Filed 5/29/14 Sanders v. Central Freight Lines CA1/3
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                DIVISION THREE


HOWARD SANDERS,
         Plaintiff and Respondent,
v.                                                                       A134752
CENTRAL FREIGHT LINES, INC.,                                             (Alameda County
         Defendant and Appellant.                                         Super. Ct. No. RG09454517)



         This is an appeal from judgment following a bench trial in a wrongful termination
lawsuit in favor of plaintiff Howard Sanders against his former employer, Central Freight
Lines, Inc. (Central). Following trial, the trial court determined Sanders had been
wrongfully discharged in violation of a fundamental public policy – to wit, for protesting
his workplace safety concerns. For reasons set forth below, we affirm.
                        FACTUAL AND PROCEDURAL BACKGROUND
         Sanders was employed by Central, a freight delivery company, as a pickup and
delivery driver for about seven years until being suspended April 24, 2008, and
terminated April 29, 2008, the date he received his final paycheck.
         The events leading to Sanders’ termination are as follows. On April 24, 2008,
Sanders arrived at his work station in Hayward and was assigned to a tractor trailer
already loaded with freight. This tractor trailer was one of the few tractor trailers at
Central equipped with an “orange tuck-away lift gate” (orange lift gate). Sanders had
previously used the orange lift gate several times, and found it very heavy and awkward


                                                             1
to operate. In fact, Sanders had once strained his back while attempting to manually
unfold the heaviest portion of the gate to unload freight, although he did not report the
injury because he was still able to work. Nonetheless, in order to avoid further injury,
Sanders decided to try to avoid using the orange lift gate by requesting to switch to a
trailer equipped with another type of lift gate.
       Sanders’ dissatisfaction with the orange lift gate stemmed from its weight and
design. The lift gate is comprised of three interlocking parts, some manually-operated
parts and some automatic parts, which unfold to form a platform permitting drivers to
move freight from the trailer’s floor level to ground level. The lift gate is designed to be
used in circumstances where freight must be unloaded at a facility without a raised
platform. It holds a maximum capacity of 4,500 pounds, significantly more weight than
other types of lift gates. To open the orange lift gate, the driver would first push the
control button to turn on a hydraulic system to lower the gate. Once the gate was
lowered, the driver would be required to manually unfold the remaining three sections of
the gate to create a level platform. The first section of the orange lift gate was the
heaviest section, weighing approximately 150 to 200 pounds. According to Sanders, as
well as the other drivers, it is not possible to maintain a straight back while unfolding this
section, which greatly increases the opportunity for sustaining a back injury.
       Thus, because, on the day in question, Sanders was concerned about getting
injured by the orange lift gate, he contacted the yard supervisor and requested to be
reassigned to a tractor trailer with another type lift gate. Although the yard supervisor
agreed, Sanders was immediately approached by Aaron Holstein, the Hayward terminal
manager, who demanded to know why his tractor trailer assignment had been changed.
Sanders explained to Holstein that he had requested to work on a tractor trailer without an
orange lift gate because he had previously strained his back using such gate and because
it was “too heavy” and “unsafe.” Holstein asked Sanders to demonstrate the correct
procedure for lowering the orange lift gate. When Sanders refused to manually open the
first section of the gate (to wit, the heaviest section), Holstein did it himself and declared
it was in working order. Holstein then asked Sanders whether he was “refusing to work.”


                                              2
Sanders replied that he was not, and that he simply sought reassignment to a tractor trailer
without an orange lift gate. Holstein then told Sanders to go to his office to write down a
report of what had occurred.
       Sanders complied with Holstein’s direction and submitted a written statement of
what had occurred. Among other things, Sanders wrote in this statement, that: “The lift
gate is a very heavy lift gate, The last time I had this lift gate I pulled a muscle in my
back. I feel for me the lift gate was too heavy . . . and I asked for freight to be put in
another liftgate trailer that was right next to the other one. I was told no; and if I didn’t
take it, I was refusing to work. It’s not that I didn’t want to work, but I don’t want to hurt
my back again. [¶] . . . [¶] . . . Don’t no driver [sic] here like this trailer. . . . [¶] I don’t
have a problem with working but I do have a problem with hurting my back again. I just
ask for a better and lighter lift gate so I can do my job and there was another trailer that
was empty right next to it. It would have only took [sic]10 minutes to reload.”
       After receiving Sanders’ written statement, Holstein contacted representatives of
Central’s human resources department, located in Texas. After discussing the incident
with a member of this department, Holstein verbally recommended termination of
Sanders’ employment. His recommendation was accepted, and Holstein thus advised
Sanders that he was suspended from work effective immediately, and that he should call
the Central office every morning at 8:00 a.m. to ask whether he would be assigned work
that day.
       Holstein also prepared a “Separation Notice,” which he submitted to Central’s
human resources department on April 24, 2008. This notice set forth Holstein’s
recommendation to terminate Sanders, but failed to comply with the notice’s written
instruction, stated on the first page of the document, to identify all reasons or
justifications for his recommendation. Specifically, as Holstein subsequently admitted,
this notice stated that Sanders was suspended “for violations of standards of conduct,
prohibited conduct,” which referred only to “his refusal to do the work assigned to him,”
but not to any failure by Sanders to comply with corporate policy requiring him to report
his earlier injury from the orange lift gate, the reason Holstein later provided as the basis


                                                  3
of his decision to terminate Sanders. Holstein’s Separation Notice also failed to comply
with the written instruction to attach all relevant documentation. In particular, the notice
did not attach Sanders’ written statement in which he expressly denied that he was
refusing to work and explained that he merely was requesting reassignment to a trailer
with a safer lift gate.
       Sanders, in the meantime, complied with Holstein’s suspension orders, leaving the
work site and calling in each subsequent morning at 8:00 a.m. to request work. However,
each day he was told no work was available and, ultimately, on April 29, 2008, he was
given his last paycheck and officially terminated. Within a day to two, Sanders wrote a
letter to Central’s human resources department seeking reinstatement and requesting a
hearing. In this letter, Sanders explained that he believed “[Holstein] was wrong for
terminating me because Central goes by safety first,” and that his refusal to use the
orange lift gate “was neither insubordinate or [sic] disrespectful,” in that he offered to use
an alternative piece of equipment that was available. However, Sanders received no
response to his letter from Central.
       Thus, on May 26, 2009, Sanders filed his original complaint, later amended,
asserting several causes of action based on wrongful termination against Central.1 A
bench trial began October 11, 2011.
       During trial, several Central drivers were called to testify. These drivers for the
most part uniformly confirmed the orange lift gate was very heavy, unsafe, and designed
in such a way that it was impossible to maintain a straight back while manually unfolding
the gate’s interlocking sections, thereby posing a significant risk of injury. In particular,
defense witness Gutierrez, a driver hired by Central after Sanders’ termination, was


1
       The operative Second Amended Complaint, filed May 10, 2010, identified the
following causes of action: (1) “workplace safety,” (2) disability discrimination
(dismissed by Sanders pretrial), (3) failure to reinstate/rehire, (4) violations of Labor
Code section 6310 through 6312, (5) racial discrimination, (6) estoppel (dismissed by
Sanders pretrial), and (7) tortious discharge in violation of public policy. The trial court’s
judgment for Sanders was based only on his causes of action for wrongful discharge in
violation of public policy and for violations of Labor Code section 6310 through 6312.


                                              4
shown in a videotape demonstrating proper use of the orange lift gate. This videotape
established the inability of the user to maintain an ergonomically-safe straight back while
unfolding the interlocking sections. In addition, Gutierrez himself acknowledged in court
that the orange lift gate was very heavy and that he had heard other drivers complain
about having to use it. Gutierrez also confirmed the orange lift gate was no longer in use
at the Hayward work site.
        Other drivers testifying at trial acknowledged that, like Sanders, they would try to
avoid using the orange lift gate by requesting assignment to a different tractor trailer, by
unloading the freight by hand, by soliciting help from other persons at the delivery site,
or by returning the freight unloaded. In addition, at least two drivers aside from Sanders
acknowledged having been injured using the orange lift gate. And the employee
performing maintenance on the orange lift gate testified that the drivers complained about
having to use it, and that some “were worried about getting hurt [on it] eventually.”
        Holstein, in turn, testified for the defense. He stated that his recommendation to
terminate Sanders was based upon Sanders’ failure to report having strained his back
using the orange lift gate, a violation of corporate policy. In addition, Holstein stated that
he also considered the fact that Central was overstaffed and “headed into a down
economy.” However, Central’s corporate documents demonstrated that the company
hired drivers on March 31 and April 23, 2008, just days before Sanders’ April 24th
termination, and did not lay-off any employees for economic reasons until December
2008.
        Holstein also acknowledged faxing a document to Central’s human resources
department on May 7, 2008, about a week after Sanders’ termination, setting forth a
rationale for recommending his termination. According to this document, Holstein
explained that his decision arose from Sanders’ insubordination for failure to report his
previous injury from the orange lift gate. Holstein admitted, however, that the Separation
Notice he prepared on the day of Sanders’ suspension did not identify this reason.
        Following trial, the trial court found in favor of Sanders on the causes of action for
wrongful termination in violation of fundamental public policy and for violations of


                                              5
Labor Code sections 6310 through 6312.2 The court thus awarded him $293,253 in
damages, plus prejudgment interest at a rate of 10 percent per annum, as well as $13,545
in lost wages and benefits, plus prejudgment interest at a rate of seven percent per annum.
Judgment was entered in favor of Sanders and against Central on January 31, 2012. This
timely appeal followed.
                                      DISCUSSION
       Central challenges the judgment in favor of Sanders on several grounds. First,
Central contends the trial judge misapplied the legal standard governing claims for
wrongful termination in violation of fundamental public policy, also known as Tameny
claims. (See Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167 (Tameny).) More
specifically, Central contends the trial court failed to find the unsafe condition reported
by Sanders (to wit, the risk of injury from use of the orange lift gate) implicated a
fundamental public policy by, for example, creating a safety risk to persons other than
Sanders. Central also contends the trial court disregarded or otherwise misapplied the
law with respect to its primary defenses of mixed motive and mistake. Based upon these
purported legal errors, Central contends de novo review, rather than the standard review
for substantial evidence, is required. Finally, Central challenges the trial court’s award of
emotional distress damages on the ground that such damages are not recoverable in
wrongful termination cases in this State. We address each of the contentions below.


2
       Labor Code sections 6310 through 6312 generally prohibit employers from
discharging an employee who has made a written or oral complaint with respect to
employee safety or health. Central does not specifically challenge the trial court’s
finding that Central violated these statutory provisions other than to state that, based on
the “primary right theory,” Sanders has only one cause of action – to wit, for wrongful
termination in violation of public policy. However, Central fails to set forth any reasoned
argument for reversing the trial court’s finding with respect to the Labor Code violations.
Nor does Central attempt to prove any portion of the damages award in this case is
duplicative or otherwise miscalculated. In fact, Central concedes the damages allegations
are the same as to all of Sanders’ causes of action. As such, we conclude there is no need
on appeal for this court to address the trial court’s finding that Central violated these
Labor Code provisions. (People v. Dubose (2014) 224 Cal.App.4th 1416, 1432 [when no
effective relief may be afforded, an issue on appeal is moot].]


                                              6
I.   Was Central properly found liable for wrongful discharge in violation of
fundamental public policy?
       The parties generally agree with the substantive law governing claims for
wrongful termination in violation of fundamental public policy (Tameny claims). This
law is quite well-established, particularly where, as here, the implicated public policy
relates to workplace safety. Specifically, “[a]n employer who fires an employee in
retaliation for protesting unsafe working conditions violates fundamental public policy,
and the discharged employee may bring a tort action for wrongful discharge in addition to
his or her statutory remedies.” (Barton v. New United Motor Manufacturing, Inc. (1996)
43 Cal.App.4th 1200, 1205.) “ ‘The safety of employees in the work place has long been
a matter of prime legislative concern. Labor Code section 6400 provides: “Every
employer shall furnish employment and a place of employment which are safe and
healthful for the employees therein.” Section 6401 provides: “Every employer . . . shall
adopt and use practices, means, methods, operations, and processes which are reasonably
adequate to render such employment and place of employment safe and healthful. Every
employer shall do every other thing reasonably necessary to protect the life, safety, and
health of employees.” Section 6402 provides: “No employer shall require, or permit any
employee to go or be in any employment or place of employment which is not safe and
healthful.” Section 6403 provides in part: “No employer shall fail or neglect . . . [¶]
(c) To do every other thing reasonably necessary to protect the life, safety, and health of
employees.” And Section 6404 provides: “No employer shall occupy or maintain any
place of employment that is not safe and healthful.” ’ (Hentzel v. Singer Co. (1982) 138
Cal.App.3d 290, 297-298 [188 Cal.Rptr. 159, 35 A.L.R.4th 1015].)” (Jenkins v. Family
Health Program (1989) 214 Cal.App.3d 440, 448.)
       “The Hentzel court stated: ‘It requires little analysis to perceive that the legislative
purpose underlying these provisions would be substantially undermined if employers
were permitted to discharge employees simply for protesting working conditions which
they reasonably believe constitute a hazard to their own health or safety, or the health or
safety of others. Achievement of the statutory objective -- a safe and healthy working


                                              7
environment for all employees -- requires that employees be free to call their employer’s
attention to such conditions, so that the employer can be made aware of their existence,
and given opportunity to correct them if correction is needed. The public policy thus
implicated extends beyond the question of fairness to the particular employee; it concerns
protection of employees against retaliatory dismissal for conduct which, in light of the
statutes, deserves to be encouraged, rather than inhibited.’ (Hentzel v. Singer Co.
[(1982)] 138 Cal.App.3d at p. 298.)” (Jenkins v. Family Health Program, supra, 214
Cal.App.3d at p. 448.)
       “The Legislature has provided for the protection of employees who engage in
certain activities relating to safety and health matters ‘by prohibiting discharge or
discrimination because of such activity (§ 6310, subd. (a)), by declaring victims of
discharge or discrimination to be entitled to reinstatement and reimbursement for lost
wages and work benefits (§ 6310, subd. (b)), and by providing for the maintenance of suit
by the Labor Commissioner on behalf of victims under certain circumstances (§ 6312).’
(Hentzel v. Singer Co., supra,138 Cal.App.3d at p. 298.) The Hentzel court determined
the remedy under section 6312 is neither exclusive nor requisite to maintenance of a
private cause of action. (Hentzel v. Singer Co., supra, 138 Cal.App.3d at pp. 302-303.)
Thus, there is a private right of action for retaliatory discharge for protesting unsafe
working conditions.” (Jenkins v. Family Health Program, supra, 214 Cal.App.3d at
p. 449.)
       In this wrongful termination case, we conclude, based upon review of the entire
record, that substantial evidence indeed supports the trial court’s conclusion that Central
terminated Sanders in response to his protestations about an unsafe working condition at
his worksite – to wit, the unsafe operation of the orange lift gate.3 As the trial court

3
       Central contends the “at-will relationship between Central and Sanders, enabling
Central to terminate it at any time, for any reason or no reason, necessarily imposes upon
Sanders a very high burden of proof.” However, Central cites no authority for this
supposedly elevated burden of proof, and we have found none in the case law set forth
above. As such, we will simply apply the principles expressed in these decisions in a
straightforward manner, without adopting this proposed heightened evidentiary standard.


                                              8
noted, the Central workers testifying both for and against Central were consistent in
noting the orange lift gate’s undue heaviness and the inability to operate it while
maintaining proper posture, circumstances undoubtedly increasing the operator’s risk of
injury, particularly, as one Central driver testified, after multiple uses of the lift gate in a
single day. In fact, not just Sanders, but at least two other Central drivers testified to
having sustained injury while operating the orange lift gate, and the employee responsible
for maintaining the lift gate testified that other drivers complained about its excessive
heaviness and were concerned about getting injured by it.
       In addition, while Holstein may have denied that his decision to terminate Sanders
stemmed from Sanders’ protestations about the orange lift gate’s lack of safety, there is
substantial evidence suggesting otherwise. (See Roby v. McKesson Corp. (2009) 47
Cal.4th 686, 702 [“The central assertion of a claim of wrongful termination in violation
of public policy is that the employer’s motives for terminating the employee are so
contrary to fundamental norms that the termination inflicted an injury sounding in tort”].)
For example, while Holstein stated after the fact that his decision stemmed from Sanders’
insubordination in failing to follow corporate policy requiring immediate reporting of
injury, Holstein failed to identify this reason in the Separation Notice he submitted to
Central headquarters the day of Sanders’ suspension. This official corporate document
instructs on its face that the submitting person must identify the reason for separation and
include all relevant supporting documentation. Here, however, the Notice submitted by
Holstein not only failed to indicate the identified reason for recommending Sanders’
termination, it also failed to include a copy of Sanders’ own written report of what had
transpired, in which Sanders explained that he had not refused to work, but had merely
requested reassignment to a trailer without the orange lift gate.
       And, finally, while Holstein also stated after the fact that he considered Central’s
hiring needs (or lack thereof) when deciding to terminate Sanders, documentary evidence




                                                9
admitted at trial reflected otherwise.4 Specifically, Central documents established that at
least two workers were hired just before Sanders’ termination, suggesting additional
workers were in fact needed, and that no layoffs occurred due to business conditions until
December 16, 2008.
       This substantial evidence suffices to prove the employer’s tort liability for
purposes of a Tameny claim. (Jenkins v. Family Health Program, supra, 214 Cal.App.3d
at pp. 448-449; Barton v. New United Motor Manufacturing, Inc., supra, 43 Cal.App.4th
at p. 1205.) Moreover, this evidence flatly undermines Central’s rather remarkable
claims on appeal that the evidence failed to show the orange lift gate was unsafe or had
caused injury to any Central driver besides Sanders.
       Of course, as stated above, Central also contends substantial evidence is not the
appropriate standard here because of the trial court’s purported legal errors in applying
the law with respect to Sanders’ Tameny claim. For reasons stated below, we disagree.
       First, with respect to Central’s argument that the trial court failed to consider its
defenses of mixed motive and mistake, a brief look at the statement of decision proves
otherwise. Specifically, after describing in detail the relevant evidence regarding
Holstein’s motive, including his own testimony, the Separation Notice described above
that failed to mention insubordination as a reason for termination or to include Sanders’
own version of events, and Central corporate documents disproving his claims of
corporate downsizing, the trial court ultimately concluded: “[G]iven the significant
contradictions of Holstein’s version of events, including the two months leading up to the
termination, his demeanor, and his motive for not telling the truth, the Court does not find
him credible and gives virtually no weight to his testimony. Holstein’s attempt to hide
behind Sanders’ at-will status does not shield Central in this context. Holstein’s conduct
was wrongful and directly caused Sanders’s damage.”



4
       Specifically, Holstein testified his decision to terminate Sanders was triggered in
part by the facts that “the terminal was heavy on staffing” and Central was “headed into a
down economy,” prompting “concerns about productivity.”


                                              10
       Further, with respect to the trial court’s actual legal analysis in rejecting Central’s
mixed motive and mistake defenses, we again find no error. Indeed, a close reading of
Central’s briefs reflects that Central, not the trial court, has misapplied the law.
Specifically, Central suggests the mere existence of evidence of legitimate reason(s) for
termination (in this case, Sanders’ failure to report injury and Central’s need to downsize)
“entitled Central to immediately terminate the employment relationship.” However,
under correct application of the law, an employer with mixed motives for terminating an
employee remains liable for wrongful discharge if the evidence establishes that the
employee would not have been terminated based on the legitimate motive(s) in the
absence of the illegitimate motive. (Hentzel v. Singer Co., supra, 138 Cal.App.3d at
p. 298; Joaquin v. City of Los Angeles (2012) 202 Cal.App.4th 1207, 1226 fn. 5 [“The
central issue is and should remain whether the evidence as a whole supports a reasoned
inference that the challenged action was the product of discriminatory or retaliatory
animus”].) Indeed, even under Central’s authority, Harris v. City of Santa Monica (2013)
56 Cal.4th 203, a plaintiff may prevail on a wrongful termination claim under the Fair
Employment and Housing Act (FEHA) if he or she can “show that discrimination was a
substantial motivating factor, rather than simply a motivating factor . . . .” (Id. at
pp. 232-233 [explaining that requiring discrimination to be a “substantial motivating
factor” ensures “liability will not be imposed based on evidence of mere thoughts or
passing statements unrelated to the disputed employment decision”].)
       Here, the evidence of motive, which we have already described in detail (pp. 9-10,
above), is more than sufficient to draw the necessary inference that, in the absence of
Sanders’ protestations about the orange lift gate’s safety risk, he would not have been
terminated for having failed to report his earlier injury from the orange lift gate or due to
Central’s purported need to downsize. This evidence, particularly the corporate
documents undermining Holstein’s claims regarding the purported need to downsize, was
also sufficient to support the trial court’s decision to discount the overall weight of
Holstein’s testimony on credibility grounds. (Valero v. Board of Retirement of Tulare
County Employees Assn. (2012) 205 Cal.App.4th 960, 965-966 [the trier of fact is the


                                              11
sole judge of witness credibility, and has discretion to reject even uncontradicted
testimony as not credible].)
       Finally, we quickly dispose of Central’s contention that the trial court misapplied
the law governing Tameny claims by failing to make the requisite finding that Sanders’
complaint about the orange lift gate related to an “actual or potential harm or danger to
the public,” as opposed to a harm or danger to Sanders alone. While Central correctly
states the law in this regard (Barton v. New United Motor Manufacturing, supra, 43
Cal.App.4th at p. 1208 [“action[s] for wrongful discharge in violation of public policy
must be predicated on a policy that concerns society at large rather than the individual
interests of the employer or employee”]), the record belies its contention that the trial
court misapplied it. Indeed, we can conceive of few, if any, cases involving a Tameny
claim where the plaintiff’s personal rights are not also implicated. As explained in
Barton v. New United Motor Manufacturing, supra, “the gravamen of the wrongful
termination action is the violation of some personal right considered to be of fundamental
public importance, protected or guaranteed either by statute or the Constitution, not the
financial or economic loss from the termination of employment.” (Id. at p. 1209 [italics
added]. See also Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1256 fn. 10
[“[t]he interest advanced by the policy must inure to the benefit of the public at large,
rather than simply to the individual employer or employee”].) And clearly the public
workplace safety policies underlying Sanders’ valid protestation about a dangerous piece
of trucking equipment serve not just Sanders, but all Central drivers who, like Sanders,
face the possibility of being assigned a trailer equipped with the orange lift gate. (See
Hentzel v. Singer Co., supra, 138 Cal.App.3d at p. 296 [“California has long maintained a
policy of protecting the right of employees to voice their dissatisfaction with working
conditions”].)
       Thus, in light of the trial judge’s proper application of the governing legal
principles, and in light of the substantial evidence supporting its ultimate findings and
conclusion, the judgment against Central for wrongfully terminating Sanders must stand.



                                             12
II.    Is Sanders entitled to damages for emotional distress?
       Central’s remaining contention is that the trial court erred by awarding Sanders
damages for his emotional distress arising out of his wrongful termination. Central
reasons that “liability for wrongful termination does not expose the employer to an award
of damages for emotional distress” because “[t]he Workers’ Compensation Act is the
exclusive source of damages for emotional distress arising out of loss of employment.”
We again disagree.
       Quite simply, Central’s attempt to limit the scope of Sanders’ damages arising
from its decision to wrongfully terminate his employment under these circumstances is
contrary to California law. As the California Supreme Court has recognized, because a
cause of action for wrongful discharge in violation of public policy sounds in tort rather
than contract or statutory law, a prevailing plaintiff is entitled to recover the full panoply
of compensatory and punitive damages. (See Tameny, supra, 27 Cal.3d at pp. 176-177
and fn. 10 (rejecting the argument that a tort cause of action for wrongful termination in
violation of public policy should not be permitted due to the availability of punitive
damages in tort actions because such an award would “impair[] the employer-employee
relationship”]; see also Capelouto v. Kaiser Foundation Hospitals (1972) 7 Cal.3d 889,
893 [“[i]ndeed, mental suffering frequently constitutes the principal element of tort
damages [citation]; awards which fail to compensate for pain and suffering have been
held inadequate as a matter of law”].) Central’s authority in challenging the award,
Torres v. Parkhouse Tire Service, Inc. (2001) 26 Cal.4th 995, is not inconsistent; it is
distinguishable. (Id. at p. 1000 [“Under an exception to the exclusivity of workers’
compensation remedies, an injured employee may bring a civil action against another
employee ‘[w]hen the injury or death is proximately caused by the willful and
unprovoked physical act of aggression of the other employee.’ (Lab. Code, § 3601, subd.
(a)(1) [fn. omitted].)”].) The same is true with respect to Harris v. City of Santa Monica,
supra, 56 Cal.4th 203. The Harris court held that, due to “the inherent difficulties in
disentangling the possible sources of a plaintiff’s emotional distress upon being fired, . . .
a termination decision substantially motivated by discrimination is not compensable in


                                              13
damages under section 1294(a) when an employer makes a same-decision showing”
(meaning the employer shows it would have fired the employee anyway for lawful
reasons). In this case, as we have already held, Central failed to make the requisite same-
decision showing. (56 Cal.4th at p. 234; see pp. 11-12, ante.)
       Given the clarity of the law in this regard and Central’s failure to identify any
relevant case law to the contrary, we conclude no further analysis is required. The
damages award in this case stands.5

                                      DISPOSITION
       The judgment is affirmed.



                                                  _________________________
                                                  Jenkins, J.


We concur:


_________________________
Pollak, Acting P. J.


_________________________
Siggins, J.



5
        In its opening brief, Central made the additional argument that the trial court’s
award of back pay to Sanders was erroneous. Central reasoned that Sanders was not
entitled to back pay because he was disabled during the relevant period of time. (See
Davis v. Los Angeles Unified School Dist. Personnel Com. (2007) 152 Cal.App.4th 1122,
1133-1134.) In response, Sanders noted that, as a legal matter, this argument should be
deemed forfeited because Central failed to raise it before the trial court and, as a factual
matter, it fails because Sanders was not disabled during the identified period of time,
rather, he was assigned to light duty. In its reply brief, Central does not respond to
Sanders’ counterarguments and, in fact, makes no mention of its earlier back pay
argument. As such, we conclude this argument has been abandoned and decline to
address it further.


                                             14
