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SMEDLEY v. CAPPS

May 18, 1993

LAUREN SMEDLEY, Plaintiff,
v.
CAPPS, STAPLES, WARD, HASTINGS AND DODSON, a California corporation; JAMES E. ALLEN; WILLIAM STAPLES; JOHN HOLLINGSHEAD; JEFFREY NOSSEN; KENNETH WARD; and DOES 1 through 25, inclusive, Defendants.



The opinion of the court was delivered by: BARBARA A. CAULFIELD

 Plaintiff Lauren Smedley has filed a motion for summary judgment on her Cal. Labor Code § 1101 claim. Defendant has filed a motion to dismiss plaintiff's emotional distress claims. Upon review of the briefs and arguments of the parties in support of and in opposition to these motions, and good cause appearing therefrom, plaintiff's motion is DENIED; defendants' motion is DENIED in part and GRANTED in part.

 FACTS AND BACKGROUND

 Plaintiff Lauren Smedley was hired by defendants CAPPS, STAPLES, WARD, HASTINGS & DODSON, James Allen, William Staples, John Hollingshead, Jeffrey Nossen and Kenneth Ward (defendants or "the firm") as an associate in the Spring of 1990 and started work on April 4, 1990. During the relevant time period, Ward was the partner at the firm in charge of associates. Defendants learned of plaintiff's sexual orientation shortly after she was hired and they admit that, to their knowledge, there had never been a gay or lesbian employee at the firm. Apparently while distributing paychecks, defendant Hollingshead noticed a heart-shaped picture frame containing a photograph of plaintiff and her companion, which Hollingshead showed to defendants Nossen and Allen. Plaintiff alleges that defendant Ward also saw the photograph and that he expressed the strongest opinions about employees bringing political and controversial issues into the office. Ward admits that he feels employees should refrain from bringing up controversial issues at social events. It is undisputed that on or about September 1990, during a meeting with plaintiff, Ward instructed her that he "did not think sexual preference was something that -- the kind of discussion that should be initiated by members of the firm at the firm's social events." During deposition Ward clarified that he believed a person's sexual orientation is something that should be left at home.

 On September 6, 1990, Ward wrote a note to plaintiff in which he stated:

 
When I said your sexual preference should not be an issue, I meant that given our clientele it would not be appropriate to discuss lesbian rights, groups, activities, etc.

 Plaintiff asserts that as a result of Ward's comments, she curtailed her activities with the Bay Area Lesbian Feminist Bar Association ("BALFBA"), of which she was a co-chair. She maintains that she felt she would have been fired if she discussed her lesbianism at firm social events, so she refrained from doing so. On March 4, 1991, an article in the Daily Journal about BALFBA identified plaintiff as an associate in defendant firm and quoted plaintiff as stating that "being out" at work would help other lesbian attorneys brave the threat of discrimination. On April 1, 1991, shortly after the article was published, plaintiff was terminated. *fn1"

 DISCUSSION

 I. Plaintiff's Motion for Summary Judgment

 A. Summary Judgment Standard

 Summary judgment is appropriate where "there are no genuine issues as to any material fact and . . . the moving party is entitled to summary judgment as a matter of law." Fed. R. Civ. P. 56(c). Summary judgment should be granted when it can be determined that judgment may be entered as a matter of law. Pepper and Tanner, Inc. v. Shamrock Broadcasting, Inc., 563 F.2d 391 (9th Cir. 1977). All reasonable inferences from the evidence are to be drawn in favor of the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).

 Once the movant meets its burden of establishing that there is no genuine issue as to any material fact, the nonmovant must make a showing sufficient to establish a genuine issue of fact with respect to any element for which it bears the burden of proof at trial. British Motor Car Distributing v. San Francisco Auto, 882 F.2d 371, 374, (9th Cir. 1989). The nonmovant "must come forward with specific facts, not allegations, to show that factual issues remain for trial." DeHorney v. Bank of America Nat'l Trust and Savings, 879 F.2d 459, 464 (9th Cir. 1989).

 B. Political Activities

 In this case, the court is called upon to interpret California Labor Code § 1101 which reads, in pertinent part:

 
No employer shall make, adopt, or enforce any rule, regulation or policy:
 
(a) Forbidding or preventing employees from engaging or participating ...

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