CALIFORNIA ATTORNEY'S FEES

Arbitration/Employment: Contractual Arbitration Clause Invalidated, Among Other Things, Because Attorney’s Fees Granted To Mere Prevailing Party On FEHA Claims

 

Employee Won Substantive Unconscionability Argument Based on Absence of Frivolousness Requirement for Employer FEHA Fee Recovery.

     Normally under FEHA, a prevailing defendant (usually, an employer) can only recoup fees if it proves that plaintiff employee’s claims were frivolous, unreasonable, without foundation, or brought in bad faith. What happens when an employer inserts an arbitration clause into a contract with an employee allowing the arbitrator to award the prevailing party fees as to FEHA claims sans the elevated requirements for a winning defendant? Short answer: it is a factor which can lead to judicial nonenforcement of the arbitration clause.

     Mayers v. Volt Management Corp., Case No. G045036 (4th Dist., Div. 3 Feb. 2, 2012) (unpublished) is an illustration of this, where a 3-0 panel (author: Justice Fybel) affirmed a lower court’s denial of a motion to compel arbitration under a fees clause with just such a provision. Such a clause did manifest a degree of substantive unconscionability when, combined with other factors, led to it not being honored. As far as the prevailing party fees clause, the appellate court found that it was too pro-employer and weakened the frivolous-based protections normally available under FEHA to losing employees. (Trivedi v. Curexo Technology Corp., 189 Cal.App.4th 387, 394-395 (2010).)

     So, employers, consult Trivedi and Mayers on this issue, not to mention the California Supreme Court’s seminal decision of Armendariz v. Foundation Health Psychcare Services, Inc., 24 Cal.4th 83 (2000) when drafting arbitration clauses.

Employment: Employee Winning Contractual Severance/Bonus/Vacation Pay Awards Entitled To Attorney's Fees Under Labor Code Section 218.5

 

Breach of Contract Actions Within Section 218.5's Ambit.

      Former employee won contractual awards for severance pay, bonus pay, and vacation pay penalties from ex-employer (totaling about $172,523), enhanced by a further attorney's fees award of $101,100 under Labor Code section 218.5 (a mandatory fee-shifting statute allowing fees to the prevailing party in "any action brought for the nonpayment of wages or fringe benefits"). Employer was not happy and appealed in Milian v. Jet Source, Inc., Case No. D057448 (4^th Dist., Div. 1 Jan. 24, 2012) (unpublished).

     Employer was no happier after its unsuccessful appeal.

     The fee entitlement statute was clear, with no law indicating that it was inapplicable to a breach of contract action. The Legislature did not exclude contract breaches from the ambit of the statutory language, so they were included (especially given that the provision did except out certain matters from fee entitlement in the same section). Employer also argued that the complaint needed to specifically cite the statute in its fee allegations/prayer, but the appellate court found no such requirement in section 218.5 itself. The general prayer allegation for "reasonable attorneys' fees as provided by statute" sufficed to put employer on notice of potential attorney's fees exposure.

Employment/POOF!: Appellate Court’s Reversal Of Two Labor Claims With Fee Recovery And One Independent Sales Act Claim With Fee Recovery Means That Plaintiff’s $889,000 Fee Award Goes POOF!

Reversal of Fortune on Appeal to Plaintiff Winning Substantial Jury Verdict and Substantial Attorney’s Fees Below.

     Acting Presiding Justice Bedsworth, as author for a 3-0 panel in Gardner v. Baby Trend, Inc., Case No. G043451 (4th Dist., Div. 3 Jan. 13, 2012) (unpublished), shows how reversal on the merits--even of a large substantial jury verdict based on what the jury actually found or on legal statute of limitations issues--can have a deadly effect on the fees award. In this one, a $889,000 fee award went POOF!

     Harold Edgerton, photographer.  1933.

     Plaintiff won a combined $8.1 million from a jury based on various claims arising from his termination of a relationship with defendant (i.e., wrongful termination, wage/hour violations, Independent Sales Act violations, etc.). Defendant was successful in getting about $64,000 in costs taxed. When it came to attorney’s fees, there were two major fee entitlement anchors: (1) Labor Code sections awarding fees to a prevailing plaintiff in an action to recover unlawful deduction of expenses from commissions and awarding fees for an employer’s wrongful refusal to reimburse an employee for business-related expenses; and (2) a fee-shifting provision for violation of the Independent Sales Act (Civ. Code, § 1738.16). Plaintiff requested $1,873,932.50 in fees (a 2-times multiplier applied to the $936,966.25 lodestar). The lower court awarded plaintiff 95% of the lodestar request, or $889,000 total fees. Then, the trial court mooted its $64,000 tax cost order by determining that these should be allowed as additional costs to plaintiff under Labor Code section 2802, which allows costs to be awarded as indemnification expenses to an employee who was following employer directives.

     Defendant separately appealed the merits judgment and cost/fee awards.

     Aside from doing well on the merits, defendant hit a “grand slam” on the challenges to the cost/fee awards. The Labor Code provisions did not allow for entitlement because the jury made determinations that plaintiff was not an employee. The Independent Sales Act basis was inapt because it was barred by the applicable statute of limitations. Labor Code section 2802 was unavailing for the $64,000 in costs because it does not apply to direct actions between employers and employees (Freund v. Nycomed Amersham, 347 F.3d 732 (9th Cir. 2003)) and it was also doomed by the jury’s rejection of an employee status for plaintiff. POOF!

Employment/Special Fee Shifting Statute: State Labor Commissioner Entitled To Fee/Costs Under Labor Code Section 98.7 Against Employer Held Liable To Employee For Retaliation And Employee Gets Indemnification Fees/Costs Under Labor Code Section 2802 After

 

Respective Fee/Costs Awards of $232,435.50 and $101,078 Are Sustained.

     Just to show you that the losing cases can unleash a lot of fee/costs exposure based on Labor Code statutes, the next one is a case in point.

     In 1538 Cahuenga Partners, LLC v. Fabe, Case No. B222023 (consolidated) (2d Dist., Div. 8 Jan. 5, 2012) (unpublished), former in-house lawyer prevailed on wage/retaliatory claims against former employer in a Labor Commissioner proceeding (with the Commissioner suing employer for attorney’s defense costs with respect to prevailing in the underlying retaliatory proceeding), after employer and employer’s principal sued in-house attorney for malpractice. The Commissioner’s and the malpractice actions were consolidated, with in-house attorney and the Commissioner prevailing in these actions. The lower court then awarded Commissioner $232,435.50 in fees and costs under Labor Code section 98.7, which allows judicial relief to the Commissioner in the form of “any other compensation or equitable relief as is appropriate under the circumstances of the case.” It also awarded former in-house attorney $101,078 in fees and costs against employer’s principal for prevailing in the malpractice action, basing the award on Labor Code section 2802 (which requires an employer to indemnify an employee for any necessary expenditures or losses, including costs and reasonable fees, incurred by the employee in defending against third party claims arising during the course and scope of his/her employment).

     Employer and principal’s appeals were unsuccessful.

     Section 98.7 is broad in equitable breadth, and nothing in it indicates that Trope type restrictions prohibit fee recovery to the Commissioner for former in-house attorney’s own legal fees incurred in successfully prosecuting the retaliatory proceedings. Section 2802 did allow attorney entitlement to fees/costs for malpractice defense because it was against a third-party claim by the employer’s principal, not just the employer (hence, a true third-party claim). Employer’s argument that naming the principal was “a mistake” did not get very far.

Employment: Substantial Fee Awards To Employer Reversed On Appeal

 

Plaintiffs' Actions for Split Shift and Reporting Time Pay Falls Within Unilateral, Pro-Plaintiff Fee Shifting Provision—Not Allowing for Defense Recovery.

     Here is a big one for you employment lawyers out there.

     In Aleman v. AirTouch Cellar, Case No. B231142 (2d Dist., Div. 2 Dec. 21, 2011) (certified for publication), employer prevailed on split shift and reporting time pay claims brought by two employees, with the lower court awarding employer attorney's fees recoveries against one employee in the amount of $146,000 and against the other in the amount of $140,000. The theory was that employer had fee entitlement under Labor Code section 218.5 as the prevailing party (under a bilateral fee-shifting provision).

     Wrong, said the appellate court, although the issues were of first impression and not quite clear cut. The split shift and reporting time pay claims, for fee recovery purposes, were encompassed instead by Labor Code section 1194, a pro-plaintiff only fee-shifting provision because the claims were compensation issues serving a dual function of compensating employees and enforcing employer compliance with the requirements. The fee recoveries against employees were reversed, helping greatly the pocketbooks of the losing employees. (Incidentally, the costs awards in favor of employer were affirmed, given that the fee-shifting provision did not impact recovery of routine costs.)

Employment: Voluntary Dismissal/Summary Judgment Of Unpaid Wage Claims Did Result In Fee Exposure To Plaintiff Employees

 

Plaintiffs’ Pleading Were Broad and Only Dealt With Unpaid Wages.

     In the companion cases of Evangelina Tun Cun v. Cafe Tiramisu LLC, Case No. A131240 (1st Dist., Div. 5 Nov. 30, 2011) (unpublished) and Maria Tun Cun v. Cafe Tiramisu LLC, Case No. A131241 (1st Dist., Div. 5 Nov. 30, 2011) (unpublished), plaintiffs brought claims for unpaid wages, but eventually lost other claims after some convoluted proceedings and voluntarily dismissed or suffered an adverse summary judgment of the unpaid wage claims. Employer sought fees under Labor Code section 218.5, a reciprocal fee-shifting provision in these type of disputes, and won--garnering $18,592.50 in fees against Evangelina and $36,612.50 in fees against Maria Tun.

     They both appealed; they both lost.

     They tried to recast their claims as overtime claims, attempting to trigger the pro-employee unilateral fee-shifting provision of Labor Code section 1194. The appellate court would have none of it, deciding in both cases that unpaid wages claims were at issue and that plaintiffs’ voluntary dismissal of the claims/summary judgment made employee the prevailing party in both cases.

Employment: 2d Dist., Div. 5 Disallows Fees To Defendant Employer in Issue Before California Supreme Court In Kirby And UPS Wage & Hour Cases.

 

     The Second District, Division 5 in McGaha v. Mountain High Resort Assn., Case No. B2227086 (2d Dist., Div. 5 Nov. 22, 2011) (unpublished) affirmed a denial of $50,319.50 attorney’s fees to defendant employer after dismissal without prejudice of various work-related claims brought by plaintiff employee. The fee refusal was sustained based on an issue before the California Supreme Court in Kirby and UPS Wage & Hour Cases involving the interplay between Labor Code sections 218.5 and 1194 on overtime, meal break, and rest break claims. The appellate court found that employee should not face fee exposure based on the plain meaning of the statutes and legislative history indicating the Legislature so intended.

Employment/Cases Under Review: First District, Division 3 Reverses Fee Award Against Employee

 

Issue is KIrby/UPS Labor Code sections 218.5 and 1194 Interplay.

     Two cases--Kirby v. Immoos Fire Protection, Inc. and United Parcel Service Wage & Hour Cases (McGann)--are currently pending before the California Supreme Court. They discuss the issue of whether a prevailing employer may be awarded attorney’s fees under Labor Code section 218.5 (which allows fees to a prevailing party in wage/hour/benefit disputes) when the plaintiff joins in a single complaint a claim under Labor Code section 1194 (overtime compensation fee shifting provision which is unilateral only in favor of employee) as well as other causes of action (one arguably outside section 1194). Kirby said no complete bar to employers obtaining fees as to meal/rest period losing claims, while UPS agreed there was no complete bar but held that missed meal/rest claims do not trigger the reciprocal section 218.5 fee recovery provisions.

     In our September 28, 2011 post, we discussed UPS Wage & Hour Cases (Salicido), an unpublished Second District decision that followed the lead of McGann notwithstanding supreme court review.

     Now, the First District, Divsion 3 in Zelasko-Barrett v. Brayton-Purcell, LLP, Case No. 131601 (1st Dist., Div. 3 Oct. 24, 2011) (unpublished) chimed in, finding section 1194 is not a complete bar to an award of fees in an action that includes both nonpayment of overtime wages under section 1194 and any other claims. However, it reversed a $120,000 fee award in favor of employer and against employee because employee’s various claims rested on the theory that he was not exempt such that each claim was primarily based on the wrongful withholding of overtime compensation. (Accord, Lopez v. U.P.S., 2010 U.S. Dist. LEXIS 136352 at *4 (N.D.Cal. 2010).)

Indemnity: Labor Code § 2802 Does Not Require An Employer To Reimburse Employee For Attorney’s Fees In Successfully Defensing Employer Claims

 

Court of Appeal Also Determines Corporations Code section 317 Mandatory Indemnification Provisions Do Not Apply to LLCs.

     Justice Ikola, in a 3-0 decision of our local Fourth District, Division 3, made two important determinations on its behalf in Nicholas Laboratories, LLC v. Chen, Case No. G044105 (4th Dist., Div. 3 Oct. 12, 2011) (certified for publication).

     First, after finding no state or federal decision precisely on point, the appellate court decided that “indemnify” under Labor Code section 2802 usually relating to third-party claims does not extend to an employee being able to obtain reimbursement of fees expended in defending against an employer’s claims. Justice Ikola found that “the more expansive fabric of law” relating to fees (such as the American Rule and other fee-shifting principles) did not condone stretching the reach of section 2802 to employer claims.

     Second, Corporations Code section 317--which mandates indemnification of corporate agents under certain circumstances--did not apply, because an LLC was involved (rather than covered corporations under section 317). Although there are LLC Corporations Code provisions that permit indemnification, nothing in the LLC Act has a analog mandatory indemnification provision.

     Employee must have been unhappy in losing his attempt to obtain reimbursement of almost $90,000 in attorney’s fees, even though the trial and appellate courts saw things the same way.

Employment/Special Fee Shifting Statute (Pen. Code, § 502)/Reasonableness Of Fees/Allocation/Substantiation Of Fees: $980,373.50 Fee Award To Ex-Employee Not Paid All His Promised Commissions And Subject To Personal Computer Tampering Affirmed On App

 

Appellate Court Found Lower Court Correct to View L.A. Attorneys As Within San Bernardino Venue and Necessary Given Earlier Misfortunes with Local Attorneys.

     Trealoff v. Forest River, Inc., Case No. E048818 (4th Dist., Div. 2 Oct. 6, 2011) (unpublished) was a case where an ex-employee won sizable jury verdicts, including punitive damages, for not being paid all of his promised commissions (which has fee-shifting recourse under the Labor Code) and for being the victim of employee computer tampering (which allows a discretionary award of fees under Penal Code section 502). On top of all that, he was awarded $980,373.50 (out of a requested $1,624,301) in attorney’s fees to some of prevailing party’s attorneys. Both sides appealed, with defendants contesting the award and plaintiff contending the punitive damages award should not have been reduced by the trial court (the latter contention failing on appeal).

Employment/Cases Under Review: Second District, Division 8 Denies Fees To Prevailing Defendant In Meal And Rest Break Premiums Case

 

Issue Is Under Review by California Supreme Court in UPS Wage and Hour Cases (McGann).

     In our February 26, 2011 post, we discussed United Parcel Service Wage and Hour Cases (McGann), 192 Cal.App.4th 1425, where the Second District, Division 8 decided that a prevailing defendant employer is not entitled to recover attorney’s fees under Labor Code section 218.5 for successful defense of plaintiffs’ claims for alleged failure to pay meal and rest break premiums under Labor Code section 226.7. The California Supreme Court granted review of UPS (McGann) on May 11, 2011, S191908.

     Now, in the unpublished decision of United Parcel Service Wage and Hour Cases (Salcido), Case No. B227556 (2d Dist., Div. 8 Sept. 26, 2011) (unpublished), the same division reached the same conclusion. This is must reading for practitioners involved in the state supreme court briefing, because the appellate court does both statutory, legislative history, and case law analysis in coming to its end result. The bottom line was this: “Construing the entire statutory scheme with a view toward protecting employees, as we must, we again find that a claim for remedial compensation under section 226.7 does not trigger the reciprocal fee recovery provisions of section 218.5.” (Slip Opn., p. 8.)

     Justice Grimes wrote the opinion on behalf of a 3-0 panel.

Employment/Prevailing Party: Breach Of Partnership Agreement Claim Did Trigger Unpaid Wage Fee Shifting Statute

 

However, Lower Court Correctly Determined Plaintiff Was Not Prevailing Party.

     Labor Code section 218.5 is a prevailing party fee-shifting provision for claims involving unpaid wages. That section was central to the next case, specifically with the question funneling down to who prevailed.

     In Lutz v. Sortwell, Case No. D055792 (4th Dist., Div. 1 July 29, 2011) (unpublished), cross-complainant brought a breach of partnership agreement and unpaid wages claims against cross-defendants, eventually winning $13,800 in “sweat equity” damages on the breach claim and $90 in unpaid wages. The lower court denied both sides’ requests for fees, with cross-complainant seeking $46,000 in fees under Labor Code section 218.5 and the other side seeking $240,000 in fees based on Civil Code section 1717 due to a provision in a resident manager employment agreement (on a claim adjudged against cross-complainant). Importantly, from a procedural standpoint, plaintiff dismissed the Labor Code claim and was awarded damages on partnership agreement breach claim, not pressing Civil Code section 1717 as a basis for a fee award.

     The appellate court affirmed.

     The Labor Code 218.5 claim dismissal was not found dispositive, because the breach of partnership agreement claim did involve a claim for nonpayment of wages. However, that did not end the inquiry. The appellate court observed that a pragmatic test guides the “prevailing party” determination. Because cross-complainant sought $32,000 in the trial court and $83,000 under an unsuccessful new trial motion (but got much less--under $14,000), and the cross-defendants did not completely defense the case, the lower court was right to conclude no one prevailed. So, in the end, everyone ended bearing their own fees in this one.

Employment: Second District, Division 8 Concludes Labor Code Section 1194 Is Specific Statute Preventing Two Way Fee-Shifting For Overtime Compensation Claims That Are Joined With Other Claims

Section 1194 Harmonized With Labor Code Section 218.5; But Routine Costs Are Available For Winning Employer.

     Here is an interesting case involving statutory interpretation of interest to employment practitioners who follow us.

     In United Parcel Service Wage and Hour Cases, Case No. B221709 (2d Dist., Div. 8 Feb. 24, 2011) (certified for publication), employer UPS prevailed against plaintiff in an action that contained multiple wage hour claims, including ones for failure to pay overtime compensation, failure to provide meal/rest periods, failure to maintain/provide itemized wage statements; conversion, injunctive/equitable relief, and a UCL claim under B & P § 17200 et seq. All but the overtime compensation claim were disposed of through pretrial motions, and employee lost the first claim in front of a jury. UPS moved to recover attorney’s fees under Labor Code section 218.5, conceding it was not entitled to fees on the overtime compensation claim but requesting $106,799 in fees on the other claims and $20,703.70 in statutory costs for all claims. The trial court determined that fees and statutory costs were appropriate, awarding UPS $100,000 in statutory fees under section 218.5 and $16,693.70 in costs under CCP § 1032(b) (after UPS withdrew some costs from the request before the trial court).

     Employee appealed and was partially successful.

    Skilled workers “freshen up” on overtime job with hot soup and coffee.  1942.  Library of Congress.

   

Employment: Regents Of The University Of California Cannot Be Socked With

 

Fee Recovery In Pension Eligibility Funds Dispute

Regents Is Constitutionally Immune from Labor Code section 218.5 Exposure in this Context.

     In a first-impression case, the Fourth District, Division One decided that the Regents of the University of California cannot be saddled with fee exposure under Labor Code section 218.5, a normal mandatory fee-shifting provision, in a proceeding where a UCSD professor settled a dispute in a way by which he established his eligibility for pension fund benefits. The case is Goldbaum v. The Regents of the Univ. of Cal., Case No. D055845 (4th Dist., Div. 1 Jan. 6, 2011) (certified for publication).

Regents of the University of California Meet to Discuss the Loyalty Oath.  1950s.

Employment: Winning Corporate Individual Owner Sued As Alter Ego Entitled To Fee Shifting Under Labor Code Section 218.5

 

First District, Division 3 Applies Analogous Civil Code Section 1717 Principles.

     Labor Code section 218.5 allows for recovery of attorney’s fees by the prevailing party in certain wage/hour/benefits disputes. However, what happens if a plaintiff sues a corporate owner as an alter ego and loses? Does the winning individual defendant get fees?

     You bet, said the First District, Division 3 in Wymore v. Minto, Case No. A125476 (1^st Dist., Div. 3 Sept. 22, 2010) (unpublished).

     Here are the facts of this case. Employer sued three employees, who then sued corporate employer and defendant Minto (alleging Minto was the employer’s alter ego). Eventually, employees settled their Labor Code wage claims with employer for $400,000, each side bearing their own fees and costs. However, employees proceeded with their alter ego claim against Minto (so that he would be responsible for the judgment against employer personally), but received an adverse ruling in favor of Minto. The trial court awarded Minto $6,577.50 in attorney’s fees under section 218.5.

     In rejecting employees’ appeal of the fee award, the appellate court found that analogous reciprocity principles from Civil Code section 1717 were appropriately applied in the Labor Code section 218.5 context. Because Minto would have been liable for fees if he lost, then section 218.5 as a matter of parity allowed him to recover fees when he prevailed. (Abdallah v. United Savings Bank, 43 Cal.App.4^th 1101, 1111 (1996) [Civ. Code, § 1717 decision].)

Employment: $7,475 In Fees Awarded To Plaintiff Employee For Recovering $3,289.90 In Wage/Hour Dispute

 

Plaintiff’s Request for Over $58,500 In Fees Is Firmly Rejected.

     Labor Code section 218.5 holds that a prevailing party in an action for nonpayment of wages, fringe benefits, or health/welfare/pension fund contributions must be awarded reasonable attorney’s fees. It was that pesky word “reasonable” that resulted in a much diminished fee award than the winning plaintiff requested in a wage/hour lawsuit.

     In Cochran v. El Cajon Motors, Case No. D055390 (4^th Dist., Div. 1 Sept. 21, 2010) (unpublished), plaintiff sued for wage/hour waiting time penalties under Labor Code section 203. He sued in unlimited jurisdiction civil court (more than $25,000 at stake), even though his complaint only pled penalties and interest of a little over $13,000. After a two-hour bench trial, the trial court awarded plaintiff $3,289.00 in waiting time penalties.

     That is where the fun begins for us bloggers. Plaintiff then sought an eventual fee award under the mandatory fee-shifting statute of $58,590 plus costs (bringing the total amount sought to $61.427.25, factoring in costs). The trial court awarded plaintiff $7,475 in fees and set a hearing to determine what routine costs should be awarded, if any. Plaintiff appealed.

Civil Rights And Prior Decision Update: Silguero Court Still Denies Fee Recovery Under A Petition For Rehearing

FEHA-Based Fees Not Allowable to Other Defendants.

     In our July 30, 2010 post, we reviewed Silguero v. Creteguard, Inc., Case No. B215179 (2d Dist., Div. 1 July 30, 2010) (certified for partial publication), where a fee award went POOF! upon reversal of a demurrer sustained in favor of certain defendants.

     However, apparently other defendants filed a petition for rehearing before the appellate court, arguing their fee awards should have been sustained as against plaintiff even though they were not involved directly in the demurrer reversal. Well, this petition did not work. The appellate panel found that, as to the fee award in favor of two defendants, FEHA claims were not involved and—even if they were—plaintiff’s action was not unreasonable, frivolous, groundless or without foundation, again reaffirming that FEHA fees are not a favored remedy with respect to winning defendants.

     Note—This part of the opinion was unpublished, and remains that way. (See Silguero Order Modifying Opinion and Denying Rehearing, posted August 16, 2010 on the Calgov website.)

Poof! On Appeal, Employer Is No Longer the Prevailing Party, and Award of $23,532.50 in Fees and Costs is Vacated

Second District, Division One Holds that a Tameny Claim Exists When Subsequent Employer Honors Putatively Invalid Restraint on Competition Entered Into Between Employee and Previous Employer – and Reversal of Attorney’s Fee Award Follows.

     A Tameny claim is a claim for wrongful termination in violation of public policy, under Tameny v. Atlantic Richfield Co., 27 Cal.3d 167 (1980).  The interesting question presented in the next case is whether an employee has a viable Tameny claim against her subsequent employer when the former employer contacts the subsequent employer, informs it that the employee signed an agreement prohibiting the employee from sales activities for 18 months, and the subsequent employer respects that agreement, even though it believes that non-compete clauses are not legally enforceable in California.  Silguero v. Creteguard, Inc., Case No. B215179 (2nd Dist., Div. 1 July 30, 2010) (certified for partial publication).  The answer:  yes.  

     Creteguard argued it was the prevailing party under FEHA, and sought over $50,000 in attorney’s fees.  The trial court awarded Creteguard $23,532.50 in fees.  However, when the Court of Appeal directed the trial court to overrule Creteguard’s demurrer, the order awarding attorney’s fees and costs was also dismissed.   This part of the opinion, though relevant to the topic of our blawg, is admittedly less gripping than the Court’s holding that a Tameny claim existed.  In fact, the discussion of attorney’s fees is not certified for publication.

     Justice Mallano authored the 3-0 opinion.

     Note to our readers:  We have added another sidebar category to our blawg:  Cases:  Employment.