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

Associational disability discrimination revisited

Whether an employee can pursue a claim based on the employer failing to provide an accommodation to care for a disabled relative is undecided again.

In an April 4, 2016 decision (Castro-Ramirez v. Dependable Highway Express, Inc. (2016) 246 Cal.App.4th 180), the Second District Court of Appeal concluded that California law creates a duty for employers to provide reasonable accommodations to employees who are associated with a disabled person. On April 27, 2016, the court agreed to rehear the matter, making the decision no longer available as precedent.

On rehearing last month in Castro-Ramirez v. Dependable Highway Express, Inc. (2016) 2 Cal.App.5th 1028, the appellate court noted that Mr. Castro-Ramirez had abandoned his reasonable accommodation claim. Consequently, the court determined that it did not need to decide whether employers have a duty to reasonably accommodate employees who associate with a disabled person.

At the same time, the court in Castro-Ramirez found that Mr. Castro-Ramirez’s abandonment of his failure to accommodate claim did not prevent him from pursuing his claim that he suffered discrimination based on associational disability. As a result, the issue before the court was now whether there was sufficient evidence that discrimination motivated a supervisor’s refusal to honor Mr. Castro-Ramirez’s scheduling request to care for his son and termination of Mr. Castro-Ramirez.

The appellate court noted that a claim for associational disability discrimination has been recognized, although it is a seldom litigated. It also determined that California, and not federal, law provides the framework for analyzing such claims. That is because the federal law, although recognizing associational disability discrimination, uses language that is structurally different than California law.

Using the California standard, the Second District determined that a reasonable inference of the facts was that the supervisor, as the person responsible for scheduling the drivers, wanted to avoid the inconvenience and distraction Mr. Castro-Ramirez’s need to care for his disabled son posed to him. Thus, the supervisor engineered a situation in which Mr. Castro-Ramirez would refuse to work the shift, giving him reason to terminate Mr. Castro-Ramirez.

The appellate court also concluded that Mr. Castro-Ramirez presented enough facts for his retaliation claim. The court decided that a jury could reasonably find that Mr. Castro-Ramirez’s repeated complaints to his supervisors about the change in his scheduling, when both knew that he needed earlier hours to administer dialysis to his son, constituted opposition to the denial of an accommodation in his schedule. Tied as the complaints were to his son’s disability, the jury also could find that the supervisor had reason to know that Mr. Castro-Ramirez believed the denial of an accommodated schedule to care for his son was unlawful.

Posted by deanroyerlaw in Employment

Payment of final wages upon retirement

Are employees who retire protected by laws requiring prompt payment of final wages?

The California Supreme Court decided last month whether the laws requiring prompt payment of an employee’s final wages apply when the employee retires. In McLean v. State of California (2016) 1 Cal. 5th 615, Ms. McLean was a deputy attorney general who filed suit against the State of California on behalf of herself and a class of former state employees who, having resigned or retired, did not receive their final wages within the time periods set forth in the California Labor Code.

Following her retirement from her employment in the state Department of Justice, Ms. McLean filed suit alleging that her employer violated Labor Code section 202 by failing to timely pay her final wages; failing to timely deposit wages for her unused leave and vacation time to her supplemental retirement plans; and failing to timely transfer to her retirement wages that she had elected to defer to the following tax year.

The trial court dismissed her case at an early stage, concluding that because Ms. McLean “retired” from her job, she had not stated a claim for penalties under Labor Code section 203, which applies only when employees “quit” or are “discharged.” The Court of Appeal reversed, concluding that sections 202 and 203 apply when an employee “quits to retire.”

On appeal to the California Supreme Court, the court in McLean began with a review of the Labor Code. As originally enacted, the prompt payment laws (Labor Code sections 201 through 203) applied only to private employers. In 2000, the Legislature amended the Labor Code to extend these provisions to employees of the State of California. Municipal employees continue to not be covered. In 2002, the Legislature again amended the law to add special rules about the prompt payment of accrued leave to state employees upon termination of their employment.

The California Supreme Court noted that section 202 requires prompt payment of wages to “an employee not having a written contract for a definite period [who] quits his or her employment.” Section 203 specifies that an employer is subject to waiting-time penalties if it “willfully fails to pay…in accordance with Section[]…202…any wages of an employee who is discharged or who quits.” The court determined that the Labor Code does not define the term “quit,” and the regulations of the state agency charged with interpreting and enforcing wage and hour laws (Division of Labor Standards Enforcement) provide no relevant guidance.

Accordingly, the court in McLean considered the word’s ordinary meaning. The term “quit” was and is ordinarily used to mean “to stop doing a thing; to cease,” and, in the employment context, “to leave one’s employment.” So understood, the term easily includes withdrawal from employment for the purpose of retiring, as well as for other purposes. An employee who retires, no less than an employee who ends one job to start another, has “stopped,” “ceased,” or “left” her employment.

The California Supreme Court found that this understanding of the meaning of the word “quit” is consistent with the role section 202 plays in the Labor Code. The Legislature’s apparent purpose was to ensure that employers make prompt payment of final wages upon the termination of the employment of a person who does not have a contract for a definite period. There is no suggestion that the Legislature intended to create a category consisting of retiring employees who would be specially disqualified from seeking prompt payment of final wages.

The court in McLean also determined that practical considerations reinforced its conclusion that the application of the prompt payment provisions do not turn on the nature of the employee’s post-employment plans. An employee’s intentions at the time of quitting may be unclear to the employer or even to the employee herself. It is unlikely that the Legislature would have intended the obligation to make prompt payment of final wages turn on matters that may be unknown, and perhaps unknowable, to the employer at the time payment is due.

Finally, the California Supreme Court found that interpreting sections 202 and 203 to cover retiring employees is consistent with the purposes of the prompt payment provisions. The policy favoring prompt payment of wages applies to employees who retire, as well as those who quit for other reasons.

Posted by deanroyerlaw in Employment

Presenting retaliation claims

Can employees challenge retaliation based on both the age discrimination law and the First Amendment?

The Ninth Circuit recently addressed the question of whether an employee with a claim of retaliation for participating in an age discrimination case is limited to the federal age discrimination in employment law. In Stilwell v. City of Williams (9th Cir. Aug. 5, 2016, No. 14-15540) 2016 U.S. App. LEXIS 14409, Mr. Stilwell sued his employer for retaliation, alleging that he was fired for planning to testify against the City in an age discrimination lawsuit. His claims were based on both the First Amendment (asserted as a 42 U.S.C. section 1983 civil rights claim) and the retaliation provision of the Age Discrimination in Employment Act (29 U.S.C. section 623(d)).

Mr. Stilwell signed a sworn statement that supported a co-worker’s age discrimination claim and agreed to testify in her lawsuit. The City of Williams became aware of Mr. Stilwell’s participation, after which his supervisor criticized Mr. Stilwell’s job performance on multiple occasions and discouraged Mr. Stilwell from testifying. Mr. Stilwell was terminated following an investigation based on his supervisor’s accusation that he neglected security concerns.

The trial court dismissed Mr. Stilwell’s First Amendment claim on grounds the age discrimination law was his sole remedy for a retaliation claim. On appeal, the Ninth Circuit began with a review of prior decisions that addressed the issue of whether a federal law prevented the use of the federal civil rights law (42 U.S.C. section 1983) to remedy an alleged constitutional violation. The court in Stilwell determined that when

Congress creates a right with a law but at the same time limits enforcement of that right through a scheme that is narrower than section 1983, a section 1983 remedy is not available. But when a right is created by the Constitution, if the law’s rights and protections diverge in significant ways from those provided by the Constitution, a section 1983 remedy is available.

The Ninth Circuit then applied this framework to the age discrimination law. It found that the disparities between the rights and protections of that law’s retaliation provision and the First Amendment as enforced through section 1983—including differences in who may sue and be sued, the standards for liability, and the damages available—made the age discrimination law’s protections narrower than the First Amendment’s in some important respects. The court in Stilwell also found that Congress made no express statement of preclusion in the law or in reports leading up to enactment.

Consequently, the appellate court concluded that Congress did not intend to prevent section 1983 First Amendment retaliation suits when enacting the age discrimination law. On this basis, the Ninth Circuit reversed the trial court’s decision.

Posted by deanroyerlaw in Employment