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’
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
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”
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.
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
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?”
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
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
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
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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