Opinion
D071055
05-21-2018
JOSEPH MARIANO, Plaintiff and Appellant, v. UNITED PARCEL SERVICE, INC., Defendant and Respondent.
David A. Kay for Plaintiff and Appellant. Wilson Turner Kosmo, Claudette G. Wilson, Michael S. Kalt and Daniel C. Gunning for Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 37-2013-00030625-CU-WT-CTL) APPEAL from a postjudgment order of the Superior Court of San Diego County, Judith F. Hayes, Judge. Affirmed. David A. Kay for Plaintiff and Appellant. Wilson Turner Kosmo, Claudette G. Wilson, Michael S. Kalt and Daniel C. Gunning for Defendant and Respondent.
I
INTRODUCTION
Joseph Mariano appeals from a postjudgment order awarding United Parcel Service, Inc. (UPS) $52,870.50 in attorney fees incurred defending against Mariano's claims for disability discrimination, harassment, and retaliation under the California Fair Employment and Housing Act (FEHA; Gov. Code, § 12900 et seq.). Mariano contends we must reverse the order because the trial court erred in finding his FEHA disability claims were objectively without foundation when brought. Alternatively, he contends we must reverse and remand the order for further consideration because the court did not properly apportion the requested fees to either (1) those incurred after the dismissal of his nonfrivolous FEHA age discrimination claim, which he estimates to be no more than $26,094; or (2) those incurred solely in defense of the FEHA disability claims, which he estimates to be no more than $2,500.
The court also awarded UPS $8,581.15 in costs. Mariano has not raised any specific appellate issues regarding the cost award.
We conclude the court did not abuse its discretion in finding Mariano's FEHA disability claims were frivolous. We further conclude Mariano has forfeited his apportionment contentions by failing to raise them below. Even if he had not forfeited these contentions, we conclude he has not established the court's fee allocation constituted an abuse of discretion. We, therefore, affirm the order.
II
BACKGROUND
A
We detailed the facts of this case in our earlier decision in Mariano v. United Parcel Service, Inc. (July 6, 2017, D069022) [nonpub. opn.] (Mariano I). In brief, Mariano resigned from his position as a package car driver for UPS after UPS accused him of and he admitted to accepting kickbacks from a franchisee of The UPS Store, Inc. for routing customer pick up packages through the franchisee's store, enabling the franchisee to improperly charge UPS for processing the packages as customer drop off packages. Mariano claimed UPS contrived these allegations and coerced his admission and resignation in retaliation for his repeated complaints about being required to use a disabled access ramp to deliver and pick up packages from the largest customer on his daily route. (Mariano I, supra, D069022.)
At oral argument, Mariano's counsel repeatedly stated UPS fired Mariano when there is no dispute Mariano resigned.
Mariano sued UPS and two UPS supervisors, asserting four FEHA claims and six other related claims. The FEHA claims were for age discrimination, disability discrimination, disability harassment, and disability retaliation. UPS brought a motion for summary adjudication, arguing among other points, Mariano could not establish a prima facie case of disability discrimination, harassment, or retaliation. In his opposition to the motion, Mariano maintained the viability of his retaliation claim, but he abandoned his discrimination and harassment claims. While the motion was pending, Mariano separately agreed to dismiss his age discrimination claim in exchange for UPS's waiver of costs. The court summarily adjudicated Mariano's remaining claims in UPS's favor. We affirmed the judgment on appeal. (Mariano I, supra, D069022.)
B
After obtaining the judgment, UPS moved for an award of $234,982 in attorney fees for prevailing on Mariano's complaint. Alternatively, UPS sought a proportionate award of $70,494 for prevailing on Mariano's FEHA claims.
Mariano opposed the motion, arguing none of his claims were frivolous. He also argued UPS should not receive a fee award because UPS did not incur any fees defending Mariano's complaint that were not also incurred prosecuting its own cross-complaint.
After considering the parties' papers and arguments, the court granted the motion in part. The court examined each of Mariano's FEHA claims. The court found Mariano's FEHA age discrimination claim was not objectively without foundation or otherwise frivolous when brought. Conversely, the court found Mariano's FEHA disability claims were objectively without foundation when brought because the underlying allegations did not support any viable claims for disability discrimination, harassment, or retaliation. The court explained Mariano's complaints about having to use a disabled access ramp to deliver packages were not protected activity under FEHA and there was no causal link between his complaints and the ending of his employment with UPS. The court also explained Mariano's associational disability discrimination theory was untenable because it was not tethered to a personal relationship with a specific disabled person. Accordingly, the court awarded UPS $52,870.50 in attorney fees, which the court found was the appropriate amount attributable to UPS's defense of Mariano's FEHA disability claims.
III
DISCUSSION
A
Mariano contends we must reverse the fee award because the court erred in finding his FEHA disability claims were objectively without foundation when brought. We review the fee award for abuse of discretion. (Chavez v. City of Los Angeles (2010) 47 Cal.4th 970, 989.) The test for abuse of discretion is whether the trial court's decision exceeded the bounds of reason. (Mercury Ins. Group v. Superior Court (1998) 19 Cal.4th 332, 349.) "A merely debatable ruling cannot be deemed an abuse of discretion." (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 390.)
1
A court may award a prevailing defendant in a FEHA action reasonable attorney fees and costs if "the court finds the action was objectively without foundation when brought, or the plaintiff continued to litigate after it clearly became so." (Williams v. Chino Valley Independent Fire Dist. (2015) 61 Cal.4th 97, 115; Gov. Code, § 12965, subd. (b).) Mariano impliedly pleaded his FEHA disability claims under an associational disability discrimination theory.
2
"FEHA provides a cause of action for associational disability discrimination, although it is a seldom-litigated cause of action. [Citation.] As to disability discrimination generally, FEHA makes it unlawful for an employer, 'because of the ... physical disability ... of any person, ... to discharge the person from employment ... or to discriminate against the person ... in terms, conditions, or privileges of employment.' (Gov. Code, § 12940, subd. (a).) The very definition of a 'physical disability' embraces association with a physically disabled person. FEHA explains that the phrase ' "physical disability" ... includes a perception ... that the person is associated with a person who has, or is perceived to have' a physical disability. ([Gov. Code,] § 12926, subd. (o).) Accordingly, when FEHA forbids discrimination based on a disability, it also forbids discrimination based on a person's association with another who has a disability.
"A prima facie case of disability discrimination under FEHA requires a showing that (1) the plaintiff suffered from a disability, (2) the plaintiff was otherwise qualified to do his or her job, with or without reasonable accommodation, and (3) the plaintiff was subjected to adverse employment action because of the disability. [Citations.] Adapting this framework to the associational discrimination context, the 'disability' from which the plaintiff suffers is his or her association with a disabled person. Respecting the third element, the disability must be a substantial factor motivating the employer's adverse employment action." (Castro-Ramirez v. Dependable Highway Express, Inc. (2016) 2 Cal.App.5th 1028, 1036-1037, fns. omitted.; see Rope v. Auto-Chlor System of Washington, Inc. (2013) 220 Cal.App.4th 635, 656, superseded by statute on another point as recognized in Moore v. Regents of University of California (2016) 248 Cal.App.4th 216, 245-247.)
Here, Mariano's associational disability discrimination theory was deficient in two key respects. First, there was no evidence Mariano had an association with a specific disabled person or that such an association prompted Mariano's complaint about using the disabled access ramp.
Second, Mariano's complaint about using the disabled access ramp and UPS's investigation into the franchisee's kickback scheme involved separate timelines, processes, and decision makers. Specifically, Mariano initiated his complaint approximately 14 months before, and it was resolved approximately one to three months before, UPS initiated its investigation. Mariano's complaint was addressed to his supervisor, two local managers, the division manager, a safety supervisor, and a safety manager. UPS's investigation was prompted by a tip from a disinterested employee and was handled solely by security supervisors and managers.
These two key deficiencies effectively precluded Mariano from being able to establish the first and third elements of a prima facie case of associational disability discrimination. Moreover, these deficiencies were apparent at the outset of the litigation and at least the first deficiency was known to Mariano and not subject to change or refinement by UPS's discovery responses. Accordingly, we cannot conclude the court abused its discretion in finding Mariano's FEHA disability claims were without foundation when brought.
3
For the first time at oral argument, Mariano asserted his FEHA disability claims were not frivolous because he brought the claims in good faith seeking an extension of the associational disability discrimination law. However, the record does not support this assertion.
Mariano's complaint alleged he was protected by FEHA and subject to disparate treatment and a hostile work environment because he was "an individual who defended the medically disabled" and was "associated with the disabled [patrons]" of his largest customer. In UPS's summary judgment motion, UPS argued Mariano's FEHA disability claims were not viable because associational disability discrimination requires a close relationship with a specific disabled person and this requirement was not satisfied by the happenstance of being assigned to deliver packages to a building that may serve some disabled patrons.
Mariano did not directly respond to this argument in his opposition to the motion. In fact, Mariano's opposition focused on his whistleblower retaliation and false imprisonment claims rather than his FEHA disability claims. He addressed the viability of his FEHA disability claims in two short paragraphs, syllogizing (1) complaints about disabled access to public places are protected by the California Disabled Persons Act (Civ. Code, § 54 et seq.); (2) violations of the California Disabled Persons Act are violations of FEHA; and (3) therefore, retaliation for complaining about violations of the California Disabled Persons Act and harassment for supporting disabled persons are violations of FEHA.
Mariano never asserted the existing case law regarding associational disability discrimination claims was wrongly or too narrowly decided. He also never asserted FEHA's prohibition against associational disability discrimination should be applied more expansively to people generally advocating for disabled rights and not just to people closely associated with specific disabled persons. Rather, his FEHA disability claims appear to be halfhearted attempts to repackage his whistleblower retaliation claims as FEHA claims to gain whatever tactical advantage might inure from the threat of FEHA's unique remedies. When, as here, such repackaging attempts objectively lack foundation, a court does not abuse its discretion by finding the attempts frivolous.
The decision in Jersey v. John Muir Medical Center (2002) 97 Cal.App.4th 814 (Jersey) does not require a contrary conclusion. In Jersey, the appellate court concluded the trial court erred in awarding attorney fees under FEHA because the trial court applied an incorrect legal standard—whether the plaintiff's FEHA claim lacked merit instead of whether the claim was groundless or lacked foundation. (Id. at p. 831.) The trial court also failed to make the requisite express written findings to support the award. (Ibid.) Neither of these errors occurred in this case.
Additionally, the Jersey court declined to remand the matter to allow the trial court to make the requisite findings because the Jersey court determined no such findings could reasonably be made from the record before it. (Jersey, supra, 97 Cal.App.4th at pp. 831-832.) Viewing the plaintiff's FEHA claim in the context of the plaintiff's entire complaint, the Jersey court concluded the plaintiff's FEHA claim was simply an attempt to articulate an alternate legal theory to support an overarching wrongful discharge claim. (Id. at p. 832.) Conversely, consideration of the complaint as a whole in this case does not indicate Mariano's FEHA disability claims were simply attempts to articulate alternate legal theories. Rather, it indicates the claims were groundless attempts to conflate two unrelated matters to create a wrongful discharge claim that would not otherwise have existed.
B
Mariano alternatively contends we must reverse the fee award and remand the matter for further consideration because the court did not properly apportion the requested fees either (1) to those incurred after the dismissal of Mariano's nonfrivolous FEHA age discrimination claim, which he estimates to be no more than $26,094; or (2) to those incurred solely in defense of the FEHA disability claims, which he estimates to be no more than $2,500.
Mariano has forfeited these contentions on appeal because he did not raise them below. The only apportionment contention he raised below related to the apportionment of fees between UPS's defense of the complaint and its prosecution of the cross-complaint. Generally, "[a] party is not permitted to change his position and adopt a new and different theory on appeal. To permit him to do so would not only be unfair to the trial court, but manifestly unjust to the opposing litigant." (Ernst v. Searle (1933) 218 Cal. 233, 240-241.) Although there are exceptions to this general rule, the general rule prevails when, as here, the new issue "involves controverted questions of fact or mixed questions of law and fact." (Panopulos v. Maderis (1956) 47 Cal.2d 337, 341.)
Even if Mariano had not forfeited these contentions, we are not persuaded by them. In making its apportionment determination in this case, the court used a two-step process. First, the court apportioned the attorney fees attributable to the FEHA claims, which were the only claims for which the court could award attorney fees. (See, e.g., Robert v. Stanford University (2014) 224 Cal.App.4th 67, 70.) Then, the court apportioned this subset of attorney fees to those attributable to the frivolous FEHA disability claims. The resulting fee award was approximately 22.5 percent of the total fees sought by UPS for defending the entire case.
As Mariano has not directly challenged the court's use of the two-step process, we have no occasion to address its propriety.
When, as here, a plaintiff's suit contains both frivolous and nonfrivolous claims, a court may grant reasonable fees to a prevailing defendant, but only for fees the defendant would not have incurred but for the frivolous claims. (Fox v. Vice (2011) 563 U.S. 826, 829, 836 [131 S.Ct. 2205, 180 L.Ed.2d 45] (Fox).) "[T]he determination of fees 'should not result in a second major litigation.' [Citation.] The fee applicant (whether a plaintiff or a defendant) must, of course, submit appropriate documentation to meet 'the burden of establishing entitlement to an award.' [Citation.] But trial courts need not, and indeed should not, become green-eyeshade accountants. The essential goal in shifting fees (to either party) is to do rough justice, not to achieve auditing perfection. So trial courts may take into account their overall sense of a suit, and may use estimates in calculating and allocating an attorney's time. And appellate courts must give substantial deference to these determinations, in light of 'the [trial] court's superior understanding of the litigation.' [Citations.] We can hardly think of a sphere of judicial decisionmaking in which appellate micromanagement has less to recommend it." (Fox, supra, at p. 838.)
In interpreting FEHA's attorney fee provisions, California courts may look to federal decisions construing the attorney fee provision in title VII of the federal Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq.). (Williams v. Chino Valley Independent Fire Dist. (2015) 61 Cal.4th 97, 103; Chavez v. City of Los Angeles (2010) 47 Cal.4th 970, 985.)
In this case, the court awarded UPS less than a quarter of the attorney fees it sought based on the court's assessment of how much of UPS's attorney fees should be attributed to UPS's defense of the FEHA disability claims, which the court found to be frivolous. Although Mariano contends only a tiny portion of UPS's attorney fees were necessarily expended to defend the FEHA disability claims, these claims were a central part of Mariano's complaint and their assertion substantially increased UPS's monetary exposure. (Fox, supra, 563 U.S. at p. 837 [in allocating attorney fees between frivolous and nonfrivolous claims, a court may consider whether a frivolous claim increased the defendant's monetary exposure].) While Mariano abandoned the discrimination and harassment claims during the summary adjudication process, he continued to pursue the retaliation claim and the parties hotly contested the claim through the appeal process. (Id. at pp. 837-838 [in allocating attorney fees between frivolous and nonfrivolous claims, a court may consider whether the maintenance of a frivolous claim drives up litigation expenses].) Under these circumstances, and bearing in mind the essential goal of rough justice as well as the limitations on a reviewing court's role, we cannot conclude the trial court abused its discretion in its fee allocation.
IV
DISPOSITION
The order is affirmed. UPS is awarded its appeal costs.
MCCONNELL, P. J. I CONCUR: O'ROURKE, J. DATO, J. dissenting.
There is a critical distinction between simple error and an error sufficiently opprobrious that it merits punishment. This distinction is of particular significance in our legal system, where punishment necessarily carries with it the potential to chill socially beneficial activity.
In this case, the trial court awarded substantial attorney fees—over $50,000—against an unsuccessful plaintiff-employee in a case brought under the Fair Employment and Housing Act (FEHA), a remedial statute designed to encourage discrimination claims of various sorts. Because the claimants in these cases are typically individuals of low-to-moderate means pursuing grievances against well-funded business entities, FEHA does not simply provide for an award of attorney fees to the party who ultimately prevails. Were that the rule, many legitimate claimants would forego making claims for fear they would be liable for the defendant's attorney fees if they lost. To persons with limited economic resources, the risk of an adverse award of attorney fees is far worse than the potential benefits that might accrue from a successful claim. Better safe than sorry.
To forestall this chilling effect, a prevailing defendant in a FEHA case must satisfy a stringent standard in order to obtain an award of attorney fees. It must establish that the plaintiff's action was "frivolous, unreasonable, or without foundation." (Christianburg Garment Co. v. Equal Employment Opportunity Comm'n (1978) 434 U.S. 412, 421 (Christianburg); Cummings v. Benco Building Services (1992) 11 Cal.App.4th 1383, 1387 (Cummings).) Simple "lack of merit is not the proper standard for awarding attorney fees against a losing plaintiff ... ." (Jersey v. John Muir Medical Center (2002) 97 Cal.App.4th 814, 831 (Jersey).) Indeed, the United States Supreme Court in Christianburg specifically cautioned lower courts to "resist the understandable temptation to engage in post hoc reasoning by concluding that, because a plaintiff did not ultimately prevail, his action must have been unreasonable or without foundation." (Christianburg, supra, 434 U.S. at pp. 421-422; accord Chavez v. City of Los Angeles (2010) 47 Cal.4th 970, 987.)
Published California appellate authority has been faithful to the spirit of this admonition. Attorney fees have been awarded to prevailing defendants only where the plaintiff has engaged in "egregious" conduct or pursued demonstrably "baseless" claims. (Cummings, supra, 11 Cal.App.4th at p. 1389.) Here, the trial court summarily concluded that the plaintiff's claims "were objectively without foundation when brought." But the court revealed its fundamental misunderstanding of the governing standard when it suggested that the policies supporting an award of attorney fees were "especially applicable" in this case because those policies are designed to "deter plaintiffs from filing unmeritorious actions under FEHA." It made no finding of any additional aggravating factors, such as that plaintiff acted dishonestly by "distort[ing] the facts" (Jersey, supra, 97 Cal.App.4th at p. 832) or sought to "avoid adverse legal rulings by intentionally submitting renewed motions which disguised the subject matter of previously denied motions" (Cummings, at p. 1390).
The majority nonetheless approve the award of fees in favor of defendant United Parcel Service (UPS), concluding that plaintiff Joseph Mariano's claim was "without foundation" because (1) he could not establish any "association with a specific disabled person," and (2) his discharge and the alleged motive for retaliation "involved separate timelines, processes, and decision makers" such that he could not establish the necessary causal link between the two. (Maj. opn., ante, at pp. 6-7.) Neither of these purported bases for the award of attorney fees withstands scrutiny.
A
The primary focus of the trial court's decision to award attorney fees to UPS was its conclusion that Mariano "presented no authority" to support his claim of associational disability. At oral argument both parties readily agreed that plaintiff's FEHA claim sought an extension of existing law by asserting plaintiff could claim associational standing as a result of his advocacy for unspecified disabled persons using the access ramp at the Department of Veterans Affairs (VA) facility. Although we rejected Mariano's legal argument in affirming the trial court's grant of summary judgment, the Christianburg prevailing defendant standard does not and cannot contemplate the award of attorney fees against a plaintiff who unsuccessfully argues for a change in the law.
The Court of Appeal made precisely this point in Jersey, supra, 97 Cal.App.4th 814. In that case, a hospital patient assaulted a nurse's assistant, and she sued him for personal injury. When her employer, the hospital, insisted she dismiss her lawsuit, the nurse's assistant refused and was fired. After her termination, she sued the hospital for wrongful termination and sex discrimination under FEHA, among other things. The trial court granted summary judgment for defendant, which was affirmed on appeal. As to her FEHA claim, plaintiff alleged she was terminated " 'because of her sex' " or "because of the injury she sustained in the assault, because she filed a complaint for sexual assault, and because she complained of sexual harassment." But the uncontroverted evidence showed she was fired for suing a former patient who was impaired. The appellate court concluded there was no triable issue on causation. (Id. at p. 829.)
At the same time, the Court of Appeal reversed the award of attorney fees. It found that "plaintiff's action, while ultimately failing, can hardly be considered as frivolous." (Jersey, supra, 97 Cal.App.4th at p. 832.) Even though the plaintiff "failed to adduce any evidence of sex discrimination or of the other motivations to which her counsel has adverted," (ibid., italics added) it was clear to the court that the FEHA claim "was merely an attempt to articulate a different legal theory to support her contention that defendant acted wrongfully in discharging her for proceeding with her sexual battery claim against the hospital patient." (Ibid.) In other words, existing law did not support her position and plaintiff was arguing for an extension of the law to encompass the circumstances of her case. The fact that the court was not persuaded to adopt her argument did not make it punishable by an award of attorney fees.
The majority dismiss Jersey's sound reasoning by suggesting that Mariano never expressly claimed he was arguing for an extension of the law. But counsel's perspicacity or sophistication in properly characterizing an argument cannot be the yardstick by which we measure the entitlement to Christianburg attorney fees. The plain fact of the matter is that Mariano was arguing for an extension of existing law to recognize as a protected individual someone who was advocating on behalf of a class of disabled persons. As UPS's counsel candidly conceded at oral argument, everyone understood that. It is—or should be—the substance of the argument that matters, not the label.
As in Jersey, supra, 97 Cal.App.4th 814, Mariano's disability discrimination claim was a perhaps inartful attempt to "articulate a different legal theory" supporting his contention that he was wrongfully terminated for complaining about being required to use the VA disabled access ramp for UPS deliveries. But it is a fundamental pillar of our justice system that creative legal thinking should be encouraged and not punished. As Judge Milton Shadur explained in Textor v. Board of Regents (N.D.Ill. 1980) 87 F.R.D. 751, "[b]ecause the horizons of the law are always expanding, because growth always takes place on the frontiers, counsel should never be inhibited from developing and asserting new theories and claims or from arguing that old ones are outmoded." (Id. at p. 754.) And this is true even when counsel are inarticulate or less than specific in framing the new theory. We can reject the argument, but counsel (and the client) should not be punished for offering it.
B
Perhaps appreciating the weakness of the trial court's primary rationale for an award of attorney fees, the majority attempt to save it by referring to an additional statement in the court's order that Mariano's "complaints about using the disabled access ramp at the VA [facility] were made 13 months prior to his termination." Accordingly, said the trial judge, "there is no reasonable causal link between the alleged protected activity and the adverse employment action."
There is, however, an immediate problem with this aspect of the trial court's reasoning. As previously noted, the trial court expressly found that Mariano's claims "were 'objectively without foundation when brought, ... .' " (Italics added.) Even the majority are forced to implicitly acknowledge that Mariano couldn't have known what discovery would reveal about the connection between the animosity engendered by the VA disabled access ramp incident and his subsequent termination. (Maj. opn., ante, at p. 7.)
From Mariano's perspective, the chronology looked something like this: In late February 2011 he first raised safety concerns about using the VA disabled access ramp to his immediate supervisor. Unsatisfied with the response, he complained to regional safety personnel who agreed with Mariano and contacted his division manager, also head of the UPS San Diego office. The division manager told Mariano to "stop complaining about this." Mariano perceived that both his supervisor and the division manager were irritated.
Shortly thereafter, during a severe rainstorm in early March 2011, Mariano felt it was unsafe to make deliveries on a slippery hill at the VA facility and notified his supervisor. The supervisor agreed and instructed Mariano in a text message to account for this by entering a particular code in his tracking device. Thinking this code was unusual and perhaps inapplicable, Mariano took a picture of the text message. Later, when he was confronted by a UPS security agent about his alleged dishonesty in entering the inapplicable code, Mariano produced the photo of his supervisor's text message. Mariano was cleared of any wrongdoing, but as a result of this "miscoding" incident he understood that the supervisor received a suspension and the security agent was reassigned.
Over the course of the next year, Mariano's supervisor repeatedly manifested his disdain for Mariano. Then the same security agent involved in the miscoding event appeared as one of the principal investigators in the incident that led to Mariano's termination. In light of what was known to him, it was hardly unreasonable for Mariano to allege a connection between the VA disabled access ramp incident, the miscoding incident, the perceived animosity from his supervisor, his division manager, as well as the security agent, and his ultimate termination.
It is true, of course, that FEHA permits the award of attorney fees not only when a lawsuit is "without foundation" when brought, but also when the plaintiff "continued to litigate after it clearly became so." (Williams v. Chino Valley Independent Fire Dist. (2015) 61 Cal.4th 97, 115.) Here the trial court did not rely on this second ground, and the majority never explain when and why Mariano must have concluded there was no connection between the VA disabled access ramp incident and his allegedly constructive termination.
Again, the question is not whether the trial court or this court found merit in the plaintiff's causation argument. But the mere fact that time passes between the protected activity and the adverse employment action does not necessarily prove the employer did not retaliate or that the adverse action was not pretextual. (See Coszalter v. City of Salem (9th Cir. 2003) 320 F.3d 968, 978.) Otherwise the employer could simply wait the prescribed period of time in order to immunize itself from potential liability. (Ibid. ["[I]f we establish a per se rule that a specified time period is too long to support an inference of retaliation, well-advised retaliators will simply wait until that period has passed."].) The relevant question is whether Mariano and his counsel engaged in reprehensible conduct by maintaining a baseless lawsuit that no reasonable attorney would have litigated. None of the aggravating factors that have been held to satisfy this standard and support attorney fee awards—dishonesty or conscious disregard of prior adverse rulings in the same case—are present here.
C
Mariano's counsel did not engage in reprehensible conduct. They did not falsify facts. They did not claim a factual connection to a "specific disabled person" that did not exist. They did not misrepresent the parameters of existing law. That we did not accept their arguments—or even that we did not think they were very good ones—does not make Mariano's FEHA claim "baseless" or "frivolous." If we characterize it as such, we engage in exactly the type of "post hoc reasoning" that the Supreme Court in Christianburg warned against. (Christianburg, supra, 434 U.S. at pp. 421-422.)
Today's decision will deter lawyers from filing arguable-but-uncertain cases out of fear that, if unsuccessful, a court will later conclude the defects in the case should have been obvious. Because I believe there must be sufficient play in the justice system to tolerate even undeveloped, unpersuasive, and marginal legal arguments, as well as misguided suggestions for the extension of existing legal doctrines, I would reverse the order of the trial court awarding attorney fees to defendant UPS.
DATO, J.