205 Cal. App. 4th 1423
Cal. Ct. App.2012Background
- CEP is a California general partnership with about 700 partners, governed by a nine-member board of directors.
- Plaintiff Mary Fitzsimons served as CEP’s medical director, regional director, and later on CEP’s board before her October 2004 regional-director termination.
- In May 2006, Fitzsimons sued CEP for retaliation under FEHA, among other claims, alleging retaliation for reporting sexual harassment by CEP officers and agents.
- At trial, the court bifurcated the jury to determine whether Fitzsimons was an employee or a partner; the jury found she was a partner, but judgment was entered for CEP.
- The trial court had relied on Torrey Pines to hold that a partnership cannot be liable for FEHA retaliation against a partner, but the appellate court disagrees and reverses.
- The court concludes that FEHA’s retaliation provision can apply to a partner suing the partnership for retaliation connected to harassment of employees.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a partner can sue a partnership for FEHA retaliation | Fitzsimons argues FEHA defines ‘person’ to include partnerships and that retaliation against a partner for reporting harassment is unlawful. | CEP argues FEHA retaliation liability does not extend to nonemployer individuals like partners; Torrey Pines bars personal liability for retaliation by nonemployers. | Yes; FEHA permits a partner to challenge retaliation by the partnership. |
Key Cases Cited
- Shephard v. Loyola Marymount Univ., 102 Cal.App.4th 1427 (Cal. App. 2002) (FEHA coverage and employment relationship essential to liability)
- Vernon v. State of California, 116 Cal.App.4th 114 (Cal. App. 2004) (employer-employee relationship required for liability under FEHA)
- Mendoza v. Town of Ross, 128 Cal.App.4th 625 (Cal. App. 2005) (reliance on employment relationship for FEHA liability)
- Jones v. Lodge at Torrey Pines Partnership, 42 Cal.4th 1158 (Cal. Sup. Ct. 2008) (nonemployer individuals cannot be liable for discrimination/retaliation)
- Reno v. Baird, 18 Cal.4th 640 (Cal. Sup. Ct. 1998) (supervisors cannot be personally liable for discriminatory acts)
- Kelly v. Methodist Hospital of So. California, 22 Cal.4th 1108 (Cal. Sup. Ct. 2000) (FEHA remedial construction favored)
- State Dept. of Health Services v. Superior Court, 31 Cal.4th 1026 (Cal. Sup. Ct. 2003) (FEHA provisions construed broadly for remedial purposes)
- Torrey Pines, 42 Cal.4th 1158 (Cal. Sup. Ct. 2008) (explains nonemployer liability for retaliation under FEHA; separation of conduct types)