Northern California Record

Monday, November 18, 2019

4th District Court of Appeals hears religious discrimination case

By Angela Underwood | Jan 11, 2018

The 4th Circuit judges reversed three financial awards. | File photo

California's 4th District Court of Appeals affirmed, reversed and remanded a religious discrimination appeal. 

Presiding Judge Manuel Ramirez and associate judges Marsha Slough and Art McKinister both affirmed and reversed in part plaintiff and appellant J. Brent Arave’s appeal against defendants and appellees Merrill Lynch, Pierce, Fenner & Smith Inc. by discrimination, harassment and retaliation based on his membership in the Church of Jesus Christ of Latter-day Saints in a Jan. 2 opinion.

Under the California Fair Employment and Housing Act (FEHA), Arave charged religious discrimination, wage claim and whistleblower retaliation in 2011 against his former employers, Merrill Lynch, Pierce, Fenner & Smith Inc., as well as Bank of America and his former supervisors.

Arave lost his fight when the case was dismissed after a five-week trial, and the court awarded defendants more than $180,000 in costs, expert witness and attorney fees for their defense against Arave. 

He appealed based on nine grounds.

The first five grounds of Arave’s appeal include, “the trial court made numerous evidentiary errors, which prejudiced Arave; defense counsel committed prejudicial misconduct; the trial court’s bias deprived him of a fair trial; committed prejudicial error by instructing the jury certain evidence could not constitute harassment attributable to his employers; and the jury’s verdict was not supported by substantial evidence because defendants conceded they subjected Arave to an adverse employment action,” according to the 94-page appeal.

The remaining four grounds of Arave’s appeal are the trial court erred in denying Arave’s motion for a new trial; erred by awarding defendants $97,500 in attorney fees on Arave’s wage claim despite not finding the claim frivolous; erred in awarding defendants costs and expert witness fees on Arave’s FEHA claims despite finding the claims nonfrivolous; and erred in granting summary judgment in favor of individual defendant Katherine Anderson on Arave’s harassment claim,” according to the appeal.

Judges Ramirez, Slough and McKinister affirmed and reversed the trial courts verdict, citing their first grounds of reversal was based on Williams v. Chino Valley Independent Fire Dist. 2015.

“We reverse the trial court order awarding $54,545.18 in costs as contrary to FEHA’s cost-shifting provision as the Supreme Court held in Williams,” according to the appeal.

The 4th Circuit judges also reversed the $29,097.50 trial court order for expert witness fees that conflicts FEHA’s cost-shifting allowance. 

“We remand for the trial court to determine whether it is appropriate to award any costs or expert witness fees on Arave’s wage claim,” according to the appeal, adding it is up to the trial court to determine if the wage claim was frivolous. “We also reverse the order awarding $97,500 in attorney fees on Arave’s wage claim as contrary to the amended Labor Code Section 218.5, Subdivision a.”

The 4th Circuit judges affirmed the trial courts judgment in all other respects and both Arave and the defendants must pay their own appeal costs. 

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California Fourth Circuit Court of Appeals