Administrative exhaustion

December 2019 and January 2020 employment law decisions

The time to file an administrative discrimination claim can be extended by the filing of a workers’ compensation claim; and the filing deadline period starts at the end of ongoing discriminatory conduct or with a constructive termination.

January 28, 2020, First District Court of Appeal, Jay Brome v. California Highway Patrol: Mr. Brome’s claims for harassment and sexual orientation discrimination were not barred by the statute of limitations because the one-year period to file with the Department of Fair Employment and Housing was tolled while a workers’ compensation claim was pending; a jury could conclude that there was harassment that continued to within the limitations period extended by the tolling; and a jury could conclude that Mr. Brome was constructively terminated when he resigned less than one year before he filed with the Department.

Employees’ do not prevail on sexual harassment claims.

January 22, 2020, Second District Court of Appeal, Tamika Schmidt v. Superior Court: Court verdict finding no sexual harassment against two court employees is affirmed because the court properly applied the applicable law and did not exhibit bias amounting to a due process violation.

Unionized federal employees may only bring discrimination claims through either their union’s grievance procedure or their agency’s Equal Employment Opportunity office.

January 16, 2020, Ninth Circuit Court of Appeals, Garry Heimrich v. United States Department of the Army: Mr. Heimrich could not pursue a wrongful termination claim before his agency’s Equal Employment Opportunity office because he previously raised the same matter in a union grievance: in both instances the underlying action was premised on a termination motivated by race, retaliation, and disability.

Employers cannot use acronyms in wage statements and PAGA claims need only cite the applicable Labor Code section.

December 26, 2019, Third District Court of Appeal, Mohammed Noori v. Countrywide Payroll & HR Solutions, Inc.: Mr. Noori asserted a valid claim for failure to provide a proper itemized wage statement because the employer’s name was indicated only by an acronym; and a valid claim under the Private Attorneys General Act of 2004 (PAGA) by citing the Labor Code section (as opposed to the specific subdivision) that was allegedly violated; but his failure to maintain wage statements claim failed because the employer’s failure to state its name in the statements was not an actionable injury.

State defendants cannot avoid liability for claims by removing cases to federal court.

December 23, 2019, Ninth Circuit Court of Appeals, Donald Walden, Jr. v. State of Nevada: A State that removes a case to federal court waives its immunity from suit on all federal-law claims in the case, including the Fair Labor Standards Act claim in this case.

Fourth District claims no adverse action based on rejection of accommodation requests despite statutory and case law authority to the contrary; and affirms dismissal of interactive process and reasonable accommodation claims on grounds the employee did not identify his particular disability despite case law emphasizing the discussion of limitations resulting from the disability.

December 19, 2019, Fourth District Court of Appeal, John Doe v. Department of Corrections and Rehabilitation: Dismissal (summary judgment) of Mr. Doe’s disability discrimination, retaliation, and harassment claims was affirmed because criticism of Mr. Doe’s work, ordering a wellness check when Mr. Doe was out sick, suspecting Mr. Doe of bringing a cell phone to work, and assigning Mr. Doe as primary crisis person on the day he had a union meeting did not amount to an adverse employment action. The Fourth District further affirmed the dismissal on grounds that no court had ever held a failure to accommodate a disability is an adverse employment action, despite a 2002 case (Bagatti v. Department of Rehabilitation (2002) 97 Cal.App.4th 344) that did and the statute specifically providing that failure to accommodate is an adverse action (Government Code section 12940(m)(1)). The dismissal of Mr. Doe’s interactive process and accommodation claims was affirmed on grounds Mr. Doe was responsible for the breakdown in the accommodation discussions because he did not identify his disability, despite case law providing that the focus of such discussions is on the employee’s limitations, not specific disabling conditions.

No punitive damages against public entities available under whistleblower law.

December 17, 2019, Fifth District Court of Appeal, Visalia Unified School District v. Superior Court: Award of punitive damages to employee who sued Visalia Unified School District under the whistleblower statute covering public school employees (Education Code section 44110 et seq.) was reversed based on public entity immunity to punitive damage awards.

Verdict in favor of employee of religious organization upheld under federal, but not state, law.

December 12, 2019, Sixth District Court of Appeal, Jeremiah Mathews v. Happy Valley Conference Center, Inc.: Verdict in favor of Mr. Mathews upheld with respect to his retaliation claim under federal law (Title VII) because the jury properly concluded that Happy Valley and the Community of Church, of which Happy Valley was an affiliate, were joint employers collectively employing more than 15 employees based on common ownership, closely intertwined management, interrelated operations, and evidence showing Mr. Mathews’ termination was influenced or even dictated by the Church. But the verdict in favor of Mr. Mathews with respect to his retaliation claim under state law (Fair Employment and Housing Act) was reversed because religious associations or non-profit corporations (other than hospitals and schools) are completely exempt from FEHA claims and Happy Valley did not waive this exemption.

Posted by deanroyerlaw in Employment

February 2018 employment law decisions

Disclosure of personal information and infliction of emotional distress verdict upheld.

February 21, 2018, Fourth District Court of Appeal, Delane Hurley v. California Department of Parks and Recreation: A jury found in favor of the Department for Ms. Hurley’s employment discrimination, retaliation, and harassment claims; and in favor of Ms. Hurley for a disclosure of personal information claim (Information Practices Act) and infliction of emotional distress claims. On appeal, Ms. Hurley asserted that the trial court excluded evidence relevant to her discrimination/ retaliation/ harassment claims. The Fourth District found that Ms. Hurley failed to show, beyond conclusory argument, that the excluded evidence would have affected the jury’s verdict. As a result, she waived the issue or failed to demonstrate the required prejudice caused by the exclusion. The Department contended that there was insufficient evidence to support the verdict regarding the personal information claim. The appellate court disagreed because there was evidence that the Department maintained a “supervisory drop file” that a reasonable jury could decide contained Ms. Hurley’s name, corrective or disciplinary actions taken again her, her application to add her domestic partner as a health insurance beneficiary, a note from her psychologist placing her on leave for one month, and information that Ms. Hurley failed her probation at a prior job. This type of information qualifies as “personal” under the Information Practices Act. The Fourth District concluded that there was sufficient evidence that the Department improperly (not in the ordinary course of official duties) disclosed this personal information because Ms. Hurley’s supervisor gave it to a nonsupervisory employee with lesser rank than Ms. Hurley and the supervisor received the drop file while she was on administrative leave. Finally, the court of appeal concluded there was sufficient evidence to support the emotional distress claims based on the disclosure of the drop file, the supervisor discussing Ms. Hurley’s personal information with another employee in Ms. Hurley’s presence, and the supervisor’s acts and comments about Ms. Hurley’s sexual orientation.

Administrative filing requirement for civil servants with whistle-blower claims.

February 16, 2018, Second District Court of Appeal, Shawn Terris v. County of Santa Barbara: Ms. Terris received a layoff notice and then filed a complaint with the County’s Civil Service Commission alleging discrimination for exercising her right to file a claim against the County. The Commission ruled that it could not decide the discrimination claim because Ms. Terris had not filed a complaint with the County’s Equal Employment Opportunity Office (EEO). Ms. Terris then filed a case against her employer for whistle-blower retaliation. The trial court dismissed her case (summary judgment) on grounds that she did not comply with administrative filing requirements. On appeal, the Second District found that the EEO complaint was available and required, after which an appeal to the Commission was possible. Ms. Terris did not file with the EEO and went directly to the Commission. The appellate court rejected Ms. Terris’s contention that she was excused from filing with the EEO. The Second District concluded that a decision (Satyadi v. West Contra Costa Healthcare Dist. (2014) 232 Cal.App.4th 1022) and a Labor Code provision (section 244) provide that an employee need not file with the California Labor Commissioner before suing her employer, but do not address any required civil service claims.

No adverse employment action based on an employee’s private sexual conduct.

February 9, 2018, Ninth Circuit Court of Appeals, Janelle Perez v. City of Roseville: Ms. Perez was a police officer for the Roseville Police Department. The Department terminated her after an internal affairs investigation into her extramarital romantic relationship with another police officer. She sued her employer for an alleged violation of her right to privacy and intimate association under the U.S. Constitution. The trial court dismissed the claim (summary judgment). On appeal, the Ninth Circuit determined whether there was a factual dispute and whether the constitutional right was clearly established. The appellate court concluded that there was a factual dispute as to whether the City of Roseville terminated Ms. Perez at least in part on the basis of her extramarital affair: the Police Chief gave testimony that the investigation played a role in the termination decision; a Captain testified that the affair was significant to him and issued written reprimands to Ms. Perez and recommended termination based on the investigation; two individuals involved in the termination expressed moral disapproval of Ms. Perez’s conduct; and issues with Ms. Perez’s job performance were “discovered” immediately after the investigation revealed the affair. The Ninth Circuit also found that Ms. Perez’s constitutional right was clearly established by its 1983 decision that prohibited government employers from taking adverse action on the basis of private sexual conduct unless such conduct negatively affects on-the-job performance or violates a constitutionally permissible, narrowly tailored regulation. The Ninth Circuit rejected decisions by the Fifth and Tenth Circuits that did not recognize the constitutional right.

Posted by deanroyerlaw in Employment