Daily Blast May 16, 2012

On May 16, 2012, Division Three of the First Appellate District Court of Appeal (San Francisco) filed a somewhat unusual opinion in Fitzsimons v. California Emergency Physicians Medical Group ____Cal.App.4th____ we thought you should know about. The court held that in limited circumstances a partner in a medical group can assert a retaliation claim under the California Fair Employment and Housing Act (FEHA). (Slip opn., p. 1.)

Plaintiff, an emergency physician sued defendant California Emergency Physicians Medical Group (CEP) for retaliation in violation of FEHA and public policy, contending that CEP removed her from her position as regional director in retaliation for reports she made to her supervisors that officers of CEP had sexually harassed female employees. (Slip opn., p. 2.) Prior to trial, the court ruled that if plaintiff was a partner in CEP, she did not have standing to assert a claim for retaliation under FEHA against CEP. (Ibid.) The court relied on the decision in Jones v. Lodge at Torrey Pines Partnership (2008) 42 Cal.4th 1158, which held that a nonemployer individual cannot be held liable for retaliation. (Id. at pp. 3-4.) After the jury found that plaintiff was a partner, the court entered judgment in favor of CEP. (Id. at p. 3.) 

The Court of Appeal reversed, however, holding that FEHA “supporta claim for retaliation by a partner against her partnership for opposing sexual harassment of an employee.” (Slip opn., p. 1.) The appellate court explained that the trial court read Torrey Pines too broadly. (Id. at p. 5.) According to the court, although CEP is not in an employment relationship with plaintiff, CEP is the employer of those persons who are the victims of the alleged harassment that plaintiff reported, for which she allegedly became the subject of CEP’s retaliation. (Id. at p. 6.) As a result, “harassment of CEP employees, if proven, is an unlawful practice for which CEP is liable under section 12940, subdivision (j).” (Ibid.) The court explained that plaintiff does not seek to impose liability on any nonemployer individual but only upon the employer—the partnership. (Ibid.) Therefore, the court concluded that although plaintiff is a partner, she “is a person whom section 12940, subdivision (h) protects from retaliation for opposing the partnership-employer’s harassment against those employees.” (Ibid.)

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