Partner May State FEHA Claim Against Partnership For Retaliation For Opposing Sexual Harassment Of An Employee Of The Partnership

A California Court of Appeal recently held that the California Fair Employment and Housing Act (“FEHA”) supports a partner’s claim for retaliation against her partnership for opposing sexual harassment of an employee of the partnership.  (Fitzsimons v. California Emergency Physicians Medical Group (— Cal.Rptr.3d —-, Cal.App. 1 Dist., May 16, 2012).


California Emergency Physicians Medical Group (“CEP”) is a general partnership that has approximately 700 partners who work in hospital emergency rooms.  CEP is governed by an elected nine-member board of directors (“Board”).  The Board appoints medical directors who supervise emergency doctors at each hospital and the hospitals are also grouped into regions, which are supervised by regional directors who are appointed by the Board. 

Mary Fitzsimons, an emergency physician, became a member of CEP in 1985.  She became a medical director at Sutter Medical Center in 1987 and a regional director of four hospitals in 1987.  While she served as a regional director, she continued to work as an emergency physician.  Fitzsimons was elected to serve on CEP’s Board.  In October 2004, Fitzsimons’ appointment as regional director was terminated.  However, Fitzsimons was not removed from the Board and she continued to work at Sutter Medical Center as an emergency physician.

Fitzsimons brought a lawsuit alleging CEP terminated her from her position as regional director and created a hostile work environment in retaliation for reporting to her supervisors that certain CEP agents and officers had sexually harassed females who were employed by management and billing subsidiaries of CEP.  Because Fitzsimons was a bona fide partner in CEP, the trial court found she did not have standing to assert a FEHA retaliation claim against CEP.


The court of appeal agreed with Fitzsimons and held that the “FEHA does support a claim for retaliation by a partner against her partnership for opposing sexual harassment of an employee.”  The appellate court reversed the judgment of the trial court and remanded the case so Fitzsimons could proceed in her lawsuit against CEP.

The FEHA, at Government Code section 12940, prohibits employment discrimination, harassment, and retaliation for complaining about discrimination or harassment.  There must be an employment relationship between the one who inflicts the discrimination or harassment and the victim.  Section 12940, subdivision (h), provides that it is an “unlawful employment practice” for an “employer, labor organization, employment agency, or person to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part.”  Section 12925 includes partnerships within the definition of “person” for the purposes of section 12940.  Fitzsimons asserted that partnerships are prohibited by section 12940 from retaliating against a partner who reports or opposes conduct, such as sexual harassment of an employee of the partnership.  The trial court, however, agreed with CEP that section 12940, subdivision (h), does not apply to a partnership’s retaliation against a partner because partners are not in an employer-employee relationship.

In reaching its decision, the trial court relied on the decision of Jones v. Lodge at Torrey Pines Partnership (2008) 42 Cal.4th 1158, which held “that a nonemployer individual cannot be held liable for retaliation.”  The Torrey Pines Court reasoned that “because a supervisor cannot be personally liable for discriminating against an employee, the fact that section 12940, subdivision (h) makes it unlawful for any ‘person’ to retaliate for complaining of discrimination cannot be read to impose liability on ‘nonemployer individuals.’”  The trial court read this holding as writing out the word “person” from subdivision (h) so that a partnership could not be liable despite the fact that section 12925 defines the term “person” as including a partnership.  The court of appeal concluded that the trial court’s reading of the Torrey Pines decision was too broad. 

Although CEP and Fitzsimons are not in an employment relationship, CEP is the employer of the victims of the alleged harassment reported by Fitzsimons and for which she was subject to retaliation by CEP.   Harassment is an unlawful practice that is forbidden by section 12940, subdivision (j), and subdivision (h) makes it unlawful for CEP to retaliate against “any person” who opposes that harassment.  The court stated, “Interpreting ‘person’ in the context of those against whom the employer may not retaliate to include a partner gives the word its normal meaning and is consistent with the definition in section 12925, subdivision (d).”  The court held that its interpretation of section 12940 does not contravene Torrey Pines because Fitzsimons is not seeking to impose liability on a “nonemployer individual” but on the employer of the victims, which is CEP.  The court found Fitzsimons, “although a partner, is a person whom section 12940, subdivision (h) protects from retaliation for opposing the partnership-employer’s harassment against those employees.”  Recognition of such a claim further protects employees who are subjected to sexual harassment.


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