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Horvitz & Levy is a solutions-based firm focused on appellate success. We are distinguished by our commitment to responsive service and on-going innovation in the areas of civil appellate litigation, amicus curiae support, and trial strategy consultation.

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The Court of Appeal agreed with the arguments Horvitz & Levy presented on appeal, reversed an award of economic damages in a workplace harassment action, and denied the plaintiff’s request for additional statutory attorneys’ fees on appeal.

Nicole Birden, an African American phlebotomist at UCLA Medical Center in Santa Monica was discharged from employment for tardiness, absences, and communication problems with her coworkers. After her re-application to work at the same facility was rejected, she sued her employer, The Regents of the University of California, under the Fair Employment and Housing Act (FEHA), alleging racial discrimination, retaliation, and a hostile work environment (harassment).

At trial, Birden presented evidence that her co-workers engaged in conduct that she alleged was harassment, including calling her names with racially biased overtones. She presented no evidence that her supervisor, who ultimately terminated her employment, was one of the harassers. She claimed to have suffered emotional distress and also claimed lost wages as a result of being wrongfully terminated. The jury found in The Regents’ favor on the discrimination and retaliation claims, but found in Birden’s favor on the hostile work environment cause of action. The jury awarded $1.3 million in noneconomic damages and $276,145.92 in economic damages for lost wages.

In an unpublished opinion, the Court of Appeal, Second District, Division Two, agreed with Horvitz & Levy’s arguments and struck the entire award of $276,145.92 in economic damages. The court held the damages award violated the jury instructions and was fundamentally inconsistent with the jury’s findings that Birden was not wrongfully terminated. The court distinguished cases upholding awards of economic damages for harassment under FEHA, noting that, unlike this case, those are cases where the plaintiff-employee resigned or was constructively discharged. The court also rejected Birden’s attempt to use the so-called “cat’s paw” theory to link her supervisor’s termination decision to harassing conduct by her coworkers. The court denied Birden’s request for statutory attorneys’ fees and costs on appeal.