Stepp v. Fid. Nat'l Title Grp., Inc.
| Decision Date | 16 April 2018 |
| Docket Number | B270964 |
| Parties | JESSICA A. STEPP, Plaintiff and Respondent, v. FIDELITY NATIONAL TITLE GROUP, INC. et al., Defendants and Appellants. |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BC517311)
APPEAL from a judgment and order of the Superior Court of Los Angeles County, Mark V. Mooney, Judge. Postjudgment order reversed with directions, and appeal from judgment dismissed.
Loeb & Loeb, Michelle M. La Mar, Bernard R. Given II, Erin M. Smith; Greines, Martin, Stein & Richland, Robin Meadow and Laurie J. Hepler for Defendants and Appellants.
Law Offices of Victor L. George, Victor L. George, Wayne C. Smith; Esner, Chang & Boyer and Stuart B. Esner for Plaintiff and Respondent.
Jessica A. Stepp alleged that she was terminated by Fidelity National Title Group, Inc. and related entities (collectively Fidelity)1 on the basis of her gender and pregnancies and in retaliation for her opposition to Fidelity's discriminatory practices, asserting claims for discrimination, harassment, retaliation, and intentional infliction of emotional distress. Stepp dismissed her sexual harassment cause of action during trial, and the jury returned a verdict in favor of Fidelity on her discrimination and retaliation causes of action, finding that neither discrimination nor retaliation was a "substantial motivating reason" for her termination. However, the jury found Fidelity liable for intentional infliction of emotional distress, and awarded Stepp a total of $1,173,849 in economic and noneconomic damages. Fidelity appeals from the judgment and from an order denying its motion for judgment notwithstanding the verdict.
Fidelity contends that workers' compensation provides the exclusive remedy for Stepp's claim for intentional infliction of emotional distress, and thus the trial court erred in denying its motion for judgment notwithstanding the verdict. We agree. We conclude that because the jury found there was no unlawful discrimination or retaliation, the exceptions to the exclusivity provisions for conduct that "'contravenes [a] fundamental public policy'" or "'exceeds the risks inherent in the employment relationship,'" as articulated by our Supreme Court in Miklosy v.Regents of University of California (2008) 44 Cal.4th 876, 902, 903 (Miklosy), do not apply.
We reverse the denial of Fidelity's motion for judgment notwithstanding the verdict, and remand to the trial court to enter a judgment for Fidelity.2
In May 2010 Fidelity hired Stepp as an in-house attorney. Stepp was pregnant at the time and had two young children. On her first day at work, Stepp told the manager of the office, John Henley, that she was pregnant and intended to take maternity leave in September 2010. Henley said that was "great," and that he was happy to have her there. Other attorneys in the office congratulated her. However, attorney John Rygh did not congratulate her; instead, he told her that he wished Stepp had informed him of her pregnancy when she interviewed for the job. Rygh asked Stepp whether she was sure she could handle the caseload while pregnant. Stepp responded that she gave birth to two children at her prior law firm, and assured Rygh that her pregnancy would not be an issue. Later in 2010 Rygh became the office manager.
Before beginning her maternity leave, Stepp spoke with Rygh about her need for a private place to pump breast milk after she returned from her leave. Her office was unsuitable because ithad an interior window with no curtains. Stepp asked either to have curtains installed or to move to an available vacant interior office with no window, which was being used for storage. Rygh responded that it would be too expensive to install curtains and that he had other plans for the vacant office. Stepp later learned that Rygh was planning to move into the vacant office. Rygh told Stepp she had to figure out for herself where to pump milk. Rygh also stated that if Stepp took one day more leave than the law allowed, her job would not be waiting for her when she returned.
Stepp was scheduled to start her maternity leave on September 22, 2010. Rygh told Stepp she had to complete all pending substantive work before going on maternity leave because there was no one to cover for her while she was gone. Stepp wanted to begin her leave earlier, but felt pressure to complete her work. She worked until 6:00 p.m. on September 21, and went into labor at 9:00 p.m. that evening.
Around December 16, 2010 Stepp returned from her maternity leave. Another attorney in the office, Donald Erickson, asked Stepp if she had her tubes tied and if she had told her husband to keep his hands off her. These comments troubled her given the personal nature of the questions. By this time, Rygh had moved into Henley's former office, leaving the vacant office available. Rygh said to Stepp, "Well, I guess it looks like you've won; you got what you wanted." However, the office door did not have a working lock.
One day while Stepp was pumping milk in her new office with her breasts exposed, a man who came to water her plants walked in on her. Stepp was very upset by the incident, and asked Rygh to install a lock. Rygh said he would look into it, but later told Stepp it would be too expensive. Stepp offered to payfor it herself. Rygh said he would follow up, but he did not. Stepp asked the maintenance department to install a lock, but she was told she needed Rygh's permission, which he never gave.
Stepp initially posted a sign on her office door stating, "privacy please." Rygh told Stepp he was afraid to enter her office because he did not know whether she was pumping milk, and requested she post a sign that explicitly said this. Stepp therefore posted a sign saying she was pumping milk. She felt uncomfortable and embarrassed having to tell her coworkers that she was pumping milk and was half undressed in her office. On a typical day Stepp pumped three times for about 15 minutes each time.
Stepp also felt uncomfortable storing her breast milk in a refrigerator that was used by other employees. Stepp found an unused refrigerator in the staff kitchen that was not plugged in, and asked Rygh if she could put it in her office so she did not have to store her milk in the shared refrigerator. Rygh initially responded that she could not use it because other attorneys would complain that she had a private refrigerator for her lunch. Stepp asked around the office whether anyone had a problem with her using the refrigerator, and no one objected. Rygh then allowed her to move the refrigerator to her office.
In 2011 Rygh assigned Stepp to a month-long trial in Orange County set for August in place of an attorney who was going on vacation. When the court postponed the trial to October, the original attorney agreed to take the case back, but Rygh refused. During the trial, Stepp shared a hotel room with another female attorney for one month, which made it hard for her to pump milk privately. Rygh declined her request for a private room for this purpose, although Stepp was aware thatmale attorneys had trials during which they did not have to share rooms.
Stepp also testified that she carried a "substantially higher" case load than other attorneys, but acknowledged that one male attorney had the same or a higher number of significant cases than she did and another had about the same number.
In February 2012 Stepp suffered a miscarriage, and requested a medical leave. Rygh granted her request. When she returned to the office at the end of the month, Rygh stated something to the effect of, "In light of everything that's happened, do you think you're planning on having another baby?" Stepp considered the comment inappropriate, and she believed Rygh was annoyed she had taken another leave.
On March 28, 2012 Rygh decided to terminate Stepp's employment, but he did not inform Stepp of this decision until August 6, 2012. Rygh delayed terminating Stepp because Fidelity lost attorneys in the office, and Rygh needed her to help handle the caseload. Rygh testified Stepp had "performance issues." However, the firing of Stepp "wasn't carved in stone," and Fidelity might have kept her on "[i]f she had done a great job."
Fidelity listed the reason for Stepp's termination on a document entitled, "company initiated termination," as "unsatisfactory performance." However, Rygh testified this was not the reason for her termination; rather, the document should have said "at-will termination." Rygh also testified, "[Stepp] has many fine qualities as an attorney," and "I didn't tell her I'm firing [her] for poor performance." According to Stepp, Rygh told her that he was terminating her because she had not given him sufficient time to review one of the summary judgment motionsshe was working on. Stepp had a very heavy caseload, and worked long hours before her termination.
On August 6, 2013 Stepp filed her original complaint. On March 20, 2014 Stepp filed her operative second amended complaint, alleging causes of action against Fidelity for (1) harassment in violation of the California Fair Employment and Housing Act (FEHA; Gov. Code, § 12900 et seq.); (2) employment discrimination based on gender, pregnancy, physical disability, and medical condition, in violation of FEHA; (3) retaliation for opposing discriminatory practices in violation of FEHA and public policy; (4) failure to accommodate Stepp's physical disability and medical condition in violation of FEHA; and (5) intentional infliction of emotional distress. The...
To continue reading
Request your trial