Constructive termination

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

Deadline for constructive termination claim

Deadline for pursuing constructive termination claim.

On May 23, 2016, the U.S Supreme Court decided when the clock starts running for employees to pursue legal action when they resign in the face of intolerable discrimination. In Green v. Brennan (2016) ___U.S.___ [___L.Ed.2d___], the high court interpreted a federal regulation that requires federal employees to make contact with an Equal Employment Opportunity (EEO) counselor within 45 days of the “matter alleged to be discrimina­tory.”

In this case, Mr. Green is an African American man who worked for the Postal Service. In 2008, he applied for a promotion but was passed over. Mr. Green complained he was denied the promotion because of his race.

Mr. Green’s relations with his supervisors deteriorated, who accused him of intentionally delaying the mail—a criminal offense. On December 16, 2009, Mr. Green and the Postal Service signed an agreement in which the Postal Service promised not to pursue criminal charges in exchange for Mr. Green’s promise to leave his post. The agreement also gave Mr. Green the choice of retiring or reporting for duty in a new location at a considerably lower salary. Mr. Green chose to retire and submitted his resignation on Febru­ary 9, 2010, effective March 31 of that year.

On March 22, 2010—41 days after submitting his resignation, but 96 days after signing the settlement agreement—Mr. Green contacted an EEO counselor to report an unlawful constructive dis­charge. He contended that his supervisors had threatened criminal charges and negotiated the resulting agreement in retaliation for his original complaint. Mr. Green alleged that the choice he had been given effectively forced his resigna­tion in violation of federal employment discrimination law (Title VII).

Mr. Green filed a case in federal court alleging that the Postal Service constructively discharged him. The trial court dismissed the case on grounds Mr. Green failed to make timely contact with the EEO counselor. A Court of Appeals affirmed after concluding that the “matter alleged to be discriminatory” included only the Postal Service’s discriminatory actions and not Mr. Green’s inde­pendent decision to resign.

Two other federal Courts of Appeals had previously reached the same conclusion that the time to begin legal action (statute of limitations) starts running after the employer’s last discriminatory act. Other Courts of Appeals, however, had decided that the limi­tations period for a constructive-discharge claim does not begin until the employee resigns. The Supreme Court took the case to resolve this split.

The high court began with a review of federal employees’ obligations before pursuing an employment discrimination claim in court. They must “initiate contact with a[n EEO] Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of personnel action, within 45 days of the effective date of the action.” Whether Mr. Green made timely contact with the Counselor depended on the Supreme Court’s interpretation of this regulation.

The high court found that the phrase “matter alleged to be discriminatory” could refer to all of the allegations underlying a claim of discrimina­tion, including the employee’s resignation, or only to those allegations concerning the employer’s discriminatory conduct. Given the two different possible meanings, the Supreme Court turned to the “standard rule” for the statute of limitations to resolve the question before it.

Ordinarily, a limitations period does not start until the individual can file suit and obtain relief. Applying this rule, the high court concluded that the “matter alleged to be discriminatory” in a constructive-discharge claim necessarily includes the employee’s resig­nation for three reasons.

First, a constructive-discharge claim has two basic requirements: (1) the employee was discriminated against by his employer to the point where a reasonable person in his position would have felt com­pelled to resign, and (2) the employee actually resigned. Therefore, a resignation is necessary before a limitations period ordinarily begins.

Second, noth­ing in the regulation clearly indicates an exception to this standard rule. To the contrary, the word “matter” refers to “an allegation forming the basis of a claim or defense.” Accordingly, the “matter alleged to be discriminatory” refers to the constructive discharge, which requires an actual resignation.

Third, if the limitations period begins to run following the employer’s dis­criminatory conduct, but before the employee’s resigna­tion, the employee will be forced to file a discrimination complaint after the employer’s conduct and later amend the complaint to allege constructive discharge after he resigns. Nothing in the regulation suggests an intent to follow such a two-step process.

After concluding that the statute of limitations begins when an employee resigns, the Supreme Court addressed the question of how this rule works when an employee gives advance notice of the resignation. The high court looked to previous decisions where the employer gave prior notice of termination. In that situation the limitations period begins at the time of notice. The Supreme Court decided that the same standard applies in constructive-termination claims, i.e., the limitations period begins when the employee gives advance notice of resignation.

Posted by deanroyerlaw in Employment