When I was a California trial judge years ago, I became very familiar with the “two beer” defense in driving-under-the-influence cases. Regardless what evidence was put on by the prosecution of the defendant’s intoxication, many a defendant would take the witness stand and testify, “All I had to drink was two beers.” In contrast, the plaintiff in Candari v. Los Angeles Unified School District (filed March 8, 2011) 2011 DJDAR 3609 was a tenured carpenter employed by the school district when he was terminated for insubordination, ethics violations and appearing for work while under the influence of alcohol. One of his defenses was “I did not drink those two beers.” While he ultimately did end up being punished with a 45-day suspension without pay for refusing to take an alcohol test when demanded to do so in the workplace, he prevailed in other respects, being restored to his job by administrative order of the Los Angeles Unified School District Personnel Commission. However, he was denied back pay for time in excess of his suspension because the commission found in favor of the employer in its claimed defense of plaintiff’s failure to mitigate damages. On writ of mandate, the Los Angeles Superior Court vacated the denial of back pay and remanded for determination of amount of award. The California Court of Appeal, Second Appellate District, Division Eight, affirmed the trial court’s determination.
The two-beer dispute that gave rise to this matter all started when plaintiff went to lunch one workday with two co-workers. Plaintiff and one of his co-workers drank only water with their meal. The other co-worker had two beers. One of plaintiff’s supervisors came into the restaurant to have lunch, at which time he saw two empty beer bottles on plaintiff’s table. He reported this to his superior and the decision was made to test plaintiff and his two tablemates for alcohol. As a result of his refusal to take an alcohol test unless he could first talk to his union representative (who could not be reached), plaintiff was terminated. The above-described administrative hearing, mandate proceeding and appeal followed.
The sole issue on appeal was whether plaintiff was entitled to back pay. Plaintiff argued that defendant had the burden of showing a comparable position was available in order to prevail on its claim that plaintiff should receive no back pay because he failed to mitigate any of his damages. Defendants argued that California Education Code section 45307 did not impose a burden on employer school districts to establish mitigation; they also point to Davis v. Los Angeles Unified School District Personnel Com. (2007) 152 Cal.App.4th 1222 as not requiring or even discussing that a defending school district must show comparable available work in order to prevail on a claim of non-entitlement to back pay.
The appellate court found both section 45307 and Davis unavailing. The statutory discretion in awarding back pay was subject to well-established law requiring an employer to affirmatively prove failure to mitigate damages as an affirmative defense. (See Parker v. Twentieth Century-Fox Film Corp. (1970) 3 Cal.3d 176.) The Davis case did not discuss mitigation of damages in finding it appropriate to deny back pay because the issue there was moot: the employer was not responsible for back pay because the employee there sustained his loss as a result of a non-work related disability.
So this employer learned two important lessons: it needs to carry the burden in proving its claim of failure to mitigate wage damages, and never assume that someone sitting in close proximity of empty beer bottles necessarily consumed the beer that was contained therein.