236 Cal. App. 4th 774
Cal. Ct. App.2015Background
- Kimberli Hirst, an AFN (American Forensic Nurses, Inc.) phlebotomist, performed on-call blood draws at the Oceanside Police Department under a County contract that designated AFN an independent contractor.
- While performing services at the Oceanside station, Officer Gilbert Garcia repeatedly made graphic sexual comments and engaged in intimidating conduct; AFN and the City investigated and Garcia was terminated after an internal finding of harassment.
- Hirst sued the City under FEHA (Gov. Code § 12940(j)) for sexual harassment and for the City's failure to take immediate, appropriate corrective action; jury found for Hirst and awarded $1.5 million (later reduced to $1.125 million at judgment).
- The trial court granted the City a new trial on damages (finding the award excessive) but denied the City's JNOV motion challenging Hirst's standing under FEHA; the City appealed the denial of JNOV.
- The Court of Appeal reviewed de novo whether substantial evidence supported the jury finding that Hirst was an "employee, a special employee, or a person providing services under a contract," and concluded Hirst qualified as a "person providing services pursuant to a contract."
Issues
| Issue | Plaintiff's Argument (Hirst) | Defendant's Argument (City) | Held |
|---|---|---|---|
| Whether Hirst had standing under FEHA to sue the City for harassment by a City employee | Hirst argued she was a "person providing services pursuant to a contract" (or alternatively a "special employee") under §12940(j), because she performed phlebotomy services under the County/AFN contract and met the statutory criteria | City argued Hirst did not fit the statutory definition in §12940(j)(5); at most she was an employee of AFN (the contractor), so she lacked standing against the City | Court held Hirst satisfied the statutory definition of a "person providing services pursuant to a contract" and therefore had standing to sue the City under §12940(j)(1) |
Key Cases Cited
- Begnal v. Canfield & Assocs., Inc., 78 Cal.App.4th 66 (Cal. Ct. App. 2000) (substantial-evidence standard on JNOV review)
- Trujillo v. North County Transit Dist., 63 Cal.App.4th 280 (Cal. Ct. App. 1998) (standards for JNOV review)
- State ex rel. Dept. of California Highway Patrol v. Superior Court (Alvarado), 60 Cal.4th 1002 (Cal. 2015) (factors for special-employee status and control analysis)
- Marsh v. Tilley Steel Co., 26 Cal.3d 486 (Cal. 1980) (recognition of dual-employer or special employer relationships)
- Mathieu v. Norrell Corp., 115 Cal.App.4th 1174 (Cal. Ct. App. 2004) (temporary-agency/borrowed-employee regulation as special employee example)
- Kowalski v. Shell Oil Co., 23 Cal.3d 168 (Cal. 1979) (dual employer principles)