Borton Petrini

Recent Appellate Decisions – Spring 2017


In the case of Zetwick v. County of Yolo (2017) ___F.3d ___ 2017 W.L.710476, the 9th Circuit reversed and remanded a decision of the district court granting summary judgment to the defendant’s county and sheriff on a sexual harassment case. In so ruling, the 9th Circuit rejected defendant’s assertion that hugs were not the type of thing that could form the basis for a sexual harassment claim. Rather, the court said, “hugs can be the basis of a sexual harassment claim, if the hugs were both unwelcomed and occurred with sufficient frequency.”

In the case of Reynaga v. Roseburg Forest Products (2017) 847 F.3d 678, the 9th Circuit affirmed in part and reversed in part the district court’s granting of summary judgment in the defendant’s favor on a racial/national origin discrimination case. The Mexican employee/plaintiff had brought an action against his former employer, alleging hostile work environment, disparate treatment and retaliation in violation of Title VII, section 1981 of the Civil Rights Act and state law. Plaintiff alleged a series of wrongful conduct in the workplace. He alleged that as the only Mexican millwright at the plant, that he was intimidated and harassed by the lead millwright because of his race. He also alleged several instances of disparate treatment, such as when he had his locker searched without advanced notice, and claimed that he was treated differently than white employees when he suffered an on-the-job injury. He further alleged that when he complained about the treatment, the hostile work environment worsened. The 9th Circuit reversed the trial court’s granting of summary judgment on the hostile work environment claim because it determined that a reasonable jury could find that the lead millwright’s alleged conduct was highly offensive and demeaning to anyone, especially a person from Mexico. As evidence of racially offensive conduct, the court noted comments made by plaintiff’s supervisor such as racist comments about the border, as well as other racial slurs. The Ninth Circuit Appellate Court did agree with the trial court’s finding that the lead millwright was not a supervisor, so that the employer could not be held liable for his conduct under the theory of vicarious liability. It similarly rejected the district court’s granting summary judgment on plaintiff’s disparate treatment claims. The Ninth Circuit rejected the district court’s rationale that plaintiff had failed to provide evidence other than his own self-serving declaration. The 9th Circuit said that, “an affidavit is self-serving bears on its credibility, not on its cognizability, for purposes of establishing a genuine issue of material fact”.


In the case of Gateway Community Charters v. Spiess (2017) __ Cal.Rptr.3d ____, 2017 W.L.912073, the Court of Appeal for the 3rd District affirmed a judgment of the trial court, in which the trial court held that a non-profit public benefit corporation that operates charter schools, was subject to waiting time penalties when it did not pay employees timely as required upon termination. In so ruling, the Court of Appeal agreed with the trial court that the corporation was not an “other” municipal corporation for purposes of California Labor Code section 220(b), which relates to an exemption from the assessment of waiting time penalties described under California Labor Code section 203.

Both the trial court and the court of appeal determined that charter schools are not the kind of municipal corporation that was intended to be exempted by the subject labor code sections. In so ruling, the court of appeal noted that charter schools are unlikely to actually desire to be treated as public school districts for all purposes. Therefore, the court of appeal affirmed the decision of the trial court.

In the case of Vaquero v. Stone Ridge Furniture LLC (2017) ___ Cal.Rptr.3d ___, 2017 W.L. 770639, the court of appeal for the 2nd District reversed and remanded a decision of the trial court in which the trial court had granted summary judgment for the defendant employer in a class action seeking compensation for unpaid rest periods. The plaintiffs were sales associates who were paid on a commission pay plan. The trial court had ruled that the sales associates were exempt from rest pay compensation due to their commission plan. The 2nd District disagreed. In so ruling, the court of appeal stated that the relevant wage order, which in that case was Wage Order No. 7 governing mercantile employees, requires employees to receive compensation for rest period time “as hours worked for which there shall be no deduction from wages.” Therefore, under that wage order, the court of appeal said that “even employees who are paid solely on commission must receive separate compensation for rest periods, if the employer’s compensation plan does not already include a minimum hourly wage for such time.”

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