Delaney

Jim Delaney appeals from the summary judgment entered against him in his action alleging employment discrimination by defendant Superior Fast Freight (Superior) based upon sexual orientation. (No. B063458.) Superior appeals from the trial court’s denial of its request for attorney fees. (No. B066035.)

In a telephone call to a company official, Delaney threatened to kill his supervisor and two other coworkers. He made similar threats over the public airways to a radio talk show psychologist. Superior then terminated Delaney’s employment. Delaney lodged a grievance under his collective bargaining agreement on the ground that he could not be discharged without a prior written warning. He also filed a workers’ compensation stress claim and a charge with the Department of Fair Employment and Housing (DFEH) claiming discrimination on the basis of sexual orientation.

A provision of the collective bargaining agreement allowed termination without prior written warning in the event a worker actually committed an unprovoked physical assault on another employee or customer. The arbitration panel which heard Delaney’s grievance ruled he was entitled to reinstatement without back pay…