Catching Up - Friday Pot Pourri

Here are a few of the cases I should have mentioned, but missed:

In Lui v. City and County of San Francisco (opinion here), a police officer suffered a serious heart attack. He had a number of physical ailments and sought a job that did not involve the physical requirements of a police officer.  Under  a new directive, San Francisco police officers, even those assigned to administrative duties, had to perform certain functions. Upholding the trial court, the court of appeal decided that the officer could not succeed on claims for disability discrimination, failure to accommodate, or failure to engage in the interactive process.  The officer could not perform several essential job functions. Although this case arises in the special context of police officers, the court's analysis of what is essential is important.

***

The Ninth Circuit held that Jennifer Westendorf did not make out a case of sexual harassment sufficient to get by summary judgment (!)  The comments and incidents she described, even though sexual in nature, and  though some were pretty darn risque I tell ya, were not severe or pervasive enough.  However, the court did allow the retaliation to go forward. The case is Westendorf v. West Coast Contractors (opinion here).

****

The Court of Appeal decided that Bingham McCutchen's arbitration agreement was unenforceable.  Interestingly, the arbitration agreement had a Massachusetts choice of law clause.  Unlike in most employment law-related cases, the court enforced the choice of law clause, over Bingham's objection. Why?   Glad you asked: Mass. law precluded agreements to arbitrate discrimination claims unless they were specifically addressed in detail in the arbitration agreement.  Too bad a non-compete was not involved. The court probably would not have recited how much California law loves choice of law clauses.  Anyway, the Court decided that the Massachusetts court rulings were not preempted by the Federal Arbitration Act and, therefore, the arbitration agreement was unenforceable. Be careful of choice of law clauses, they may well be enforced!  This case is Harris v. Bingham McCutchen et al. and the opinion is here.

Court of Appeal Explains Invasion of Privacy Claim in California

Ignat worked for a Yum! Brands restaurant. She had bi-polar disorder.  While on a leave, her supervisor allegedly disclosed her condition to other employees, verbally.  Ignat sued for invasion of privacy, based on the common law claim "public disclosure of private facts."

The court of appeal reversed summary judgment.  The court explained that, contrary to the trial court's ruling, a claim for invasion of privacy based on disclosure of private facts is viable even if the disclosure is verbal as opposed to written:

We conclude that limiting liability for public disclosure of private facts to those recorded in a writing is contrary to the tort‟s purpose, which has been since its inception to allow a person to control the kind of information about himself made available to the public – in essence, to define his public persona. (See Briscoe, supra, 4 Cal.3d at p. 534; The Right to Privacy, supra, 4 Harv. L.Rev. at pp. 198-199.) While this restriction may have made sense in the 1890‟s – when no one dreamed of talk radio or confessional television – it certainly makes no sense now. Private facts can be just as widely disclosed – if not more so – through oral media as through written ones.

Because the trial court found no written dissemination of the plaintiff's condition, it ruled she could not prevail. The appellate court sent the case back to the trial court for re-evaluation.

However, the court also explained that the common law tort is not established based on mere disclosure to a few individuals. The court also distinguished between a claim for invasion of privacy based on the California constitution, and a common law claim.

Our Supreme Court regards the two legal theories as providing separate, albeit related, ways to insure privacy. The constitutional variety focuses on institutional record-keeping and does not require a wide dissemination of private information. (See Hill, supra, 7 Cal.4th at pp. 35-37 [elements of constitutional privacy violation].) Liability for the common-law tort requires publicity; disclosure to a few people in limited circumstances does not violate the right. (Porten v. University of San Francisco (1976) 64 Cal.App.3d 825, 840; Timperley v. Chase Collection Service (1969) 272 Cal.App.2d 697, 700; Schwartz v. Thiele (1966) 242 Cal.App.2d 799, 805.) Moreover, the facts disclosed must be offensive or objectionable to a reasonable person. (See, e.g., Shulman, supra, 18 Cal.4th at p. 214.) If they are not, there is no liability. (See, e.g., Johnson v. Harcourt, Brace, Jovanovich, Inc., supra, 43 Cal.App.3d at p. 892 [facts disclosed not "„so offensive as to shock the community‟s notions of decency.‟ [Citation.]"]; Carlisle v. Fawcett Publications, Inc. (1962) 201 Cal.App.2d 733, 748.) The constitutional right, however, may be violated if any private record that was supposed to be kept confidential is disclosed, for example, a college transcript. (Porten v. University of San Francisco, supra, 64 Cal.App.3d at p. 827.)

Based on the papers filed in the case, Ignat was limited to the common law claim, and therefore will have to prove widespread dissemination.

This case underscores the need to limit communications about the nature of an employee's disability or other sensitive private facts that would be "so offensive as to shock the community" if disclosed.

The case is Ignat v. Yum Brands, Inc. and the opinion is here.

Ninth Circuit Holds Retail Store Manager Unable to Work Is Not Qualified Individual

The Ninth Circuit held that a retail store manager who was unable to perform her essential job functions  was not a qualified individual, despite her request for a part time schedule and a five month leave.

Montblanc properly asserts that Lawler cannot competently perform her job duties as manager. Here, the essential duties of a boutique manager are undisputed. Lawler testified that a manager is responsible for hiring, training, and supervising sales staff; overseeing and developing customer relations; administrating stocking and inventory; cleaning; creating store displays; and preparing
sales reports. She further stated that the duties of a manager can only be performed in the store.

But but but... she was "on disability" and leave is a type of accommodation.  What happened?

The key is that Lawler did not establish that she ever would be able to perform her essential job duties again.

Lawler, however, offers no factual support showing she can perform any job duty of a boutique manager, regardless of the accommodation. Rather, she admitted that her disability makes it impossible for her to fulfill the duties of her position and that she has been unemployed since October 2009, has not applied for any positions, has made no effort to secure employment, and has exhausted her disability benefits.
Lawler contends that Montblanc “cannot argue that it met its burden of showing that Plaintiff was not able to do the job with or without reasonable accommodation” because it denied her requests for reduced hours and a five-month leave of absence. This argument ignores the holding in Green that “the plaintiff employee bears the burden of proving he or she was able to do the job, with or without reasonable accommodation.”

The court also rejected a harassment claim and a retaliation claim.  But the headline is the rejection of the disability discrimination case.

The opinion in Lawler v. Montblanc is here.