Key Decisions

June 2012 – Can Be Liable For Retaliation

(filed under: | June 16, 2012)

Other Cases Of Interest

A Partnership Can Be Liable To A Partner For Retaliation

Fitzsimmons v. California Emergency Physicians Medical Group
(Cal. Ct. of App., 1st Dist.), filed May 16, 2012 

California Emergency Physicians Medical Group (“CEP”) is a California general partnership with approximately 700 partners working in hospital emergency rooms throughout California. Mary Fitzsimmons was an emergency room physician and a member of the partnership. She was appointed a regional director and was elected to serve on the Board of Directors. However, her appointment as a regional director was subsequently terminated, purportedly in retaliation for reports she made to her supervisors that “certain officers and agents of CEP” had sexually harassed female employees of CEP’s management and billing subsidiaries.

Fitzsimmons sued CEP, its president and its chief operating officer alleging causes of action for retaliation in violation of public policy, breach of contract, breach of the covenant of good faith and fair dealing, and breach of fiduciary duty.

By the time of trial, the individual defendants had been dismissed and the sole remaining cause of action against CEP was for retaliation in violation of FEHA and public policy.

Before trial, the court ruled that if Fitzsimmons was a bona fide partner in CEP, she did not have standing to assert a cause of action for retaliation under FEHA against CEP. The jury found Fitzsimmons was a bona fide partner and entered judgment in favor of CEP.

The Court of Appeal reversed. It concluded that the trial court read the case of Jones v. Lodge at Torrey Pines Partnership, 42 Cal.4th 1158 (2008), too broadly.

In Reno v. Baird, 18 Cal.4th 640 (1998), the California Supreme Court held that a supervisor whose conduct renders the employer liable for employment discrimination under section 12940(a) of the FEHA cannot be held personally liable for the discrimination. The Torrey Pines case extended this to include liability for retaliation. However, the trial court appeared to have read the Torrey Pines case to say that partners or a partnership could not be liable for discrimination or retaliation.

The court held that because CEP was in a partnership relationship rather than an employment relationship with Fitzsimmons, it could not be liable for harassing or discriminating against her. However, it was in an employment relationship with the individuals who were being harassed and it could be liable to them. Further, it could be liable to Fitzsimmons for retaliating against her for her complaints.