Big Blue Bus Did Not Discriminate When Firing Pregnant Driver: Supreme Court

Sunday, 10 Feb 2013, 9:41:00 AM

Brenton Garen

The California Supreme Court on Thursday overturned a jury award of $177,905 to Santa

Monica bus driver Wynona Harris who was fired after revealing she was pregnant, meaning the City of Santa Monica won't have to pay the six-figure sum.

The City's transit authority Big Blue Bus insisted Harris would have

been fired regardless of her pregnancy because she had had two "preventable" accidents and

was late to work twice.

Thursday's ruling, written by Justice Goodwin Liu, was 6-0, with one justice not


The case is headed back to trial court to determine whether the city should be allowed to instruct the jury to consider a "mixed-motive" defense, which states an employer is not liable if it can prove it was motivated in its decision to fire a worker by both discriminatory and non-discriminatory factors, according to Santa Monica Patch.

The following information is taken from court documents:

Harris was hired bus driver trainee in October 2004. Shortly into her 40-day training period,

Harris had what she calls a minor accident, which the city deemed


No passengers were on her

bus and no one was injured, but the accident cracked the glass on the bus’

back door.

When the city hired Harris,

it gave her its “Guidelines for Job Performance Evaluation.” The guidelines stated, “Preventable accidents

. . . [are] an indication of unsafe

driving. . . . [T]hose

who drive in an unsafe manner will not pass probation.”


mid-November 2004, Harris successfully completed her training period, and the

city promoted her to the position of probationary part-time bus driver. (Her formal title was “Motor Coach Operator

Part Time.”)

As a probationary driver,

Harris was an at-will employee. Sometime

during her first three-month probation evaluation period (the record is not

clear when), Harris had a second preventable accident, in which she side swiped

a parked car and tore off its side mirror. According to Harris, she hit the parked car after swerving to avoid a

car that cut her off in traffic.


February 18, Harris reported late to work, thus earning her first


The job performance

guidelines that she received when hired defined a “miss-out” as a driver

failing to give her supervisor at least one hour’s warning that she will not be

reporting for her assigned shift.


guidelines noted that most drivers get one or two late reports or miss-outs a

year, but more than that suggested a driver had a “reliability problem.”

The guidelines further provided, “Miss-outs

and late reports have a specific [demerit] points value [of 25 points]. Probationary employees are allowed half the

points as a permanent full time operator, which is 100 points.”

For her miss-out, Harris received 25 demerit

points. Harris’ training supervisor

testified she told Harris that a probationary employee faced termination if she

accumulated 50 points in any rolling 90-day period.


March 1, 2005, Harris’ supervisor gave Harris a written performance

evaluation covering her first three months as a probationary driver from

mid-November 2004 to February 14, 2005. In grading Harris’ “overall performance rating,” her supervisor

indicated “further development needed.” Harris testified at trial that her supervisor told her that, except for

her accident the previous November as a trainee, she was doing a good job and

that her supervisor would have graded her as “demonstrates quality performance”

but for that accident.


Harris’s claim, her supervisor wrote “Keep up the Great Job!” for the category

“Goals to Work on During the Next Review Period.” 


April 27, 2005, Harris incurred her second miss-out.

Her daughter had a hearing that day in

juvenile court which required Harris to accompany her.

To avoid Harris’s losing a day’s pay,

Harris’ supervisor agreed to reschedule her to work the 5:00 p.m.


Around 2:30 or 3:00 p.m.

that afternoon, Harris called her work dispatcher to report that the juvenile

court judge had not yet called her daughter’s case. The dispatcher told Harris that Harris could

wait until 4:00 p.m. -- one hour before her shift

started -- to report that she would be arriving late for her

5:00 p.m. shift.

A driver’s failure

to give at least one hour’s warning that she would be tardy for work triggered

a miss-out. Harris’ daughter’s case was

called shortly after Harris spoke to the dispatcher.

The court hearing resulted in the daughter

being charged with a felony.

Due to the

stress from her daughter’s plight, Harris testified she forgot to call her

dispatcher by 4:00 p.m. as promised. Following her miss-out, Harris’ supervisor prepared a miss-out report. The report stated Harris had

incurred two miss-outs for a total of 50 demerit points, but Harris’

supervisor denied having written that part of the report.


Services Manager Bob Ayer investigated the circumstances of Harris’ miss-out

“right after it happened” beginning “probably” the next day.

Ayer met with Harris on May 3 to discuss

what had happened.

Harris explained she

had forgotten to call the dispatcher because she was upset from her daughter

being charged with a felony.

Based on

his investigation, on May 4 or 5, Ayer recommended to his supervisor, the

bus company’s assistant director, that the miss-out should remain in Harris’


Ayer testified the assistant

director asked him to examine Harris’ complete personnel file.

Ayer testified he did so and told the

assistant director that the file showed Harris was not meeting the city’s

standards for continued employment because she had two miss-outs, two

preventable accidents, and had been evaluated as “further development needed.”


one week after Ayer recommended that the city sustain Harris’s miss-out, Harris

had a chance encounter on or about May 12 with her supervisor, George

Reynoso, as she prepared to begin her shift.

Seeing Harris’ uniform shirt hanging loose, Reynoso told her to tuck in

her shirt.

Beckoning him to step aside

so she could speak to him, Harris told Reynoso she was pregnant.

Harris testified Reynoso reacted with seeming

displeasure at her news, exclaiming, “Wow. Well, what are you going to do? How far along are you?”

He then

asked her to get a doctor’s note clearing her to continue to work.

Four days later, on May 16, Harris gave

Reynoso her doctor’s note permitting her to work with some limited

restrictions. (Neither party argues the

restrictions are relevant to this appeal).

The morning Harris gave him the note, Reynoso attended a supervisors’

meeting and received a list of probationary drivers who were not meeting

standards for continued employment. Harris was on the list.


testified that Ayer summoned her to a meeting where he told her the city had

been evaluating all part-time drivers and, although he had heard a lot of good

things about her, the city was terminating her. Harris’ last day was May 18, 2005.


October 2005, Harris sued the city. She

alleged the city fired her because she was pregnant. (Gov. Code, §§ 12940, subd. (a)

[prohibits discrimination based on “sex”]; 12926, subd. (p) [“sex”

discrimination includes pregnancy].)

Answering Harris’ complaint, the city denied her allegations and

asserted as an affirmative defense that it had legitimate, nondiscriminatory

reasons to fire her as an at-will employee.

The case was tried to a

jury. The city asked the court to

instruct the jury with BAJI No. 12.26, which instructed on the city’s

“mixed-motives” defense. 


court refused to give the instruction. The court’s reason for rejecting the instruction appears to have been

that Harris conceded she was an at-will employee (by which the court presumably

meant she conceded she could be fired without cause), but the city’s purported

reason for terminating her -- poor performance -- was


By special verdict, the

jury found by a vote of nine-to-three that Harris’ “pregnancy [was] a

motivating factor/reason for [the city’s] decision to discharge” her. The jury awarded her $177,905 in damages.


city moved on multiple grounds for judgment notwithstanding the verdict and a

new trial.

In its motions the city

argued, among other things, that the court’s refusal to instruct the jury with

the city’s mixed-motive instruction deprived the city of a legitimate

defense. The court denied both


Harris thereafter moved for her

attorney’s fees, which the court awarded at slightly more than $400,000. (Gov. Code, § 12965, subd. (b)

[prevailing plaintiff in discrimination lawsuit entitled to attorney’s


Harris has filed an appeal in the State of California's Second Appellate District.

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