APPEAL from the judgment of the Superior Court of Los Angeles County. Soussan G. Bruguera, Judge. Reversed and remanded. (Los Angeles County Super. Ct. No. BC341569).
The opinion of the court was delivered by: Rubin, Acting P. J.
CERTIFIED FOR PUBLICATION
The City of Santa Monica appeals from the judgment in favor of discharged city bus driver Wynona Harris in her pregnancy discrimination lawsuit against the city. Because of instructional error, we reverse and remand for retrial.
Santa Monica's city-owned bus service, Big Blue Bus, hired Wynona Harris as a 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 "preventable." No passengers were on her bus and no one was injured, but the accident cracked the glass on the bus's 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."
In 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 sideswiped 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.
On February 18, Harris reported late to work, thus earning her first "miss[-]out." 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. The 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's training supervisor testified she told Harris that a probationary employee faced termination if she accumulated 50 points in any rolling 90-day period.
On March 1, 2005, Harris's 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's "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.*fn1 Underscoring Harris's claim, her supervisor wrote "Keep up the Great Job!" for the category "Goals to Work on During the Next Review Period."
On 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's supervisor agreed to reschedule her to work the 5:00 p.m. shift. 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 without incurring a miss-out. Harris's 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's supervisor prepared a miss-out report that noted Harris had incurred two miss-outs for a total of 50 demerit points.
The day after Harris's miss-out, Transit Services Manager Bob Ayer investigated its circumstances. 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 at 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's file. Ayer testified the assistant director asked him to examine Harris's 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."
About one week after Ayer completed his investigation, Harris had a chance encounter on May 12 with her supervisor, George Reynoso, as she prepared to begin her shift. Seeing Harris's 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. Two days later, Ayer fired Harris. Harris testified that Ayer told her the city had been evaluating all part-time drivers and, although he had heard a lot of good things about her, the next day was going to be her last as a city employee.
In 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's 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. The instruction states:
"If you find that the employer's action, which is the subject of plaintiff's claim, was actually motivated by both discriminatory and non-discriminatory reasons, the employer is not liable if it can establish by a preponderance of the evidence that its legitimate reason, standing alone, would have induced it to make the same decision. [¶] An employer may not, however, prevail in a mixed-motives case by offering a legitimate and sufficient reason for its decision if that reason did not motivate it at the time of the decision. Neither may an employer meet its burden by merely showing that at the time of the decision it was motivated only in part by a legitimate ...