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Award Overturned in Big Blue Bus Discrimination Suit

State high court overturns a jury's earlier decision to award bus driver money for emotional suffering. The driver alleged she was fired because she was pregnant.

The city does not have to pay a $177,905 jury award to a Big Blue Bus driver who was fired after revealing she was pregnant, the California Supreme Court ruled Thursday.

"A court may not award damages, backpay, or an order of reinstatement," the court found, when discrimination plays a role in a worker’s firing but the employer proves it would have made the same decision anyway, in this case because of poor job performance.

The city had said it was going to fire Wynona Harris anyway because she had been involved in two "preventable" bus crashes and twice failed to alert her supervisor she would be late to work. 

Harris was hired as probationary employee with the city of Santa Monica's Big Blue Bus in 2004. She was terminated seven months later—shortly after informing her supervisor she was pregnant. She sued in the fall of 2008, alleging sex discrimination under the Fair Employment and Housing Act.

In Thursday's 6-0 ruling, Justice Goodwin Liu wrote the city should not "escape liability" entirely. Liu said Harris could still be awarded declaratory or injunctive relief to stop the discrimination and may also be eligible for "reasonable" attorneys' fees and litigation costs.

"Requiring an employer to absorb the costs of litigation for which its own wrongdoing is substantially responsible furthers the FEH's goal of preventing and deterring unlawful employment practice," Liu wrote.

Harris' lawyer's fees were valued at about $400,000, said San Francisco-based attorney Paul W. Cane, Jr., who helped defend the city in the case.

The case is headed back to trial court to determine whether the city should be allowed to instruct the jury to consider a "mixed-motive" defense, which states an employer is not liable if it can prove it was motivated in its decision to fire a worker by both discriminatory and non-discriminatory factors.

In the first go-around, the judge refused to allow the defense. Instead, the jury was instructed "that Harris had to prove that her pregnancy was a motivating factor/reason for the discharge." It awarded Harris $177,905 in damages, $150,000 of which were for "non-economic losses," including mental suffering.

If the city is allowed the mixed-motive defense, "the case will be re-tried and start over fresh," said Cane. "The case isn't finished."

The attorney representing Harris could not immediately be reached for comment.

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Dan Charney February 08, 2013 at 05:11 AM
What a stinker this one is- lose if you win- and vice versa- only real winners here could be all the lawyers- never should have gotten this far- how irresponsible that it has
Glenn E Grab February 08, 2013 at 03:46 PM
two accidents, not showing up for work, and we(the people) still are stuck for $400,00 in lawyer's fees?....
mimi February 08, 2013 at 05:52 PM
Two lessons to be learned: 1. If you have a probationary period for your employees, use it. Terminate employees during the probationary period. Don't wait until they tell you they are pregnant. This is stupidity/negligence on the part of the employer. 2. There are numerous nonprofit agencies that represent legitimate discrimination cases. Their fees for service are appropriate, honest and never inflated. Plaintiffs who have bonafide discrimination complaints need to seek out representation from such an agency. It also behooves ethical attorneys to work in tandem with one of these nonprofit agencies when representing a plaintiff discrimination case. Costs are cut in half (or more). It certainly appears the attorney for this plaintiff believes he has fallen into a pot of jam.. What are we, toast?
PHIL HENDRICKS February 08, 2013 at 08:22 PM
It does not really work that way at all.
mimi February 10, 2013 at 07:20 PM
phil----It did really work that way for me when I filed a discrimination lawsuit. Historically, it really did work that way for many others, too. Public statistics document this, repeatedly.

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