Facts

Plaintiffs Robert Fernandez and Amanullah Tahir worked together at the same auto dealership. Fernandez, an assistant sales manager, was subjected to age and disability discrimination, and later constructively discharged. Tahir, a sales manager and Fernandez's supervisor, was terminated for opposing the dealership's discriminatory treatment of Fernandez.

Defendant hired Fernandez in 2016. Fernandez, then 70, suffered from diabetic neuropathy, a disability which made it difficult for him to walk and stand for extended periods of time. Defendant accommodated his disability, and Fernandez excelled in his job as the top producing assistant sales manager.

In August 2018, defendant hired Josh Story, 33, as its new general manager. Within weeks Story removed the accommodations that had been afforded earlier, required Fernandez to transfer from ASM to internet manager, a lesser job that had greater physical demands, and permanently replaced Fernandez with a significantly younger man who Story openly praised as much faster and more mobile than Fernandez.

Fernandez appealed to the dealership's owner to be reinstated to his former position, but the owner refused to do so. Fernandez subsequently resigned.

Tahir openly and consistently opposed the discriminatory practices against Fernandez. At various time Tahir complained to members of management about negative and inappropriate comments that managers made about Fernandez's age and physical condition.
On Aug. 16, 2018, Tahir argued with Story about Story's plan to remove Fernandez from his assistant sales manager position. On Aug. 16, 2018, Tahir questioned why Fernandez had been replaced; on August 24, Tahir complained to Kevin Holloway (defendant's attorney) that another employee made negative and inappropriate comments about Fernandez's age and physical conditions; and on November 2018 (the day on which Tahir was fired) Tahir assisted Fernandez by taking a photograph of his car sales license, with prompted a hostile confrontation with by Story.

Fernandez and Tahir filed separate complaints in Los Angeles Superior Court. The cases were consolidated, and the parties stipulated to binding arbitration. The Superior Court maintained jurisdiction until the arbitrator's award was satisfied.

PLAINTIFF'S CONTENTIONS: Plaintiff claimed that defendant's claim that Story made the decision to transfer Fernandez was part of an "interactive process" was undercut by multiple witnesses who testified that Story was on record that he was firing Fernandez because "he's just too old, that he's going to fall and hurt himself, break something, die," that Fernandez was "too old to be here" and "can't do his job, that he wanted to get rid of all the older employees, that Fernandez has "got to go" because he didn't want him dying on the showroom floor," and that he wanted younger people who could run around the lot.

Fernandez sued defendant for age discrimination, disability discrimination, failure to accommodate, failure to engage in the good-faith interactive process, wrongful construction termination in violation of public policy, failure to prevent discrimination, negligent hiring, supervision, and retention, and Labor Code section 203 waiting time penalties. Fernandez prevailed on all claims except negligent hiring, supervision, and retention.

Tahir asserted causes of action for wrongful termination and retaliation in violation of public policy, failure to prevent discrimination and retaliation, negligent hiring, supervision, and retention, Labor Code Section 203 waiting time penalties, and retaliation. Tahir prevailed on all claims except negligent hiring, supervision, and retention.

Insurer

Sentry Select Ins. Co.

Settlement Discussions

Defendant's last offer six weeks before arbitration was $225,000 per plaintiff inclusive of attorney's fees and costs

Specials in Evidence

Lost of earnings: Fernandez $480,426 total; Tahir $73,214 Future loss of earnings: Fernandez $206,021; Tahir $0

Damages

Fernandez $1,071,452 (economic damages $480,426; non-economic damages $150,000; waiting time penalties $12,180; attorney's fees $402,877; costs $25,969) Tahir $505,443 (economic damages $73,214; non-economic damages $25,000; waiting time penalties $23,587; attorney's fees $350,803; costs $32,839)

Result

Binding arbitration award of $1,576,885 for the consolidated age and disability discrimination and FEHA retaliation case.

Length

Six days