Silvana Fotheringham sued her former employer, Avery Dennison Corporation, asserting failure to accommodate her disability, hostile work environment, wrongful termination, and retaliatory discharge.
One of the issues on appeal was the trial judge's decision to summarily deny the punitive damages allegations.
In support of her demand for punitives, the plaintiff had claimed that her termination came as a result of her hiring an attorney, thus violating the public policy described in Labor Code Section 923 (which includes an employee's right to free association and legal representation).
In her pre-trial pleadings, her main point in support of this contention was that she was fired the very next day after the employer received her attorney's letter requesting accommodations.
The employer's argument for summary judgment on the issue was that the plaintiff hadn't provided any evidence in her pre-trial pleadings connecting the hiring of the lawyer with the termination.
While the trial court had agreed with the employer, the Second District ruled that the allegation from plaintiff (as to the timing of the firing) was sufficient to shift the burden to the employer to show that the plaintiff could not reasonably come into possession of such evidence (not simply that she hadn't had the evidence available at the time). The appellate court ruled the employer failed to show that the evidence couldn't be produced through discovery. Thus, summarily denying the punitive damages claim was error.
In this unpublished decision, the court ruled that simply not having the evidence "does not remotely establish that [the employee] cannot demonstrate an entitlement to punitive damages for terminating her once she enlisted an attorney to request accommodations on her behalf."
"This evidence was sufficient to shift the burden to Fotheringham to demonstrate that a triable issue of fact existed as to whether Avery Dennison terminated her employment in retaliation for engaging an attorney to represent her and seek accommodations. Fotheringham met that burden. She produced evidence that Avery Dennison fired her the day after it received her attorney's letter requesting accommodations. "Pretext may . . . be inferred from the timing of the company's termination decision . . . ." (Flait, supra, 3 Cal.App.4th at p. 479.) ...
"This was sufficient to demonstrate that a triable issue of material fact existed as to whether there was a causal link between the request for accommodations by Fotheringham's counsel and the termination of her employment by Avery Dennison.
The case is Fotheringham v. Avery Dennison.
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