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Marlon Wayans Accused of Discrimination

Discrimination in the Movies

In a recent case before the 9th Circuit Court of Appeals, an actor working as an extra in a Marlon Wayans movie (A Haunted House 2) claims he was the victim of racial discrimination and harassment. According to Pierre Daniel, the alleged victim, during his one day of work on the movie he was compared to a Black cartoon character and called “ ‘[n]igga.’ ” Wayans filed an anti-SLAPP motion claiming Daniel’s claims arose from Wayans’s constitutional right of free speech. Wayans argued the comments were protected. He claimed the “core injury-producing conduct” arose out of the creation of the movie and its promotion over the Internet.  The trial court agreed with Wayans finding Daniel failed to establish the probability of prevailing on any of his claims.  The trial court entered judgment for Wayans, awarding him attorney fees.

On appeal, Daniel argued that the conduct at issue was not part of the “ ‘creative process’ ” inherent in making the movie because it occurred when the cameras were not rolling. Daniel claimed the comments did not involve the right of free speech or an issue of public interest.  Daniel also argued that even if the statements implicated Wayans’s right to free speech, Daniels established a probability of prevailing.  The 9th Circuit rejected Daniels argument and  affirmed judgment for Wayans.

Marlon Wayans (Wayans) co-wrote, produced, and starred in the movie, which came out in 2014.

Discrimination and Harassment in the Entertainment Industry

This is not the first time the entertainment industry avoided discrimination and harassment claims based on the “creative process.” In 2006, the California Supreme Court threw out a sexual harassment lawsuit against the makers of the hit comedy “Friends”, ruling that vulgar and coarse comments by the show’s writers reflected the “creative workplace” for a comedy with sexual themes.

Employers should not see these decisions as free license to allow racists or sexually inappropriate comments in the workplace. Employers have an obligation to provide a workplace free of sexually or racially inappropriate comments. These “entertainment” cases are outliers resulting from the unique circumstances in the studios. If the same comments were made on a factory floor or a typical office environment, I suspect the court would have gone the other way.

I will use this case in the sexual harassment prevention trainings to emphasize the importance of maintaining an appropriate work environment. The alleged comments occurred in 2013. Four years later Wayans and the other defendants were still defending the case. You can expect they spent hundreds of thousands of dollars to achieve a favorable result. Although the court ordered Daniels to pay Wayans’s attorneys fees, what are the chances that the movie extra has the ability to pay those fees?

If you have a question about inappropriate workplace conduct, contact the Nuddleman Law Firm, P.C. We help employers and employees in a wide range of employment disputes, including race and gender discrimination claims.

Original article by Robert E. Nuddleman of Nuddleman Law Firm, P.C.

Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law. We cannot answer questions about specific situations or provide legal advice over the Internet. If you desire legal advice, you should contact an attorney.

Your use of this blog does not create an attorney-client relationship between you and Nuddleman Law Firm, P.C. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Do not post confidential or time-sensitive information in this blog. The Nuddleman Law Firm, P.C. cannot guarantee the confidentiality of anything posted to this blog.

The Nuddleman Law Firm, P.C. represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Pleasanton, Oakland, San Ramon, Hayward, Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.

Is Your Workforce a Suicide Squad?

Ok. I admit it. I’m a fan of super-hero movies. When I found out DC’s Suicide Squad was opening on my daughter’s birthday it was a no brainer. So I loaded the family into the mini-van and took them to see it opening day. The basic plot consists of a team of dangerous, incarcerated super villains “recruited” for a top-secret mission.

Amanda Waller, the U.S. intelligence officer who assembles the team, specializes in getting people to do what she wants. She has one character’s heart locked in a box. She motivates another character by promising he can spend time with his family. The idea is that each member of the team has separate motivations. Waller uses–OK, exploits–those motivations toward a common goal.

Suicide Squad in Your Workplace?

As a movie, Suicide Squad did not disappoint. As an employment attorney, it got me thinking. I’m not suggesting employers run out and hire dangerous super villains. If we put aside Waller’s I-don’t-care-who-gets-killed mentality, and the hundreds of zombie-like bad guys put down by rapid machine-gun fire, there may be a few lessons for life and the workplace.

  1. A properly motivated team can overcome extreme obstacles.
  2. You can’t properly motivate someone unless you know what makes them tick.
  3. Although others can motivate us, we work better when we motivate ourselves.
  4. Working as a team is almost always better than working alone (except when it’s not).
  5. When management warns you of the consequences should you fail to follow directions, you’d better follow directions (Alas, poor Slipknot, we knew thee little).
  6. Failure is always an option, but we probably won’t like the results.
  7. A carrot is usually a better motivator than a stick.

Workplace Fairness

I frequently advise employee clients that employers are not required to treat employees fairly. I also advise my employer clients that treating employees fairly is the best way to avoid problems (including legal problems) in the workplace. Consider your work environment.  Whether you’re an employee or an employer, are you motivating your colleagues and yourself toward success? Are you treating others the way you want to be treated? Do you have a killer crocodile living in your sewer? If you answered yes to at least two of those questions, you probably have a stable workforce that is building toward success. If not, then think about what you can change to improve your workplace

I’m hoping to see Jason Bourne soon.  We’ll just have to wait and see if I can any more bright ideas about the workplace.

Original article by Robert E. Nuddleman of Nuddleman Law Firm, P.C.

Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law, but we cannot answer questions about specific situations or provide legal advice. If you desire legal advice, you should contact an attorney.

Your use of this blog does not create an attorney-client relationship between you and Nuddleman Law Firm, P.C. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and Nuddleman Law Firm, P.C. cannot guarantee the confidentiality of anything posted to this blog.

The Nuddleman Law Firm, P.C. represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Pleasanton, Oakland, San Ramon, Hayward, Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.

Inability to Work Under Particular Supervisor Not a Disability

A California court recently reaffirmed that the inability to work under a particular supervisor because of anxiety and stress related to the supervisor’s standard oversight of job performance—is not a disability recognized under California’s Fair Employment and Housing Act (FEHA; Gov. Code, § 12900 et seq.).

Higgins-Williams worked as a clinical assistant for Sutter Medical Foundation’s Shared Services doing patient intake. In 2010, Higgins told her doctor she was stressed because of interactions at work with human resources and her manager.  Her doctors diagnosed her as having adjustment disorder with anxiety, and Higgins went on a stress-related leave of absence under the California Family Rights Act and the Family Medical Leave Act. The doctor reported Higgins’ disabling condition as “…stress[] when dealing with her Human Resources and her manager.”

When Higgins returned to work, she received her first negative performance evaluation since she began working at Sutter.  Higgins believed she was being singled out, and that her supervisor “was curt and abrupt with plaintiff, while being open and friendly with plaintiff’s coworkers, and gave plaintiff a disproportionate share of work.”  Plaintiff requested a transfer to a different department for “…forever”), a schedule of 9:00 a.m. to 6:00 p.m., and another leave of absence.  Plaintiff made the requests in order to accommodate her alleged disability: adjustment disorder with anxiety.

Sutter granted the leave of absence, but refused to transfer her to a different department with a different manager.  Higgins’ doctor continued to extend the leave of absence because Sutter never agreed to transfer Higgins to a different department with a different manager.  The doctor opined that although Higgins could return to work as a clinical assistant, the doctors was concerned about Higgins’ ability to do so in the same department as her regional manager.  Sutter eventually terminated Higgins because there was no indication Higgins would ever be able to return to her job.

Inability to Work Under Particular Supervisor Not a Disability

Higgins sued Sutter for disability discrimination and failure to accommodate.  The appellate court held:

An employee’s inability to work under a particular supervisor because of anxiety and stress related to the supervisor’s standard oversight of the employee’s job performance does not constitute a disability under FEHA, citing Hobson v. Raychem Corp. (1999) 73 Cal.App.4th 614, 628 [“the inability to perform one particular job, or to work under a particular supervisor, does not constitute a qualified disability” under FEHA].

Because the court determined the plaintiff did not have a “disability,” the remaining disability-related causes of action were dismissed.

California and federal law define “disability” very broadly, but that doesn’t mean every stress or anxiety requires an accommodation.  When the requested accommodation is a different supervisor, courts are reluctant to hold an employer liable for disability discrimination.  Employers must take every request for a disability accommodation seriously.  When properly conducted, the employer and employee should engage in an interactive process to determine what reasonable accommodations will enable the person to perform the essential functions of the job.

The Nuddleman Law Firm represents employers and employees regarding disability accommodations and discrimination.

Original article by Robert E. Nuddleman of Nuddleman Law Firm, P.C.

Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law, but we cannot answer questions about specific situations or provide legal advice. If you desire legal advice, you should contact an attorney.

Your use of this blog does not create an attorney-client relationship between you and Nuddleman Law Firm, P.C. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and Nuddleman Law Firm, P.C. cannot guarantee the confidentiality of anything posted to this blog.

The Nuddleman Law Firm, P.C. represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Pleasanton, Oakland, San Ramon, Hayward, Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.

Nuclear Power Plant Supervisor Not a Whistleblower

Energy Northwest operates a nuclear power plant in Richland, Washington. Sanders, a maintenance manager, administered temporary staffing contracts for Energy. After nineteen years of employment, Energy terminated Sanders’ employment because he  improperly approved temporary staffing per diem and travel payments to the father of his daughter’s child. Sanders claimed he was a whistleblower, and Energy terminated him because he objected to the severity level designation of an internal “condition report,” in violation of  42 U.S.C. § 5851. A “condition report” is a report generated by employees when safety procedures may have been violated.

The whistleblower retaliation provision of the Act, 42 U.S.C. § 5851,FN:1 protects energy workers who report or otherwise act upon safety concerns. The statute specifically prohibits employers from discharging or otherwise discriminating against employees for several enumerated acts, including notifying an employer of a violation, initiating an enforcement proceeding, or testifying in a safety or enforcement proceeding. See 42 U.S.C. § 5851(a)(1)(A–E). The statute also includes a catch-all provision protecting employees “in any other action to carry out the purposes of this chapter . . . .” Id. at § 5851(a)(1)(F).

Sanders had no independent knowledge of possible safety violations prior to the creation of the internal condition reports at issue. Sanders did not generate the condition reports and Energy was already aware of the potential safety violations, and its internal process for remediation was underway. According to the majority opinion, the safety problems Sanders identified were not “overlooked, neglected, or concealed by management” and were not “concrete [and] ongoing” issues. The court found that Sanders’ conduct fell outside the scope of the Act’s protection, and the district court properly granted summary judgment. Sanders tried to amend his complaint to include state-law disability and retaliation claims, but the court denied the motion, in part, because it was made less than three weeks before the close of discovery and a year after filing the complaint.

Court Reduces $7.1million Jury Verdict to Zero

Long-time sports columnist, TJ Simers, sued his employer, the LA Times, alleging disability and age discrimination.  Simers claimed that in 2013, after 23 years working for the LA Times, he collapsed due to a mini-stroke.  According to JuryVerdictAlert.com, Simers claimed  he continued to produce his popular column despite his health concerns, but his column was later taken away and he was made a regular reporter at the same salary.  He later resigned and accepted a position with the Orange County Register at a lesser salary.  The LA Times contended that Simers violated ethics polices in pursuing a possible TV deal about his career, which created a conflict of interest that he failed to disclose. The Los Angeles Times denied demoting plaintiff and argued that  plaintiff voluntarily resigned.  After a jury found in his favor, the court reduced the jury verdict to zero.

Judge reduces $7.1million jury verdict to zero

A jury found in Simers’ favor (9 to 3) awarding $7.1million, including $5million in emotional distress damages.  The judge later overturned the award on a judgment notwithstanding the verdict. The court reduced the $7.1million jury verdict to zero.  The trial took about two years to get to trial and was in trial for 6 weeks. The jury deliberated for a day and a half. So, why did the court overturn the jury’s award? Because, according to the court, Simers quit his job and was not constructively terminated.

Clients often ask me whether it is better to quit or be fired.  My answer depends on what the client is trying to accomplish.  In terms of maintaining a wrongful termination action, it is almost always easier to prove the case if the employee is fired.  However, it may be easier to get a new job if the employee leaves on her own terms, and it is almost always better to have a job than a lawsuit.  This particular plaintiff spent two years of his life fighting his employer, only to end up with nothing.  Perhaps his attorneys handled the case on a contingency basis, but his attorneys likely spent hundreds of hours and they ended up with nothing.  The employer, no doubt, paid its attorneys a healthy amount, and although they won at the trial level I am sure the plaintiff will appeal.

I try to counsel my clients–employer or employee–to make smart business decisions.  What may look like a good investment at the beginning, can oftentimes turn sour as the case progresses.  Any time parties litigate a case, they are spinning the wheel of destiny with little control over the eventual outcome.  Sometimes it makes sense to spin that wheel.  Other times it doesn’t.

Original article by Robert E. Nuddleman of Nuddleman Law Firm, P.C.

Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law, but we cannot answer questions about specific situations or provide legal advice. If you desire legal advice, you should contact an attorney.

Your use of this blog does not create an attorney-client relationship between you and Nuddleman Law Firm, P.C. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and Nuddleman Law Firm, P.C. cannot guarantee the confidentiality of anything posted to this blog.

The Nuddleman Law Firm, P.C. represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Pleasanton, Oakland, San Ramon, Hayward, Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.

Employer Cannot Fire Employees for Reporting Theft at Work

Rosa Lee Cardenas worked for M. Fanaian, D.D.S., Inc. as a dental hygienist.  When Ms. Cardenas could not locate her wedding ring—she typically took it off while performing her job duties—she called the local police and reported that a coworker may have stolen her ring.  After the police came to the workplace on two separate occasions, the employer pulled Ms. Cardenas aside and told her that “the situation was causing great tension and discomfort among the staff, and that he was going to have to let her go.” Cardenas filed a lawsuit alleging she was fired for reporting theft of her wedding ring. A jury agreed and awarded her $117,768 in damages. The lesson: Don’t fire employees for reporting theft at work.

Don’t Fire Employees for Reporting Theft

Fanaian appealed claiming the real reason Cardenas filed a police report was to serve her private interest, not a public purpose, and a termination in violation of public policy does not exist when the employee reports a purely personal issue (e.g., not something related to the employment).  Cardenas claimed that Labor Code section 1102.5 stands alone, and does not require a separate showing that the employee’s subjective motivation and/or the particular crime he or she reported concerned a fundamental public policy.  Cardenas pointed out that section 1102.5 embodies a sufficient public policy for purposes of permitting an award of damages.

The court of appeals agreed, and affirmed the judgment. “[T]he plain and unambiguous language of section 1102.5(b) creates a cause of action for damages against an employer who retaliates against an employee for reporting to law enforcement a theft of her property at the workplace.”

Anytime an employee reports a suspected crime to the police, he or she is possibly engaging in protected activity.  Employers should be mindful that Labor Code section 1102.5 is very broad, and terminating an employee because the employee complained or made know his or her intention to complain to a government agency is unlawful.  Fanaian learned the hard way not to fire employees for reporting theft of personal items at work.

Don’t Retaliate Against Desperate Housewives

OK. I admit it.  For a short-time I watched Desperate Housewives.  I’d like to say I only watched it because my wife made me, but the truth is, I liked the show.  I also learned you don’t retaliate against desperate housewives.  So, when I heard that actress Nicolleta Sheridan—who played my favorite character, Edie Britt—was suing Touchstone Television Productions, it piqued my interest.

Apparently, Sheridan sued Touchstone under Labor Code section 6310, alleging that Touchstone fired her in retaliation for her complaint about a battery allegedly committed on her by the show’s creator, Marc Cherry.  Touchstone claimed Sheridan failed to “exhaust her administrative remedies” by filing a claim with the Labor Commissioner.  Although the trial court agreed with Touchstone, the appellate court made it clear you don’t retaliate against desperate housewives.

Don’t Retaliate Against Desperate Housewives

Sheridan alleged that “during a September 24, 2008 rehearsal, Sheridan attempted to question Cherry about the script, and he struck her in response. Sheridan complained about the alleged battery to Touchstone.”  When Touchstone did not renew Sheridan’s contract for the 6th season—I had stopped watching by then—she sued Touchstone for wrongful termination in violation of public policy.  In true Hollywood fashion, the jury deadlocked and the court declared a mistrial.  Sheridan filed a second amended complaint, alleging that Touchstone “retaliated against her in violation of section 6310 for complaining about Cherry’s alleged battery.”

Touchstone argued that Sheridan had to first file a claim with the Labor Commissioner under sections 98.7 and 6312.  Touchstone’s position had some merit, since a depublished case said employees had to exhaust their administrative remedies before filing a retaliation claim.  But in 2013, the legislature amended the Labor Code to specifically state “An individual is not required to exhaust administrative remedies or procedures in order to bring a civil action under any provision of this code, unless that section under which the action is brought expressly requires exhaustion of an administrative remedy.”

The appellate court, which was not bound by the previously depublished decision, found that the plain language of sections 6312 and 98.7 before the 2013 amendments allowed filing a Labor Commissioner complaint, but did not require exhaustion. The court went on to find that the 2013 amendment to the Labor Code “merely clarified existing law.”

So, Sheridan will get another day in court and we get to find out if Touchstone should have headed my advice: Don’t retaliate against desperate housewives.

Original article by Robert E. Nuddleman of Nuddleman Law Firm, P.C.

Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law, but we cannot answer questions about specific situations or provide legal advice. If you desire legal advice, you should contact an attorney.

Your use of this blog does not create an attorney-client relationship between you and Nuddleman Law Firm, P.C. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and Nuddleman Law Firm, P.C. cannot guarantee the confidentiality of anything posted to this blog.

The Nuddleman Law Firm, P.C. represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Pleasanton, Oakland, San Ramon, Hayward, Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.

Wrongful Termination After Nurse Repeatedly Refused to Perform Nurse-Led Stress Tests

Nurse-Led Stress Tests

The Nursing Practice Act (Bus. & Prof. Code, § 2700 et seq.) regulates the practice of nursing in California.  The Nursing Practice Act permits nurses to perform certain functions that would otherwise be considered the illegal practice of medicine, when such functions are performed pursuant to a hospital’s “standardized procedures.”  (Bus. & Prof. Code, § 2725, subd. (c).)  The Nursing Practice Act Title 16 of the California Code of Regulations contains the guidelines promulgated implementing the NPA.  (See Cal. Code Regs., tit. 16, § 1470-1474)

In Nosal-Tabor v. Sharp Chula Vista Medical Ctr.Karen, a registered nurse repeatedly refused to perform nurse-led stress tests and made numerous complaints concerning the testing to Sharp’s management.  The nurse complained that stress testing constitutes the practice of medicine and that Sharp had not adopted sufficient procedures to allow nurses to perform such tests.  Sharp’s management disagreed and told the nurse to conduct the stress testing.  After the nurse continued to refuse to perform nurse-led stress testing and to complain about its implementation, Sharp disciplined her and eventually terminated her employment.

Wrongful Termination

Nosal-Tabor sued Sharp, alleging wrongful termination and two causes of action premised on claims of improper workplace retaliation.  Sharp filed a motion for summary judgment.  The trial court granted the motion, ruling that Nosal-Tabor presented “no credible evidence that the Standardized Procedures in place at the time of her termination were insufficient.”

On appeal, Nosal-Tabor claimed that the trial court erred in granting Sharp’s motion for summary judgment.  Her primary contention is that the trial court erred in concluding that there was no evidence upon which a reasonable juror could find that Sharp had failed to adopt standardized procedures that comply with the guidelines.  Nosal-Tabor contended that this error caused the court to improperly conclude that she would be unable to establish any of her causes of action.

The appellate court determined that the documents that Sharp maintained for its standardized procedures did not contain several elements required by the regulations.  “In light of these deficiencies, a reasonable juror could find that Sharp improperly retaliated against, and wrongfully terminated, Nosal-Tabor when she complained about, and refused to perform, nurse-led stress testing pursuant to Sharp’s legally deficient procedures.”

Employers should be cautious when disciplining or terminating an employee for complaining about potential violations of the law.  Even when the company believes it has fully complied with the law, an employee may still be able to allege a claim for wrongful termination or retaliation.  If you have questions about your termination or if you are considering terminating an employee for potentially protected conduct, contact a knowledgeable wrongful termination lawyer.

Original article by Robert E. Nuddleman of Nuddleman Law Firm, P.C.

Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law, but we cannot answer questions about specific situations or provide legal advice. If you desire legal advice, you should contact an attorney.

Your use of this blog does not create an attorney-client relationship between you and Nuddleman Law Firm, P.C. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and Nuddleman Law Firm, P.C. cannot guarantee the confidentiality of anything posted to this blog.

The Nuddleman Law Firm, P.C. represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Pleasanton, Oakland, San Ramon, Hayward, Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.