Supreme Court No. S042601





IN THE SUPREME COURT


STATE OF CALIFORNIA




C. BYRON SCOTT and AL JOHNSON, [1st Civil No. A058546]

Plaintiffs [Superior Court No. 920025

and Petitioners, County of San Francisco]



vs. [Hon. Frank W. Shaw, Judge]

PACIFIC GAS AND ELECTRIC

COMPANY,


Defendant and

Respondent.


______________________________




DECISION OF THE COURT OF APPEAL

FIRST APPELLATE DISTRICT

_____________________________________________



REQUEST BY CALIFORNIA EMPLOYMENT LAWYERS ASSOCIATION

FOR PERMISSION TO FILE AMICUS CURIAE BRIEF AND

AMICUS CURIAE BRIEF IN SUPPORT OF PLAINTIFFS

AND PETITIONERS C. BYRON SCOTT AND AL JOHNSON

____________________________________________




JOSEPH POSNER, INC. (SB 62428)

16311 Ventura Blvd., Ste. 555

Encino, California 91436

(818) 990-1340



Attorneys for California Employment Lawyers Association

Supreme Court No. S042601






IN THE SUPREME COURT



STATE OF CALIFORNIA






C. BYRON SCOTT and AL JOHNSON, [1st Civil No. A058546]


Plaintiffs [Superior Court No. 920025

and Petitioners, County of San Francisco]


vs. [Hon. Frank W. Shaw, Judge]

PACIFIC GAS AND ELECTRIC

COMPANY,


Defendant and

Respondent.

______________________________




DECISION OF THE COURT OF APPEAL

FIRST APPELLATE DISTRICT

_____________________________________________



REQUEST BY CALIFORNIA EMPLOYMENT LAWYERS ASSOCIATION

FOR PERMISSION TO FILE AMICUS CURIAE BRIEF

IN SUPPORT OF PLAINTIFFS

AND PETITIONERS C. BYRON SCOTT AND AL JOHNSON

____________________________________________





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 plaintiffs and petitioners C. Byron Scott and Al Johnson. 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:

- Solid precedent supports recovery for wrongful demotion.

- The Court of Appeal ignored the jury's findings in order to reach a desired result.

- Employees should be discouraged from committing wrongful acts, whether or not those acts constitute a termination, as a matter of public policy.

The following brief discusses these arguments in detail.



Respectfully submitted,



JOSEPH POSNER, INC.







By___________________________

JOSEPH POSNER,

Attorneys for California Employment

Lawyers Association, Amicus Curiae

Supreme Court No. S042601







IN THE SUPREME COURT

STATE OF CALIFORNIA



C. BYRON SCOTT and AL JOHNSON, [1st Civil No. A058546]



Plaintiffs [Superior Court No. 920025

and Petitioners, County of San Francisco]


vs. [Hon. Frank W. Shaw, Judge]

PACIFIC GAS AND ELECTRIC

COMPANY,


Defendant and

Respondent.


______________________________






DECISION OF THE COURT OF APPEAL

FIRST APPELLATE DISTRICT

_____________________________________________



AMICUS CURIAE BRIEF BY CALIFORNIA EMPLOYMENT

LAWYERS ASSOCIATION IN SUPPORT OF PLAINTIFFS

AND PETITIONERS C. BYRON SCOTT AND AL JOHNSON

____________________________________________





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

ARGUMENT

1. SOLID PRECEDENT SUPPORTS RECOVERY FOR EMPLOYER MISCONDUCT WHICH DOES NOT RESULT IN TERMINATION. REVERSING THE VERDICT WOULD ENCOUARGE EMPLOYER MISCONDUCT.

As plaintiffs point out in their opening brief, California courts have allowed recovery for employer misconduct which did not result in termination. See, for example, Garcia v. Rockwell International Corporation, 187 Cal. App. 3d 1556 (1986). (Petitioner's Opening Brief (POB), p. 41). Lee v. Bank of America, 27 Cal. App. 4th 197 (1994) also held that a plaintiff could recover for constructive discharge independent of whether that plaintiff could also recover for a wrongful termination. ("...the demotion occurred more than a year prior to the termination and would have been actionable even if the termination had never occurred." 27 Cal. App. 4th at 214). Valdez v. City of Los Angeles, 231 Cal. App. 3d 1043 (1991), discussed at POB 40, allowed plaintiffs to recover for racial and national origin discrimination in promotion.

Panopulos v. Westinghouse Electric Corp. 216 Cal. App. 3d 660 (1989) concerned a fact pattern similar to Scott. Panopulos worked for Westinghouse for 32 years. He started as an accountant and compiled a respectable record, receiving merit increases until 1971. In 1974 Panopulos ran afoul of a new supervisor. In 1978 another supervisor told Panopulos that he would have to transfer to the archives department because according to the supervisor, that was the only position left for him. Panopulos understood that to mean that he had to accept the transfer or be fired, and so he accepted the transfer.

Although he retained his title as an accountant, he found the working conditions physically and mentally intolerable. The archives facility was a warehouse with no janitorial service, toilet facilities or drinking water. The area was filthy and was used to store large boxes weighing up to 150 pounds each. Panopulos was reduced to doing manual work, all the while being picked on continually by his supervisor unjustly. Finally he left Westinghouse and sued.

The Court of Appeal upheld the dismissal of Panopulos' complaint on statute of limitations grounds. But the court upheld his right to recover for wrongful constructive discharge on a contractual basis, 216 Cal. App. 3d at 667. Under Lee, Panopulos could have sued as easily for wrongful demotion as for wrongful constructive termination.

Scott and Johnson are in an even stronger position. Unlike Panopulos, who relied on an implied contract, Scott and Johnson pleaded and proved the existence of an express contract in writing not to be demoted without good cause.

The danger of the Court of Appeal's decision is deeper than it looks. Turner v. Anheuser-Busch, 7 Cal. 4th 1238 (1994) recognized that employers who wish to commit misconduct do not always shout it from the roof tops, 7 Cal. 4th at 1249. If this court upholds the Court of Appeal's decision in Scott, it would encourage employers to do through the back door what the law says they cannot do through the front.

For example, consider this situation: Pamela, an employee of Zilch Industries, goes on pregnancy leave (see Government Code Section 12945(b)(2)), intending to return to her work as a systems analyst for Zilch at the expiration of her four month leave. During her leave, she has spoken to company officials a number of times, and they assure her that they want her back as soon as she is able to do so. On the day she comes back, her manager welcomes her, but then tells her that the company does not have a job for her any longer as a systems analyst. Just before her return, there has been a "reorganization", according to the manager, and Pamela's choice is this: She can either take a job as the company receptionist, at a $20,000 per year wage loss, or she can leave. The manager knows Pamela cannot afford the pay cut. The reorganization issue is a phony: Pamela sees the temporary employee who was hired in her absence continuing to do the same work that she did before she left for maternity. She tells her manager that he has put her in an impossible position. He says to take it or leave it. She cannot take the pay cut and leaves.

Now what has the company done here? By not returning Pamela to the same or similar position, the company has committed a prima facie violation of Government Code Section 12945(b)(2) which requires reinstatement to the same or similar position. Cal. Fed. Savings & Loan v. Guerra, 479 U.S. 272, 276, 288-289 (1987). But did the company fire Pamela upon her return? No - the company demoted her to receptionist. Under the Court of Appeal's decision in Scott, Pamela would have no recourse. Such a strained construction of the law would allow companies to violate the FEHA with impunity. Such a result obviously cannot be sanctioned by this court.



2. DAMAGES IN CONSTRUCTIVE DISCHARGE CASES CAN BE COMPUTED WITH GREATER CERTAINTY THAN IN TERMINATION CASES.

The Court of Appeal's analysis on damages is just plain wrong. In fact, the opposite is true - one can calculate damages in a constructive demotion case with more certainty than in a case of termination.

In a termination case, especially with an older worker in the 50 to 60 year age bracket, the reality is that these individuals almost never return to work at anything near the positions they once held. Some of these people never re-enter the job market at all. Of those that do, most of the time they go back to work at jobs far, far inferior in title, status and income to that which they had at the previous company.

Calculating the plaintiff's future loss of earnings in the latter situation can be quite difficult. The attorney knows the plaintiff's salary history at the defendant employer, and can calculate the loss easily for the time in which the plaintiff has been completely unemployed, and from the time the plaintiff became under-employed at the new company until the time of trial. But how does anyone calculate what the plaintiff is likely to earn at the new company over the balance of his or her employment there?

For example, in an actual case, the plaintiff had worked for a major retailer for 18 years. For the last 10 of those, he managed one of its department stores. After the company fired him, he was out of work completely for a time. Finding no work in retail, he was forced to change fields into real estate sales. By the time of trial, he had been in real estate sales for about a year and had been paid on commission only for several sales. There were no such things as salary curves or even earnings histories of comparable real estate sales agents. Sales agents' incomes are dependent not only on their own abilities and efforts but on the vicissitudes of the market, over which they have no control. The jury did the best it could with the limited information available, but the result was anything but precise.

Contrast that situation with that of Scott and Johnson. They were demoted from positions paying approximately $75,000 per year to positions which paid $12,000 annually. But they continued to work in a big company which had such things as salary curves and fixed pay grades. Their future loss of earnings could be predicted with far more certainty than in the example given above. And that example is not uncommon.

So if anything, cases of wrongful demotion are more amenable to the calculation of loss of income damage than those of termination.



3. WRONGFUL DEMOTION CASES MAY IN SOME INSTANCES INFLICT FAR GREATER DAMAGE ON AN INDIVIDUAL THAN IF THE COMPANY HAD FIRED HIM OR HER.

In many termination cases, the perpetrators will subject the plaintiff to a period of unjustified criticism, verbal (and sometimes other) harassment, badmouthing, undermining and the like. Understandably, a plaintiff who is subjected to such conduct suffers emotionally. But at least once the company fires the plaintiff, that abuse is over.

Contrast the situation with the wrongful demotion as evidenced here. How must it feel to be a man like the plaintiff in Panopulos, reduced from a high level accounting job to moving boxes in a filthy warehouse? How must it feel for plaintiffs such as Scott and Johnson to be working at 1/6 of their former salaries doing menial tasks, day after day for as far into the future as they are likely to work there?

Imagine for a moment a situation of a Supreme Court justice reduced by some mechanism to being a lowly file clerk at the same court. Day after day the justice sees his or her former colleagues continuing on with their important work. Day after day, the ex-justice has to answer to court clerks who were formerly his or her subordinates. How could any self-respecting person continue to hold up his or her head in such a situation?

Whether or not a demotion plaintiff is able to recover general damages (depending on the legal theories the facts will support), we ask the court to take note of the very real human costs in such a situation.



4. THE COURT OF APPEAL VIOLATED THE SUBSTANTIAL EVIDENCE RULE AND THUS THREW THE JURY'S DETERMINATION OUT BECAUSE OF ITS APPARENT DISLIKE FOR SAME.

What the Court of Appeal did in Scott is very disturbing. Obviously, the question of whether there was an express contract which required certain prerequisites for demotion was a hotly contested and litigated issue. The jury, which actually heard the evidence, ruled that it did. But what the Court of Appeal did is to accept the version of events submitted by the losing party at trial.

How can such an action be justified under the substantial evidence rule? To pose the question is to answer it.

The Court of Appeal's decision in Scott suggests that an appellate court can ignore the proper standard of review to adopt a fact pattern to justify a desired result. If this is the situation - if this is what the rule is to be - then why have a jury trial in the first place?



CONCLUSION

This court should uphold the jury's verdict. There was substantial evidence to support it. Wrongful demotion is an accepted legal concept, in which special damages are often easier to calculate than in termination cases. PG&E, which established the guidelines in the first place, should pay the price for violating them. Companies must be encouraged to follow the law, not to break it by back door means.

Respectfully submitted,



JOSEPH POSNER, INC.







By___________________________

JOSEPH POSNER,

Attorneys for California Employment

Lawyers Association, Amicus Curiae

Proof of mailing to :



Christopher Platten, Esq.

Wylie, McBride, et al.

101 Park Center Plaza, Suite 900

San Jose, CA 95113



Hon. Frank Shaw

c/o Clerk of San Francisco Superior Court

City Hall, Room 317

400 Van Ness Avenue

San Francisco, CA 94102



Maureen Fries, Esq.

Pacific Gas & Electric Company

77 Beale Street

P.O. Box 7442

San Francisco, CA 94120





Court of Appeal, First District

San Francisco, CA







Courtesy copies to:



Fred Ashley, Esq.

30131 Town Center Drive

Suite 205

Laguna Nigel, CA 92677

(714) 495-0700



William Crosby, Esq.

18200 Von Karman Avenue

Suite 820

Irvine, CA 92715

(714) 553-1411



Mary Dryovage, Esq.

340 Pine Street

Suite 501

San Francisco, CA 94104



Susan Hartley, Esq.

P.O. Box 6222

Malibu, California 90264-6222

(310) 457-0594



Ellen Lake, Esq.

4230 Lakeshore Avenue

Oakland, California 94610

(510) 272-9393



Gary Laturno, Esq.

9255 Towne Center Drive

Suite 520

San Diego, California 92121

(619) 455-9496



Barbara Lawless, Esq.

600 Montgomery Street

33rd Floor

San Francisco, CA 94111

(415) 391-7555



John McCarthy, Esq.

401 Harvard Avenue

Claremont, CA 91711

(909) 621-4984



Joseph Posner, Esq.

16311 Ventura Boulevard

Suite 555

Encino, CA 91436

(818) 990-1340





William Quackenbush, Esq.

1700 So. El Camino, Suite 408

San Mateo, CA 94402

(415) 578-8330

FAX (415) 578-9234



Bennett Rolfe, Esq.

P.O. Box 3539

Camarillo, California 93011

(805) 987-7827



James P. Stoneman, Esq.

100 W. Foothill Blvd.

Claremont, CA 91711

(909) 621-4987



TABLE OF CONTENTS



Page



Table of Authorities ii



ARGUMENT 3



1. SOLID PRECEDENT SUPPORTS RECOVERY FOR

EMPLOYER MISCONDUCT WHICH DOES NOT RESULT

IN TERMINATION. REVERSING THE VERDICT WOULD

ENCOUARGE EMPLOYER MISCONDUCT. 3



2. DAMAGES IN CONSTRUCTIVE DISCHARGE CASES

CAN BE COMPUTED WITH GREATER CERTAINTY THAN

IN TERMINATION CASES. 7



3. WRONGFUL DEMOTION CASES MAY IN SOME

INSTANCES INFLICT FAR GREATER DAMAGE ON AN

INDIVIDUAL THAN IF THE COMPANY HAD FIRED HIM OR HER. 8



4. THE COURT OF APPEAL VIOLATED THE

SUBSTANTIAL EVIDENCE RULE AND THUS THREW

THE JURY'S DETERMINATION OUT BECAUSE OF

ITS APPARENT DISLIKE FOR SAME. 9



CONCLUSION 10

TABLE OF AUTHORITIES



Case Page



Cal. Fed. Savings & Loan v. Guerra,
479 U.S. 272, 276, 288-289 (1987) 6

Garcia v. Rockwell International Corporation,
187 Cal. App. 3d 1556 (1986) 4

Lee v. Bank of America,
27 Cal. App. 4th 197 (1994) 4

Panopulos v. Westinghouse Electric Corp.,
216 Cal. App. 3d 660 (1989) 4

Turner v. Anheuser-Busch,
7 Cal. 4th 1238 (1994) 5

Valdez v. City of Los Angeles,
231 Cal. App. 3d 1043 (1991) 4







Other Authorities



Government Code Section 12945(b)(2) 5