Superior Court of Alameda County, No. RG06268579, Yvonne Gonzalez Rogers, Judge. (Alameda County Super. Ct. No. RG06-268579)
The opinion of the court was delivered by: Pollak, J.
CERTIFIED FOR PUBLICATION
Plaintiff Mary Fitzsimons appeals from a judgment in favor of defendant California Emergency Physicians Medical Group (CEP) on her complaint for unlawful retaliation under the California Fair Employment and Housing Act (FEHA), Government Code section 12900 et seq.*fn1 She contends the trial court erred in concluding that a partner does not have standing to assert a claim for retaliation under the FEHA against his or her partnership. We agree with plaintiff that the FEHA does support a claim for retaliation by a partner against her partnership for opposing sexual harassment of an employee. Accordingly, we shall reverse the judgment and remand for further proceedings.*fn2
CEP is a California general partnership with approximately 700 partners working in hospital emergency rooms throughout California. The partnership is governed by a nine-member elected board of directors. The emergency doctors at each hospital are supervised by a medical director appointed by the board and the hospitals are grouped in regions supervised by appointed regional directors.
Plaintiff is an emergency physician who has been a member of CEP since 1985. In 1987, plaintiff began serving as CEP's medical director at Sutter Medical Center in Antioch, California. In June 1999, plaintiff became a regional director, serving the four hospitals in her region, including Sutter Medical Center, where she also continued to work as an emergency physician. In November 2003, plaintiff was elected to serve on the CEP Board of Directors. In October 2004, plaintiff's appointment as a regional director was terminated. Plaintiff was not removed from the board of directors and continued to work as an emergency physician at Sutter Medical Center.
In May 2006, plaintiff filed a complaint against CEP, its president and its chief operating officer alleging causes of action for retaliation in violation of public policy, breach of contract, breach of the covenant of good faith and fair dealing, and breach of fiduciary duty. The complaint alleged that CEP removed her from her position as regional director and otherwise created a hostile working environment in retaliation for reports she made to her supervisors that "certain officers and agents of CEP" had sexually harassed female employees of CEP's management and billing subsidiaries.*fn3 By the time of trial in January 2011, the individual defendants had been dismissed and the sole remaining cause of action against CEP was for retaliation in violation of FEHA and public policy.
Prior to trial, the court ruled that if plaintiff was a bona fide partner in CEP, she did not have standing to assert a cause of action for retaliation under FEHA against CEP. Pursuant to CEP's motion, the jury trial was bifurcated so that the jury would first decide whether plaintiff was an employee or partner. The jury found that plaintiff was a partner and the court entered judgment in favor of CEP. Plaintiff filed a timely notice of appeal.
Section 12940, within the FEHA, prohibits numerous "employment practice[s]" specified in the subdivisions of the section - in general, invidious discrimination or harassment, and retaliation for complaining about such conduct. "The FEHA prohibits employment discrimination," not discrimination or retaliation in other relationships. (Shephard v. Loyola Marymount University (2002) 102 Cal.App.4th 837, 842.) "The fundamental foundation for liability is the 'existence of an employment relationship between the one who discriminates . . . and [the person] who finds himself the victim of that discrimination. . . .' [Citation.] 'If there is no proscribed employment practice,' the FEHA does not apply." (Vernon v. State of California (2004) 116 Cal.App.4th 114, 123; Mendoza v. Town of Ross (2005) 128 Cal.App.4th 625, 632.)
Under section 12940, it is an "unlawful employment practice" "[f]or any employer, labor organization, employment agency, or person to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part" (id., subd. (h)). Section 12925, subdivision (d), defines "person" for purposes of section 12940 as including partnerships.*fn4 Plaintiff argues that the plain language of section 12940, subdivision (h) prohibits partnerships from retaliating against any person, including a partner, who, as in this case, opposes or reports the sexual harassment of an employee, conduct prohibited by section 12940, subdivision (j). The trial court, relying largely on the decision in Jones v. Lodge at Torrey Pines Partnership (2008) 42 Cal.4th 1158, 1163-1164 (Torrey Pines), agreed with CEP that section 12940, subdivision (h) does not apply to retaliation by a partnership against a partner, because partners are not in an employer-employee relationship.
Torrey Pines extended the holding of the Supreme Court in Reno v. Baird (1998) 18 Cal.4th 640 that a supervisor whose conduct renders the employer liable for employment discrimination under section 12940, subdivision (a) cannot be held personally liable for the discrimination. The court reached this conclusion even though other subdivisions taken literally would impose liability on all persons responsible for the misconduct.*fn5 In Torrey Pines, the court held that the "rationale for not holding individuals personally liable for discrimination applies equally to retaliation." (Torrey Pines, supra, 42 Cal.4th at p. 1164.) The multiple reasons for not imposing liability on "nonemployer individuals" for discrimination or retaliation--although they can be held personally liable for harassment under section 12940, subdivision (j)*fn6 --were summarized succinctly in Torrey Pines as follows: "supervisors can avoid harassment but cannot avoid personnel decisions, it is incongruous to exempt small employers but to hold individual nonemployers liable,[*fn7 ] sound policy favors avoiding conflicts of interest and the chilling of effective management, corporate employment decisions are often collective, and it is bad policy to subject supervisors to the threat of a lawsuit every time they make a personnel decision." (Id. at p. 1167.)
In holding that a nonemployer individual cannot be held liable for retaliation, the court in Torrey Pines also reasoned that section 12940, subdivision (h) should not be read in isolation. "Subdivision (h) is a catchall provision aimed at prohibiting retaliation against 'any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part.' (Italics added.) The subdivision thus incorporates other unlawful employment practices defined in other parts of section 12940, and forbids retaliation against anyone opposing any such unlawful employment practice. Each of the entities to which subdivision (h) applies--employer, labor organization, employment agency, or person--is the subject of one or more other subdivisions of section 12940 defining specific unlawful employment practices. It is possible the Legislature merely wanted to use each of these terms in subdivision (h) to conform to the fact that other provisions use those terms, rather than to impose personal liability on individuals in addition to the employer itself." (Torrey Pines, supra, 42 Cal.4th at pp. 1163-1164.) In short, because a supervisor cannot be personally liable for discriminating against an employee, the fact that section 12940, subdivision (h) makes it unlawful for any "person" to retaliate for complaining of discrimination cannot be read to impose liability on "nonemployer individuals."
The trial court read Torrey Pines to have "effectively written 'person' out of the statute." Since a partnership is not the "employer" of its partners, the trial court reasoned that under the holding in Torrey Pines the partnership could not be liable to plaintiff despite the fact that the statute defines a "person" to include a partnership. We believe that the trial court read Torrey Pines too broadly. Its error arises from the fact that section 12940, subdivision (h) uses the word "person" repeatedly, with two different referents. The subdivision states that it is an unlawful employment practice for "any employer, labor organization, employment agency, or person" to engage in proscribed activity which includes discriminating against "any person because the person has opposed any practices forbidden under this part." The subdivision first prohibits a person from retaliating, and secondly states the retaliation must not be against a person who opposes discrimination or ...