April 30, 2010 -The case of a former Big Blue Bus driver’s allegation that she was fired because she was pregnant will head to the California Supreme Court. The state High Court last week agreed to take the case, with the main issue being whether the City could argue that even if the woman’s pregnancy had been a factor in the firing, she would have been let go anyway because of poor performance.

Wynona Harris, at the time a probationary employee, was fired in May 2005. The City says the reason was because of a poor evaluation based on two preventable accidents and for missing work twice without properly notifying her supervisor. But Harris’ attorneys argued her firing was due to their client’s pregnancy. She told her immediate supervisor she was pregnant six days before being let go.

Harris sued the City for discrimination in October 2005. A Downtown Los Angeles jury decided in her favor, and awarded Harris $177,905 in damages. The Court also granted Harris more than $400,000 in attorneys' fees.

During the trial, the City asked that it be allowed to instruct the jury to consider a mixed-motive defense, which is allowed by a federal statute and states that if one finds discriminatory and nondiscriminatory factors were involved in a person’s firing, the employer is not responsible if the person would have been let go based on the nondiscriminatory reasons alone. The judge refused to allow the City to use this defense.

The City appealed the case to the Court of Appeal, and a three-judge panel ruled last fall that Santa Monica attorneys should have been allowed to argue the mixed-motive defense. The panel called for the trial jury verdict to be set aside and for a new trial to take place. The judges later agreed to reconsider their decision, and came back with a similar verdict in February, with some slight modifications.

Michael Nourmand, the head attorney for Harris, said the mixed-motive defense should not be allowed in this case because it is part of a federal statute and the lawsuit is based on the State Fair Employment Housing Act (FEHA).

Whether the mixed-motive defense can be applied to employment discrimination claims under FEHA is listed as the “issue” of the case on the Supreme Court’s “Summary of Cases Accepted” document on its web site.

Several disability and employee rights groups have sent briefs to the Supreme Court in support of Harris.
Nourmand said even if the Supreme Court rules the mixed-motive defense is allowed, this will not affect his case in a new jury trial.

“Our arguments are not going to change,” he said. “The reason she was terminated was because of her pregnancy. It had nothing to do with her performance.”

Deputy City Attorney Barbara Greenstein said if the Supreme Court allows for the mixed-use defense, it would make a huge difference. She said a jury would have reached a different conclusion had the City been allowed to make the argument during that trial.

“We were not allowed to tell the jury how we treat other pregnant bus drivers,” she said. “We were not allowed to say how many female bus drivers we have of child-bearing age. We were not allowed to say the words ‘child-bearing age.’ As far as the jury knew, she was the only bus driver we had who was pregnant, which was not the case.”

Greenstein said it is also noteworthy that the immediate supervisor who learned of the pregnancy was not involved in the evaluation that she says got Harris fired.

Nourmand said in a pregnancy discrimination case, how other pregnant employees are treated is not relevant to how the particular woman involved in the case was treated.

“And this particular pregnant woman, Ms. Harris, was treated in a discriminatory manner because she was not subject to termination but for her pregnancy,” he said.