ORDER DENYING REGUS'S MOTION FOR A NEW TRIAL
LARRY ALAN BURNS, District Judge.
This case went to trial and Regus lost-badly. The jury awarded Denise Steffens $296, 252 in economic damages, $850, 000 in non-economic damages, and $3.5 million in punitive damages. Now, with $4, 646, 252 on the line, Regus has filed a motion for a new trial that tries to blame its loss on legal missteps by the Court, improper statements by Steffens's counsel, and misconduct by the jury, rather than the actual testimony and arguments the jury heard. The motion is DENIED. The Court's only error in this case, apparently, was giving Regus false hope that Steffens had no case by initially entering summary judgment in its favor, a ruling that in retrospect was obviously mistaken.
I. Subject Matter Jurisdiction
Regus first argues-and argues for the first time-that this entire case is preempted under the National Labor Relations Act, and that the Court therefore lacks subject matter jurisdiction. The basis for this argument is Romero v. DirecTV, 2013 WL 453883 (Cal.Ct.App., Feb. 7, 2013). Romero, however, was decided before this case even went to trial, and Regus concedes it "is not published and not binding on this court." (Doc. No. 152-1 at 1.) 2013 WL 453883 (Cal.Ct.App., Feb. 7, 2013). Indeed it is not. The Court doesn't have to rely on these technical points to reject Regus's preemption argument, though, because it fails on the merits.
Romero dealt with so-called Garmon preemption, a reference to the Supreme Court's decision in San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236 (1959). The plaintiff in Garmon was an employer in the lumber industry. The defendant was a picketing union, interested in organizing its employees. Id. at 237. The employer sued for both injunctive relief (to stop the picketing) and damages (lost earnings, essentially), and the question before the Supreme Court was whether the National Labor Relations Act precluded a California court from finding that the picketing was an unfair labor practice and awarding the employer damages. The Supreme Court held that it did, because the picketing activity at issue was "arguably subject" to sections 7 and 8 of the Act. Id. at 245.
Section 7 of the Act establishes a sphere of protected employee activity:
Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized. 29 U.S.C. § 157.
Section 8, on the other hand, defines a number of unfair labor practices by both employers and unions. For example, it's an unfair labor practice for an employer "to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157...." 29 U.S.C. § 158. As the Supreme Court saw it, because the core claim in Garmon was that the union's picketing was an unfair labor practice, it was arguably "within the compass of section 7 or section 8 of the Act." Id. at 246. And that meant "the States as well as the federal courts must defer to the exclusive competence of the National Labor Relations Board if the danger of state interference with national policy is to be averted." Id. at 245.
Reading Garmon by itself, one would never think it's relevant here and that Steffen's claim against Regus is preempted under the NLRA. The best evidence of this is Regus's own failure to assert Garmon preemption until now, almost five years after this case was filed and after a jury verdict against it. And it's not just the substantive differences between the claims in the cases-a company alleging unfair labor practices against a picketing union in Garmon versus an individual alleging a wrongful termination against her employer here. There is more. First, section 7 of the NLRA, at least at its core, protects the collective action, or "concerted activities, " of employees, not the one-off and mostly self-interested grievance of a single employee. See N.L.R.B. v. City Disposal Sys., 465 U.S. 822, 830 (1984) ("The term concerted activity' is not defined in the Act but it clearly enough embraces the activities of employees who have joined together in order to achieve common goals."); N.L.R.B. v. Mike Yurosek & Son, Inc., 53 F.3d 261, 264 (9th Cir. 1995) ("To be engaged in concerted activity, ' an employee must act with or on behalf of other employees, and not solely by and on behalf of the... employee himself.") (internal quotations and citation omitted). Second, supervisors aren't considered employees under the NLRA, meaning their activities aren't protected by section 7. See 29 U.S.C. § 152(3). Both of these points cut strongly against the application of Garmon to this case.
This is where Romero comes in. In essence, Romero bridges the ostensible gap between Garmon and this case by finding Garmon preemption of what was basically a wrongful termination claim. The plaintiff was a supervisor with DirecTV who alleged that he was fired for complaining to upper management that technicians were being paid by the project rather than by the hour, in violation of the labor laws. The same two barriers to preemption the Court just identified in this case were present, however: (1) the NLRA protects only concerted activity; and (2) supervisors aren't "employees" under the Act. So why was the case preempted under the NLRA nonetheless?
On the concerted action point, it noted that "courts have found that an individual employee who complains to management on behalf of others may be engaged in concerted activity." 2013 WL 453883 at *3. That's true. See N.L.R.B. v. Talsol Corp., 155 F.3d 785, 796 (6th Cir. 1998) ("For an individual's complaints to constitute concerted action... they must not have been made solely on behalf of an individual employee, but they must be made on behalf of other employees or at least with the object of inducing or preparing for group action.") (internal quotations and citation omitted); Haney v. Aramark Uniform Servs, Inc., 121 Cal.App.4th 623, 635 (Cal.Ct.App. 2004). More importantly, Romero's complaint did allege concerted action under this definition. He alleged, specifically, that he complained to management on behalf of "the concerns of the production technicians, " and from this the court reasoned that "[i]t can reasonably be inferred that management was aware Romero was complaining on behalf of other employees and not himself because he was a supervisor and not one of the production technicians who was allegedly underpaid." Id. at *2. It was even part of his job description, he alleged, to do just this. Id. at *1.
Context is everything here, and in its proper context it's very clear that Steffens's complaint about meal and rest breaks wasn't concerted action in any conceivable way. Steffens "complained" about employees not receiving their meal and rest breaks not on the employees' behalf, and not to call them to action, but rather to defend herself against the charge that the Regus center she was managing was underperforming. Here's the relevant testimony:
Q: At some point, did the issue of the legality of not giving meals - lunch and rest breaks come up?
Q: Would you tell the jury how that came up?
A: When we were discussing sales and how I was going to reach my target goals, I explained that my focus on sales sometimes wasn't what I wanted it to be because I would get drawn into a lot of the operational issues in the center. And with the heavy workload in the center, I felt like we were understaffed to take care of the work for the clients. And as a result of that understaffing, my hourly employees were not able to take their rest breaks and sometimes their meal breaks....
Q: So what did you say about the legality or illegality of lunch breaks and rest breaks?
A: I told him that I thought due to the understaffing, we couldn't take - they couldn't take their meal breaks and rest breaks and that I knew it was against California law, and I wanted to bring it to his attention and see if we could do something about that. (3/19/13 Tr. at 54:11-55:11.)
In other words, Steffens raised the meal and rest break issue in the context of explaining that, in her view, understaffing at the center prevented her from doing her actual job. She didn't raise it to initiate a conversation about Regus's labor practices, or out of concern for the rights and well-being of the center's employees. While Sande Golgart, Steffens's surpervisor, denied that she ever raised meal and rest breaks, his own testimony corroborates that she complained of being spread thin at the center and unable to focus on sales work:
Q: There was a discussion about staffing and about her doing the work of her CSR's?
A: Yes. I wouldn't call it a discussion. She said she couldn't get the work done. I asked some questions about the team and the staff and directed her to call Mark Sorum. (3/20/13 Tr. at 188:15-23.)
The testimony of another witness, Shannon Jones, also confirmed that Steffens raised the meal and rest break issue in the broader context of a conversation about the center's performance and her own sense that understaffing diverted her attention away from her own responsibilities.
Q: What did you start talking about in that meeting?
A: Sure. So we started off talking in the meeting about work stations, the offices that were open, what we had coming up as far as renewals. That's what the conversation was....
Q: His discussion with Denise regarding work stations wasn't any different than discussions he was having that day with other general managers that you attended with him?
A: Same conversation....
Q: Did Denise Steffens raise the issue of understaffing with Mr. Golgart during this meeting?
A: Yes, she did.
Q: What did she say?
A: She stated that the center was understaffed, we're having turnover in the staff, the staff was not able to take breaks, the staff was not able to have meals all the time, and that the process was illegal and that - I mean, she really laid it out there. (3/19/13 Tr. at 195:19-196:24.)
Yes, Steffens did testify, "I wanted to bring [the meal and rest breaks] to his attention and see if we could do something about that." But even there, it's clear enough in context that Steffens was more concerned about the center's own performance, her own productivity, or perhaps Regus avoiding a lawsuit, than she was about the collective interests of the center employees.
Romero stresses that an individual's complaints may constitute concerted action only when they're made on behalf of other employees, or made to further some collective purpose. But the testimony here cuts against such a finding with respect to Steffens's complaints, which were motivated by her concerns about the center's own performance, her ability to do her job, and Regus avoiding a lawsuit. So, this takes care of the "concerted activities" point; the Court finds that Ms. Steffens's complaint doesn't concern "concerted activities" such that it implicates the NLRA and is preempted under Garmon. And this is assuming-a huge assumption, the Court must stress-that the Court is obligated to consider Romero, an unpublished decision from the California Court of Appeal, in the first instance.
Even if the Court were to find that Romero is authoritative, and were to find that Steffens's complaint about meal and rest breaks was "concerted" activity, it would still face the law that supervisors aren't considered employees under the NLRA. The court in Romero got around this by recognizing that "federal and state courts have found that firing a supervisor can constitute a section 8(a)(1) violation when such firing has the effect of interfering, not with the supervisor's rights, but with the section 7 rights of nonsupervisors, for example their right to seek collective redress for their mutual aid or protection." Romero, 2013 WL 453883 at *3. Those aren't even remotely the facts of this case, though. Steffens's termination didn't impact in any way the ability of Regus employees to come together to complain about not receiving meal and rest breaks. She wasn't representing them when she raised the lack of meal and rest breaks with Golgart, nor was she necessarily the person they would have rallied behind had they wanted to force the issue. The motion to dismiss for lack of subject matter jurisdiction is DENIED.
II. Jury Instructions and Verdict Form
Regus's first crack at a new trial seizes on the instructions and verdict form the jury received, which Regus argues were erroneous in a number of ways. Considering that Regus leads with these arguments in its motion for a new trial, and led with them at oral argument, the Court presumes they represent Regus's deepest grievances. Indeed, during the recent hearing on Regus's motion, counsel said, without holding back, that Regus believes fundamentally it was denied a fair trial by the allegedly hasty manner that the Court assembled and drafted the jury instructions, as well as by assorted evidentiary rulings. At that time that seemed like hyperbole, and quite frankly it still does. Several preliminary observations. First, Regus was represented in this case, and at trial, by a number of experienced lawyers, and certainly invested great resources in its defense. So, the Court is quite skeptical that Regus couldn't keep up with the Court's pacing or various rulings at trial (particularly bearing in mind that time limits for the trial had been discussed with counsel and set at the pretrial conference). Second, if Regus really believes it was denied a fair trial by the Court, it would have-or at least should have-filed a motion for a new trial that made a limited number of arguments it could truly stand behind. Regus didn't do that, though. Instead, it combed through the record (as well as the jury's deliberations to the extent it was able) and then filed a 50-page motion for a new trial that crammed as many arguments as would fit, some of which are absolute non-starters. That is not the brief of a party that sincerely believes it wasn't given a fair trial; it is the brief of a party that lost at trial and will now say or argue anything to avoid the result. Third, many of the arguments Regus makes in its motion were never made at trial. The Court has gone out of its way to consider all arguments in the motion for a new trial on their merits, but it does so very mindful that it is considering those arguments now for the first time and, in so doing, is largely overlooking the question of waiver. Fourth, the spirit of Regus's motion for a new trial on these issues is that it had some kind of right to have its instructions given to the jury and its verdict form used. This is obviously wrong. As the Court will reiterate below, jury instructions have to get the law right, but how they're arranged and styled, and how they relate to the verdict form, is largely left to the Court's discretion. The Court never gives every instruction that a party requests, or the exact verdict form it submits. With those preliminary points in mind, the Court will answer Regus's arguments in order.
A. "Substantial Motivating Reason"
The instruction the jury received on Steffens's substantive claim-wrongful termination in violation of public policy-required her to prove by a preponderance of the evidence that "Plaintiff's reports about meal and/or rest breaks were a motivating reason for her termination. A motivating reason is one that is substantial or non-trivial, even if other reasons also contributed to the decision." (Doc. No. 144 at 12.) Regus argued at trial, and argues now, that "motivating reason" isn't enough, and that Steffens's report must have been a substantial motivating reason for her termination. It makes this argument even though the CACI instruction for a wrongful discharge in violation of public policy claim requires only that the plaintiff's conduct "was a motivating reason" for her termination. See CACI 2430.
Initially, Regus relied on Horsford v. Bd. of Trs. of Cal. State Univ., 132 Cal.App.4th 359, 377 (Cal.Ct.App. 2005), which held that "[a] plaintiff's burden is... to produce evidence that, taken as a whole, permits a rational inference that intentional discrimination was a substantial motivating factor in the employer's actions toward the plaintiff." (Doc. No. 146 at 6.) But this statement in Horsford pertained to a racial discrimination claim brought under the Fair Employment and Housing Act, not a claim of wrongful termination in violation of public policy (although there was such a claim asserted in the case). Id. at 375 ("A plaintiff in a racial discrimination action has the burden of proving... that the plaintiff's race was a substantial factor in the adverse employment decision.").
During trial-and now-Regus cited Harris v. City of Santa Monica, 56 Cal.4th 203, 232 (2013), which held that "[r]equiring the plaintiff to show that discrimination was a substantial motivating factor, rather than simply a motivating factor, more effectively ensures that liability will not be imposed based on evidence of mere thoughts or passing statements unrelated to the disputed employment decision." Like Horsford, however, Harris was an FEHA discrimination case, and in fact, the holding Regus latches onto turned entirely on a rigorous analysis of the FEHA's language and purpose. Id. at 223-32.
Nonetheless, the Court effectively gave the jury the very instruction Regus asked for, and now criticizes the Court for not giving. The relevant CACI instruction defines a motivating reason as "a reason that contributed to the decision to take certain action, even though other reasons also may have contributed to the decision." See CACI 2507. The Court modified this somewhat, however, instructing that "[a] motivating reason is one that is substantial or non-trivial, even if other reasons also contributed to the decision." (Doc. No. 144 at 12.) It based this decision largely on Grant-Burton v. Covenant Care, Inc., 99 Cal.App.4th 1361 (Cal.Ct.App. 2002), which, unlike the cases cited by Regus, actually was a retaliation case; the employee-plaintiff alleged that she was fired for discussing bonus structures during a corporate meeting. (3/21/13 Tr. at 110:17-112:17.) Regus can try to argue that defining a motivating reason as "substantial or non-trivial" isn't the same thing as requiring that the reason itself be a "substantial motivating" one, but even if that's true: (1) that level of nuance is almost certainly lost on a jury; and (2) Regus still fails to offer a single wrongful termination in violation of public policy case that commands the "substantial motivating reason" language. Steffens's preferred "motivating reason" language, on the other hand, finds direct support in the CACI instruction and cases that have adopted it. See, e.g., Casella v. SouthWest Dealer Servs., Inc., 157 Cal.App.4th 1127, 1140 n.4 (Cal.Ct.App. 2007).
The Court didn't err in instructing the jury that Steffens's reports about meal and rest breaks had to have been "a motivating reason" for her termination rather than "a substantial motivating reason for her termination. Regus's request for a new trial on this ground is DENIED.
B. Regus's Intent
Regus requested that the substantive instruction on Steffens's claim require her to prove "That Regus intended to discharge Ms. Steffens because of her report that Regus violated the law by not providing hourly employees meal and rest breaks." (Doc. No. 146 at 9.) The instruction the Court gave, however, required Steffens to prove that "Defendant terminated Plaintiff in retaliation for making the reports." (Doc. No. 144 at 12.)
Once again, Regus cited to a FEHA case for its preferred language, albeit an FEHA case closer to this one because it involved a retaliation rather than a discrimination claim. See Joaquin v. City of Los Angeles, 202 Cal.App.4th 1207, 1230 (Cal.Ct.App. 2012) ("As we have noted, retaliatory intent is an essential element of a cause of action for unlawful retaliation under FEHA."). Still, even though the CACI instruction, CACI 2430, doesn't explicitly require a showing of intent, the Court accommodated Regus:
Also, the Joaquin case does suggest that it's error not to tell the jury that the retaliation was intentional. So I've modified that without using the word intentional.' I've changed the second element. I think it's the - the third element, actually, that defendant terminated plaintiff in retaliation for making reports, which conveys, of course, an intentional act that is cause-driven. (3/21/13 Tr. at 113:9-15.)
The Court stands by that ruling now. By instructing the jury that Regus's termination of Steffens had to be in retaliation for her complaints about meal and rest breaks, it was giving the very intent instruction that Regus asked for. A defendant is entitled to a jury instruction that reflects the law, but "he is not entitled to his choice of wording in the instruction." U.S. v. Iverson, 162 F.3d 1015, 1025 (9th Cir. 1998). Regus's request for a new trial because the relevant jury instruction left out the word "intended" is therefore DENIED.
C. The Verdict Form
Regus next argues that the verdict form was inadequate because it failed to require separate, individualized findings on these elements of Steffens's claim. The verdict form simply read, "Did Defendant wrongfully terminate Plaintiff in violation of public policy? Yes or no?" It then asked the jury to award economic and non-economic damages, if any. (Doc. No. 143 at 1.)
Rule 49 of the Federal Rules of Civil Procedure broadly contemplates two kinds of verdicts: general verdicts that announce a legal conclusion and special verdicts that announce findings of fact. Zhang v. American Gem Seafoods, Inc. 339 F.3d 1020, 1031 (9th Cir. 2003). The Court has broad discretion to decide which kind of verdict to ask for, and this discretion "extends to determining the content and layout of the verdict form, and any interrogatories submitted to the jury, provided the questions asked are reasonably capable of an interpretation that would allow the jury to address all factual issues essential to judgment." U.S. v. Real Property Located at 20832 Big Rock Dr., Malibu, Cal. 902655, 51 F.3d 1402, 1408 (9th Cir. 1995); see also Mateyko v. Felix, 924 F.2d 824, 827 (9th Cir. 1991). In this case, leaving the punitive damages aside, the Court asked the jury to return a general verdict on Steffens's claim and announce damages, which is a perfectly proper thing to do. See Zhang, 339 F.3d at 1031.
But even more important, as long as a jury instruction properly defines the elements of a claim-and the Court has found that its instruction properly defined the elements of Steffens's claim-it is enough for the verdict form to ask only if the claim has been proven. The verdict form Regus submitted, by contrast, took each element of Steffens's claim and asked the jury to make a special finding with respect to it. ( See Doc. No. 147.) This was simply unnecessary. At best it was superfluous, and at worst it sets up a series of forks in the jury's deliberations that prevent it from reaching a verdict. The Court stands by its explanation at trial:
I'm not inclined to parse this thing. I get these verdict forms all the time that are multi-pages. It's like an S.A.T. test. I'm not going to do that here. Once they're properly defined on the elements of the claim, I don't see the need for a special verdict beyond one that says, Do you find that they retaliated against her in terminating her?' (3/20/13 Tr. at 271: 12-18.) Given that the elements are set forth in the charge, if they don't find them, then the answer is no. (3/20/13 Tr. at 272:19-21.)
Regus's request for a new trial because the verdict was not special enough, as it were, is DENIED.
Regus also argues that the verdict form was improper because the critical question-"Did Defendant wrongfully terminate Plaintiff in violation of public policy?"-didn't line up with the jury instructions. And this is because the critical, substantive jury instruction-the same one the Court has been discussing-didn't refer to the claim by its formal name. It merely said, "Plaintiff claims she was terminated by Defendant in retaliation for reporting that hourly workers were not receiving meal and rest breaks as required by California law. To establish this claim...." (Doc. No. 144 at 12.) It didn't say "Plaintiff claims she was wrongfully terminated in violation of public policy. Here are the elements of that claim...." Regus claims this invited the jury to "decide the case based on their own belief as to the meaning of wrongfully terminate, ' which could have been simply a belief that the termination was wrong' in their eyes, regardless of whether it was unlawful." (Doc. No. 153 at 16.)
The Court disagrees. In the context of the entire trial, and looking at the jury instructions as a whole, it was made adequately clear to the jury that the only claim in this case was a claim alleging a wrongful termination in violation of public policy, and that the instruction at issue defined the elements of that claim. See U.S. v. Doe, 705 F.3d 1134, 1148 (9th Cir. 2013) ("Taking the instructions as a whole, and presuming, as we must, that the jurors followed the instructions as given...."); Swinton v. Potomac Corp., 270 F.3d 794, 802 (9th Cir. 2001) ("In evaluating jury instructions, prejudicial error results when, looking to the instructions as a whole, the substance of the applicable law was [not] fairly and correctly covered."). In fact, in further instructions the Court did reference the claim by its official terms. In explaining that Steffens was an at-will employee, the Court said, "However, at-will employees may not be terminated for reasons that violate public policy such as reporting violations of the law. That's against the law to do that." (3/21/13 Tr. at 169:7-9.) In instructing on damages, the Court said, "If you find that the defendant terminated the plaintiff in violation of public policy and is entitled to lost earnings, then you should ask yourselves the following questions...." (3/21/13 Tr. at 170:19-24.) And when the Court finally submitted the case to the jury, it identified the first question on the verdict form as "a preliminary determination of whether the plaintiff's proved her case, " a clear reference to the instruction. Even in their respective closing arguments, counsel for Steffens and Regus impliedly connected the formal claim at issue to the substantive instruction setting forth its elements. ( See, e.g., 3/21/13 Tr. at 192:7, 204:5-23, 210:18, and 211:20.) Regus's request for a new trial because a particular jury instruction didn't explicitly repeat that Steffens's claim was for a "wrongful termination in violation of public policy" claim is DENIED.
D. Meal and Rest Break Instruction
Steffens and Regus agree, and the Court agrees, that Steffens's wrongful termination claim didn't require her to prove that Regus was actually failing to give its employees meal and rest breaks. She needed to prove only that she had a good faith basis for believing it wasn't when she allegedly reported as much to Golgart. This is the law behind the Court's instruction that "Plaintiff must prove the following.... Plaintiff had a reasonably based suspicion that Defendant was denying its hourly workers meal and/or rest breaks in violation of California law, and she reported this to Defendant." (Doc. No. 144 at 12.) At trial, Regus also wanted an instruction that laid out the basics of California's meal and rest break law, and the Court refused to give it. ( See 3/20/13 Tr. at 270:6-271:2.) Regus now argues that this was error, its theory being that the jury had to know what the law required in order to decide whether Steffens's had a reasonably based suspicion that Regus was violating it.
This isn't a frivolous argument, but the Court still rejects it. First, Regus cites no authority for the proposition that in a case of this kind the jury must be given a miniature lesson in the underlying law pertaining to the plaintiff's reports or complaints. Second, the Court doesn't believe that it's critical to the question whether Steffens reported the meal and rest break violations in good faith that the jury be instructed on the relevant, underlying law. In fact, it may serve to only confuse their deliberations by suggesting that a plaintiff has to actually show that a defendant was engaged in unlawful conduct, in effect turning a wrongful termination case into a true meal and rest break case. The Court stands by its refusal to instruct the jury on the substance of California's meal and rest break law, and it DENIES Regus a new trial on this ground.
Regus accuses the Court of not properly instructing the jury that Steffens's damages, if any, had to have been caused by her allegedly wrongful termination. This is baseless. In defining the elements of Steffens's wrongful termination claim, the Court said that Steffens had to prove she "suffered damages as a result of her termination." (Doc. No. 144 at 12.) The very next instruction, pertaining to damages, said, "The economic damages in this case are the lost earnings incurred by Plaintiff as a result of Defendant's alleged conduct." (Doc. No. 144 at 14.) As for non-economic damages, the Court said, "It is entirely up to you, based on the evidence you have heard and your own common sense, to determine an amount that is fair compensation for the injuries Plaintiff alleges." (Doc. No. 144 at 15.) Implicit in these instructions, if not explicit-"as a result" does, after all, mean "caused by"-was that Steffens is entitled to damages only for injuries that were actually caused by Regus's alleged misconduct, itself clearly defined for the jury as terminating Steffens for her reports about employees not being given meal and rest breaks. And given those instructions, as the Court has said previously, there was no need for the verdict form to reiterate the obvious.
The Court understands Regus to be suggesting that the language "as a result of her termination" in the claim instruction wasn't clear that the termination actually had to be wrongful, and that the language "as a result of Defendant's alleged conduct" in the damages instruction" wasn't clear what the alleged conduct was. "As a result, " Regus claims, "the jury was not instructed to calculate only the damages for the harm that was caused by Regus's wrongful conduct." (Doc. No. 153 at 10.) Here is how the Court translates that: the Court allowed for the jury to find against Regus not because it did anything wrong, but simply because someone had to compensate Steffens for the financial and emotional fallout of losing her job. That is preposterous. Nevermind that the actual instructions were plenty clear that this is a wrongful termination case and that any damages the jury awarded had to have been caused by such a termination, it would have been an outright insult to the jury's intelligence to further admonish it that its job wasn't to make Steffens whole irrespective of any misconduct on Regus's part. This was, after all, an adversarial civil trial in a court of law, with one party named the "Plaintiff" and another labeled the "Defendant."
As for the verdict form, the Court need only return to Mateyko, cited above, and make clear that its discretion "extends to determining the form of the special verdict, provided the questions asked are adequate to obtain a jury determination of the factual issues essential to judgment." 924 F.2d at 827. The form first asked, "Did Defendant wrongfully terminate Plaintiff, " and only if it answered that question in the affirmative was the jury instructed to consider damages: "If you answered no, ' stop. Date and sign this form. If you answered yes, ' go on to the next question." (Doc. No. 143 at 1.) The clear message here was that Regus was responsible only for those damages caused by a wrongful termination, itself adequately defined by the Court in the substantive instructions. Regus's motion for a new trial on this issue is DENIED.
F. Same Decision Defense
At trial, Regus wanted the following instruction, essentially telling the jury that Steffens could not recover if Regus could show it would have fired her anyway for some other reason, independent of her report and meal and rest breaks:
If Denise Steffens proves that a substantial motivating factor in Regus's decision to discharge Denise Steffens was making a report that Regus violated the law by not providing meal and rest breaks to employees, Denise Steffens may not recover any damages if Regus proves that Regus would have made the same decision to discharge Denise Steffens even if Denise Steffens had not made the report. (Doc. No. 130 at 3.)
Regus's request was based on Harris, which the Court has already explained isn't controlling here because it involved a discrimination claim brought under the FEHA. This case, by contrast, involves a claim for wrongful termination in violation of public policy-a common law tort-premised on retaliation. Because of that difference, and in line with Steffens's objection, the Court was initially conflicted on whether to give the Harris instruction Regus requested or one similar to it. It heard extensive argument on this point, with Regus arguing that Harris applies and Steffens arguing that CACI instruction 2430 is all the law there really is. ( See 3/20/13 Tr. at 243:7-259:10.) In the end, leaning not on Harris but other retaliation cases in California, the Court gave what was essentially a Harris instruction.
The instruction was as follows:
If you find that Plaintiff's reports about meal and/or rest breaks were a motivating reason for her termination, then the burden of proof shifts to Defendant to establish, also by a preponderance of the evidence, that it would have made the same decision even if it had not taken into account the invalid motivating reason. In other words, Defendant must prove that it would have terminated Plaintiff regardless of the retaliatory reason.
If you find that Defendant terminated Plaintiff for both valid and invalid reasons, Defendant would not be liable for wrongful termination if it proves that it would have terminated Plaintiff regardless of the invalid reasons. (Doc. No. 144 at 12-13; see also 3/21/13 Tr. at 110:15-113:8.)
Regus now takes the position that this wasn't good enough. First, it used the words "a motivating reason" rather than "a substantial motivating reason." Second, the Court didn't define "liable for wrongful termination" in a way that tied it to the elements of Steffens's claim. Third, it didn't define the terms "valid" and "invalid." Related to this, it didn't clarify for the jury that merely disagreeing with Regus's decision to terminate Steffens wasn't grounds for finding against it. And fourth, the verdict form asked only if Regus wrongfully terminated Steffens without defining "wrongfully terminate" or asking if Regus would have reached the same decision for other, lawful reason. The Court addressed the first of these complaints above; it was enough to modify CACI 2430 and define "a motivating reason" as "one that is substantial or non-trivial."
The next argument, that the instruction "Defendant would not be liable for wrongful termination if it proves that it would have terminated Plaintiff regardless" was problematic, and runs into the same problem as Regus's grievances with the verdict form addressed above in section C. It is true that the lead-in to the instruction on Steffens's substantive claim was "Plaintiff claims she was terminated in retaliation for reporting that hourly workers were not receiving meal and/or rest breaks as required by California law" rather than "Plaintiff claims she was wrongfully terminated...." (Doc. No. 144 at 12.) But the jury well knew, from the opening of this case through the presentation of evidence and closing arguments, that Steffens's claim was a wrongful termination claim. And the instruction itself was as clear as it needed to be that the five elements Steffens had to prove were the elements of a wrongful termination claim. So, when the Court read the final line of the instruction, notwithstanding Regus's argument that the word "liable" requires further definition, it was plenty clear to the jury what it intended to say: Even if Steffens proved the five elements of her claim, she still loses if Regus can prove it would have fired her for some other, independent reason. Now, the Court could have actually said, "Steffens still loses, " just like it could have said "Defendant wins, " or "Steffens's claim fails, " or "Steffens cannot recover, " or "You must find for the Defendant, " or, or any number of things. They are all synonymous, though, with what the Court did choose to say: "Defendant would not be liable for wrongful termination."
Regus argues that the Court's use of "valid" and "invalid" to describe motivating reasons for Steffens's termination was improper because the terms are not a proper legal standard and were undefined anyway. It is wrong on both counts. The court in Davis -which Regus cited, by the way, in arguing for a same decision instruction-used "valid" and "invalid" to differentiate legally permissible grounds for a termination: "Similarly, where an employee has been discharged for both a valid reason (wrongful conduct) and an invalid reason (engaging in protected activity), the courts will not grant a remedy if the same decision would have been made for the valid reason." Davis, 152 Cal.App.4th at 1136. True, it defined them briefly in parentheticals, but Regus can't seriously insist that in context their meaning wasn't clear to the jury here. The Court said, "If you find that Plaintiff's reports about meal and/or rest breaks were a motivating reason for her termination, then the burden of proof shifts to Defendant to establish, also by a preponderance of evidence, that it would have made the same decision even if it had not taken into account the invalid motivating reason." The words "the invalid motivating reason" in that sentence are obviously a reference back to "Plaintiff's reports about meal and/or rest breaks." And because Steffens alleged no other improper basis for her termination-her retaliation for whistleblowing and age discrimination claims didn't make it to trial-a "valid" reason was obviously any reason other than her reports about meal and rest breaks. The Court didn't need to spell this out in any greater detail for the jury.
Up next is Regus's grievance that the Court deprived it of a "business judgment" instruction that would have explicitly told the jury it wasn't to judge the general wisdom or fairness of Steffens's termination. In fact, Regus submitted a full-page instruction titled "At Will Employment and Business Judgment Rule, " and the Court gave a modified portion of it: "In this case, Defendant employed Plaintiff at-will.' At-will employees may be terminated for any lawful reason, or for no reason at all. However, at-will employees may not be terminated for a reason that violates public policy, such as reporting violations of the law." ( See Doc. No. 146 at 7; Doc. No. 144 at 12.) In the context of the entire instruction, this communicated exactly what a "business judgment" instruction would have communicated, namely that the jury was to find for Steffens only if it believed Regus terminated her because of her reports about meal and rest breaks and for no other reason. And counsel for Regus hammered this very point in closing argument, telling the jury, "Even if you disagree with how we conduct our business, if it has nothing to do with somebody complaining about a violation of law, then Mr. Stormer can sit up here all day and talk about profits and profits and profits." (3/21/13 Tr. at 211:8-11; see also 3/21/13 Tr. at 21-23 ("And because we may not agree with the decision, because we think, Well, it could have been done in a different way, ' does not make it a public policy termination.").) Finally, Regus is right that courts have found reversible error in the refusal to give a "business judgment" instruction, even where an instruction about at-will employment was given, see Veronese v. Lucasfilm Ltd., 212 Cal.App.4th 1, 20-24 (Cal.Ct.App. 2012), but the Court rejects the suggestion here that the totality of the instructions given didn't make plain for the jury that its only task was to determine whether Steffens's termination was unlawful, as opposed to wise, or mistaken, or cosmically unfair. Indeed, the court in Veronese reached its decision in part because the absence of a "business judgment" instruction wasn't mitigated by any other instruction, a finding that can't be made in this case.
Finally, Regus objects that the verdict form didn't have a "same defense" question-that is, it didn't ask the jury specifically whether Regus would have terminated Steffens anyway for some reason unrelated to her alleged reports about meal and rest breaks. Again, because the actual claim instruction contained a "same defense" instruction, there was no need to ask a "same defense" question on the verdict form itself. The jury well knew that if it found Regus would have fired Steffens anyway for reasons having nothing to do with reports ...