Alamo v. Practice Mgmt. Info. Corp., No. B230909.

CourtCalifornia Court of Appeals
Writing for the CourtZELON
Citation148 Cal.Rptr.3d 151
PartiesLorena ALAMO, Plaintiff and Respondent, v. PRACTICE MANAGEMENT INFORMATION CORPORATION, Defendant and Appellant.
Docket NumberNo. B230909.
Decision Date23 January 2013

148 Cal.Rptr.3d 151

Lorena ALAMO, Plaintiff and Respondent,
v.
PRACTICE MANAGEMENT INFORMATION CORPORATION, Defendant and Appellant.

No. B230909.

Court of Appeal, Second District, Division 7, California.

Sept. 24, 2012.
Review Granted Jan. 23, 2013.


Background: Former employee brought action against former employer, alleging pregnancy discrimination and retaliation in violation of the California Fair Employment and Housing Act (FEHA) and wrongful termination in violation of public policy. The Superior Court, Los Angeles County, No. BC416196, Rex Hesseman, J., entered judgment on jury verdict for former employee, and former employer appealed.


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

(1) former employee was required to prove her pregnancy-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 attorney's fees.

Affirmed.

[148 Cal.Rptr.3d 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.

Appellant Practice Management Information Corporation (PMIC) appeals from a judgment 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 Employment and Housing Act (FEHA) and wrongful termination in violation of public policy. On appeal, PMIC argues that the trial court committed prejudicial 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 decision in the absence of any discriminatory or retaliatory 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 verdict was based on the statutory FEHA claim or the common law wrongful discharge claim. For the reasons set forth below, we affirm.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY
I. Civil Action

Following the termination of her employment, Alamo filed a civil action against her former employer, PMIC. In her complaint, Alamo alleged three causes of action for pregnancy discrimination in violation 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 medical 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 employment, 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 [148 Cal.Rptr.3d 155]turn reported to Gregory Trupiano, PMIC's Executive Vice–President, and to James Davis, PMIC's founder and President.

On January 15, 2009, Alamo began a pregnancy-related leave of absence. Her baby was born approximately two weeks later on January 27, 2009. On February 18, 2009, Alamo requested an additional 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 Alamo'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 Angeles area before the birth of her baby and only intended 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 serious enough to warrant formal discipline. Cuevas testified 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 employees 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 became aware of other performance problems that caused her more concern. Cuevas specifically testified that she learned Alamo had not taken any action 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 Alamo'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 neglected were actually assigned to Cuevas and that Cuevas merely had asked Alamo to assist her by following up on certain unpaid invoices, which Alamo 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 before her scheduled return date, Alamo requested and received permission from Trupiano to come into the office to have lunch with a coworker, Maria Alcocer.[148 Cal.Rptr.3d 156]Alamo did not ask Cuevas for permission to visit the office at that time because it was her understanding 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 anyone. Alamo also said that she felt Moran was being 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 Alamo 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 recently 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 Rodriguez were being verbally abusive to her. Alcocer began her leave on April 20, 2009, and she did not return 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 account. 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. Alamo, 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 recommendation to her...

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