The plaintiff must prove her pregnancy was a “substantial motivating reason” for her termination, not merely a “motivating reason,” the California Court of Appeal has ruled, reversing a jury verdict in favor of the employee in a pregnancy discrimination case under the California Fair Employment Housing and Employment Act (FEHA). Alamo v. Practice Management Information Corp., No. B230909 (Cal. Ct. App. Sept. 5, 2013). In addition, the Court held the employer was not entitled to an instruction that it would have taken the same employment action regardless of the employee’s pregnancy, the “mixed motive” defense, because it failed to plead that defense in its answer.

The Court made its decision in accordance with the California Supreme Court’s ruling in  Harris v. City of Santa Monica, 56 Cal. 4th 203 (Cal. 2013), which placed a high burden on plaintiffs claiming unlawful employment discrimination. The California Supreme Court held that to prevail in a mixed motive employment discrimination action under the FEHA, the plaintiff must show that unlawful discrimination was a substantial factor motivating the adverse employment decision. However, if the employer proves it would have made the same decision absent such discrimination, it can limit its liability. A court may not award damages, back pay or order reinstatement, but the employee may be entitled to declaratory and injunctive relief, as well as attorney’s fees and costs. (For additional information regarding Harris, please see California Supreme Court Requires Discrimination as Substantial Motivating Factor in Mixed Motive Cases, Limits Damages Available to Employees.)

Background

Lorena Alamo worked for Practice Management Information Corp. (“PMIC”) as a clerk in its collections department and primarily was responsible for billing and collecting payments from PMIC’s customers. Alamo’s direct supervisor was Michelle Cuevas.

In 2009, before Alamo went on a pregnancy-related leave of absence, Cuevas had some concerns about Alamo’s performance, although she did not consider any of them serious enough to warrant formal discipline. During Alamo’s leave of absence, however, Cuevas became aware of other performance problems that she considered more troubling, including Alamo’s failure to address outstanding accounts receivable for customers with large unpaid balances. Consequently, Cuevas terminated Alamo at the end of Alamo’s leave.

Alamo subsequently sued PMIC for pregnancy discrimination under the FEHA. The trial court instructed the jury that Alamo had to prove her pregnancy or taking pregnancy-related leave was “a motivating reason” or “a motivating factor” for her termination. It also refused to instruct the jury regarding the mixed motive defense because PMIC failed to raise the defense in its answer. The jury returned a $10,000 verdict in favor of Alamo, and the court awarded Alamo’s counsel $50,858.44 in attorney’s fees. PMIC appealed.

The Court of Appeal initially affirmed the judgment, and PMIC filed a petition for review with the Supreme Court. After granting the petition for review and deciding a related issue in Harris, the Supreme Court directed the Court of Appeal to vacate the earlier decision and to reconsider the case in light of Harris.

Substantial Motivating Factor Required

Applying Harris, the Court of Appeal ruled the trial court erred by giving instructions requiring Alamo to prove pregnancy was a “motivating factor” in her termination, rather than a “substantial motivating factor.” The Court rejected Alamo’s contention that a jury in an employment discrimination case would not draw any meaningful distinction between the two standards in deciding whether there was unlawful discrimination. It found 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.” In remanding the case to the trial court, while it refused to opine on the amount of evidence necessary to establish a claim, the Court directed the lower court to instruct the jury to determine whether discrimination was a substantial motivating factor in PMIC’s decision.

Mixed Motive Defense Waived

Turning to the mixed motive defense, the Court found the trial court correctly declined to instruct the jury that PMIC could limit its liability by proving it would have made the same discharge decision in the absence of a discriminatory or retaliatory motive. PMIC never raised the defense affirmatively in its answer. As a result, under Harris, PMIC waived the defense.