Free Brief - District Court of California - California

Case 3:08-cv-02108-JL

Document 19

Filed 05/28/2008

Page 1 of 4

I

2
a J

law provisions usuallyrespected Californiacourts...an are by agreement designating foreignlaw] will not be giveneffectif it would violatea [a strongCaliforniapublic policy...[or]resultin an evasion of...astatute of the forum protecting citizens." its (Hall,supra,150Cal.App.3d 416-417.) at TheCourtconcluded Californialaw evinced strongpublic policy in favor of that a protecting public from fraudulent the securities Therefore, Nevada transactions. the choiceof law provisionwasnot enforced.(Hall, supro,150Cal.App.3d 417-418.) at

4 5 6 7

Similarly,this Court shouldadoptthe holdingof Hall. Californialaw demonstrates an 8 9 In the employers. enacting FEHA, for example, CalifomiaLegislature the expressly stated the 10 11 discrimination: strongpublicpolicy in favor of eliminatingemployment finds anddeclares it is the existingpolicy of the State that of "The Legislature Californiato prohibit harassment discrimination employment thebasis in and on whetherintentional unintentional of anyprotected classification. Suchconduct or is a violationof the civil rightsof Californiacitizemyandhasbeenshownto productivityin the workforce. is the existingpolicy of the State It decrease of by that be by California,asdeclared the Legislature, procedures established which may be filed, timely and allegations prohibitedharassment discrimination of and and and and be efficientlyinvestigated, fairly adjudicated, that agencies employers which includepromptandremedial affirmativeprograms required establish to will be maintained from free intemalprocedures monitoringsothatworksites and prohibitedharassment discrimination their agents, and by administrators, and To and supervisors well asby their nonsupervisors clientele. furtherthis intent, as the Legislature enacts act." this (Cal.Govt.Code,$ 12940, comments.) historicalandstatutory of strongon the subject endingdiscrimination California'spublic policy is particularly Kay enacted Prudence Poppink the disability. In 2000,the Legislature on based an employee's California'sdisabilitylaw. First,the Act allowsa Act (theAct), which significantlyexpanded limits, ratherthansubstantially to employee prevailby showingthattheir impairment disabled With DisabilitiesAct (ADA) .t (Stt, by limits, a majorlife activityasis required the Americans equallystrong if not stronger public policy in favor of eliminatingdiscrimination by

t2 13 t4 l5 t6 T7 l8 t9 20 2l 22 23 24 25 26 27 28

3Brruose FETIAdefines disabilityassomething merely"limits" an employee, whilethe ADA that a the of can application thetwo statutes leadto that limits" an employee, a defures disabilityassomething "substantially (9th Inc. in case.(^See e.g.,EEOCv. UnitedParcelService, 2005WL 2233243 Cir. differentresults the same 2005).) Motion for Declaratoryand 15 Relief Injunctive

Case 3:08-cv-02108-JL

Document 19

Filed 05/28/2008

Page 2 of 4

I

2000Cal.Legis.Serv.Ch. 1049$ 5, amending Cal.Govt.Code,$ 12926(k)(l)(B).)Second, the

2 Act expands ability of plaintiffs to prevailon "regarded disabled the as" claim,including
a J

providing for recoverywherean employerregards treatsemployees having a conditionthat or as might impairthemin the future. (1d.,amending Gov't Code$ 12926(kxs).f Third, theAct Cal. (1d., explicitlycovers "medicalconditions,"includinggenetic characteristics. amending Cal. (hxl)-(2).) Gov'tCode$ 12926 the In addition,at aboutthe same time asthe Act waspassed, CaliforniaCourtof Appeals (2000)thata failureto accommodate Fargo Bank,85 Cal.App.4th245 a heldin Jensenv.Wells practice separate distinctfrom disability and employee an unlawful employment was disabled

4 5 6 7 8 9

therecanbe little doubtthat Califomia'spublicpolicy 1 0 discrimination.In light of theseadvances, on discrimination based disability. favorseliminatingemployment 1 1 strongly t2 l3 l4 l5 t6 mostanalogous the to Virginia law is not so clear. The Virginia statute Unfortunately, Like its With Disabilities Act." (VWDA) (Va. CodeAnn. $ 51.5-41.) FEHA is the"Virginians a the the namesuggests, VWDA closelyparallels ADA. It requires showingthat an employee's also,5 Emp.Coord. limits" oneor moremajorlife activities. (/d.) (See disability"substantially "limits" Practices 9:124Virginia.) It doesnot containthe moregenerous Employment $

of t 7 language the FEHA.

l8

to accommodations employers makereasonable while the VWDA requires Furthermore,

a an costing$500or morecreates rebuttable employee, accommodation t 9 for a disabled (Va. CodeAnn $ of of 20 presumption an undueburdenon employers fewerthan50 employees.

2l

accommodation requirements on the Californialaw imposes FEHA's reasonable 51.5-a1(c)(2).)

presumption.(Cal.Govt. no and with 22 employers 5 or moreemployees, contains suchrebuttable accommodation 23 Code,S 12926(d).)Underthe FEHA, the burdenof showingthat a proposed alwaysrestswith the employer.(Cal.Govt. Code,$ 12940(m).) 24 would beundulyburdensome

25 26
aThisfeatureof the FEHA is particularly importantwheren here,an employee allegesthat shewas as unlawfully, would while on medicalleavefor a conditionthat an employermight well havedetermined, terminated

27 impairherin thefuture. 28 Injunctive Relief
and Motionfor Declaratory

l6

Case 3:08-cv-02108-JL

Document 19

Filed 05/28/2008

Page 3 of 4

1

In addition,the caselaw interpretingthe VWDA andVirginia employmentlaw in general

2 reflectsa forumthat is hostileto the claimsof disabled employeesIn Staffordv. Radford .
J

F.Supp.1369,1375 (W.D.Va. 1995), Westem Comm. Hosp.,908 the DistrictCourt,applying Virginia statelaw, held that thereis no private cause action in Virginia for wrongful discharge of in violationof public policy based disability. This resultdiffersmarkedlyfrom the result on

4
)

6 underCalifornialaw which recognizes these so-called "Tamenyclaims"pursuant theholding to
v. 7 of Tameny AtlanticRichfieldCo.,27 Cal.3d167,172(1980).Thisresultalsomeans that,if to 8 Plaintiffis required arbitrate underthe lawsof the Commonwealth Virginia, shewill of lose her 9 automatically her right to pursue fifth cause action. of

10

Virginia's caselaw on reasonable is accommodations equallyrestrictive.Of the reported

foundby Plaintiff (of which thereweresurprisingly 1 1 decisions few), virtually all resulted in g4l favoring employer.t(See, the t 2 decisions e,g., Hinchv. Duncan, F. Supp. (W.D.Va. 1996); 62

1 3 Tyndallv, NationalEducationCenters,3l F.3d 209(4thCir. 1994).) t4
reasons, rationale the OlinickCourt shouldbe disregarded. the of For these Unlike New

laws,which morecloselyminor Califomia's,Virginia's disabilitylawsare t 5 York's employment disabled employee Plaintiff. like to 1 6 highly dis-advantageousa relativelyunsophisticated, here t 7 Enforcing choiceof law provisionin the ArbitrationAgreement will projectVirginia's the persons the Statewith, perhaps, into of the view of the rightsandremedies disabled l 8 restrictive will to view of these rightsandremedies.Theresult:Defendant be permitted do t 9 mostexpansive

20 employindividualsin California,while violatingCalifornia'sstrongpublic policiescondemning 2l
carefullycraftedby our in and thosestatutes disabilitydiscrimination employment evading

the in to 22 Legislature protectCalifornia'scitizenry. This is precisely resultcondemned Hall, and

23 it shouldnot be permittedhere. 24 ilt 25 26 27 28
'Plaintiffacknowledgesthat, dueto their similarity, theremay be additionalVirginia cases applyingthe presented the choiceof law provisionin the by evenif theyexist,this doesnot curetheproblems ADA. However, because California law is far broaderthanthe ADA. Arbifiation Agreement Motion for Declaratoryand InjunctiveRelief

t7

Case 3:08-cv-02108-JL

Document 19

Filed 05/28/2008

Page 4 of 4

I

B.

2
a J

Injunctive Relief Is Appropriate In This CaseTo Protect Plaintiff Her Right From An Unconscionable ContractAnd To Preserve To Of Access Court

In view of the procedural substantive and unconscionability the ArbitrationAgreement, of Plaintiffshouldnot be held to its shocking, unfairterms. Arbitrationhasalready one-sided, been however, unless Courtalsoenters orderenjoining and an commenced Defendant, by the from furtherenforcement the ArbitrationAgreement, of Plaintiffwill and Defendant its attorneys relief, Plaintiff requests order injury. Therefore, additionto declaratory in an sufferirreparable from enforcing ArbitrationAgreement. the permanently enjoiningDefendant ilI. CONCLUSION

4 5 6 7 8 9 10 l1

requests this Motion be granted, that and Plaintiff respectfully For the foregoing reasons, that sheis not boundby thetermsof the ArbitrationAgreement.Plaintiff thatthe Courtdeclare

of enjoiningenforcement the ArbitrationAgreement an t 2 furtherrequests injunctionpermanently her. l 3 against

t4
May27,2008 l 5 Dated:

Respectfully

t6 t7 18 T9 20 2l 22 23 24 25 26 27 28
Motion for Declaratoryand Relief Injunctive

18