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October 2003 
Vol. 9 No. 8 ISSN 1087-6219
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The Ninth Circuit has ruled that private employers may insist that their employees sign arbitration agreements that cover Title VII claims. The en banc decision overrules an earlier decision that Title VII claims were unarbitrable.
Luce Forward refused to hire Donald Scott Lagatree as a legal secretary because he would not sign an agreement to arbitrate all claims arising from his employment. The California courts dismissed Lagatree's ensuing state court lawsuit for wrongful termination. The EEOC sued in federal court on Lagatree's behalf. The district court ordered Luce Forward not to insist arbitration of Title VII claims. The en banc Ninth Circuit reversed.
In Duffield v. Robertson Stephens & Co., 144 F.3d 1182 (9th Cir. 1998), a three-judge panel ruled that Title VII's language and legislative history barred arbitration of claims brought under its provisions. Duffield ruled that Congress only intended to allow voluntary arbitration.
A 1991 amendment to Title VII encouraged alternative dispute resolution, including arbitration, “where appropriate and to the extent authorized by law.” Although the Duffield court felt that arbitration of Title VII claims was not “appropriate,” its interpretation was not consistent with federal law favoring arbitration. Although there was language in the legislative history to the 1991 amendment which suggested that Congress intended to retain a judicial forum for Title VII claims, that was no sufficient to overcome the clear language of the statute. If Congress meant to bar arbitration, it would have written such a provision into the statute itself.
Although an employer may insist that its employees sign arbitration agreements, those agreements do not bind the EEOC. Since it would not be a party to the arbitration agreement, it may still pursue judicial remedies. EEOC v. Waffle House, Inc., 534 U.S. 279 (2002).
EEOC v. Luce, Forward, Hamilton & Scripps, No. 00-57222 (9th Cir. Sep. 30, 2003).
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The San Diego division of the Fourth District Court of Appeal has ruled that a visitor to a restaurant parking lot may have a claim against the restaurant owner for his employees' failure to respond to a knife attack. There was no duty to prevent the crime in the first place.
Charles Morris was knifed in a parking lot that adjoined Silvino De La Torre's taco shop. Morris had arrived with some friends who bought food, but did not himself want any food. His attacker obtained the knife from the taco shop in part because De La Torre's employees were afraid to stop him from entering. The employees saw the subsequent knife attack in the parking lot, but did not call 911.
A business owner only has a duty to take protective measures against criminal attacks where the plaintiff establishes a high degree of foreseeability based on prior similar incidents of violent crime on the premises. Morris had no such evidence in this case.
There is a duty to take reasonable action to protect those with whom a business owner has a special relationship when criminal conduct is occurring at the business. Although the attack occurred in the parking lot (which De La Torre did not own) and Morris did not actually patronize De La Torre's shop, there was a sufficient connection to extend that duty to him. Morris had been a customer before, and arrived with friends who bought food. The lease for the taco shop included access to the parking lot. The attacker used the shop to effectuate his crime.
Although the employees had a duty to summon aid, there could be no liability for inaction based on the employees' fear for their own safety. A property owner has the right to choose to protect his own safety by compliance with an intruder's demands. Kentucky Fried Chicken of California, Inc. v. Superior Court, 14 Cal. 4th 814 (1997).
Morris v. De La Torre, 4 Cal. Rptr. 3d 568 (Ct. App. 2003).
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The Ninth Circuit has affirmed a $400,000 damage award to an employee fired for failing a drug test that turned out to be invalid. It rejected a testing laboratory's argument that federal law preempted her state claim.
Yasuko Ishikawa was a Delta flight attendant. While flying from Japan to Oregon, she was told she would be required to undergo a random drug test upon arrival. During the nine-hour flight, she drank several liters of water and tea. LabOne reported that her urine sample was not consistent with normal human urine. Delta fired her.
During her ensuing litigation against LabOne and Delta, a court-ordered test of the other half of her urine sample showed that LabOne's test results were invalid. Delta rehired Ishikawa, and reimbursed her for the pay that she lost. A jury in Oregon federal court awarded her $68,000 of economic damages, and $332,000 of noneconomic damages.
LabOne argued that the federal Omnibus Transportation Employee Testing Act of 1991 (which establishes guidelines for testing employees in the transportation industry) preempted Ishikawa's state law negligence claim. The Act expressly preempts state laws that are “inconsistent” with federal testing requirements. Imposing liability for failure to exercise due care is not inconsistent with federal law.
There was no implied preemption. Federal law has not so far occupied the field of drug testing regulation that there is no room for state law. Potential defendants can comply with both federal and state law. State negligence law is not an obstacle to fulfillment of Congressional purposes.
Ishikawa v. Delta Airlines, Inc., 2003 WL 22128938 (9th Cir. Sep. 12, 2003).
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The Third District Court of Appeal in Sacramento has ruled that a student injured while mapping a route for a class trip could not sue her college for injuries sustained while riding off-campus in a classmate's pickup truck.
Abigail Stockinger was enrolled in a community college course that taught practical skills necessary in the organization and implementation of a pack trip. Part of her homework was to map out a three-day pack trip. She received the assignment at the beginning of the semester, and had all semester to complete it.
The day of the accident, Stockinger rode in the bed of a pickup truck driven by one of her classmates. The driver went too fast down a dirt road and hit something. The impact threw Stockinger from the truck, and rendered her a paraplegic.
Education Code section 87706 provides that a community college district is not liable for the safety of its students when they are not on school property. There are exceptions where the district has undertaken to provide transportation, sponsors an activity off the premises, assumes responsibility, or has failed to exercise reasonable care under the circumstances.
The assumed responsibility exception did not apply because it only covers situations where the student is or should be under the immediate and direct supervision of a district employee. The law does not require immediate and direct supervision while students are doing their homework.
Stockinger argued that the district was negligent when the instructor gave out the assignment. He should have taken reasonable steps to ensure that there were enough safe vehicles for the students, that the vehicles had proper seating, that all drivers had adequate insurance and good driving records, and that the students had instruction in off-road safety.
After weighing the factors for determining the existence of a common law negligence duty, the court determined that they would not support imposition of liability. There was only a slight connection between the alleged negligence and Stockinger's injuries, in light of her own negligence in riding in the back of the pickup truck, and the driver's reckless driving. Recognizing such a duty would impose an extraordinary burden on community colleges.
Stockinger v. Feather River Community College, 4 Cal. Rptr. 3d 385 (Ct. App. 2003).
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The Ninth Circuit has reversed summary judgment for police officers who used excessive force in restraining a mentally ill individual who was a danger to himself. Their conduct violated clearly established constitutional standards.
Brian Drummond suffered from bipolar disorder and schizophrenia. A neighbor called the Anaheim police because he feared that Drummond would hurt himself by darting into traffic. The responding officers found Drummond unarmed, hallucinating and in an agitated state in a 7-Eleven parking lot. They decided to take him into custody for his own safety.
One officer knocked Drummond to the ground. Then, the officers cuffed his arms behind his back as he lay on his stomach. After they handcuffed him, two officers continued to lean on his neck and upper torso, despite Drummond's protests that he could not breathe.
After another officer arrived twenty minutes later, the officers applied a hobble restraint. A minute later Drummond lost consciousness. He sustained brain damage, and fell into a coma from which he has not recovered.
The federal district court granted summary judgment on Drummond's excessive force claim under the Fourth Amendment based on qualified immunity. The Ninth Circuit reversed.
Courts evaluate Fourth Amendment excessive force claims by balancing the nature and quality of the intrusion on a person's liberty with the countervailing governmental interests at stake. Graham v. Connor, 490 U.S. 386 (1989).
The officers used severe force that was capable of causing death or serious injury. There was a minimal need for force, because Drummond was not involved in a crime and was not a threat to the officers. Once he was handcuffed and on the ground, there was no threat to anyone.
There was no qualified immunity because the conduct violated clearly established law. A reasonable officer would have known that the conduct was unlawful. A police department training bulletin had warned the officers that kneeling on a suspect's back could lead to death or injury from inability to breathe.
Drummond v. City of Anaheim, 2003 WL 22087574 (9th Cir. Sep. 10, 2003).
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Subsequent treatment of decisions reported on in earlier issues:
Bragg v. Valdez (September 2003 issue), now reported at 111 Cal. App. 4th 421 (2003).
DVD Copy Control Association v. Bunner (September 2003 issue), now reported at 31 Cal. 4th 864 (2003), time for grant or denial of rehearing extended to Nov. 21, 2003.
Escalante v. Wilson's Art Studio, Inc. (June 2003 issue), review denied and official reporter directed not to publish the decision (Sep. 10, 2003). The decision may no longer be cited. Cal. R. Ct. 977.
Kahn v. East Side Union High Sch. Dist. (September 2003 issue), now reported at 31 Cal. 4th 990 (2003).
Lee v. Yang (September 2003 issue), now reported at 111 Cal. App. 4th 481 (2003).
M.W. v. Panama Buena Vista Union Sch. Dist. (September 2003 issue), petition for review filed (Aug. 21, 2003).
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