Harris v. City of Santa Monica, No. S181004.

CourtUnited States State Supreme Court (California)
Writing for the CourtLIU
Citation294 P.3d 49,152 Cal.Rptr.3d 392,56 Cal.4th 203
PartiesWynona HARRIS, Plaintiff and Respondent, v. CITY OF SANTA MONICA, Defendant and Appellant.
Decision Date07 February 2013
Docket NumberNo. S181004.

56 Cal.4th 203
294 P.3d 49
152 Cal.Rptr.3d 392

Wynona HARRIS, Plaintiff and Respondent,
CITY OF SANTA MONICA, Defendant and Appellant.

No. S181004.

Supreme Court of California

Feb. 7, 2013.

See 8 Witkin, Summary of Cal.
Law (10th ed. 2005) Constitutional Law, § 926.

152 Cal.Rptr.3d 394]Marsha Jones Moutrie, City Attorney, Joseph Lawrence, Assistant City Attorney, Barbara C. Greenstein, Carol Ann Rohr, Jeanette Schachtner, Anthony P. Serritella and Meishya Yang, Deputy City Attorneys, for Defendant and Appellant.
Law Offices of Steven Drapkin, Steven Drapkin, Los Angeles; Paul, Hastings, Janofsky & Walker, Paul W. Cane, Jr., Katherine C. Huibonhoa and Elizabeth MacGregor, San Francisco, for California Employment Law Council and Employers Group as Amici Curiae on behalf of Defendant and Appellant.

Melanie Poturica, Los Angeles, and Morin I. Jacob, San Francisco, for League of California Cities and California State Association of Counties as Amici Curiae on behalf of Defendant and Appellant.

The deRubertis Law Firm, David M. deRubertis, Michael H. Leb, Kimberly Y. Higgins, Studio City; Kokozian & Nourmand, The Nourmand Law Firm, Michael Nourmand, Los Angeles; Pine & Pine, Norman Pine and Beverly Pine, Sherman Oaks, for Plaintiff and Respondent.

Joseph Grodin, Denise Hulett, Claudia Center, San Francisco, Sharon Terman and Tamika Butler for Legal Aid Society–Employment Law Center, American Civil Liberties Union of Northern California, ACLU Foundation of Southern California, American Civil Liberties Union of San Diego and Imperial Counties, California [152 Cal.Rptr.3d 395]Women's Law Center, Disability Rights Advocates, Disability Rights California, Disability Rights Education and Defense Fund, Inc., Disability Rights Legal Center, Equal Rights Advocates, Impact Fund, Lambda Legal Defense and Education Fund Inc., Mexican American Legal Defense and Education Fund, National Center for Lesbian Rights and Women's Employment Rights Clinic of Golden Gate University School of Law as Amici Curiae on behalf of Plaintiff and Respondent.

Charlotte E. Fishman, San Francisco; Law Office of David J. Duchrow and David Duchrow, Santa Monica, for California Employment Lawyers Association as Amicus Curiae on behalf of Plaintiff and Respondent.


[56 Cal.4th 211

[294 P.3d 51]

A bus driver alleged that she was fired by the City of Santa Monica (the City) because of her pregnancy in violation of the prohibition on sex discrimination in the Fair Employment and Housing Act (FEHA). The City claimed that she had been fired for poor job performance. At trial, the City asked the court to instruct the jury that if it found a mix of discriminatory and legitimate motives, the City could avoid liability by proving that a legitimate motive alone would have led it to make the same decision to fire her. The trial court refused the instruction, and the jury returned a substantial verdict for the employee. The Court of Appeal reversed, holding that the requested instruction was legally correct and that refusal to give it was prejudicial error.

We conclude that the Court of Appeal was correct in part. We hold that under the FEHA, when a jury finds that unlawful discrimination

[294 P.3d 52]

was a substantial factor motivating a termination of employment, and when the employer proves it would have made the same decision absent such discrimination, a court may not award damages, backpay, or an order of reinstatement. But the employer does not escape liability. In light of the FEHA's express purpose of not only redressing but also preventing and deterring unlawful discrimination in the workplace, the plaintiff in this circumstance could still be awarded, where appropriate, declaratory relief or injunctive relief to stop discriminatory practices. In addition, the plaintiff may be eligible for reasonable attorney's fees and costs. Therefore, we affirm the Court of Appeal's judgment overturning the damages verdict in this case and remand for further proceedings in accordance with the instructions set forth below.


Santa Monica's city-owned bus service, Big Blue Bus, hired Wynona Harris as a bus driver trainee in October 2004. Shortly into her 40–day training period, Harris had an accident, which the City deemed “preventable.” Although no passengers were on her bus and no one was injured, the accident cracked the glass on the bus's back door. When the City hired Harris, it gave her its “Guidelines for Job Performance Evaluation,” which said: “Preventable accidents ... [are] an indication of unsafe driving.... [T]hose who drive in an unsafe manner will not pass probation.”

In November 2004, Harris successfully completed her training period, and the City promoted her to the position of probationary part-time bus driver. As a probationary driver, Harris was an at-will employee. At some point during her first three-month probationary evaluation period (the record is not clear [56 Cal.4th 212]when), Harris had a second preventable accident in which she sideswiped a parked car and tore off its side mirror. According to Harris, she hit the parked car after swerving to avoid a car that had cut her off in traffic.

[152 Cal.Rptr.3d 396]On February 18, 2005, Harris reported late to work and received her first “miss-out.” The job performance guidelines defined a “miss-out” as a driver's failure to give her supervisor at least one hour's warning that she will not be reporting for her assigned shift. The guidelines noted that most drivers get one or two late reports or miss-outs a year, but more than that suggested a driver had a “reliability problem.” The guidelines further provided that a miss-out would result in 25 demerit points and that “[p]robationary employees are allowed half the points as a permanent full time operator, which is 100 points.”

On March 1, 2005, Harris's supervisor gave her a written performance evaluation covering her first three months as a probationary driver from mid-November 2004 to February 14, 2005. As to Harris's “overall performance rating,” her supervisor indicated “further development needed.” Harris testified at trial that her supervisor told her she was doing a good job and would have received a “demonstrates quality performance” rating but for her November accident.

On April 27, 2005, Harris incurred her second miss-out. She had accompanied her daughter to a juvenile court hearing and failed to timely notify her dispatcher that she would be late for a rescheduled 5:00 p.m. shift. Harris testified that the stress from her daughter's hearing caused her to forget to notify the dispatcher. Transit services manager Bob Ayer investigated the circumstances of Harris's miss-out, and on May 4 or 5, 2005, Ayer recommended to his supervisor, the bus company's assistant director, that the miss-out should remain in Harris's file. Ayer testified that the assistant director asked him to examine Harris's complete personnel file. He did so and told the assistant director that the file showed Harris was not meeting the city's standards for continued employment because she had two miss-outs and two preventable accidents, and had been evaluated as needing “further development.”

On May 12, 2005, Harris had a chance encounter with her supervisor, George Reynoso, as she prepared to begin her shift. Seeing Harris's uniform shirt hanging loose, Reynoso told her to tuck it in. Harris confided to Reynoso that she was pregnant. Harris testified that Reynoso reacted with

[294 P.3d 53]

seeming displeasure at her news, exclaiming: “Wow. Well, what are you going to do? How far along are you?” He then asked her to get a doctor's note clearing her to continue to work. Four days later, on May 16, Harris gave Reynoso a doctor's note permitting her to work with some limited [56 Cal.4th 213]restrictions. (Neither party argues the restrictions are relevant to Harris's case.) The morning Harris gave him the note, Reynoso attended a supervisors' meeting and received a list of probationary drivers who were not meeting standards for continued employment. Harris was on the list. Her last day on the job was May 18, 2005.

In October 2005, Harris sued the City, alleging that the City fired her because she was pregnant, a form of sex discrimination. Answering Harris's complaint, the City denied her allegations and asserted as an affirmative defense that it had legitimate, nondiscriminatory reasons to fire her as an at-will, probationary employee.

The case was tried to a jury. The City asked the court to instruct the jury with BAJI No. 12.26, which pertained to its mixed-motives defense. The instruction states: “If you find that the employer's action, which is the subject of plaintiff's claim, was actually motivated by both discriminatory and non-discriminatory reasons, the employer is not liable if it can establish by a preponderance of the evidence[152 Cal.Rptr.3d 397]that its legitimate reason, standing alone, would have induced it to make the same decision. [¶] An employer may not, however, prevail in a mixed-motives case by offering a legitimate and sufficient reason for its decision if that reason did not motivate it at the time of the decision. Neither may an employer meet its burden by merely showing that at the time of the decision it was motivated only in part by a legitimate reason. The essential premise of this defense is that a legitimate reason was present, and standing alone, would have induced the employer to make the same decision.”

The court refused to give the instruction. Instead, the jury was instructed according to California Civil Jury Instruction (CACI) No. 2500 that Harris had to prove that her pregnancy was a “motivating factor/reason for the discharge.” “Motivating factor” was further defined according to BAJI No. 12.01.1 as “something that moves the will and induces action even though other matters may have contributed to the taking of the action.” By special verdict, the jury found by a vote of nine-to-three that Harris's pregnancy was a...

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