S065473




IN THE SUPREME COURT


STATE OF CALIFORNIA





KIMBERLY RENO,

Plaintiff

and Respondent,



vs.

MARIJO BAIRD,



Defendant and

Petitioner.



______________________________





FOLLOWING GRANT OF REVIEW OF DECISION BY

THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT, DIVISION TWO (Civil No. A075578)

____________________________________________________________





REQUEST BY CALIFORNIA EMPLOYMENT LAWYERS ASSOCIATION

FOR PERMISSION TO FILE AMICUS CURIAE BRIEF AND

AMICUS CURIAE BRIEF IN SUPPORT OF PLAINTIFF

AND RESPONDENT KIMBERLY RENO

____________________________________________






JOSEPH POSNER, INC.

(SB 62428)

16311 Ventura Blvd., Ste. 555

Encino, California 91436

(818) 990-1340



Attorney for California Employment Lawyers Association



S065473





IN THE SUPREME COURT


STATE OF CALIFORNIA

 







KIMBERLY RENO,



Plaintiff

and Respondent,



vs.

MARIJO BAIRD,



Defendant and

Petitioner.



______________________________





FOLLOWING GRANT OF REVIEW OF DECISION BY

THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT, DIVISION TWO (Civil No. A075578)

____________________________________________________________





REQUEST BY CALIFORNIA EMPLOYMENT LAWYERS ASSOCIATION

FOR PERMISSION TO FILE AMICUS CURIAE BRIEF

IN SUPPORT OF PLAINTIFF

AND RESPONDENT KIMBERLY RENO

____________________________________________





TO THE CHIEF JUSTICE OF CALIFORNIA AND THE ASSOCIATE JUSTICES OF THE SUPREME COURT:

The California Employment Lawyers Association (CELA) requests permission to file a brief as amicus curiae in support of plaintiff and respondent Kimberly Reno. CELA is a statewide organization of attorneys primarily representing plaintiffs in employment termination and discrimination cases.

CELA, through its undersigned attorneys, is familiar with the questions involved in this case and the scope of their presentation and believes that there is necessity for additional argument on the following points:

- The distinctions between a discriminator, a harasser and a retaliator are more artificial than real. In the real world, the actions of those who violate the Fair Employment & Housing Act (FEHA) do not fit neatly into categories such that liability should be assessed against some categories but not others;

- Enforcing individual liability is absolutely necessary to make perpetrators take responsibility for their actions. In this way, those who intend to violate the FEHA may be deterred from doing so;

- Contrary to the arguments of the defense, many federal courts have allowed the imposition of individual liability in order to promote obedience to the law.

If this request is granted, the following brief in support of plaintiff and respondent is respectfully submitted.



Respectfully submitted,



JOSEPH POSNER, INC.





By___________________________

JOSEPH POSNER,

Attorneys for California Employment

Lawyers Association, Amicus Curiae

S065473












IN THE SUPREME COURT


STATE OF CALIFORNIA






KIMBERLY RENO,

Plaintiff

and Respondent,


vs.

MARIJO BAIRD,



Defendant and

Petitioner.



______________________________





FOLLOWING GRANT OF REVIEW OF DECISION BY

THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT, DIVISION TWO (Civil No. A075578)

____________________________________________________________



AMICUS CURIAE BRIEF BY CALIFORNIA EMPLOYMENT

LAWYERS ASSOCIATION IN SUPPORT OF PLAINTIFF

AND RESPONDENT KIMBERLY RENO

____________________________________________





TO THE CHIEF JUSTICE OF CALIFORNIA AND ASSOCIATE JUSTICES OF THE CALIFORNIA SUPREME COURT:



INTRODUCTION

Letting a tortfeasor who violates one of the most important laws of this state escape liability will undermine California's well-established public policy of enforcing the anti-discrimination laws to the fullest. Making those who commit tortious acts in violation of the FEHA responsible for their actions will promote respect for the law and may cause those individuals to think twice before they take adverse actions against their subordinates. In this way, the important public policy goals of the FEHA will be enhanced.



ARGUMENT

1. WHAT HAPPENS IN THE REAL WORLD OF WORK DOES NOT FIT INTO CONVENIENT LITTLE CATEGORIES. THE DISTINCTIONS BETWEEN THE DIFFERENT TYPES OF FEHA VIOLATIONS ARE USUALLY AFTER-THE-FACT INVENTIONS OF THE DEFENSE.

Defendants like to put FEHA cases in neat little boxes. But in the real world, there are no neat little boxes. In the real world, the perpetrator does not get up one morning and say, "Today I am going to harass Jane." He doesn't get up the next day and say, "Today I am going to retaliate against Jane." Nor on the third day does he rise from sleep and decide that on that day, he is going to discriminate against Jane. Real perpetrators just go about doing what they do in a random pattern with absolutely no thought of what aspect of the law they are violating (if indeed the subject ever crosses their minds).

Pattern, in fact, is too strong a word; sporadic is a better description for what really happens in most workplaces. Perpetrators, for example, may commit a wrongful act on one day, do nothing for a week and a half, do something else then, lay off for awhile, mount a new attack and so forth in on-again-off-again bursts of activity.

Therefore, the little legal pigeon holes of which defendants are so fond, i.e., discrimination, harassment, retaliation and the like, come nowhere near being adequate to describe what really goes on. A perpetrator doesn't think in those terms and doesn't act in those terms.

Nor, for that matter, does a plaintiff. A plaintiff who has been victimized by a perpetrator does not sit down and categorize the conduct into the little legal boxes so beloved of defense counsel. All the plaintiff knows is that she is suffering a continuing series of adverse actions, and she usually has no idea, if she thinks about the subject at all, into what legal categories those actions may fall.

An excellent example of the way things really happen is Sada v. Robert F. Kennedy Medical Center, 56 Cal. App. 4th 138 (1997). Plaintiff Rosalva Sada, light-complexioned, blond hair and unaccented English-speaking, was born in Mexico and migrated to the United States, where she became a citizen and a registered nurse. She is fluent in Spanish.

RFK Medical Center, like many other hospitals, relies in part on nurse registries to provide temporary assistance with staffing needs. Full time RFK nurses supervise registry nurses. In December, 1993 a registry sent Sada to work for RFK as a temporary, independent contractor. She stayed until July 28, 1994, working five to eight days per month. She received many compliments on her work, including at least twelve written evaluations by charge nurses. 56 Cal. App. 4th at 145.

One day a Hispanic patient told Sada that he was unable to communicate his pain to the nursing staff because no one on a certain shift spoke Spanish. Sada relayed his complaint to Patricia Brendia, director of the unit, who replied, "Hispanics spend 20 to 30 years in this country and do not bother to learn English, but they sure can find those public offices where they can get food stamps and all kinds of public assistance." Brendia said almost the same thing to Carol Haley, a certified nursing assistant, in the same time period. Ibid.

In May, 1994, Sada applied for a full time job at RFK in the same unit where she had been working. Several positions were open and on June 6, 1994 Brendia interviewed Sada. Brendia spoke favorably of Sada's performance and complimented her ability to complete assignments. Brendia asked Sada where she came from, and Sada replied Mexico. Twice Brendia replied, "I never would have known," and then asked Sada why she didn't have an accent. Sada explained that she had attended a Catholic school where English was required and some of the teachers were American. When Brendia asked about Sada's work experience during the 1990-1991 time frame, Sada said that she had been working at hospitals in Texas, where she had begun her nursing career, and commuting to her home in Mexico. Brendia stared for a little while and then said, "Well, why don't you just go back to Mexico and work there?" Sada said that she did not want to work in Mexico but Brendia interrupted: "We're going to have to end this." Brendia said Sada was not eligible for the job. The hospital hired five other people to fill the positions. 56 Cal. App. 4th at 145-146.

When Sada called Brendia the next day to explain why she had been living in Mexico and working in the United States, Brendia said she was too busy to discuss the matter. Sada asked if she needed to fill out another job application to apply for other nurse positions, Brendia answered, "There are no openings." Sada then called the hospital's job line and learned that there were numerous openings on the nursing staff. 56 Cal. App. 4th at 146.

Although RFK did not hire Sada as an employee, it continued to use her as an independent contractor through the registry. On July 20, 1994 Sada complained to the Department of Fair Employment & Housing (DFEH) of the medical center's failure to hire her as an employee because of her national origin and ancestry. She did not file a formal charge but asked the DFEH to resolve the problem informally. On July 22, 1994, DFEH investigator Robert Hammock telephoned Louis Gregorio at the medical center's human resources department to ask why Sada did not get a job offer. Gregorio in turn asked Brendia the same question, and she said that Sada wasn't qualified. Ibid.

Two days later Brendia told Pat Heasley to re-evaluate Sada's job performance, which Heasley did on July 28, 1994. Heasley and Sada weren't strangers; in late April, 1994 Sada had reported Heasley to a doctor for improperly stopping the feeding of and failing to perform a test on the doctor's patient. The doctor had Heasley written up to document the errors. Thus it was no surprise that Heasley documented supposed deficiencies in Sada's performance. Brendia sent the evaluation to Sada's registry on July 29, 1994 with a "Do not send" letter which had the effect of terminating Sada's work at RFK - all without giving Sada a chance to explain or refute the deficiencies supposedly found by Heasley. On August 3, 1994 Sada wrote a rebuttal letter to RFK, to no avail.

Sada filed formal charges with the DFEH and then a lawsuit charging the medical center and Brendia with violations of the Fair Employment & Housing Act (FEHA), Govt. C. Sec. 12900 et seq. In response to the lawsuit, Brendia told a coworker in late 1994, "Those Mexicans. Sada better drop her lawsuit. We are going to send all their asses back to Mexico." 56 Cal. App. 4th at 144-147.

The trial court granted summary judgment but the Court of Appeal reversed, finding sufficient evidence both of basic discrimination in hiring and retaliation. The court could have easily found harassment as well. Sada illustrates the complexity of real world situations and the futility of separating FEHA violations into meaningless distinctions.

For other, similar examples of the mix-and-match which real people encounter, see Roberts v. Ford Aerospace, 224 Cal. App. 3d 793 (1990) and Hashimoto v. Dalton, 118 F.3d 671 (9th Cir. 1997).

The so-called distinctions, therefore, between the various types of FEHA violations which defendants love to draw are just that - drawings. They have as much relation to reality as a six-year-old child's crayon masterpiece. A violation of the FEHA is a violation of the law, pure and simple. Those who violate the FEHA should be held accountable for their actions.



2. LETTING INDIVIDUAL TORTFEASORS OFF THE HOOK WOULD PROMOTE PERSONAL IRRESPONSIBILITY AND DISRESPECT FOR THE LAW.

Imagine, for a moment, the absurdity which would result from letting intentional violators of the FEHA go scot free. Let us look in on a fictional workplace:

Scene 1: 4:45 PM, sales management office, Behemoth Industries.

Fred Finagle, vice president of sales, sighed as the last of his middle managers left the office after the monthly sales meeting. Turning to his assistant, Ken Kissup, he said, "I told you it was a bad idea to put Polly Plaintiff in charge of the Midwest area. That's not a job for a woman. I'm going to get rid of that bigmouthed broad in the next thirty days." "Wait," said Ken; "Aren't you afraid of getting sued for sex discrimination?" "No," replied Fred. "I just read this memo from our lawyers that said that individuals can't be sued for discrimination any more, only the company. So I can do whatever I damn well please, and if there's a bill, the company pays it, not me!"

Scene 2: Fifteen minutes later, Fred's office. Ken sticks his head back in.

"Come on, Fred - let's go over to the TGIF hour at Sam's Saloon with the rest of the guys. I brought your company car around front so we can hop in," said Ken. "Are you kidding!?," shouted Fred. "Don't you know what happened to Rick Reckless last month? He got so loaded at TGIF that he smashed his company car into somebody else. Now both he and the company are going to have to pay big bucks to the people that he hit. Forget that; I'm not drinking and driving - that could cost me big time!"

If this example makes the reader do a double take, don't feel alone. If Civil Code Section 1714 means what it says - i.e., everyone is responsible for the result of his or her willful or negligent acts, regardless of who else might be liable - there is something inherently illogical in exempting individuals from liability for violation of the Fair Employment & Housing Act, Govt. Code Section 12900 et seq., while holding those individuals personally liable if they weren't paying attention and injured someone while driving. After all, isn't discrimination, which in most cases is intentional, higher on the scale of moral blame than negligence? As a matter of social policy does it make any sense to exempt an individual who commits an intentional tortious act from personal responsibility while holding that same individual liable if he or she fails to use due care?

For many years California has recognized and encouraged the doctrine of joint and several liability. American Motorcycle Assoc. v. Superior Court, 20 Cal. 3d 578 (1978) reaffirmed the commitment to this basic principle:

"First, we conclude that our adoption of comparative negligence to ameliorate the inequitable consequences of the contributory negligence rule does not warrant the abolition or contraction of the established 'joint and several liability' doctrine; each tortfeasor whose negligence is a proximate cause of an indivisible injury remains individually liable for all compensable damages attributable to that injury."

20 Cal. 3d at 582, emphasis added.

Individual liability flows inevitably from Civil Code Section 1714, 20 Cal. 3d at 586. A tortfeasor may not escape his responsibility simply because another act or another person might also have been a cause of the injury.

The principle that each tortfeasor is responsible individually for his or her own conduct (whether or not a corporate defendant is also responsible through the imposition of vicarious or other liability) was reiterated by Mesler v. Bragg Management Co., 39 Cal. 3d 290 (1985), emphasizing that both an agent and a principal were jointly and severally liable for any torts committed by the agent, 39 Cal. 3d at 303-305.

Many cases have held an individual agent liable for tortious conduct regardless of whether the principal is held liable as well. See Ach v. Finkelstein, 264 Cal. App. 3d 667, 677 (1968), holding an agent co-liable with the principal; Hobbs v. Bateman Eichler, 164 Cal. App. 3d 174 (1985), holding an individual stockbroker liable for fraud along with the stock brokerage which employed him; Jahn v. Brickey, 168 Cal. App. 3d 399 (1985), in which the liability both of a principal and an agent for fraud was upheld; Agarwal v. Johnson, 25 Cal. 3d 932 (1979), company and individuals liable for defamation; and Civil Code Section 2343(3), which states in pertinent part that when one acts as an agent, he is responsible to third persons for any acts committed in the course of his agency when his acts are wrongful in their nature.

Witkin, Summary of California Law, 9th Ed., Agency and Employment, Section 149 agrees:

"An agent or employee is always liable for his own torts, whether the principal is liable or not, and in spite of the fact that the agent acts in accordance with the principal's directions. (C.C. 2343(3); Perkins v. Blauth (1912) 163 C.782, 787, 127 P. 50; Bayuk v. Edson (1965) 236 C.A.2d 309, 320, 46 C.R. 49, supra, 141; see Seavey 129 et seq.; Rest.2d, Agency 343, 344 et seq., and Appendix, Rep. Notes, pp. 561, 562.) (On liability and privilege of public employee, see Torts; on liability for misrepresentation of authority, see Rest.2d Agency 330.)

"Similarly, an agent who commits an independent tort, such as fraud, remains liable despite the fact that the principal, by ratification, also becomes liable. (Hanson v. California Bank (1936) 17 C.A.2d 80, 102, 61 P.2d 794; Rest.2d, Agency 360; see Crawford v. Nastos (1960) 182 C.A.2d 659, 665, 6 C.R. 425 [defendant real estate broker negotiated sale of ranch, fraudulently representing water supply]; Lingsch v. Savage (1963) 213 C.A.2d 729, 736, 29 C.R. 201 [real estate broker's liability to purchaser for fraudulent concealment of defects in property]; 8 A.L.R.3d 550 [same].)"

Ibid., pp. 144-145.

In Vacco Industries v. Van Den Berg, 5 Cal. App. 4th 34 (1992), Vacco sued Van Den Berg and Eastlack, two of its former employees, and the company which both of them acquired, Kamer Solenoid, Inc. for misappropriating trade secrets about which Van Den Berg and Eastlack had learned during their former employment at Vacco, among other things. The jury found in favor of Vacco, and defendants appealed. The Court of Appeal affirmed, holding that Van Den Berg and Eastlack were liable as individuals, even though they were acting on behalf of Kamer:

"Van Den Berg and Eastlack argue that whatever the liability of Kamer, they can have no liability as individuals for the misappropriation of plaintiffs' trade secrets. They claim that they simply acted as the officers of their corporate principal. However, this argument confuses the concept of alter ego, which imposes liability of a sham corporation on its controlling or managing shareholders, with the principle which is applicable here. Van Den Berg and Eastlack, as employees and agents of Kamer, are jointly liable for torts committed in the corporate name. (2 Witkin, Summary of California Law (9th Ed. 1987) Agency and Employment, 149, pp. 144-145.) Thus, even assuming that they acted only as agents, they would still have individual liability; and, of course, Van Den Berg has personal liability for his breach of the noncompetition agreement."

5 Cal. App. 4th at 53, fn. 20, emphasis added.

In the employment context, both agents and principals are liable for relocation misrepresentations. Labor Code Section 970 states, "No person or agent or officer thereof" shall make misrepresentations to prospective employees. Section 971 refers to "any person or agent or officer thereof" concerning a violation of Section 970. Section 972 imposes civil liability on "any person or agent or officer thereof who violates any provision of Section 970". See also Mone v. Dranow, 945 F.2d 306, (9th Cir. Sept. 26, 1991), holding that under California corporate law and federal common law, corporate officers are personally liable for their torts even if the torts were committed on behalf of the corporation. Here, Dranow, the president and chief officer of Sawyer of Napa, Inc., obtained a credit report on an ex-employee wrongfully.

What kind of message would we be sending if we let individual perpetrators off the hook? Civil Code Section 1714 has a long history. Under Vacco Industries and the other cited cases, an intentional violator of the FEHA should be just as liable as the individual who misrepresents or who embezzles or who defames or who invades the privacy of another. To hold any less is to promote personal irresponsibility and disrespect for the law.



3. MANY FEDERAL COURTS HAVE ALLOWED THE IMPOSITION OF INDIVIDUAL LIABILITY IN ORDER TO MOTIVATE INDIVIDUAL SUPERVISORS TO OBEY THE LAW.

Contrary to what defendant Baird says, many federal courts have come to the conclusion that imposition of personal liability will promote obedience of the law. Baird relies on Miller v. Maxwell, 991 F.2d 583 (9th Cir. 1993). In a split decision, Miller held that the definition of "employer" under federal law -- Title VII -- did not include individual managers and supervisors who engaged in discriminatory practices. The Ninth Circuit reasoned that Congress limited liability under Title VII to employers with fifteen or more employees because it did not want to burden the small employer with the costs associated with litigating discrimination claims. From this, the Ninth Circuit concluded that Congress could not have intended to allow civil liability against individual employees. 991 F.2d at 587.

In advancing this argument, Baird "forgets" to mention that the federal appellate courts are divided on the issue of whether managerial employees who unlawfully discriminate may be held personally liable as "employers" within the meaning of Title VII. Griffith v. Keystone Steel & Wire Company, 858 F.Supp. 802 (C.D. Ill. 1994) ("There is a split of opinion among the circuits on the issue").

Emphasizing that the plain language of Title VII requires holding managerial employees to be "employers" and that to rule otherwise would e to undermine the deterrent effect of the Act, the Fourth and Sixth Circuits have interpreted the definition of "employer" found in Title VII to subject managerial employees involved in acts of discrimination to personal liability. Paroline v. Unisys Corp., 879 F.2d 100, 104 (4th Cir. 1989), aff'd in pertinent part, 900 F.2d 27 (4th Cir. 1990) ("An individual qualifies as an 'employer' under Title VII if he or she serves in a supervisory position and exercises significant control over the plaintiff's hiring, firing or conditions of employment"); Jones v. Continental Corp., 789 F.2d 1225, 1231 (6th Cir. 1986) ("[T]he law is clear that individuals may be held liable...as 'agents' of an employer under Title VII").

Based on the same analysis, the Seventh Circuit has held the virtually identical definition of "employer" found in the federal Age Discrimination in Employment Act ("ADEA"), 29 USC 630(b), to cover managerial agents of an "employer." Shager v. Upjohn Company, 913 F.2d 398, 404 (7th Cir. 1990) ("The Act imposes liability only on employers, but defines 'employer' to include 'agent'...a term that embraces but is more encompassing than 'employee'"). The Seventh Circuit has also upheld liability against supervisors under Title VII without addressing their status as "employer." See, e.g., Gaddy v. Abex Corp., 884 F.2d 312, 318-319 (7th Cir. 1989) (upholding personal liability for decision-making supervisor); EEOC v. Vucitech, 842 F.2d 936, 939-942 (7th Cir. 1988).

Moreover, several district courts have been highly critical of the Ninth Circuit's Miller decision since it was entered. In Griffith v. Keystone Steel & Wire Company, supra, for instance, the court stated:

"The plain language of both the ADEA, 29 U.S.C. 630(b), and Title VII, 42 U.S.C. 2000e(b), define employer to include a person acting as the agent of the employer. The statute does not limit the liability of the agent to his official capacity. *** Cases holding that the agents of an employer may not be held personally liable under Title VII are 'inconsistent with the broad remedial purposes of the statute.' [citation]."

(emphasis added)

Similarly, in Lamirande v. Resolution Trust Corp., 834 F. Supp. 526, 528 (D.N.H. 1993), the court castigated the Ninth Circuit's reasoning in Miller noting that it is contrary to the weight of authority and the purpose of Title VII:

"'The primary purpose of the Civil Rights Act, and Title VII in particular, is remedial. Its aim is to eliminate employment discrimination by creating a federal cause of cation to promote and effectuate its goals. To effectuate its purpose of eradicating the evils of employment discrimination, Title VII should be given a liberal construction. The impact of this construction is the broad interpretation given to the employer and employee provisions.'"

In Douglas v. Coca-Cola Bottling Co., 855 F.Supp. 518, 520 (D.N.H. 1994), the court rejected an individual defendant's claim that he could not be held subject to personal liability as an "employer" under Title VII, stating:

"Defendant Neal argues that he is not an employer under 2000e(b) and therefore cannot be held liable under 1981a(b)(3)(A), citing [Miller]. The Lamirande court did consider the reasoning in Miller and expressly rejected it. [Citation] Instead, the Lamirande court gave effect to the plain language of the statute...'which clearly impose[s] individual liability upon "any agent" of an "employer."'[Citation] Absent a First Circuit case defining the term employer, this court has found Lamirande persuasive. [Citation] The court finds that 2000e(b) and 20003-2(a)(1) impose individual liability on any agent of an employer."

See also Raiser v. O'Shaughnessy, 830 F.Supp. 1134, 1137 (N.D. Ill. 1993) ("Schiappa might take comfort in the cases suggesting that an agent of an employer may not be held personally liable under Title VII for action taken on the employer's behalf. [Citations] *** However...the holdings of those cases are inconsistent with the broad remedial purposes of the statute.")

Other cases which have concluded that supervisors are subject to liability under the federal statute are Hamilton v. Rodgers, 791 F.2d 439, 442 (5th Cir. 1986); Jones v. Metropolitan Denver Sewage Disposal Dist., 537 F.Supp. 966, 969-970 (D. Colo. 1982); Johnson v. University Surgical Group, 871 F.Supp. 979 (S.D. OH 1994) (supervisors may be held liable personally for acts of intentional discrimination under both Title VII and state law, provided that their individual liability is based on their independent acts and not merely for acts in compliance with policies set forth by their superiors, 871 F.Supp. at 981 and 987); Marshall v. Manville Sales Corporation, 6 F.3d 229, 232 (4th Cir. 1993) (upholding individual liability against a defendant individual who was sued for sex and age discrimination under the West Virginia Human Rights Act (HRA), [which appears to be similar to the FEHA, Government Code Section 12940], in that it makes it illegal for any person to engage in any form of activities or engage in the unlawful discriminatory practices prohibited by that Act, court held that the section in question did not limit the potential defendants only to employer companies and held that individual perpetrator could be held liable for his actions as a person); Herring v. F.N. Thompson, Inc., 866 F.Supp 264, 266 (W.D.N.C. 1994) ("an employee, when acting as an employer with supervisor authority over a fellow employee, may be held personally liable under Title VII." Summary judgment was inappropriate because there remained a dispute of fact as to whether the defendants had the requisite authority over the plaintiff to constitute her "employer." The defendants were the corporate president and vice president, and the plaintiff had been their secretary before her constructive discharge.)

These courts know that only by holding individuals liable for their misconduct will that misconduct be controlled or curtailed. This court, we submit, should hold as well.



CONCLUSION

Any way one looks at it - the plain language of the statute, court and agency decisions holding individuals liable or potentially liable, or an analysis of the statute's legislative history coupled with the differing goals of federal versus state legislation - the individual who violates the FEHA is equally liable with his or her employer. This is as it should be. If individuals begin to realize their personal liability maybe they will think twice before discriminating, harassing or retaliating. And that is exactly what the FEHA is all about. Ms. Reno should be permitted to proceed against Ms. Baird.



Respectfully submitted,



JOSEPH POSNER, INC.





By___________________________

JOSEPH POSNER,

Attorneys for California Employment

Lawyers Association, Amicus Curiae

TABLE OF CONTENTS

Page



Table of Authorities ii



REQUEST BY CALIFORNIA EMPLOYMENT LAWYERS ASSOCIATION

FOR PERMISSION TO FILE AMICUS CURIAE BRIEF

IN SUPPORT OF PLAINTIFF

AND RESPONDENT KIMBERLY RENO 1





AMICUS CURIAE BRIEF BY CALIFORNIA EMPLOYMENT

LAWYERS ASSOCIATION IN SUPPORT OF PLAINTIFF

AND RESPONDENT KIMBERLY RENO 3



INTRODUCTION 3





ARGUMENT 4



1. WHAT HAPPENS IN THE REAL WORLD OF WORK

DOES NOT FIT INTO CONVENIENT LITTLE CATEGORIES.

THE DISTINCTIONS BETWEEN THE DIFFERENT TYPES

OF FEHA VIOLATIONS ARE USUALLY AFTER-THE-FACT

INVENTIONS OF THE DEFENSE. 4



2. LETTING INDIVIDUAL TORTFEASORS OFF THE

HOOK WOULD PROMOTE PERSONAL IRRESPONSIBILITY

AND DISRESPECT FOR THE LAW. 9



3. MANY FEDERAL COURTS HAVE ALLOWED THE

IMPOSITION OF INDIVIDUAL LIABILITY IN ORDER

TO MOTIVATE INDIVIDUAL SUPERVISORS TO OBEY THE LAW. 14



CONCLUSION 19



TABLE OF AUTHORITIES



Case Page



Ach v. Finkelstein,
264 Cal. App. 3d 667, 677 (1968) 11



Agarwal v. Johnson,
25 Cal. 3d 932 (1979) 11



American Motorcycle Assoc. v. Superior Court,
20 Cal. 3d 578 (1978) 10



Douglas v. Coca-Cola Bottling Co.,
855 F.Supp. 518, 520 (D.N.H. 1994) 17



EEOC v. Vucitech,
842 F.2d 936, 939-942 (7th Cir. 1988) 16



Gaddy v. Abex Corp.,
884 F.2d 312, 318-319 (7th Cir. 1989) 16



Griffith v. Keystone Steel & Wire Company,
858 F.Supp. 802 (C.D. Ill. 1994) 15



Hamilton v. Rodgers,
791 F.2d 439, 442 (5th Cir. 1986) 18



Hashimoto v. Dalton,
118 F.3d 671 (9th Cir. 1997) 8



Herring v. F.N. Thompson, Inc.,
866 F.Supp 264, 266 (W.D.N.C. 1994) 19



Hobbs v. Bateman Eichler,
164 Cal. App. 3d 174 (1985) 11



Jahn v. Brickey,
168 Cal. App. 3d 399 (1985) 11



Johnson v. University Surgical Group,
871 F.Supp. 979 (S.D. OH 1994) 18



Jones v. Continental Corp.,
789 F.2d 1225, 1231 (6th Cir. 1986) 16



Jones v. Metropolitan Denver
Sewage Disposal Dist.,

537 F.Supp. 966, 969-970 (D. Colo. 1982) 18



Lamirande v. Resolution Trust Corp.,
834 F. Supp. 526, 528 (D.N.H. 1993) 17



Marshall v. Manville Sales Corporation,
6 F.3d 229, 232 (4th Cir. 1993) 18



Mesler v. Bragg Management Co.,
39 Cal. 3d 290 (1985) 11



Miller v. Maxwell,
991 F.2d 583 (9th Cir. 1993) 15



Mone v. Dranow,
945 F.2d 306, (9th Cir. Sept. 26, 1991) 14



Paroline v. Unisys Corp.,
879 F.2d 100, 104 (4th Cir. 1989) 15



Raiser v. O'Shaughnessy,
830 F.Supp. 1134, 1137 (N.D. Ill. 1993) 18



Roberts v. Ford Aerospace,
224 Cal. App. 3d 793 (1990) 8



Sada v. Robert F. Kennedy Medical Center,
56 Cal. App. 4th 138 (1997) 5



Shager v. Upjohn Company,
913 F.2d 398, 404 (7th Cir. 1990) 16



Vacco Industries v. Van Den Berg,
5 Cal. App. 4th 34 (1992) 13









Other Authorities



Civil Code Section 1714 10



Civil Code Section 2343(3) 11



Govt. Code Section 12900 et seq. 10



Labor Code Section 970 14



Labor Code Section 971 14



Labor Code Section 972 14



Witkin, Summary of California Law,
9th Ed., Agency and Employment, Section 149 12





Service List:



Barbara Lawless, Esq.

Phil Horowitz, Esq.

Lawless, Horowitz & Lawless

600 Montgomery Street, 32nd Fl.

San Francisco, CA 94111



Jeffrey Owensby, Esq.

James Curran, Esq.

Diepenbrock, Wulff, et al.

300 Capitol Mall, Suite 1700

P.O. Box 3034

Sacramento, CA 95812-3034



Eric P. Angstadt, Esq.

Scott W. Oborne, Esq.

Hoyt, Miller & Angstadt

1910 Olympic Boulevard, Ste. 220

Walnut Creek, CA 94596



Clerk, Court of Appeal

First Appellate District

One Marathon Plaza, South Tower

303 Second Street, Room 600

San Francisco, CA 94107-1317



Clerk of the Court

(for delivery to Hon. Richard M. Harris)

Solano County Superior Court

600 Union Avenue

Fairfield, CA 94553-6306

(Re: Case No. L003221)



Courtesy copies to:



Fred Ashley, Esq.

2201 Dupont Drive

Suite 710

Irvine, CA 92715





Nancy Bornn, Esq.

233 Wilshire Blvd., Ste. 500

Santa Monica, CA 90401





Mary Dryovage, Esq.

340 Pine Street

Suite 501

San Francisco, CA 94104





Virginia Keeny, Esq.

128 North Fair Oak Ave.

Suite 204

Pasadena, CA 91103





Gary Laturno, Esq.

9255 Towne Center Drive

Suite 520

San Diego, California 92121





Dolores Leal, Esq.

6300 Wilshire Blvd.

Suite 1500

Los Angeles, CA 90048





Cliff Palefsky, Esq.

535 Pacific Avenue

San Francisco, CA 94133





Steven Pingel, Esq.

3020 Old Ranch Pkwy, Ste. 320

Seal Beach, CA 90740





Joseph Posner, Esq.

16311 Ventura Boulevard

Suite 555

Encino, CA 91436





William Quackenbush, Esq.

1700 So. El Camino, Suite 408

San Mateo, CA 94402



Willie Smith, Esq.

2350 West Shaw Avenue, Ste. 154

Fresno, CA 93711





James P. Stoneman, Esq.

100 W. Foothill Blvd.

Claremont, CA 91711





Christopher Whelan, Esq.

11246 Gold Express Dr., Ste. 100

Gold River, CA 95670





Chris Bello, Esq.

2320 Seventh St.

Berkeley, CA 94710



Teri Chaw

National Employment Lawyers Association

600 Harrison St., #535

San Francisco, CA 94107



Eric Wiesel, Esq.

Matheny, Poidmore et al.

3638 American River Drive

Sacramento, CA 95864-5901



Joyce Pearson, Esq.

P.O. Box 221780

Sacramento, CA 95822-8780