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Resident of State Can’t Sue Under FEHA Where His Workplace Was High Seas—Ninth Circuit
By a MetNews Staff Writer
A California resident is barred from suing his former employer, a shipping company with a Long Beach office, for wrongful termination under the state’s employment-discrimination statute because his workplace was the high seas, and that’s where he was fired, the Ninth U.S. Circuit Court of Appeals has held.
In a memorandum opinion filed Monday, a three-judge panel said that District Court Judge William H. Orrick of the Northern District of California properly dismissed with prejudice an action filed by Mark Kane, a former crew member of a cargo ship, against his ex-employer, Matson Navigation Co., and Theodore E. Bernhard, captain of the vessel.
The judges declared that California’s Fair Employment and Housing Act (“FEHA”) “does not apply extraterritorially in this case.” They explained:
“Whether Kane’s work holds a substantial connection to California depends on (1) the situs of his employment and (2) the material elements of the cause of action.”
The situs was the high seas—with Kane embarking and disembarking both in Hawaii and California—and the lawsuit was based on his being fired, which happened while Kane was shipboard, the opinion says.
Kane argued that after Brainard fired him onboard the ship, Matson issued a letter from its Long Beach office setting forth reasons for the termination and barring him from reemployment for two years. The judges wrote that “the letter was ancillary to the termination and therefore does not establish a substantial connection to the state,” adding that “Kane’s California residency does not establish a substantial work connection to California.”
In his operative pleading at the time of the dismissal, it is alleged that Kane was discharged, in violation of the FEHA, based on retaliation for having complained of bullying by shipmates, with bogus allegations of workplace violations then being alleged in a letter of warning (“LOW”). The second amended complaint says:
“On or about December 6. 2021, aboard the vessel while at sea, BERNHARD, in front of Plaintiff’s co-workers, read the LOW with unfounded allegations, exposing Plaintiff to ridicule and debasement. BERNHARD refused to allow Plaintiff to discuss the allegations, and confined him to his quarters, with threats of being handcuffed if he left his quarters (other than for meals at the mess hall).”
It continues:
“Plaintiff had no prior notification of any work issues, and less than 24 hours after BERNHARD verbally dressed down Plaintiff in front of his co-workers by reciting the letter of warning, BERNHARD issued a letter of termination, also recited publicly in front of his co-workers, without a chance to remedy of any of the alleged and untrue wrongs against him. Plaintiff was confined to his quarters until placed ashore in Guam.”
The case is Kane v. Matson Navigation Co., 23-15534.
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