Developments of Interest

"GagenMcCoy wins important victory in appellate court"

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The Firm recently won an important appeal (Fitzsimons v. CEP) securing protection under the California Fair Employment & Housing Act (“FEHA”)’s retaliation provision (Government Code Section 12940(h).) for individuals not classified as “employees”, such as partners, who are retaliated against for opposing a practice forbidden by FEHA.

The Firm represented Mary Fitzsimons, M.D., one of approximately 700 physician-partners for Defendant California Emergency Physicians Medical Group (“CEP”), an emergency medical physician group that contracts with individual hospitals to provide physicians and administrative services.  Dr. Fitzsimons was removed from her position as Regional Director, and subsequently, Medical Director, after she reported to CEP’s human resources that female employees had described to her instances of sexual harassment by a CEP officer.

Dr. Fitzsimons filed a complaint for retaliation against CEP in 2006.  In 2011, the case went to trial.  CEP brought a motion to bifurcate (to have the case separated into segments), asking the court to try the question of whether Dr. Fitzsimons was an employee or a partner before it tried the question of whether retaliation actually occurred, arguing that she was only entitled to protection under FEHA if she was an employee pursuant to the holding in Jones v. Lodge at Torrey Pines Partnership (2008) 42 Cal.4th 1158.  The trial court agreed with Defendant CEP and granted its motion to bifurcate.  The jury then determined that Plaintiff was a partner (not an employee) and judgment was entered in favor of the defense.

Shareholder Richard C. Raines and Associate Amanda Beck appealed the trial court’s decision on behalf of Dr. Fitzsimons, arguing that Dr. Fitzsimons was protected under FEHA’s retaliation provision regardless of whether she was a partner or an employee.  The Court of Appeal agreed and held that partners may assert FEHA claims for retaliation, reversing the trial court’s decision and remanding for further proceedings.  The court cited to the remedial nature of FEHA and the need to construe FEHA broadly.  The court agreed with Plaintiff’s reading of both FEHA and Jones v. Lodge at Torrey Pines Partnership, confirming that the Torrey Pines opinion was more limited than the reading CEP had advanced.

The Court’s opinion safeguarded and defeated an attempt to narrow the protective provisions of FEHA and should be considered a victory not only for Dr. Fitzsimons, but for all non-employee individuals who find themselves in the difficult position of wanting to report improper conduct and yet not suffer job consequences as a result.

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