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Reverse chronological e-mail alerts prepared pro bono for the California Lawyers Association (formerly State Bar of California) Labor & Employment Law Section since 2007, covering California, 9th Circuit and US Supreme Court decisions, and new laws signed by Governor. To subscribe, contact LaborLaw@CLA.Legal.


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Doe v. Superior Court (CA4/1 D075331 6/13/19) Student-Employee Sexual Harassment and Assault/Rules of Professional Conduct Rule 4.2


Plaintiff/petitioner Jane Doe, a student-employee in the campus police department at Southwestern College, brought claims relating to sexual harassment and sexual assault against defendants/real parties Southwestern Community College District and three District employees.  Her complaint also alleged sexual harassment of two other female District employees, which was presumably relevant to Doe's allegations because it provided notice to the District regarding similar misconduct by at least one of the involved employees, campus police officer Ricardo Suarez.  Before her noticed deposition could take place, one of those female employees, Andrea P., was contacted by one of Doe's lawyers, Manuel Corrales, Jr.  When they discovered this contact, defendants moved to disqualify Corrales for violating Rule 4.2 of the California State Bar Rules of Professional Conduct, which generally prohibits a lawyer from communicating with "a person the lawyer knows to be represented by another lawyer in the matter."  The trial court granted the motion.


Although the District offered to provide counsel for Andrea, there is no evidence that at the time of the contact she had accepted the offer or otherwise retained counsel.  Corrales does not dispute that he knew the District was represented by counsel, or that Andrea was a District employee.  Whether he violated Rule 4.2 thus turns on subdivision (b)(2), which indicates that "[i]n the case of a represented . . . governmental organization, this rule prohibits communications" with a current employee of the organization, "if the subject of the communication is any act or omission of such person in connection with the matter which may be binding upon or imputed to the organization for purposes of civil or criminal liability."  (Ibid., italics added.) 


In this case, Corrales contacted Andrea to discuss evidence of other alleged acts of sexual harassment by Suarez.  Her role was as a percipient witness.  To the extent her acts were discussed, Doe is not seeking to hold the District liable for what Andrea did.  If she reported acts of sexual harassment to the District, Doe would seek to impose liability for what the District did not do in response.  Likewise, if Andrea did not report the harassment, it might be evidence that the District's sexual harassment policies were inadequate.  The purpose of Rule 4.2 is to prevent ex parte contact with employees who engaged in acts or conduct for which the employer might be liable.  It is not designed to prevent a plaintiff's lawyer from talking to employees of an organizational defendant who might provide relevant evidence of actionable misconduct by another employee for which the employer may be liable.  Accordingly, we will issue a writ directing the superior court to vacate its order disqualifying Corrales as Doe's counsel in this matter.


Bennett v. Rancho Cal. Water Dist. (CA4/3 G054617M, filed 5/29/19, mod. 6/13/19) Whistleblower/Collateral Estoppel/Employment Status


It is ordered that the opinion filed herein on May 29, 2019, be modified as follows: 


On page 15, following the end of the second full paragraph, add the following paragraphs:


In support of his petition for rehearing, Bennett cites Dynamex Operations West, Inc. v. Superior Court (2018) 4 Cal.5th 903 (Dynamex).  His reliance is misplaced as Dynamex does not assist him.  Bennett argues that “all Bennett had to do to satisfy the first element of his section 1102.5 claim was to demonstrate that he had provided services to the District, a fact which the District never contested.”  (Italics omitted.)  Bennett’s argument continues:  “In light of that undisputed predicate fact, it was therefore the District’s burden in that subsequent section 1102.5 action to prove that Bennett was not its presumed employee, but was instead an independent contractor”—rendering the burden on the District “the exact same in both proceedings.”  (Italics omitted.) 


Bennett’s arguments miss the point.  In our analysis of burdens, we are concerned with the applicability of the doctrine of collateral estoppel to the administrative law judge’s determination the District failed to carry its burden of proving Bennett was an independent contractor in the CalPERS proceeding.  Dispositive to our analysis is the administrative law judge’s express statement that, from the outset, the District had “the burden of demonstrating by a preponderance of the evidence that Mr. Bennett was an independent contractor.”  As discussed ante, we apply the express language of section 1102.5 and California Supreme Court authority interpreting that language in concluding it was Bennett’s initial burden in the trial court to show that he was an employee, by whatever modicum of proof may be required, to prove his section 1102.5(b) claim.  Therefore, the burden applied by the administrative law judge and Bennett’s initial burden with regard to employment status in proving the section 1102.5(b) claim were not identical for purposes of collateral estoppel applicability. 


Dynamex does not cite section 1102.5, much less analyze the burdens of proof relevant to section 1102.5(b) claims.  In Dynamex, the Supreme Court stated:  “The issue in this case relates to the resolution of the employee or independent contractor question in one specific context.  Here we must decide what standard applies, under California law, in determining whether workers should be classified as employees or as independent contractors for purposes of California wage orders, which impose obligations relating to the minimum wages, maximum hours, and a limited number of very basic working conditions (such as minimally required meal and rest breaks) of California employees.”  (Dynamex, supra, 4 Cal.5th at pp. 913-914, first italics added.) 


This modification does not effect a change in judgment.  The petition for rehearing is DENIED.


Esparza v. Safeway, Inc. (CA2/4 B287927 6/10/19) Meal Breaks/UCL Class Certification


Respondents Safeway, Inc. and The Vons Companies, Inc. (collectively Safeway) formerly maintained a policy or practice of failing to pay statutorily required premium wages when, if ever, Safeway violated its duty to provide employees meal periods.  Safeway’s duty was not to police meal breaks to ensure that no employees skipped them, but only to free employees from obligation and control, without impeding or discouraging them from taking their breaks.  (Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1039-1041.)  If Safeway did unlawfully dissuade an employee from taking a meal break, the Labor Code required Safeway to pay that employee a premium wage equal to one hour’s pay.  (Ibid.; Lab. Code, § 226.7, subd. (c).)


Prior to June 17, 2007, Safeway paid no premium wages for missed meal periods, without regard to whether an employee had been impeded or discouraged from taking a meal break.  Plaintiffs-appellants Enrique Esparza, Cathy Burns, Levon Thaxton II, and Sylvia Vezaldenos -- all former Safeway employees -- appeal from a judgment against them on two causes of action related to this former policy or practice.  The first, brought under the unfair competition law (UCL) (Bus. & Prof. Code, § 17200 et seq.), sought to establish liability for the no-premium-wages policy itself. The second, brought under the Labor Code Private Attorneys General Act of 2004 (PAGA) (Lab. Code, § 2698 et seq.), was narrowed prior to trial: only appellant Vezaldenos sought to establish PAGA liability, and only for violations occurring before June 17, 2007, when the no-premium-wages policy was in place.


Appellants successfully sought class certification for their UCL claim.  In 2015, we rejected Safeway’s challenge to the class certification, noting that plaintiffs did “not seek the unpaid accrued meal break premium wages” -- which would have required an individualized determination whether any class member had been denied a meal break -- “but instead maintain[ed] that valuing the loss of the ‘statutory protections’ to the class [could] be determined by a ‘‘‘market value” approach.’”  (Safeway, Inc. v. Superior Court (2015) 238 Cal.App.4th 1138, 1162.)  We expressly declined to examine the merits of appellants’ theory of restitution or their ability to quantify it using a market value approach.  (Id. at pp. 1162-1163.)

Following our decision, Safeway moved in the trial court for summary adjudication of the UCL claim, arguing that appellants had shown no viable theory upon which the class could obtain restitution.  The trial court agreed, concluding that appellants improperly sought recovery of premium wages without proving the classwide meal period violations necessary for the class members’ interest in premium wages to vest.  The court excluded the expert declaration on which appellants relied, exercising its gatekeeping duty under Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747.


The court also granted Safeway’s motion to strike Vezaldenos’s PAGA claim -- asserted for the first time in her 2009 second amended complaint -- as time-barred.  Because Safeway ended its challenged practice on June 17, 2007, the court measured the applicable one-year limitations period from that date, yielding a deadline of June 17, 2008.  It concluded that the statute of limitations barred Vezaldenos’s claim because she waited until after that deadline to give notice to the Labor and Workforce Development Agency (LWDA), as PAGA required her to do before filing suit.  The court rejected her argument that the PAGA claim related back to the April 2007 date of the original complaint.  The court reasoned that the notice requirement serves the LWDA’s interest in acting before information becomes stale; here, the LWDA received no notice prior to the 2007 original complaint and only untimely notice from Vezaldenos’s 2008 notice letter.


Finding no error, we affirm.

Amalgamated Transit Union v. San Joaquin Reg. Transit Dist. (CA3 C086260A, 5/8/19, pub. 6/6/19. repub. 6/10/19 for correct file date) Regional Transit Retirement Board Appointment


This case involves the interpretation of provisions of the San Joaquin Regional Transit District Act (Pub. Util. Code, § 50000, et seq.) (Act) relating to the composition and selection of some members of the retirement board.  Amalgamated Transit Union, Local 276 and its president, Alan Wagner (collectively, the Union) brought this mandamus petition against the San Joaquin Regional Transit District (the District), alleging the Union has the right to fill by appointment a vacancy on the District’s retirement board, to ensure labor-management parity, as the Union claims is required by section 99159.  The District proposes to conduct an election by all employees (not only union members) to fill the vacancy, as it claims is required by an earlier statute, section 50150.  The trial court denied the petition and the Union timely appealed.  After hearing oral argument, we vacated submission and ordered supplemental briefing, reserving the option to order further argument if we deemed it necessary.  We do not.


After considering all the briefing and argument, we find the Union’s position more persuasive.  It harmonizes the two statutes, avoids any constitutional question, and is in accord with the use of the term “representative” in federal labor law and the long-standing practice of the parties--the only parties affected by the two statutes.  Accordingly, we reverse.


Beckington v. American Airlines (9th Cir. 18-15648 6/10/19) Railway Labor Act/Duty of Fair Representation


The panel affirmed the district court’s dismissal for failure to state a claim of an action brought by airline pilots, seeking damages under the Railway Labor Act against their employer for allegedly “colluding” with a union in the union’s breach of its duty of fair representation.


In 2005, US Airways and America West Airlines merged to form a single carrier, which kept the name US Airways. The Air Line Pilots Association represented both the US Airways Pilots (the “East Pilots”) and the America West pilots (the “West Pilots”). The East Pilots and the West Pilots engaged in a seniority dispute that went to arbitration. The East Pilots formed a new union, the US Airline Pilots Association (“USAPA”), which became the bargaining representative for all the pilots. In Addington I, a group of West Pilots alleged that USAPA breached its duty of fair representation by failing to pursue implementation of the arbitration award, known as the “Nicolau Award.” In Addington II, US Airways sued USAPA and the West Pilots, seeking declaratory relief. In anticipation of a merger between US Airways and American Airlines, the two airlines, USAPA, and the union for American’s pilots negotiated a memorandum of understanding (“MOU”) addressing pilot seniority. In Addington III, a group of West Pilots alleged that USAPA breached its duty of fair representation by including in the MOU Paragraph 10(h), which abandoned the Nicolau Award. The court of appeals reversed the district court’s judgment after trial in part, holding that USAPA breached its duty of fair representation by inserting Paragraph 10(h) into the MOU. In arbitration pursuant to the MOU, the arbitration panel issued a decision declining to implement the Nicolau Award and using a different methodology for integrating the pilots’ seniority lists.


Former West Pilots filed Addington IV, seeking damages under the Railway Labor Act for US Airways’s “collusion” in USAPA’s breach of its duty of fair representation. Affirming the district court’s dismissal, and disagreeing with the Seventh Circuit, the panel held that employees aggrieved by a union’s breach of its duty of fair representation during collective bargaining cannot sue their employer for “colluding” in the union’s breach. The panel concluded that nothing in the Railway Labor Act’s text or collective bargaining framework supported expansion of the doctrine that a union owes its constituents a duty of fair representation. The panel held that the pilots’ suit was different from a hybrid suit, in which employees sue both their employer and their union, because the pilots made no allegation that their employer breached its own obligations under a collective bargaining agreement.


Parker Drilling Management Services, LTD v. Newton (US 18–389 per curiam 6/10/19) State Wage and Hour Laws Not Applicable to Drilling Workers off California Coast


Respondent Brian Newton worked for petitioner Parker Drilling Management Services on drilling platforms off the California coast. Newton was paid for his time on duty but not for his time on standby, during which he could not leave the platform. Newton filed a class action in state court, alleging, as relevant here, that California’s minimum-wage and overtime laws required Parker to compensate him for his standby time. Parker removed the action to Federal District Court. The parties agreed that Parker’s platforms were subject to the Outer Continental Shelf Lands Act (OCSLA), which provides that all law on the Outer Continental Shelf (OCS) is federal law, administered by federal officials; denies States any interest in or jurisdiction over the OCS; and deems the adjacent State’s laws to be federal law only “[t]o the extent that they are applicable and not inconsistent with” other federal law, 43 U. S. C. §1333(a)(2)(A). The District Court concluded that the state laws relevant here should not be applied as federal law on the OCS because the Fair Labor Standards Act of 1938 (FLSA), a comprehensive federal wage-and-hour scheme, left no significant gap in federal law for state law to fill. It thus granted Parker judgment on the pleadings. The Ninth Circuit vacated and remanded. It held that state law is “applicable” under the OCSLA if it pertains to the subject matter at issue, a standard satisfied by California wage-and-hour laws. It also held that those state laws were not “inconsistent” with federal law because they were not incompatible with the federal scheme.




1. Where federal law addresses the relevant issue, state law is not adopted as surrogate federal law on the OCS. Pp. 3–14.


(a) After this Court held that the Federal Government has exclusive jurisdiction over the entire continental shelf, see, e.g., United States v. Louisiana, 339 U. S. 699, 705, Congress enacted the Submerged Lands Act, which ceded certain offshore lands to the coastal States, and passed the OCSLA, which affirmed the Federal Government’s exclusive control over the OCS. Pp. 3–4.


(b) Newton argues that state law is “applicable” on the OCS whenever it pertains to the subject matter at issue and that it is “inconsistent” only if it would be pre-empted under ordinary preemption principles. Parker counters that state law is not “applicable” absent a gap in federal law that needs to be filled and that state law can be “inconsistent” with federal law even if it is possible to satisfy both sets of laws. Parker’s approach is more persuasive. This Court reads the statute’s words “ ‘in their context and with a view to their place in the overall statutory scheme.’ ” Roberts v. Sea-Land Services, Inc., 566 U. S. 93, 101. The Court’s pre-OCSLA decisions made clear that federal law controlled the OCS in every respect, and the OCSLA reaffirmed that role. Taken together, the OCSLA’s provisions convincingly show that state laws can be “applicable and not inconsistent” with federal law under §1333(a)(2)(A) only if federal law does not address the relevant issue. The OCSLA makes apparent “that federal law is ‘exclusive’ . . . and that state law is adopted only as surrogate federal law.” Rodrigue v. Aetna Casualty & Surety Co., 395 U. S. 352, 357. It borrows only certain state laws, which are then declared to be federal law and administered by federal officials. It would thus make little sense to treat the OCS as a mere extension of the adjacent State, where state law applies unless it conflicts with federal law. That type of pre-emption analysis applies only where overlapping, dual state and federal jurisdiction makes it necessary to decide which law takes precedence. But federal law is the only law on the OCS and there is no overlapping state and federal jurisdiction, so the reference to “not inconsistent” state laws presents only the question whether federal law has already addressed the relevant issue. If so, state law on the issue is inapplicable. Pp. 5–8.


(c) This interpretation is supported by several other considerations. Pp. 8–14.


(1) Newton’s interpretation—that the choice-of-law question on the OCS is the same as it would be in an adjacent State—would deprive much of the OCSLA of any import, violating the “ ‘cardinal principle’ of interpretation that courts ‘must give effect, if possible, to every clause and word of a statute.’ ” Loughrin v. United States, 573 U. S. 351, 358. Pp. 8–9.


(2) This Court’s interpretation is consistent with the federal enclave model and the historical development of the statute. The OCSLA treats the OCS as “an upland federal enclave.” Rodrigue, supra, at 366. Generally, when an area in a State becomes a federal enclave, “only the [state] law in effect at the time of the transfer of jurisdiction continues in force” as surrogate federal law, James Stewart & Co. v. Sadrakula, 309 U. S. 94, 100, provided that the state law does not conflict with “federal policy,” Paul v. United States, 371 U. S. 245, 269. Going forward, state law presumptively does not apply to the enclave. See Sadrakula, supra, at 100. As originally enacted, the OCSLA both treated the OCS as a federal enclave and adopted only the “applicable and not inconsistent” laws of the adjacent State in effect as of the Act’s effective date. This suggests that, like the general enclave rule, the OCSLA sought to make all OCS law federal yet also “provide a sufficiently detailed legal framework to govern life” on the OCS. Shell Oil Co. v. Iowa Dept. of Revenue, 488 U. S. 19, 27. Providing a sufficient legal structure to accomplish that purpose eliminated the need to adopt new state laws. The OCSLA’s text and context thus suggest that state law is not adopted to govern the OCS where federal law is on point. The later amendment of the OCSLA to adopt state law on an ongoing basis confirms the connection between the OCSLA and the federal enclave model. Pp. 9–11.


(3) This Court’s interpretation accords with precedent construing the OCSLA. In Rodrigue, supra, at 352–353; Chevron Oil Co. v. Huson, 404 U. S. 97; and Gulf Offshore Co. v. Mobil Oil Corp., 453 U. S. 473, the Court viewed the OCSLA as adopting state law to fill in federal-law gaps. Pp. 11–14. 2. Under the proper standard, some of Newton’s present claims can be resolved, though others have not been analyzed by the Ninth Circuit. Some claims are premised on the adoption of California law requiring payment for all standby time. Because federal law already addresses this issue, California law does not provide the rule of decision on the OCS. To the extent Newton’s OCS-based claims rely on that law, they necessarily fail. Likewise, to the extent his OCS-based claims rely on the adoption of California’s minimum wage, the FLSA already provides for a minimum wage, so the state minimum wage is not adopted as federal law and does not apply on the OCS. Pp. 14– 15.


881 F. 3d 1078 and 888 F. 3d 1085, vacated and remanded.


THOMAS, J., delivered the opinion for a unanimous Court.

Ross v. County of Riverside (CA4/1 D075106, filed 5/20/19, pub. 6/10/19) Disability Discrimination/Interactive Process/Reasonable Accommodation


Christopher Ross appeals from a summary judgment granted in favor of the County of Riverside on Ross's claims for violation of Labor Code section 1102.5 and for violation of the provisions in the Fair Employment and Housing Act (Gov. Code, § 12900 et seq.; FEHA) prohibiting disability discrimination, failure to reasonably accommodate, failure to engage in the interactive process, and failure to prevent disability discrimination.  Because we conclude there are triable issues of material fact of the questions of whether Ross engaged in protected activity under Labor Code section 1102.5 and whether Ross had a physical disability under the FEHA, we reverse the judgment as to these claims and remand the matter for further proceedings consistent with this decision.


Amalgamated Transit Union v. San Joaquin Reg. Transit Dist. (CA3 C086260, filed 5/8/19, pub. ord. 6/7/19) Regional Transit Retirement Board Appointment


This case involves the interpretation of provisions of the San Joaquin Regional Transit District Act (Pub. Util. Code, § 50000, et seq.) (Act) relating to the composition and selection of some members of the retirement board.  Amalgamated Transit Union, Local 276 and its president, Alan Wagner (collectively, the Union) brought this mandamus petition against the San Joaquin Regional Transit District (the District), alleging the Union has the right to fill by appointment a vacancy on the District’s retirement board, to ensure labor-management parity, as the Union claims is required by section 99159.  The District proposes to conduct an election by all employees (not only union members) to fill the vacancy, as it claims is required by an earlier statute, section 50150.  The trial court denied the petition and the Union timely appealed.  After hearing oral argument, we vacated submission and ordered supplemental briefing, reserving the option to order further argument if we deemed it necessary.  We do not.


After considering all the briefing and argument, we find the Union’s position more persuasive.  It harmonizes the two statutes, avoids any constitutional question, and is in accord with the use of the term “representative” in federal labor law and the long-standing practice of the parties--the only parties affected by the two statutes.  Accordingly, we reverse.


Cuevas-Martinez v. Sun Salt Sand, Inc. (CA4/2 E070843 6/6/19) Anti-SLAPP/Trade Secrets


After successfully obtaining summary judgment on a lawsuit brought by his former employer, Antonio Cuevas-Martinez sued the employer and their attorney (collectively, respondents) for malicious prosecution.  Respondents filed an anti-SLAPP motion to strike the complaint.  (Code Civ. Proc., § 425.16, unlabeled statutory citations refer to this code.)  The trial court granted the motion, concluding Cuevas-Martinez failed to present prima facie evidence respondents filed the lawsuit without probable cause.  The court based its ruling on Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728 (Jarrow), which held the entry of summary judgment on a prior lawsuit for insufficient evidence does not, by itself, establish a probability of prevailing on the merits of a subsequent malicious prosecution claim.  (Id. at p. 742.)


On appeal, Cuevas-Martinez argues Jarrow is inapplicable because he did not rely on the mere fact of summary judgment victory, but instead submitted evidence that, if credited by a trier of fact, would support a verdict in his favor.  We agree Cuevas-Martinez has demonstrated his claim has the requisite minimal merit to survive anti-SLAPP scrutiny, and will therefore reverse.


Bergelectric v. Secretary of Labor (9th Cir. 17-72852 6/6/19) OSHA


The panel denied a petition for review of a final order of the Occupational Safety and Health Review Commission affirming a citation that Bergelectric Corp. violated the Occupational Safety and Health Administration’s fall protection standards in 29 C.F.R. § 1926.501(b)(1).


The panel concluded that Bergelectric was not performing roofing work when it installed solar panels on a roof, and substantial evidence supported the finding that that it did not comply with the stricter safety standards of 29 C.F.R. § 501(b)(1) governing work on unprotected sides and edges. The panel rejected Bergelectric’s argument that its installation of solar panels on the hanger roof was governed by the laxer standard for roofing work on low-sloped roofs in 29 C.F.R. § 1926.501(b)(1), rather than the stricter general standard applied to unprotected sides and edges.


Austin v. University of Oregon (9th Cir. 17-35560 6/4/19) Title IX/Evidentiary Presumption


These companion cases concerning campus sexual assault raise an issue of first impression in this circuit— whether the McDonnell Douglas evidentiary presumption applies at the pleading stage in a Title IX case. Following the Supreme Court’s explanation of Title VII’s pleading requirements in Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002), we conclude that Federal Rule of Civil Procedure 8(a), not McDonnell Douglas, applies at the motion to dismiss stage. On this basis, we affirm the district court’s dismissal of the Third Amended Complaint because, putting aside mere conclusory allegations, the complaint fails to make any claims of discrimination on the basis of sex cognizable under Title IX. We also affirm the dismissal of the remaining due process and state law claims.


Fort Bend County, Texas v. Davis (US 18-525 per curiam 6/3/19) EEOC Charge Not Jurisdictional Requirement


Title VII of the Civil Rights Act of 1964 prohibits discrimination in employment on the basis of race, color, religion, sex, or national origin. 42 U. S. C. §2000e–2(a)(1). The Act instructs a complainant, before commencing a Title VII action in court, to file a charge with the Equal Employment Opportunity Commission (EEOC or Commission). §2000e‒5(e)(1), (f)(1). On receipt of a charge, the EEOC is to notify the employer and investigate the allegations. §2000e‒5(b). The Commission may “endeavor to eliminate [the] alleged unlawful employment practice by informal methods of . . . conciliation.” Ibid. The EEOC also has first option to “bring a civil action” against the employer in court. §2000e‒5(f)(1). But the Commission has no authority itself to adjudicate discrimination complaints. If the EEOC chooses not to sue, and whether or not the EEOC otherwise acts on the charge, a complainant is entitled to a “right-to-sue” notice 180 days after the charge is filed. Ibid.; 29 CFR §1601.28. On receipt of the right-to-sue notice, the complainant may commence a civil action against her employer. §2000e‒5(f)(1).


Respondent Lois M. Davis filed a charge against her employer, petitioner Fort Bend County. Davis alleged sexual harassment and retaliation for reporting the harassment. While her EEOC charge was pending, Fort Bend fired Davis because she failed to show up for work on a Sunday and went to a church event instead. Davis attempted to supplement her EEOC charge by handwriting “religion” on a form called an “intake questionnaire,” but she did not amend the formal charge document. Upon receiving a right-to-sue letter, Davis commenced suit in Federal District Court, alleging discrimination on account of religion and retaliation for reporting sexual harassment.


After years of litigation, only the religion-based discrimination claim remained in the case. Fort Bend then asserted for the first time that the District Court lacked jurisdiction to adjudicate Davis’ case because her EEOC charge did not state a religion-based discrimination claim. The District Court agreed and granted Fort Bend’s motion to dismiss Davis’ suit. On appeal from the dismissal, the Court of Appeals for the Fifth Circuit reversed. Title VII’s charge filing requirement, the Court of Appeals held, is not jurisdictional; instead, the requirement is a prudential prerequisite to suit, forfeited in Davis’ case because Fort Bend had waited too long to raise the objection.


Held: Title VII’s charge-filing requirement is not jurisdictional. Pp. 5– 11.


(a) The word “jurisdictional” is generally reserved for prescriptions delineating the classes of cases a court may entertain (subject-matter jurisdiction) and the persons over whom the court may exercise adjudicatory authority (personal jurisdiction). Kontrick v. Ryan, 540 U. S. 443, 455. A claim-processing rule requiring parties to take certain procedural steps in, or prior to, litigation, may be mandatory in the sense that a court must enforce the rule if timely raised. Eberhart v. United States, 546 U. S. 12, 19. But a mandatory rule of that sort, unlike a prescription limiting the kinds of cases a court may adjudicate, is ordinarily forfeited if not timely asserted. Id., at 15. Pp. 5‒9.


(b) Title VII’s charge-filing requirement is a nonjurisdictional claim-processing rule. The requirement is stated in provisions of Title VII discrete from the statutory provisions empowering federal courts to exercise jurisdiction over Title VII actions. The charge filing instruction is kin to prescriptions the Court has ranked as nonjurisdictional—for example, directions to raise objections in an agency rulemaking before asserting them in court, EPA v. EME Homer City Generation, L. P., 572 U. S. 489, 511‒512, or to follow procedures governing copyright registration before suing for infringement, Reed Elsevier, Inc. v. Muchnick, 559 U. S. 154, 157. Pp. 9‒11.


893 F. 3d 300, affirmed.


GINSBURG, J., delivered the opinion for a unanimous Court.

Heimlich v. Shivji (SC S243029 5/30/19) Arbitration/998 Offers (applicable to labor and employment cases)


Code of Civil Procedure section 998 creates an incentive for settlement.  It authorizes an award of costs to a party that makes a pretrial settlement offer when the opponent rejects the offer and obtains a lesser result at trial.  (Martinez v. Brownco Construction Co. (2013) 56 Cal.4th 1014, 1019.)  In 1997, the Legislature amended the statute to make the same incentive available in arbitrations.  (Stats. 1997, ch. 892, § 1, p. 6390; Pilimai v. Farmers Ins. Exchange Co. (2006) 39 Cal.4th 133, 139, 149.)  This case involves the procedures for seeking these costs in arbitration.


We hold a request for costs under section 998 is timely if filed with the arbitrator within 15 days of a final award.  In response to such a request, an arbitrator has authority to award costs to the offering party.  However, if an arbitrator refuses to award costs, judicial review is limited.  The Court of Appeal erred in relying on a narrow exception to those limits, for failure to consider evidence.  We reverse.


Bennett v. Rancho Cal. Water Dist. (CA4/3 G054617 5/29/19) Whistleblower/Collateral Estoppel/Employment Status


Plaintiff Shawn Bennett sued defendant Rancho California Water District (the District) for whistleblower retaliation in violation of Labor Code section 1102.5, subdivision (b).  At the jury trial, the trial court excluded evidence showing Bennett’s relationship with the District was anything other than an employment relationship.  Citing an administrative law judge’s prior finding Bennett had been the District’s employee for purposes of retirement benefits eligibility through the California Public Employees’ Retirement System (CalPERS), the trial court concluded the doctrine of collateral estoppel applied and established Bennett had been the District’s employee.


We reverse and remand to the trial court with directions to conduct a new trial.  We hold a party is not collaterally estopped from litigating an issue when, in a prior proceeding, a dispositive finding had been made, but only by imposing a lesser burden of proof on the party invoking collateral estoppel than that which would have been applied in the subsequent proceeding.  To prevail on a section 1102.5(b) claim, the plaintiff must prove employment status.  In the prior CalPERS proceeding, the administrative law judge expressly assigned to the District the burden of proving Bennett had been its independent contractor and thereby entirely relieved Bennett of the burden of proof on that issue.  The trial court therefore erred by finding the doctrine of collateral estoppel applicable and precluding litigation of Bennett’s employment status.  At the retrial, for the reasons we explain, the common law definition of employee will apply to Bennett’s section 1102.5(b) claim.


The court did not err, however, by denying the District’s motion for judgment notwithstanding the verdict (JNOV) brought on the ground insufficient evidence supported the findings Bennett had been employed by the District and had made disclosures within the meaning of section 1102.5(b).  We reject the District’s contention its proposed statutory definition of the term “employee” applied to the section 1102.5(b) claim.  Because the trial court’s erroneous evidentiary ruling severely limited the presentation of evidence, the District was not entitled to judgment entered in its favor notwithstanding the verdict.


Nunez v. Nevell Group, Inc. (CA4/3 G056585, filed 5/2/19, pub. 5/28/19) Wage and Hour/CBA/Arbitration


Nevell Group, Inc. (Nevell) filed a motion to compel arbitration of the claims filed against it by former employee Xavier Nunez.  Nevell and the union to which Nunez belonged were parties to a collective bargaining agreement (CBA) that provided for arbitration of alleged violations of the relevant wage order.  The trial court denied the motion based on Nevell’s waiver of its right to compel arbitration, Nevell’s delay in filing its motion, and the prejudice Nunez would suffer if the motion were to be granted.  We affirm.


Nevell explicitly waived any right to compel arbitration by advising the trial court in writing that it would not file a motion to compel.  Nevell also impliedly waived arbitration by permitting two court-ordered deadlines, by which it was to have filed a motion to compel, to pass, and by engaging in significant discovery and other litigation activities inconsistent with the right to arbitration.  Nevell argues that he could not have filed a motion to compel arbitration before the Court of Appeal issued its opinion in Cortez v. Doty Bros. Equipment Co. (2017) 15 Cal.App.5th (Cortez).  We reject that argument because Cortez does not reflect a change in the law.


Nunez would suffer prejudice if Nevell’s motion to compel arbitration were granted at this point because Nevell’s delay in seeking to compel arbitration unnecessarily extended the time the case was pending and caused Nunez to expend resources on litigation activities inconsistent with arbitration, such as class-based discovery, the preparation of a demand package based on a class action, and preparing and serving notice to the putative class members.  Nevell delayed the filing of its motion to compel arbitration for more than three years after the complaint was filed, and more than eight months after the Cortez case was filed.


Dane-Elec Corp. v. Bodokh (CA4/3 G055312 5/24/19) Wage & Hour/Defense Attorneys’ Fees


Labor Code section 218.5, an attorney fee‑shifting statute in actions for nonpayment of wages, prohibits a prevailing party employer from recovering attorney fees unless the trial court finds the employee brought the wage claim in bad faith.  This appeal presents an issue regarding the effect of Labor Code section 218.5 on a prevailing party employer’s right to recover contract‑based attorney fees from an employee.  Specifically, we address whether an employer may recover attorney fees incurred in successfully defending a wage claim, found not to have been brought in bad faith, when the wage claim was inextricably intertwined with a contract claim for which the employer would otherwise be contractually entitled to recover attorney fees.  We partially publish our opinion to address this issue of first impression. 


We hold that unless the trial court finds the wage claim was brought in bad faith, Labor Code section 218.5, subdivision (a) (section 218.5(a)) prohibits, as a matter of law, an award of attorney fees to a nonemployee prevailing party for successfully defending a wage claim that is inextricably intertwined with a claim subject to a contractual prevailing party attorney fees provision.  To the extent the wage claim and the contract claim are inextricably intertwined, section 218.5(a)’s prohibition on recovering attorney fees controls over the contractual attorney fees provision.


In this case, Dane‑Elec Corporation USA (Dane Corp.) prevailed against Nessim Bodokh, its former chief executive officer, on a complaint to recover on a promissory note and defeated Bodokh’s cross‑complaint to recover allegedly unpaid wages.  The trial court granted Dane Corp.’s motion to recover attorney fees based on an attorney fees provision in the promissory note.  The court found that Bodokh had not brought the wage claim in bad faith and declined to award Dane Corp. attorney fees incurred solely in connection with the wage claim.  But the court awarded Dane Corp. attorney fees incurred in defending Bodokh’s wage claim that were inextricably intertwined with the contract claim.  Bodokh appealed from the judgment and the order granting Dane Corp.’s motion for attorney fees.


We reverse the order granting Dane Corp.’s motion for attorney fees and remand.  Based on our holding, we conclude that under section 218.5(a) Dane Corp. may not recover attorney fees to the extent the wage claim and the breach of contract claim were inextricably intertwined.  We remand for the trial court to recalculate the amount of attorney fees to be awarded to Dane Corp. 


For reasons explained in the unpublished portions of the opinion, we affirm the judgment in favor of Dane Corp.  The trial court did not err by denying Bodokh’s request for a statement of decision and substantial evidence supported findings necessary to uphold the judgment.


DiRaffael v. Cal. Army Nat. Guard (CA2/1 B284859 5/23/19) Army National Guard Separation


Plaintiff and appellant Robert DiRaffael, appearing in propria persona, appeals from the denial of his petition for a writ of mandate directing the California Army National Guard (CAARNG) to vacate an order separating appellant, a commissioned officer, from CAARNG.  Defendants and respondents are CAARNG and four individuals named in appellant’s petition:  David S. Baldwin, California’s Adjutant General; Lawrence A. Haskins, commander of CAARNG; and John D. Ford and Dwight D. Stirling, two officers in CAARNG who purportedly reviewed and supervised the issuance of the separation order.


CAARNG ordered appellant separated pursuant to federal regulations governing selective retention of National Guard officers after 20 years of service.  Appellant argued in his writ petition that the United States Constitution reserved to the states the right to appoint and terminate the appointments of state National Guard officers, and therefore CAARNG could not rely on federal regulations to separate him.  The trial court found that state law incorporated the applicable federal regulations via provisions of the Military and Veterans Code, and thus CAARNG properly could invoke them to separate appellant.


Appellant argues that the trial court erred because (1) the United States Constitution prohibits the Legislature from incorporating the federal regulatory provisions under which CAARNG separated appellant and (2) even if the Legislature could incorporate those provisions, it has not done so.  We reject both propositions.  We further hold that appellant’s claims of purported procedural and evidentiary errors by the trial court lack merit.  Accordingly, we affirm the judgment.


Perez v. City of Roseville (9th Cir. 15-16430 5/21/19) Wrongful Termination/Qualified Immunity


The panel filed (1) an order withdrawing the opinion and concurring opinion filed on February 9, 2018, and ruling that a sua sponte en banc call and a motion for attorneys’ fees were moot; and (2) a new opinion and dissenting opinion.


In the new opinion, the panel affirmed the district court’s summary judgment in favor of the defendants on a former City of Roseville probationary police officer’s claims under 42 U.S.C. § 1983 for (1) violation of her rights to privacy and intimate association under the First, Fourth, and Fourteenth Amendments; and (2) deprivation of liberty Amendment.


The panel held that the individual defendants were entitled to qualified immunity on the first claim because it was not clearly established that a probationary officer’s constitutional rights to privacy and intimate association are violated if a police department terminates her due to participation in an ongoing extramarital relationship with a married officer with whom she worked, where an internal affairs investigation found that the probationary officer engaged in inappropriate personal cell phone use in connection with the relationship while on duty, resulting in a written reprimand for violating department policy.


It also was not clearly established that there was a legally sufficient temporal nexus between the individual defendants’ allegedly stigmatizing statements and the probationary officer’s termination. The individual defendants were therefore also entitled to qualified immunity on the probationary officer’s claim that the lack of a name-clearing hearing violated her due process rights.


The plaintiff also appealed the district court’s summary judgment on her claims against the City of Roseville, and the Roseville Police Department for sex discrimination in violation of Title VII and the California Fair Employment and Housing Act, but she conceded that the alleged discrimination was not actually based on her gender. Accordingly, the panel affirmed the district court. The majority rejected the dissent’s argument that it was improper to substitute a different judge following the post publication death of the original decision’s author and to change a previously published opinion except as part of an en banc decision.


The majority wrote that Carver v. Lehman, 558 F.3d 869 (9th Cir. 2009), is directly applicable here. The majority explained that because the opinion issued by the prior majority was only part way through its finalization process, a replacement judge was drawn, en banc proceedings were suspended, and the new panel had the authority to reconsider and withdraw the opinion filed by the prior panel and to substitute a different opinion.


Dissenting, District Judge Molloy wrote that the majority in the prior published opinion, Perez v City of Roseville, 882 F.3d 843 (9th Cir. 2018), correctly resolved the issues, and the majority opinion of a quorum of judges should stand for the reasons stated therein. District Judge Molloy wrote that the substitution of a judge who legitimately disagrees with the original opinion should not change the outcome except as part of an en banc court decision.

Paxton v. Bd. of Admin., CalPERS (CA3 C086204, filed 4/23/19, pub. 5/20/19) Pension Benefit


Plaintiff Dr. Robert Paxton reviews claims for disability benefits for the Department of Social Services, where he is still employed.  This dispute arose after the California Public Employees’ Retirement System (CalPERS) determined that compensation Paxton received as part of a bonus program will not be considered when calculating his future pension benefit.  This appeal is taken from a judgment denying his petition for writ of administrative mandamus challenging a decision by the Board of Administration of CalPERS upholding this interpretation.  The trial court’s conclusion that the bonuses Paxton earned were for performing additional services outside his regular duties, and thus not appropriate for consideration when calculating his pension benefit, is supported by substantial evidence.  For this reason, we will affirm the judgment.


Lambert v. Tesla (9th Cir. 18-15203 5/17/19) Arbitration/Title VII and Section 1981


Affirming the district court’s order compelling arbitration, the panel held that racial discrimination claims under 42 U.S.C. § 1981 may be subjected to compulsory arbitration.


Following the reasoning of EEOC v. Luce, Forward, Hamilton & Scripps, 345 F.3d 742 (9th Cir. 2003) (en banc), addressing the arbitrability of Title VII claims, the panel held that § 1981 claims are arbitrable. Applying the Gilmer test, Luce, Forward concluded that § 118 of the Civil Rights Act of 1991, amending both Title VII and § 1981, does not bar arbitration.


Concurring, Chief Judge Thomas agreed that Luce, Forward was dispositive but wrote separately because he believes that Luce, Forward was wrongly decided. Chief Judge Thomas wrote that the statutory text of § 118, stating that arbitration should be encouraged to the extent it is appropriate and authorized by law, is ambiguous. Considering the legislative history, compelling arbitration in § 1981 actions defies Congress’s intent.


Barber v. CA State Personnel Bd. (CA4/2 E068719 5/17/19) SPB/Increased Tax Liability Recovery


This is plaintiff and appellant Patrick Barber’s second appeal in this case and raises an issue of first impression.  Upon remand from Barber’s first appeal (Barber I), defendant and respondent, the California State Personnel Board (SPB), awarded Barber a lump sum back pay award, which resulted in Barber incurring increased income tax liability.  SPB denied Barber’s motion for recovery for increased tax liability.  The trial court upheld SPB’s decision and denied Barber’s petition for writ of mandamus.  Barber appeals the denial of his writ petition and motion for increased tax liability recovery.


Barber contends he is entitled to recover damages for incurring increased tax liability because his increased tax liability was caused by real party in interest and respondent, California Department of Corrections and Rehabilitation (CDCR), improperly terminating his employment.  Barber argues that awarding him such relief is consistent with the remedial statutory purpose of Government Code section 19584, of making an improperly terminated employee whole by restoring the employee to the financial position he or she would otherwise have occupied had employment not been wrongfully interrupted.  We disagree.  Barber is not entitled to increased tax liability recovery under section 19584 or to such recovery as equitable relief, because such relief is not statutorily authorized.  We therefore affirm the judgment denying such an award.


County L.A. Dept. Pub. Social Svcs. v. Civil Svc. Com. L.A. County (CA2/2 B282614 5/15/19) Civil Service Commission/Jurisdiction


In this case we must determine whether the Los Angeles County Civil Service Commission (Commission) has jurisdiction to rule on matters not delegated to it by the Charter of the County of Los Angeles (Charter).  We conclude the Commission’s special and limited jurisdiction does not extend to such matters.


Appellant Linda Hoa worked for the County of Los Angeles (County) for almost 30 years.  As a County employee, Hoa was subject to the County’s Civil Service Rules. In this appeal, Hoa challenges the trial court’s judgment reversing the Commission’s order entitling her to a medical reevaluation under Rule 9.07B.  In pertinent part, Rule 9.07B provides:  “An employee may request, or an appointing authority may, with the consent of the director of personnel, require an employee to have a medical reevaluation.”


The respondents on appeal are the County Department of Public Social Services (Department) and the County Chief Executive Office.  Although respondents argue the trial court correctly construed Rule 9.07B, they contend the trial court erred in finding the Commission had jurisdiction to issue its ruling in Hoa’s favor.


As explained below, although we disagree with the trial court’s ruling on jurisdiction, we agree with the trial court’s interpretation of Rule 9.07B.

Cedar Point Nursery v. Shiroma (9th Cir. 16-16321 5/8/19) Takings/ALRB Regulation


The panel affirmed the district court’s dismissal of an appeal by Growers seeking declaratory and injunctive relief against members of the California Agricultural Labor Relations Board who promulgated a regulation allowing union organizers access to agricultural employees at employer worksites under specific circumstances.


The Growers alleged that the access regulation, as applied to them, was unconstitutional because it was a per se taking in violation of the Fifth Amendment and was an unlawful seizure of their property in violation of the Fourth Amendment.


The panel rejected the Growers’ allegation that the access regulation, as applied to them, effected a Fifth Amendment taking by creating an easement that allowed union organizers to enter their property “without consent or compensation.” The panel held that the Growers did not suffer a permanent physical invasion that would constitute a per se taking. Although the access regulation did not have a contemplated end-date, it did not meet Nollan v. California Coastal Commission, 483 U.S. 825 (1987)’s definition of a permanent physical occupation where the regulation significantly limited organizers’ access to the Growers’ property. The panel further held that the Growers did not suffer a permanent physical invasion that would constitute a per se taking because the sole property right affected by the regulation was the right to exclude.


The panel held that the Growers did not plausibly allege that the access regulation effected a “seizure” within the meaning of the Fourth Amendment. Specifically, the panel held that the Growers failed to cite any directly applicable authority supporting their contention that the access regulation was a meaningful interference with their possessory interests in their property. The panel further held that the Growers did not allege facts showing that the character of their property was somehow “profoundly different” because of the access regulation.


Judge Leavy dissented because he would hold that the alleged access regulation was an unconstitutional taking, and the district court erred in granting the motion to dismiss. Judge Leavy wrote that the Growers sufficiently alleged that no employees lived on the Growers’ properties and the employees were not beyond the reach of the union’s message; and he had found no Supreme Court case holding that non-employee labor organizers may enter an employer’s nonpublic, private property for substantial periods of time, when none of the employees lived on the employer’s premises.


Le Mere v. Los Angeles Unified School Dist. (CA2/8 B281843, filed 4/30/19, pub. ord. 5/14/19) Discrimination, Harassment & Retaliation


Appellant Aurora Le Mere was a teacher employed by the Los Angeles Unified School District (LAUSD) for 13 years.  In 2015, she sued LAUSD and six of its employees, alleging a pattern of harassment, discrimination and retaliation against her because she engaged in protected activities.  She appeals from a judgment of dismissal entered after the trial court sustained LAUSD’s demurrer to her Second Amended Complaint (SAC) without leave to amend.  She contends the trial court abused its discretion in dismissing a cause of action she added to the SAC without first obtaining leave of court to do so.  She further contends the trial court erred in finding she had not alleged sufficient facts to establish a causal link between the retaliatory animus and the adverse action.  Finally, she contends that the government claim she filed satisfied the requirements of the Government Claims Act, section 810 et seq.  We affirm the judgment of dismissal.

Wojciechowski v. Kohlberg Ventures (9th Cir. 17-15966 5/8/19) WARN Act/Claim Preclusion


Reversing the district court’s dismissal, the panel held that claim preclusion did not bar a claim against Kohlberg Ventures, LLC, under the Worker Adjustment Retraining and Notification Act because a settlement agreement approved by the bankruptcy court in a prior class action did not release any claims against Kohlberg.


The panel concluded that the parties in the bankruptcy proceeding did not intend their settlement to extend to Kohlberg. Accordingly, claim preclusion did not bar plaintiff’s WARN Act claim against Kohlberg. The panel remanded the case for further proceedings.


Vazquez v. Jan-Pro Franchising Int’l (9th Cir. 17-16096 5/2/19) Retroactive ABC Test/Franchises


The panel vacated the district court’s dismissal on summary judgment of a complaint brought by a putative class against a defendant international business that had developed a sophisticated “three-tier” franchising model, seeking a determination whether workers were independent contractors or employees under California wage order laws; and remanded for further proceedings.


In a decision post-dating the district court’s decision, the California Supreme Court in Dynamex Ops. W. Inc. v. Superior Court, 416 P.3d 1 (Cal. 2018), adopted the “ABC test” for determining whether workers are employees under California wage order laws. The test requires the hiring entity to establish three elements to disprove employment status: (A) that the worker is free from the control of the hiring entity in connection with work performance – both under the performance contract and in fact; (B) that the worker performs work outside the hiring entity’s usual business; and (C) that the worker is customarily engaged in an independent business of the same nature as the work performed.


The panel held that Dynamex applied retroactively, that none of the defendant-hiring entity’s other efforts to avoid reaching the merits were viable, and that the case must be remanded to the district court to consider the merits in light of Dynamex.


The panel held that under Massachusetts law, prior related decisions rendered by federal courts located in Massachusetts did not have preclusive effect on this case under the doctrines of either res judicata or law of the case. The panel held that Dynamex should be applied retroactively. Specifically, the panel held that California law calls for the retroactive application of Dynamex. The panel also held that applying Dynamex retroactively was consistent with due process. The panel held that Dynamex expanded the definition of “suffer or permit” for California wage order cases.


The panel offered guidance for the district court on remand. The panel held that the district court should consider all three prongs of the ABC test. The panel also held that the district court need not look to Patterson v. Domino’s Pizza, LLC, 333 P.3d 723 (Cal. 2014) (involving a plaintiff employed by a franchisee in a case that was not a wage and hour case), in applying the ABC test because the franchise context does not alter the Dynamex analysis. The panel noted that other courts have considered three-tier franchise structures in applying the ABC test. The panel further noted that the district court should consider a number of formulations in determining whether the defendant was plaintiffs’ employer and not merely an indirect licensor of a trademark.




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