California Employment Law Notes -- November 2011

Ellis v. Costco Wholesale Corp., 657 F.3d 970 (9^th Cir. 2011)

In this appeal, Costco challenged the district court's order granting class certification in an action in which Costco's promotional practices were alleged to have discriminated against female employees. The district court's order granting class certification preceded the United States Supreme Court's opinion in Wal-Mart Stores v. Dukes, 131 S. Ct. 2541 (2011). In this opinion, the Ninth Circuit recognized that the Wal-Mart opinion "altered existing law" and, accordingly, vacated the lower court's order granting class certification. Specifically, the Court: (i) vacated and remanded the district court's ruling as to commonality under Fed. R. Civ. P. 23(a) because the lower court had failed to conduct the required "rigorous analysis" to determine whether there were common questions of law or fact among the class members' claims; (ii) vacated and remanded the district court's ruling as to "typicality" under Fed. R. Civ. P. 23(a) because the district court failed to consider the effect that defenses unique to the named plaintiffs' claims might have on that question; (iii) affirmed the district court's ruling as to the adequacy of the one class representative who was a current employee allegedly being denied promotion; and (iv) vacated and remanded the district court's certification of the class pursuant to Rule 23(b)(2) based upon the Supreme Court's unanimous rejection of the predominance test for determining whether monetary damages may be included in a 23(b)(2) class certification.

Brennan v. Townsend & O'Leary Enter., Inc., 199 Cal. App. 4^th 1336 (2011)

Stephanie Crowley Brennan sued her former employer and a manager who was not her supervisor (Scott Montgomery) for sexual harassment. A jury awarded Brennan $200,000 against the agency and $50,000 against Montgomery, but the trial court granted defendants' motion for judgment notwithstanding the verdict and entered a judgment in their favor. The Court of Appeal affirmed, holding that insufficient evidence supported the jury's finding that Brennan had been subjected to severe or pervasive sexual harassment in the workplace. Specifically, the Court held that an email that Montgomery sent but did not direct to Brennan (referring to her as "big-titted" and "mindless") did not constitute "severe" sexual harassment. The Court also reviewed the trial evidence as to the nature, timing, frequency and context of each of the incidents Brennan claimed supported a finding of "pervasive" sexual harassment and found there to be a lack of substantial evidence to support the jury's verdict. Specifically, the Court noted that Brennan saw the email only after Montgomery inadvertently sent it to another employee who was leaving the agency and that employee in turn forwarded it to Brennan. The Court also found insufficient to prove pervasiveness, evidence of several sex-based comments and activities over the course of a number of...