U.S. 377, 112 S.Ct. 2538, 120 L.Ed.2d 305, rather than targeting the expressive content of the speech, and thus is not content based.

The employer, Avis Rent-A-Car System, Inc., and the manager, John Lawrence, challenge the constitutionality of an injunction by which the trial court sought to remedy employment discrimination violating the Fair Employment and Housing Act (FEHA) (Gov.Code, § 12900 et seq.). The injunction prohibits Lawrence from "using any derogatory racial or ethnic epithets directed at, or descriptive of, Hispanic/Latino employees," and also orders him to refrain from "any uninvited intentional touching" of those employees, as long as he is employed by Avis in California. It is not limited to the workplace.

We conclude that to the extent the injunction prohibits Lawrence from continuing to use racist epithets in the workplace it is constitutionally sound, but to the extent it reaches beyond the workplace it improperly exceeds the scope of the FEHA violation sought to be prevented and must be modified accordingly. We reverse the injunctive portion of the judgment and remand the cause for modification to narrow the injunction's scope and describe the prohibited conduct with further specificity.


Avis employed the 17 Hispanic/Latino plaintiffs in this case as drivers at its San Francisco airport location, responsible for moving automobiles between parking lots and check-in and service station areas. In 1993, they sued Avis and ten individual managers, alleging multiple causes of action including employment discrimination in violation of FEHA.

According to the complaint, the individual defendants engaged in racially discriminatory harassment which created an abusive work environment. (Gov.Code, § 12940, subd. (h)(1); Kelly-Zurian v. Wohl Shoe Co. (1994) 22 Cal.App.4th 397, 409, 27 Cal.Rptr.2d 457.) The basis of an abusive work environment claim is " 'discriminatory intimidation, ridicule, and insult' ... that is 'sufficiently severe or pervasive to alter the conditions of the victim's employment....' " (Harris v. Forklift Systems, Inc. (1993) 510 U.S. 17, ----, 114 S.Ct. 367, 370, 126 L.Ed.2d 295, 301, quoting Meritor Savings Bank v. Vinson (1986) 477 U.S. 57, 65, 67, 106 S.Ct. 2399, 2404-05, 2405-06, 91 L.Ed.2d 49.) The complaint alleged that Lawrence in particular, who was the service station manager, routinely called the plaintiffs " 'motherfuckers' and other derogatory names, and continually demeaned them on the basis of their race, national origin and lack of English language skills."

The case went to a jury as to twelve of the plaintiffs, three of the individual defendants, and Avis, with mixed results. The jury found racial discrimination as to eight plaintiffs and awarded each of them damages for emotional distress in the sums of either $15,000 or $25,000, for a total monetary award of $135,000. As to three of these plaintiffs the discrimination was by Lawrence; as to the other five the discrimination was by an Avis employee named Kathy Black who no longer worked at the San Francisco airport location. 1 As to a ninth plaintiff, the jury found discrimination by Lawrence but no emotional distress. The jury found no discrimination as to the remaining three plaintiffs, and no discrimination by Avis managers other than Lawrence and Black.

After the verdicts, the eight prevailing plaintiffs requested injunctive relief limited to the San Francisco airport location, requiring among other things that Lawrence and Avis "cease and desist from all harassment or discrimination of employees whose national origin is from Latin America...." The defense objected that this language was vague and overbroad. The judge granted an injunction, but changed the proposed language to specify racial slurs and touchings 2 by Lawrence and to extend beyond the San Francisco airport location.

The injunction states in pertinent part: "Defendant John Lawrence shall cease and desist from using any derogatory racial or ethnic epithets directed at, or descriptive of, Hispanic/Latino employees of Avis Rent-A-Car System, Inc., and shall further refrain from any uninvited intentional touching of said Hispanic/Latino employees, as long as he is employed by Avis Rent A Car System, Inc. in California." The injunction also orders Avis not to allow Lawrence to commit such acts "under circumstances in which it knew or should have known of such acts...." 3

The court rendered judgment incorporating the jury verdict and the injunction, and Avis and Lawrence (hereafter Avis) filed a timely notice of appeal expressly limited to the injunctive portion of the judgment.


Our primary concern in this appeal is with the constitutional implications of government regulation of speech in the workplace. Avis contends the challenged injunction restricts Lawrence's speech solely on the basis of its content and thus violates the First Amendment as well as our state Constitution (Cal. Const., art. I, § 2, subd. (a)).

A. The Factual Underpinnings

The evidentiary posture of this appeal is critical to resolution of the issues presented.

This is a partial appeal on a record lacking a reporter's transcript of the trial. Avis has not appealed the damages portions of the judgment, and has elected to proceed by appendix (Cal. Rules of Court, rule 5.1) without a trial transcript, designating for transcription only the oral arguments on the posttrial hearings on injunctive relief.

This course of action by Avis has two fundamental consequences. First, because the appeal is partial, the unappealed damages portions of the judgment " 'must be deemed final, being a final judgment of the facts and rights which they determine.' " (Gonzales v. R.J. Novick Constr. Co. (1978) 20 Cal.3d 798, 805, 144 Cal.Rptr. 408, 575 P.2d 1190, quoting Whalen v. Smith (1912) 163 Cal. 360, 362-363, 125 P. 904.) This means that the factual underpinnings of the damages portions of the judgment have been finally determined and are no longer subject to dispute.

Second, because "the record does not contain the evidence presented at the trial, it must be presumed conclusively that the findings are supported by the evidence." (Robert S. Bryant, Inc. v. Taber (1962) 199 Cal.App.2d 884, 885, 19 Cal.Rptr. 150; accord, e.g., Burns v. Brown (1946) 76 Cal.App.2d 639, 643, 173 P.2d 716.) Avis's election to proceed without a trial transcript invokes this conclusive presumption not only as to the factual underpinnings for the damages portions of the judgment, but also as to the trial judge's factual determinations on the injunctive portion. The judge stated from the bench that "there was evidence presented sufficient for the jury to find that ... Lawrence had engaged in acts of harassment so continual and severe as to alter the working conditions for those people there," and "the court is making a finding of fact based on evidence observed during the trial, that ... there's a substantial likelihood based on his actions that he will do so in the future unless restrained." Because Avis chose not to give us the trial evidence, the factual underpinnings of the damages and injunctive portions of the judgment are conclusively presumed.

Indeed, Avis concedes these factual underpinnings in its reply brief, which states, "Here, appellants are not disputing the questions of fact that give rise to the injunction, which Respondents have had ample opportunity to plead and prove. On this appeal, Appellants are challenging the injunction as written, not because the underlying facts do not warrant the injunction, but because Appellants contend the language is impermissible on a constitutional basis." (Italics added.) This is an admission of the undisputed factual basis for the injunction, and we treat the admission as binding against Avis. (Franklin v. Appel (1992) 8 Cal.App.4th 875, 893, fn. 11, 10 Cal.Rptr.2d 759; Mangini v. Aerojet-General Corp. (1991) 230 Cal.App.3d 1125, 1152, 281 Cal.Rptr. 827.)

The factual underpinnings of the FEHA claim are thus conclusively established by the partial nature of the appeal, by the form of the appellate record, and by Avis's own admission. Those factual underpinnings are in the complaint's allegations that Lawrence "continually demeaned [plaintiffs] on the basis of their race, national origin and lack of English language skills." Indeed, to prove the abusive work environment claim--that is, that Lawrence's racist invective was sufficiently severe or pervasive to alter the conditions of the plaintiffs' employment (Harris v. Forklift Systems, Inc., supra, 510 U.S. at p. ----, 114 S.Ct. at p. 370, 126 L.Ed.2d at p. 301)--the plaintiffs' goal was to...

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    ...accountable to the law for what they speak, what they write, and what they publish.' Citation." Aguilar v. Avis Rent-A-Car System, Inc., 45 Cal.App.4th 933, 973, 53 Cal.Rptr.2d 599 (1996), Peterson, P.J., concurring in part and dissenting in part, quoting Dailey v. Superior Court, 112 Cal. ......
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