Stop me if you've heard this before. While Alamo was on leave, her manager discovered performance problems with Alamo's work, including problems that cost the Company money. And - again stop me - the manager had noticed performance problems before the leave, but had not disciplined Alamo previously.
So, Alamo is getting ready to come back to work. She comes into the office one day to have lunch with a co-worker. She runs into Moran and gets into a heated argument about Moran's alleged treatment of Alamo's co-worker (with whom she had just had lunch). Moran tells Alamo she's about to be fired. Sure enough, when Alamo returned, she was fired for poor performance and insubordination.
Alamo sued for pregnancy discrimination. After trial, a jury awarded her $10,000.00 in compensatory damages, and 0 for punitive damages. The court awarded about $50K in attorney's fees.
PMIC appealed. It argued that the court should have instructed the jury that the plaintiff has to prove discrimination was a "substantial motivating reason" for the termination, rather than just "a motivating reason." PMIC also argued that it was entitled to put on evidence of a "mixed motive" defense,
following Harris v. City of Santa Monica (2013) 56 Cal.4th 203 (discussed here).
The Court of Appeal ageed that PMIC was entitled to an instruction that says discrimination must be a "substantial" motivating reason. The form civil jury instructions ("CACI") have been amended to incorporate Harris. Practitioners should ensure they have the most current version of the instructions.
But PMIC was not so lucky on the mixed motive defense. PMIC offered a defective mixed motive instruction that was not a proper statement of the law. And the Court also found that "mixed motive" is an affirmative defense that must be pleaded in the defendant's answer. Therefore, employers seeking to limit damages with the mixed motive defense must plead it or amend their answers.
Frankly, I don't know why the employer lost, or why it wanted a "mixed motive" defense. There was scant evidence of discrimination described in the court of appeal's opinion. Alamo argued that this was not a mixed motive case at all, and I think I agree with her. We shall see if the employer can assert the mixed motive defense without admitting there is evidence of a discriminatory and non-discriminatory motive for taking action.
This case is Alamo v. Practice Management Information Corp. and the opinion is here.
