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Alaniz v. Robert M. Peppercorn


November 14, 2008


The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge


Defendants Robert M. Peppercorn, M.D. Inc. and Robert M. Peppercorn, M.D. ("Defendants") move for judgment as a matter of law, pursuant to Federal Rule of Civil Procedure 50(b), following the jury's verdict in favor of Plaintiff Erma J. Alaniz ("Plaintiff) on June 26, 2008, and judgment rendered in accordance with that verdict on June 30, 2008. According to Defendants, because the jury instruction provided with respect to the prerequisites for actionable retaliation under the California Fair Employment and Housing Act ("FEHA") did not comport with applicable California law, the verdict in favor of Plaintiff on her FEHA claim must be overturned.

Specifically, Defendants contend that in opposing allegedly wrongful conduct as a result of which retaliation has purportedly occurred, the conduct must necessarily have been unlawful. Defendants maintain that because the jury instruction for retaliation under FEHA failed to make that clear, the jury's verdict in favor of Plaintiff on FEHA-based retaliation was in error.

Rule 50(b), by its terms, allows a party, after trial, to "renew" a motion for judgment as a matter of law "made at the close of all the evidence."*fn1 A party cannot raise arguments in its post-trial Rule 50(b) motion that it did not raise beforehand in a Rule 50(a) motion offered during trial itself. See Freund v. Nycomed Amersham, 347 F.3d 752, 761 (9th Cir. 2003). Like a pre-verdict motion for judgment as a matter of law under Rule 50(a), a post-verdict Rule 50(b) motion tests the sufficiency of the evidence offered in support of a party's claims. Keenan v. Computer Assocs. Int'l, 13 F.3d 1266, 1268-69 (8th Cir. 1994). Judgment as a matter of law is proper if "the evidence, construed in the light most favorable to the nonmoving party, permits only one reasonable conclusion, and that conclusion is contrary to that of the jury." White v. Ford Motor Co., 312 F.3d 998, 1010 (9th Cir. 2002). A motion for judgment as a matter of law should be granted only if the facts and inferences point so strongly and overwhelmingly in favor of one party that a decision in that party's favor is mandated. See Seven-Up Co. v. Coca-Cola Co., 86 F.3d 1379, 1387 (5th Cir. 1996).

The Court rejects Defendants' argument that the proffered FEHA jury instruction on retaliation was improper. Contrary to Defendants' contention, the California Supreme Court's decision in Yanowitz v. L'Oreal USA, Inc., 36 Cal. 4th 1028 (2005) does not stand for the proposition that the objective reasonableness of an individual's belief that he or she is opposing wrongful conduct does not hinge upon whether the conduct in question technically violates the law. In fact, the Yanowitz court found that actionable retaliation based on complaints of unlawful conduct can occur even when a court later determines the conduct was not in fact prohibited under FEHA. Id. at 1043. In so finding, the court stressed that "[e]mployees often are legally unsophisticated and will not be in a position to make an informed judgment as to whether a particular practice or conduct actually violates the governing antidiscrimination statute." Id. (emphasis in original). The California Supreme Court carefully explained that holding otherwise would permit an employer to impermissibly "retaliate against an employee with impunity whenever the employee's reasonable belief turns out to be incorrect." Id. Moreover, imposing such a requirement would, in the court's view, "significantly discourage employees from opposing incidents of discrimination, thereby undermining the fundamental purposes of the antidiscrimination statute." Id.

The California Supreme Court expressed similar views in another decision decided about the same time as Yanowitz, Miller v. Dep't of Corrections, 36 Cal. 4th 446 (2005).

There, the court also recognized that an employee's reasonable belief that discrimination is occurring is not negated by the fact that an employee's legal judgment in that regard may in fact be mistaken. Id. at 821-21 ("even if ultimately it is concluded defendants' conduct did not constitute a violation of the FEHA, we are not persuaded by defendant's claim that only an employee's mistake of fact, and not a mistake of law, may establish an employee's good faith but mistaken belief that he or she is opposing conduct prohibited by the FEHA."). In addition, like Yanowitz, the Miller court also concluded that a contrary finding would run counter to the fact that many employees possess limited legal knowledge. Id.

Although Defendants argue that both Yanowitz and Miller cited approvingly to the Ninth Circuit's decision in Moyo v. Gomez, 40 F.3d 982 (1994), that fact does not bolster their position. Moyo found that retaliation under Title VII could be based upon an erroneous belief that an employer engaged in unlawful employment practices is reasonable, if the mistake was made in good faith. Id. at 985. While Moyo did recognize that reasonableness must be based on some "objective standard", it nonetheless recognized in the very same sentence that any such standard must necessarily make due allowance "for the limited knowledge possessed by most Title VII plaintiffs about the factual and legal bases of their claims. Id.

The Court is not persuaded by Defendant's contention that the reasonableness of Plaintiff's belief that discrimination occurred can only be measured against the state of applicable substantive law.

Such an argument runs counter to the California Supreme Court's recognition that plaintiffs cannot be expected to have a firm command of such law. Instead, the import of California law in this area points to the conclusion that reasonableness must be determined as a factual matter by the jury, in the context of their individualized assessment of what a reasonable person would have believed under the particular circumstances present. While that determination does have an objective component, that component is not measured solely against whether a plaintiff complaint about conduct that is in fact unlawful, but instead hinges on an overall assessment that may include a myriad of other factors.

In finding Defendants liable for retaliation under FEHA, and under the terms of the proper instruction it was provided as to that liability, the jury clearly found that Plaintiff did reasonably believe that Dr. Peppercorn's treatment of Tiffany Raspberry vis-a-vis other employees was discriminatory. The Court cannot determine, as it must in order to grant judgment as a matter of law in favor of Defendants, that no reasonable jury could have found that Plaintiff's belief in that regard was reasonable. See White v. Ford Motor Co., 312 F.3d at 1010. Instead, the Court must uphold the verdict if it is supported by substantial evidence, which is defined as evidence adequate to support the jury's conclusion even if a different conclusion could have been drawn from the same evidence. Gilbrook v. City of Westminster, 177 F.3d 839, 856 (9th Cir. 1999).

Because the Court believes that the jury instruction at issue was proper, and that there was evidence from which the jury could have determined that Plaintiff reasonably believed Defendant's conduct to be discriminatory, Defendants' Motion for Judgment as a Matter of Law is DENIED.*fn2


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