Sasco Electric v. Fair Employment & Housing Com.

• Citation: 176 Cal.App.4th 532,97 Cal. Rptr. 3d 482
• Decision Date: 15 July 2009
• Docket Number: No. D053492.,D053492.
• Court: California Court of Appeals Court of Appeals
• Parties: SASCO ELECTRIC, Plaintiff and Appellant, v. FAIR EMPLOYMENT AND HOUSING COMMISSION, Defendant and Respondent; ZIBUTE SCHERL, Real Party in Interest and Respondent.

176 Cal.App.4th 532

97 Cal. Rptr. 3d 482

SASCO ELECTRIC, Plaintiff and Appellant, v. FAIR EMPLOYMENT AND HOUSING COMMISSION, Defendant and Respondent;

ZIBUTE SCHERL, Real Party in Interest and Respondent.

No. D053492.

Court of Appeals of California, Fourth District, Division One.

July 15, 2009.

[176 Cal.App.4th 534]

Quadros & Johnson, Benjamin A. Johnson and S. Edward Slabach for Plaintiff and Appellant.

Edmund G. Brown, Jr., Attorney General, Louis Verdugo, Jr., Assistant Attorney General, Angela Sierra and Antonette Benita Cordero, Deputy Attorneys General, for Defendant and Respondent.

No appearance for Real Party in Interest and Respondent.

[176 Cal.App.4th 535]

OPINION

McCONNELL, P. J.

INTRODUCTION

An employer appeals a judgment denying a petition for administrative mandate challenging a decision by the Fair Employment and Housing Commission (Commission) finding the employer committed pregnancy discrimination in violation of the California Fair Employment and Housing Act (FEHA; Gov. Code, § 12900 et seq.). The employer contends the Commission abused its discretion because the Commission failed to proceed in the manner required by law and its findings are not supported by substantial evidence. We affirm the judgment.

I STANDARD OF REVIEW

On appeal from a judgment denying a petition for writ of administrative mandamus, we consider "whether the respondent has proceeded without, or in excess of jurisdiction; whether there was a fair trial; and whether there was any prejudicial abuse of discretion. Abuse of discretion is established if the respondent has not proceeded in the manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence." (Code Civ. Proc., § 1094.5, subd. (b).) Where it is claimed that the findings are not supported by the evidence and the case, as here, does not involve a fundamental vested right, "abuse of discretion is established if the court determines that the findings are not supported by substantial evidence in the light of the whole record." (Id., § 1094.5, subd. (c); see American National Ins. Co. v. Fair Employment & Housing Com. (1982) 32 Cal.3d 603, 607 [186 Cal.Rptr. 345, 651 P.2d 1151].)

"Substantial evidence" is evidence of "`ponderable legal significance.'" (People v. Bassett (1968) 69 Cal.2d 122, 138-139 [70 Cal.Rptr. 193, 443 P.2d 777].) "`It must be reasonable in nature, credible, and of solid value.'" (Id. at p. 139; accord, Ofsevit v. Trustees of Cal. State University & Colleges (1978) 21 Cal.3d 763, 773, fn. 9 [148 Cal.Rptr. 1, 582 P.2d 88].) In determining whether an administrative decision is supported by substantial evidence, "[w]e may not isolate only the evidence which supports the administrative finding and disregard other relevant evidence in the record. [Citations.] On the other hand, [we may not] disregard or overturn the Commission's finding `"for the reason that it is considered that a contrary finding would have been equally or more reasonable."' [Citations.] The ultimate issue in an administrative mandamus proceeding is whether the agency abused its discretion. An abuse of discretion is `"discretion exercised to an end or purpose not justified by and clearly against reason, all of the facts and circumstances being considered.' [Citations.] Unless the finding, viewed in the light of the entire record, is so lacking in evidentiary support as to render it unreasonable, it may not be set aside." (Northern Inyo Hosp. v. Fair Emp. Practice Com. (1974) 38 Cal.App.3d 14, 24 ; accord, Johnson Controls, Inc. v. Fair Employment & Housing Com. (1990) 218 Cal.App.3d 517, 531-532 .)

II FACTUAL AND PROCEDURAL BACKGROUND

A. Factual Background¹

SASCO Electric (SASCO), an electrical contractor, owns the El Navegante, a 70-foot yacht it uses to entertain guests. The yacht is captained by David McIntyre, a SASCO management employee with authority to hire and fire employees. From late April to late July each year, SASCO sends the yacht to Mexico. SASCO's guests fly to Mexico to meet the yacht for two-to-three-night fishing excursions approximately 25 to 50 miles off the coast. SASCO also uses the yacht each December to participate in the annual Christmas Boat Parade in Newport Beach, California.

In late 2002 and early 2003, the demand for SASCO's services declined and SASCO began cutting overhead costs and laying off staff. Nonetheless, in January 2003, McIntyre hired Zibute Scherl to work as a deckhand on the yacht. Around the same time, SASCO purchased the Angler, a 26-foot fishing boat.

Before joining the yacht's crew, Scherl had worked as a deckhand and later as second captain on the Cortez, a 60-foot sport fishing boat. She had previously worked for a water taxi service in Baltimore Harbor, for the Ocean Institute aboard historic boats, and on a variety of other boats, including a three-masted schooner, a paddle wheeler, and a tug boat. In addition, she is licensed by the United States Coast Guard as a United States Merchant Marine Officer. Obtaining this license required Scherl to have 720 days at sea, complete 80 hours of classroom training, and pass a written examination.

In September 2003, Scherl became second captain in training and McIntyre offered to train her to dock the yacht. She testified the training never occurred because of scheduling problems. He believes she avoided the training because she was not ready for it. Both believe she would have successfully completed the training eventually and he never indicated her job would be in jeopardy if she did not complete the training right away.

In December 2003, Scherl met Jerry Jordan, SASCO's executive director. Jordan is responsible for the yacht's finances and McIntyre reports to him. Jordan congratulated Scherl on her recent marriage and told her, "Whatever you do, don't get pregnant." Jordan denies this exchange occurred.

In January 2004, Scherl became second captain.² Around the same time, McIntyre hired Timothy Best to be a deckhand on the yacht. McIntyre's wife, Jane McIntyre (Jane), also worked for SASCO aboard the yacht.

In early February 2004, Scherl informed McIntyre and Jane of her pregnancy. Jane reacted to the news with happiness and excitement. Conversely, McIntyre was admittedly disappointed by the news because he thought Scherl's pregnancy would impact her working on the yacht. In his experience, mothers do not want to work in the boating business. In addition, he thought her plan to work as long as possible during her pregnancy was "cavalier." He also had liability concerns. Consequently, he told Scherl she would need to get a medical release from her doctor in order to make the upcoming trip to Mexico in late April 2004.

The morning after Scherl informed McIntyre of her pregnancy, McIntyre telephoned Jordan to discuss McIntyre's liability concerns. Jordan admits McIntyre called and informed him of Scherl's pregnancy, but denies discussing liability concerns with McIntyre.

The same day McIntyre also discussed Scherl's pregnancy with Best. McIntyre expressed concern about Scherl's exposure to chemicals and fumes as well as the potential she could slip and miscarry. He told Best he could not take Scherl to Mexico and was going to have to find someone else.

On February 20, 2004, SASCO sent Scherl a letter congratulating her on her pregnancy and requesting a release from her physician indicating she could perform her regular duties "without restrictions or limitations and without undue risk to yourself or others." The letter requested submission of the release by March 15, 2004. However, on February 23, 2004, SASCO sent Scherl an e-mail requesting she submit the release as soon as possible. When Scherl mentioned the release request to McIntyre, he told her to "hold off" on getting the release and to "wait and see what happens first."

Despite McIntyre's direction to hold off on getting the medical release, Scherl submitted the release form to her doctor. Her doctor completed the form and returned it to Scherl on or around March 4, 2004. The release indicated and Scherl's doctor confirmed in deposition testimony that Scherl was not incapacitated by and did not have any work restrictions associated with her pregnancy in February 2004. However, the release further indicated and Scherl's doctor confirmed in deposition testimony that, after May 10, 2004, which was approximately when Scherl's pregnancy became viable, Scherl should not work where she could be knocked over and should not be out to sea for several days at a time. Scherl never provided the release to SASCO.

On February 24, 2004, Jordan sent McIntyre an e-mail stating SASCO's chairman had changed his budget and would only allow him to have two full-time employees on the payroll: himself and a deckhand. While the yacht was in Mexico and during the December parade season, McIntyre would also be allowed one part-time contract laborer. Consequently, the e-mail stated "Jane and the third person will come out of the budget at the end of the Feb." Prior to learning Scherl was pregnant, Jordan never informed McIntyre of an anticipated reduction in yacht's budget or the corresponding need to reduce the yacht's staff.

On February 27, 2004, McIntyre provided Scherl with a copy of Jordan's e-mail and informed her he was laying her off. When she asked McIntyre why she had been selected for lay off, McIntyre evaded the question. However, he never indicated her work was unsatisfactory. To the contrary, during her employment, he continually told her she was doing a good job, he was confident in her abilities, and he was happy to have her as part of his crew. In addition, after he terminated her employment, he sent her an unsolicited letter of recommendation describing her as "the hardest working, responsible, boat savvy individual to work with me during my seventeen years on this vessel." He also told Jane that Scherl was the best he had ever seen.

Sometime in March...