Hugging as unlawful harassment

Can hugging be unlawful harassment?

The Ninth Circuit Court of Appeals recently addressed the question of whether frequent unwanted hugging and one unwanted kiss in the workplace can constitute unlawful sexual harassment. In Zetwick v. Cnty. of Yolo (9th Cir. Feb. 23, 2017, No. 14-17341) 2017 U.S. App. LEXIS 3260, Ms. Zetwick alleged that her supervisor hugged her over one hundred times over a 13-year period, and kissed her partially on the lips on one occasion.

The trial court dismissed the case before trial after concluding that hugs and kisses on the cheek can never be unlawful harassment. On appeal, the Ninth Circuit found that the trial court failed to rely on any precedent that supported its conclusion. To the contrary, some of the precedent stood for the proposition that hugs and kisses, when unwelcome and pervasive, can constitute unlawful harassment. The appellate court also found that the trial court committed a second legal error by incorrectly stating that the standard for harassment is severe and pervasive conduct (as opposed to severe or pervasive). While the trial court correctly stated the standard elsewhere in its opinion, the Ninth Circuit found the incorrect reference to be significant because it occurred where the trial court found that Ms. Zetwick had not met the standard.

The appellate court turned next to whether there was sufficient evidence for a reasonable conclusion that unlawful harassment occurred. The Ninth Circuit reviewed federal harassment law, which requires a sexually offensive environment that both a reasonable person would find hostile or abusive, and one that the victim perceived to be so. It concluded that the evidence could satisfy this standard based on Ms. Zetwick’s testimony that her supervisor hugged her more than one hundred times during the period 1999 to 2012, and that he hugged female employees exclusively.

The Ninth Circuit faulted the trial court for viewing the evidence in a mathematically precise manner (seven to eight hugs per year on average, each lasting a few seconds) rather than considering the cumulative effect of the conduct. The court of appeals also determined that the trial court erred by failing to consider precedent that the conduct has greater impact when carried out by a supervisor, overlooking Ms. Zetwick’s testimony about the emotional impact of her supervisor’s behavior, and disregarding her testimony about her supervisor’s conduct toward other female employees.

Ultimately, the Ninth Circuit reversed the trial court’s dismissal of the case.

Posted by deanroyerlaw in Employment

Sex discrimination evidence

Enough evidence of sex discrimination?

Last month, the Ninth Circuit Court of Appeals decided whether an employee had enough evidence of sex discrimination to go to trial. In Mayes v. WinCo Holdings, Inc. (9th Cir. 2017) 846 F.3d 1274, Ms. Mayes challenged her termination under the federal employment discrimination law, Title VII.

In this case, Ms. Mayes worked for WinCo, a grocery store. During her final years at WinCo, Ms. Mayes supervised employees on the night-shift freight crew. In 2011, WinCo terminated Ms. Mayes, allegedly for taking a stale cake from the store bakery to the break room to share with fellow employees and telling a loss prevention investigator that management had given her permission to do so. WinCo claimed these actions were theft and dishonesty. WinCo replaced Ms. Mayes with a male who had only one month of freight crew experience and no supervisory experience at WinCo.

After Ms. Mayes sued WinCo for sex discrimination, WinCo moved the trial court to dismiss the case (summary judgment). The court granted the motion on grounds Ms. Mayes did not have evidence to dispute WinCo’s alleged reason for terminating her.

On appeal, the Ninth Circuit began with a review of the standard for disputing an employer’s reason for a termination (pretext). An employee can prove pretext either directly by showing that unlawful discrimination more likely motivated the employer, or indirectly by showing that the employer’s explanation is unworthy of credence because it is internally inconsistent or otherwise not believable.

Most cases do not include direct evidence. But the appellate court found that Ms. Mayes had multiple examples of direct evidence of sex discrimination: the general manager of the store made the alleged comments that (1) a man “would be better” to lead the safety committee instead of Ms. Mayes; (2) she did not like “a girl” (Ms. Mayes) running the freight crew; and (3) criticized Ms. Mayes, but not a male co-worker, for leaving work early to care for her children. These comments directly concerned Ms. Mayes and the decision-making process for retaining and promoting employees.

WinCo contended that this evidence was not relevant because the general manager did not terminate Ms. Mayes. The Ninth Circuit disagreed because there was evidence suggesting the contrary: WinCo admitted in writing (interrogatory) that the general manager was involved in the termination, the general manager testified in an unemployment benefits hearing that she was involved, and the general manager testified that she was in contact with the person who notified Ms. Mayes that she was terminated. Furthermore, the general manager admitted that she contacted loss prevention after reviewing a video-recording of Ms. Mayes taking the stale cake. Finally, no one at WinCo admitted to making the termination decision. Taken as a whole, the evidence supported an inference that the general manager’s bias influenced or contributed to the termination decision.

WinCo also asserted that the general manager’s comments were “stray remarks” that could not establish discrimination. But the court of appeals concluded that a reasonable jury could decide that the general manager’s comments demonstrated her overt hostility to having women in leadership roles. The Ninth Circuit also reaffirmed precedent that the decision-maker may engage in unlawful discrimination, even when she is the same sex as the employee.

Although there was enough direct evidence for Ms. Mayes to go to trial, the Ninth Circuit also reviewed the circumstantial evidence. Multiple employees testified that it was a common, accepted practice—rather than an offense punished by termination—for supervisors like Ms. Mayes to take cakes to the break room. Also, WinCo replaced Ms. Mayes with a less qualified male. This evidence was sufficient to establish pretext circumstantially.

Based on the direct and circumstantial evidence, the appellate court reversed the trial court’s dismissal of the case.

Posted by deanroyerlaw in Employment

Paid family leave in San Francisco

Taking fully paid family leave in San Francisco.

Since 2002, employees throughout California could take family leave and get partial wage replacement for up to six weeks through the State’s Disability Insurance Program (Paid Family Leave). The pay equals approximately 55% of regular wages.

Now, employees who work in San Francisco for employers with 20 or more employees are entitled to get the remaining 45% of their wages directly from their employer. The Paid Parental Leave for Bonding with New Child Ordinance is being phased in over the next year:

  • Employers with 50 or more employees are required to comply beginning on January 1, 2017.
  • Employers with 35 or more employees are required to comply beginning on July 1, 2017.
  • Employers with 20 or more employees are required to comply beginning on January 1, 2018.
Posted by deanroyerlaw in Employment

Racial harassment, discrimination, and retaliation in the workplace

Sufficient evidence of racial harassment, discrimination, and retaliation in the workplace?

Yesterday, the Ninth Circuit Court of Appeals decided whether an employee had enough facts to prove he was subjected to racial harassment, discrimination, and retaliation. In Reynaga v. Roseburg Forest Prods. (9th Cir. Jan. 26, 2017, No. 14-35028) 2017 U.S. App. LEXIS 1395, Mr. Reynaga alleged that he suffered harassment and discrimination based on his race and retaliation for reporting harassment. His employer denied the allegations.

Efrain and his son Richard Reynaga worked as millwrights for Roseburg Forest Products. They were the only millwrights of Mexican descent. Mr. Reynaga (Efrain) developed a contentious relationship with lead millwright, Timothy Branaugh, who allegedly harassed Mr. Reynaga with racially disparaging comments. Mr. Reynaga made oral and written complaints with Roseburg management alleging racial harassment in the workplace. Roseburg investigated and ultimately rearranged Mr. Branaugh’s work schedule so that he would not be on the same shift as Mr. Reynaga.

But one day, the Reynagas arrived at work to find Mr. Branaugh assigned to the same shift. After notifying Roseburg that they would not work in a hostile environment, they immediately left the premises. A few days later, the Reynagas showed up to work but refused to complete their shift because Mr. Branaugh was also scheduled for work at the same time. After a few more days, Roseburg terminated the Reynagas.

Mr. Reynaga filed suit against Roseburg, alleging hostile work environment, discrimination, and retaliation. The trial court granted Roseburg’s request to dismiss the case for lack of evidence (summary judgment).

On appeal, the Ninth Circuit began with the harassment claim. It was undisputed that Mr. Reynaga was subjected to conduct of a racial nature that was unwelcome. Accordingly, the question was whether the conduct was sufficiently severe or pervasive to meet the legal standard for harassment (hostile work environment). The appellate court determined that there was evidence of repeated racial and national origin comments in the workplace, including,

(1) Mr. Branaugh referred to black people as the n-word and Arabs as “rugheads;” (2) after Mr. Reynaga received hunting tags for a second year in a row, Mr. Branaugh said, “I’m a true believe [sic] that we should close the borders to keep motherf***ers like you from coming up here and killing our elk. I know one motherf**er [sic] who drew tags back to back;” (3) Mr. Branaugh stated, “Minorities are taking over the country;” (4) Mr. Branaugh asked, “Efrain, are all Mexican women fat?” (5) Mr. Branaugh, aware that Mr. Reynaga’s wife is Native American, referred to Native American women as “nasty fat squaws;” and (6) Mr. Branaugh left in the break room a printed email containing an article that claimed President Obama was an illegal alien and that “our borders are like sieves.”

Based on this evidence, the court concluded that a reasonable jury could find that Mr. Branaugh’s alleged conduct would be “highly offensive and demeaning to anyone,” and derogatory remarks that Mr. Branaugh made specifically about Mexicans, including comments about the “border,” were “tinged with racism.” In addition, a jury could decide that the conduct interfered with Mr. Reynaga’s work performance to the extent that it resulted in confrontations with Mr. Branaugh and led Mr. Reynaga to make complaints. And, Mr. Branaugh’s conduct was so extreme that Roseburg had to make sure that Mr. Branaugh and the Reynagas were not scheduled to work on the same shift. Finally, a jury could conclude that the Reynagas felt compelled to leave the workplace because Mr. Branaugh was present. Based on all of this, a reasonable jury could conclude that Mr. Branaugh’s conduct was sufficiently severe or pervasive to create a hostile work environment.

Next, the Ninth Circuit considered the discrimination claim. Roseburg argued that Mr. Reynaga did not have evidence that supported an inference of discriminatory motive, such as other employees who were treated more favorably. The appellate court determined that there was evidence of two non-Latino employees being treated more favorably, and that Mr. Branaugh (a white man) was hardly reprimanded and not terminated after several complaints were made about his hostile behavior. Roseburg also argued that it had non-discriminatory reasons for the termination: walking off the job and refusing to work. The appeals court decided that there was evidence to dispute these reasons. With full knowledge of Mr. Branaugh’s behavior, Roseburg required Mr. Reynaga to work at the same site as Mr. Branaugh and conditioned his employment on his willingness to work with a coworker with a proven history of harassment. Based on this evidence, the Ninth Circuit concluded that the discrimination claim should not have been dismissed.

Finally, the appellate court addressed the retaliation claim. The trial court decided that Mr. Reynaga did not have sufficient evidence to dispute Roseburg’s explanation for the termination, i.e., walking off the job and refusing to work. The Ninth Circuit determined that Mr. Reynaga had a strong “prima facie” case of retaliation because after working for Roseburg for more than five years he was fired barely one month after making a formal written complaint. In addition, there was evidence that Mr. Branaugh

subjected Mr. Reynaga to a hostile work environment but was not seriously punished. In contrast, Mr. Reynaga was terminated for missing just one and a half day’s work, on days that Mr. Reynaga objected to working because Mr. Branaugh was on the same shift. The court of appeals concluded that the trial court improperly dismissed the retaliation claim.

Posted by deanroyerlaw in Employment

Medical leave retaliation

Enough evidence of medical leave retaliation?

Earlier this month, the Fourth District Court of Appeal decided whether an employee had enough evidence for her medical leave retaliation case to go to trial. In Bareno v. San Diego Community College Dist. (Jan. 13, 2017, No. D069381) ___Cal.App.4th___ [2017 Cal. App. LEXIS 23], Ms. Bareno claimed that her employer terminated her after she gave notice that she needed additional medical leave. Her employer contended that she voluntarily resigned because she was absent from work without excuse.

Ms. Bareno required medical treatment and requested medical leave with a medical certification. After the time for leave ended, Ms. Bareno attempted to e-mail her supervisor a recertification of her need for additional medical leave, but her employer claimed that it did not receive the request. After Ms. Bareno continued to be absent from work for an additional five consecutive days, her employer took the position that she had “voluntarily resigned.” After Ms. Bareno learned of this, she attempted to provide her employer with information regarding the medical necessity of the leave that she had taken. Her employer refused to reconsider its position.

Ms. Bareno filed suit alleging that she was retaliated against for taking medical leave in violation of the Moore-Brown-Roberti Family Rights Act, commonly referred to as the California Family Rights Act (CFRA). The trial court granted the College’s request to dismiss the case on grounds Ms. Bareno did not have sufficient evidence upon which a jury could possibly find in her favor (summary judgment).

On appeal, the Fourth District began by re-stating its viewed (shared by the First District Court of Appeal in Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 286) that employment cases with issues of intent should rarely be dismissed by summary judgment. The issues before the appellate court were whether Ms. Bareno had evidence that (1) she requested additional medical leave, (2) if there was such a request, it met the requirements of the CFRA, and (3) she was terminated because she requested additional medical leave.

The court of appeal determined that there was evidence that Ms. Bareno e-mailed a request for additional medical leave. While the College claimed it never received the e-mail, there was also evidence that Ms. Bareno continued to have communications with her employer showing that she was seeking additional medical leave. As a result, the facts were disputed regarding whether there was a request for additional medical leave.

The Fourth District also determined that there was evidence that the additional leave request met the standard because it included the date of the onset of Ms. Bareno’s condition and the time period for which she needed to be off work. This document was virtually identical to the initial medical leave request, which the College accepted as sufficient. And the College never requested more information about the additional leave request.

Finally, the appellate court noted that the College’s decision that Ms. Bareno “voluntarily resigned” was effectively a termination and took place virtually immediately after the request for additional medical leave. Such close proximity between a request for leave and a termination is strongly suggestive of retaliation. Furthermore, the Fourth District determined that there was evidence from which a jury could conclude that the College knew, or reasonably should have known, that Ms. Bareno had no intention of voluntarily resigning her position (or being absent without excuse) when she was absent during the five-day period.

The court of appeal concluded that the facts were sufficiently disputed such that the trial court erred by dismissing the case.

Posted by deanroyerlaw in Employment