Does FEHA Support A Retaliation Claim By A Partner Against Her Partnership? The California Court of Appeal Says “Yes.”

by Sayema Hameed

The California Court of Appeal has issued a new decision holding that the California Fair Employment and Housing Act (“FEHA”), Government Code section 12900 et seq., supports a claim for retaliation by a partner against her partnership for opposing sexual harassment of an employee.  Fitzsimons v. California Emergency Physicians Medical Group (filed May 16, 2012, First District, Div. Three, Case No. A131604).

The plaintiff Mary Fitzsimons, an emergency physician, is a member of the defendant California Emergency Physicians Medical Group (“CEP”), a California general partnership with approximately 700 partners working in hospital emergency rooms throughout California.

The plaintiff has been a member of CEP since 1985.  In 1987, she began serving as CEP’s medical director at Sutter Medical Center in Antioch, California. In June 1999, she became a regional director, serving the four hospitals in her region, including Sutter Medical Center, where she also continued to work as an emergency physician.  In November 2003, the plaintiff was elected to serve on the CEP Board of Directors.  In October 2004, her appointment as a regional director was terminated, but she continued to serve on the CEP Board of Directors and continued to work as an emergency physician at Sutter Medical Center.

In May 2006, the plaintiff filed a complaint against CEP, alleging retaliation in violation of FEHA and public policy.  The complaint alleged that CEP removed her from her position as regional director and created a hostile working environment 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.

Prior to trial, the trial court ruled that if the plaintiff was a bona fide partner of CEP, then she did not have standing to sue CEP for retaliation under FEHA.  The jury trial was bifurcated so that the jury would first decide the issue of whether the plaintiff was an employee or partner.  The jury found that the plaintiff was a partner, and the trial court entered judgment in favor of CEP.

The plaintiff appealed from the judgment, arguing that the trial court erred in concluding that a partner does not have standing to assert a claim for retaliation under the FEHA against his or her partnership.

The Court of Appeal agreed with the plaintiff that the FEHA does support a claim for retaliation by a partner against her partnership for opposing sexual harassment of an employee.  In reaching this holding, the Court analyzed the language of FEHA, which prohibits an employer from discriminating against “any person because the person has opposed any practices forbidden under this part.”  Gov’t Code Section 12940 (h).

The Court reasoned that, while CEP is not in an employment relationship with plaintiff, CEP is the employer of the persons who were the victims of the alleged sexual harassment that the plaintiff reported.  The harassment of the employees, if proven, would be an unlawful practice for which CEP would be liable as an employer under FEHA.  Moreover, FEHA makes it an unlawful practice for CEP to retaliate against “any person” for opposing that harassment.  A reasonable interpretation of “any person” means that the employer may not retaliate against “any person” including a partner.  Thus, the plaintiff has standing to bring a FEHA retaliation claim against her partnership, even though she is not an employee herself.

The Court also noted that upholding her retaliation claim does not imply that a partner would have a valid claim for harassment or discrimination against another partner under FEHA.  However, this decision makes clear that a partner is a “person” whom FEHA protects from retaliation for opposing the partnership’s harassment of its employees.

Accordingly, the Court of Appeal reversed judgment and remanded to the trial court for further proceedings.

About Cabada & Hameed LLP

Cabada & Hameed LLP is a law firm serving the greater Southern California region. Formed by “big firm” veterans in 2009, the firm offers exceptional legal representation with experienced attorneys handling Labor & Employment and Business Litigation matters. Partners and co-founders Francisco Cabada and Sayema Hameed bring nearly two decades of legal experience to every matter and ensure that clients receive individualized counsel, around-the-clock availability, the utmost discretion and maintenance of the highest professional and ethical standards. For more information, please visit the website

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