Harris v. City of Santa Monica, 181 Cal. App. 4th 1094 (2010)

During her six-month tenure as a bus driver for the City of Santa Monica, Wynona Harris had two preventable traffic accidents and two “miss-outs” (tardies or unexcused absences). The city decided to terminate Harris (who was still a probationary driver) before she had informed her supervisor she was pregnant, but it did not communicate the decision to Harris until four days later. Harris sued for pregnancy discrimination under the Fair Employment and Housing Act. At trial, the city requested that the court instruct the jury on the city’s “mixed motive” defense, relying upon BAJI No. 12.26, which provides that the employer must establish that a “legitimate reason was present [for the employment decision], and standing alone, [it] would have induced the employer to make the same decision.” The court refused to give the city’s requested instruction, and the jury awarded Harris $178,000 in damages. The Court of Appeal reversed the judgment, holding that the jury instruction the trial court did give (CACI No. 2500) was deficient because it permitted Harris to prevail by showing her pregnancy led to her termination, even if other factors contributed to it. See also Wells v. CIR, T.C. Memo. 2010-5, 2010 WL 23333 (2010) (payment received for alleged emotional distress in settlement of sex discrimination and retaliation claims was not excludable from income).