Harassment

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

July 2019 employment law decisions

On-duty meal periods subject to the 30-minute minimum requirement.

July 31, 2019, First District Court of Appeal, L’Chaim House, Inc. v. Division of Labor Standards Enforcement: Residential care home is required to provide meal periods of at least 30 minutes even when they are “on-duty” periods, i.e., the nature of the work prevents the employees from being relieved of all duty and the employer and employees agree in writing to an on-the-job paid meal period.

Anti-SLAPP motions available in discrimination or retaliation cases but not in this particular case.

July 22, 2019, Supreme Court of California, Stanley Wilson v. Cable News Network, Inc.: The anti-SLAPP statute (special motion to strike claims that arise from the defendant’s constitutionally protected activity) may be used to screen claims alleging discriminatory or retaliatory employment actions because the defendant’s adverse action is a necessary element of such claims. Mr. Wilson’s claim that his employer defamed him by privately discussing the alleged reasons for his termination with potential employers and others is not subject to the anti-SLAPP statute because the communications were not made in connection with any issue of public significance.

Employees have sufficient evidence for discrimination and harassment claims.

July 17, 2019, Third District Court of Appeal, Nancy Ortiz v. Dameron Hospital Association and Shirley Galvan v. Dameron Hospital Association: The facts were disputed whether Dameron constructively terminated Ms. Ortiz and Ms. Galvan because there was evidence that their supervisor intentionally created working conditions that would cause a reasonable person to feel compelled to resign. The facts were also disputed whether the supervisor acted with national origin discrimination motive based on evidence that the supervisor focused her criticisms on subordinates’ accents and English language skills. The facts were further disputed whether Ms. Ortiz and Ms. Galvan were subjected to unlawful harassment given the evidence of the supervisor’s criticisms of accents and English-speaking skills and references to subordinates’ ages, including calling them “too old”; and in Ms. Ortiz’s case, the additional evidence of being transferred to a unit where she had little or no experience and provided with no training, being falsely accused of sleeping on the job, and being told she would likely be fired.

Jury verdict in favor of employee in race discrimination and retaliation case affirmed.

July 17, 2019, Third District Court of Appeal, Wendell Brown v. City of Sacramento: Mr. Brown could recover for a suspension that occurred more than one year before he filed a complaint with the Department of Fair Employment and Housing (DFEH) because the suspension did not become final until a union grievance challenging it was dismissed within the one-year statute of limitations period. Mr. Brown could also recover for a transfer that had been announced but not scheduled to take effect until after he filed his DFEH complaint. Although the DFEH complaint did not refer to the specific transfer, it included general language about being forced to transfer and the DFEH investigation would have likely uncovered the specific transfer at issue.

Employer not required to reimburse its employees for purchasing slip-resistance shoes.

July 8, 2019, Third District Court of Appeal, Krista Townley v. BJ’s Restaurants, Inc.: BJ’s Restaurants has a safety policy that requires its employees to wear slip-resistance shoes, although no specific brand, style, or design is required and the policy does not prohibit the employees from wearing their shoes outside of work. The California law requiring employers to reimburse their employees for expenses incurred in the discharge of their work duties (Labor Code section 2802) does not apply because the shoes are non-uniform work clothing and generally usable in the restaurant occupation.

Posted by deanroyerlaw in Employment

July 2018 employment law decisions and laws

Sufficient evidence to uphold verdict finding disability harassment.

July 9, 2018, Fourth District Court of Appeal, Augustine Caldera v. Department of Corrections and Rehabilitation: Mr. Caldera sued his employer, the Department, for disability harassment, failure to prevent harassment, and related claims. The case went to trial and the jury found in favor of Mr. Caldera awarding him $500,000. On appeal, the Department argued that there was insufficient evidence the harassment met the standard of being severe or pervasive. The appellate court reviewed the harassment standard, which is harassing conduct that is sufficiently severe or pervasive to alter the conditions of the employee’s employment and create an abusive working environment. The jury must consider the totality of circumstances, including the nature of the conduct, how often and over what period it occurred, the circumstances under which it occurred, and whether it was physically threatening or humiliating. Next, the Fourth District court concluded that the jury could find the conduct to be severe because Mr. Caldera described the conduct—employees, including a supervisor, mocking and mimicking his stutter—as demeaning, embarrassing, harmful, and hurtful; and this conduct caused Mr. Caldera to experience psychological disorders. The appellate court also found that the jury could decide the conduct was pervasive because it happened up to 15 times over a two-year period and was regarded as part of the culture at the prison.

The San Francisco minimum wage increases.

Effective July 1, 2018 the minimum wage in San Francisco is $15 per hour.

San Francisco’s Consideration of Salary History (Parity in Pay) Ordinance becomes effective.

Effective July 1, 2018, this ordinance bans employers from considering current or past salary of an applicant in determining whether to hire the applicant or what salary to offer the applicant. It also prohibits employers from (1) asking applicants about their current or past salary or (2) disclosing a current or former employee’s salary history without that employee’s authorization unless the salary history is publicly available.

Posted by deanroyerlaw in Employment

June 2018 employment law decisions

Wage payments based on rounding off hours worked to the nearest quarter hour approved.

June 25, 2018, Second District Court of Appeal, AHMC Healthcare v. Superior Court: Employees of AHMC Healthcare sued their employer for failure to pay wages and other claims. California law requires employers to pay their employees for all time the employees are at work and subject to the employers’ control. The issue was whether an employer’s use of a payroll system that automatically rounded employee time up or down to the nearest quarter violates the law. The Second District reviewed federal courts interpreting federal law on the issue, which have approved computation of worktime by rounding to the nearest quarter of an hour provided that the rounding system will not result, over a period of time, in failure to compensate employees for all time actually worked. It then noted that California’s wage laws are patterned on federal laws and California courts may look to federal court decisions for guidance. The appellate court pointed to two recent federal decisions where a slight majority of employees losing time over a defined period was not sufficient to invalidate an otherwise neutral rounding practice. The Second District concluded that the payroll system did not violate the law because it was neutral on its face (i.e., applied to all employees) and in practice (at one location, a minority of employees lost time but AHMC compensated employees as a whole for 1,378 hours not worked; at a second location, a slight majority of employees lost time but AHMC compensated employees as a whole for 3,875 hours not worked).

Trial court erred by excluding testimony regarding text messages and “me too” evidence in harassment case.

June 21, 2018, Fourth District Court of Appeal, Natasha Meeks v. Autozone, Inc.: Ms. Meeks sued Autozone and one of its employees for sexual harassment. The case went to trial and the jury found in favor of the defendants. On appeal, Ms. Meeks challenged rulings by the trial court excluding evidence from the trial. One ruling concerned text messages from the alleged harasser sent to Ms. Meeks that were of a sexual nature. Because neither Ms. Meeks nor the alleged harasser had possession of the messages, the trial court excluded testimony at trial regarding the specific content of the messages, including words and pictures. The Fourth District rejected the trial court’s justification for its ruling on grounds of fairness because Ms. Meeks’s memory of the content of the messages was not speculation. Furthermore, the alleged harasser could dispute Ms. Meeks’s testimony regarding the specific content by testifying based on his memory. Finally, evidence of the words and pictures was not subject to the hearsay rule because it would not be offered for the truth of the content, but rather to show that the alleged harasser sent the messages. A second ruling excluded evidence concerning sexual harassment of other employees by the alleged harasser (“me to” evidence). The Fourth District concluded that the trial court’s ruling reflected a misunderstanding of the law which allows for admission of this type of evidence.

Administrative decision to uphold termination precludes civil case for discrimination and harassment.

June 21, 2018, Fourth District Court of Appeal, Carol Wassmann v. South Orange County Community College District: Ms. Wassmann sued the District for discrimination (age and race) and harassment. The trial court dismissed the case (summary judgment) on grounds an administrative proceeding provided by the District that upheld Ms. Wassmann’s termination precluded the civil case. On appeal, the Fourth District agreed that the discrimination and harassment claims were barred by the adverse administrative decision. The proceeding was sufficiently judicial in character (e.g., a hearing before an administrative law judge) and Ms. Wassmann could have objected to her proposed termination on grounds of discrimination. Because Ms. Wassman was unsuccessful in getting the administrative decision reversed (writ proceeding) she could not pursue her claims in court.

Dismissal of discrimination, harassment, and retaliation case upheld.

June 11, 2018, Ninth District Court of Appeals, Patricia Campbell v. State of Hawaii Department of Education: Ms. Campbell worked as a high school teacher. She sued her employer claiming discriminatory treatment, hostile work environment, and retaliation for complaining of harassment. The trial court dismissed the case (summary judgment). On appeal, the Ninth Circuit affirmed the dismissal of the discrimination claim on grounds there was no evidence that she was subjected to an adverse action. Ms. Campbell pointed to the Department’s loss of a performance evaluation but she did not identify any evidence to show that the loss could have materially affected the terms or conditions of her employment. In addition, the appellate court rejected Ms. Campbell’s assertion that the Department’s decision to investigate her was an adverse action because the Department allowed her to continue to teach without any changes both during and after the investigation despite findings of misconduct. Furthermore, the Ninth Circuit concluded that the Department’s denial of Ms. Campbell’s request to transfer to another school was not an adverse action because the evidence did not support a finding that she had a right to a transfer because she failed to go through the proper procedures. Finally, the court of appeals affirmed the dismissal of the discrimination claim on grounds that Ms. Campbell did not present any evidence to show that similarly-situated employees were treated more favorably. As for the hostile work environment claim, the Ninth Circuit affirmed the dismissal because the evidence showed the Department took prompt corrective measures regarding the alleged student conduct directed at Ms. Campbell by investigating Ms. Campbell’s complaints and disciplining the students it found to have engaged in misconduct. With respect to the retaliation claim, the appellate court concluded that the investigation could be an adverse action under the broader standard for retaliation claims. Nevertheless, it affirmed the dismissal on grounds there was no evidence to show that the Department’s stated reason for the investigation—receipt of multiple allegations of misconduct—was a pretext for retaliation.

Release of worker’s compensation claim did not also release discrimination claims.

June 8, 2018, Fourth District Court of Appeal, Adrian Camacho v. Target Corporation: Mr. Camacho filed a case against his employer for discrimination, harassment, failure to prevent harassment and discrimination, retaliation, and related other claims. Mr. Camacho also filed a claim for worker’s compensation benefits. The trial court dismissed the discrimination case on grounds language in a compromise and release agreement form used to settle the worker’s compensation action constituted a release of the discrimination claims. On appeal, the Fourth District reviewed the established rule that discrimination claims are not subject to the worker’s compensation system and may be pursued as civil actions. Target contended that language in an addendum to the form releasing “any other claims for reimbursement, benefits, damages, or relief of whatever nature” resulted in Mr. Camacho releasing his discrimination claims. The appellate court disagreed. There was no language in the form or addendum referring to claims outside of the worker’s compensation system. When the form and addendum were considered as a whole, the language upon which Target relied did not satisfy the “clear and non-technical language” requirement for releasing claims beyond worker’s compensation.

Posted by deanroyerlaw in Employment

July and August 2017 employment law decisions

Disability discrimination

August 25, 2017, Ninth Circuit Court of Appeals, Antonio Alamillo v. BNSF Railway Company: Mr. Alamillo sued BNSF Railway Company for disability discrimination and failure to provide a reasonable accommodation. The Ninth Circuit decided that Mr. Alamillo could not establish a “prima facie” case of discrimination because BNSF did not know that Mr. Alamillo was disabled when the decision to initiate disciplinary proceedings was made, and Mr. Alamillo conceded that BNSF disregarded his disability when it decided to terminate him. The appellate court also concluded that there was no reasonable accommodation claim because BNSF provided Mr. Alamillo with a “constant work schedule” and precluding BNSF from terminating Mr. Alamillo for prior misconduct is not a reasonable accommodation.

Age discrimination

August 16, 2017, Ninth Circuit Court of Appeals, Charles Merrick v. Hilton Worldwide, Inc.: Mr. Merrick sued Hilton Worldwide, Inc. for age discrimination. The Ninth Circuit Court of Appeals concluded that Mr. Merrick had a “prima facie” case of discrimination because he was sixty years old when he was permanently laid off, his termination was not based on his performance, and his duties were outsourced or assumed by other employees. The appellate court also determined that Hilton had non-discriminatory explanations for the layoff. Mr. Merrick did not dispute the explanations, but claimed he could prove discrimination because Hilton did not offer to transfer him, mischaracterized his responsibilities and performance, and failed to comply with its layoff policy. The Ninth Circuit found that a position Mr. Merrick pointed to was not available and Hilton provided a list of open positions, the record did not support the mischaracterization claim, and the deviation from the layoff guidelines did not constitute specific and substantial evidence of a discriminatory motive.

Hours worked question

August 16, 2017, Ninth Circuit Court of Appeals, Amanda Frlekin v. Apple, Inc.: The Ninth Circuit certified the following question to California Supreme Court: Is time spent on the employer’s premises waiting for, and undergoing, required exit searches of packages or bags voluntarily brought to work purely for personal convenience by employees compensable as “hours worked” within the meaning of California Industrial Welfare Commission Wage Order No. 7?

Anti-SLAPP motion and discrimination

August 16, 2017, Second District Court of Appeal, Dioka Okorie v. Los Angeles Unified School District: Mr. Okorie sued the Los Angeles Unified School District alleging, among other things, discrimination, harassment, and retaliation. In response, the District filed a special motion to strike the complaint (“anti-SLAPP motion”), which the trial court granted. The court of appeal affirmed. The Second District determined that Mr. Okorie’s case was distinguishable from the recent Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057 decision, which decided that a discrimination claim may be struck only if the speech or petitioning activity itself is the wrong complained of, and not just evidence of liability. The wrong in Park was the university’s decision to deny the plaintiff tenure, but Mr. Okorie complained of a wide array of adverse employment actions, with the bulk of them being statements or communicative conduct made by District personnel. Furthermore, Mr. Okorie did not allege that the primary source of the alleged discrimination was his reassignment from his classroom to his home or his subsequent reassignment from his home to ESC, the so-called teacher’s jail. Instead, the gravamen of Mr. Okorie’s theory is discrimination via humiliation, which is meaningless outside the context of the protected speech to which anti-SLAPP protection applies.

Costs of suit

August 15, 2017, Fourth District Court of Appeal, Aleksei Sviridov v. City of San Diego: Mr. Sviridov sued the City of San Diego over his terminations. After three appeals, San Diego was awarded over $90,000 in costs. Mr. Sviridov challenged the award based on the rule that an employer may not recover its costs of suit in a Fair Employment and Housing Act or Public Safety Officers Procedural Bill of Rights Act case unless the court determines it to be frivolous. The court of appeal disagreed because San Diego had made three settlement offers under Code of Civil Procedure section 998, which Mr. Sviridov rejected. The Fourth District reasoned that a blanket application of the FEHA or POBRA costs rule where there is a section 998 offer would erode the public policy of encouraging settlement in such cases.

Retaliation and disability discrimination

August 8, 2017, Fourth District Court of Appeal, Melony Light v. California Department of Parks and Recreation: Ms. Light sued the California Department of Parks and Recreation for retaliation and disability discrimination. The trial court dismissed the retaliation claim on grounds there was no adverse employment action. The Fourth District reversed on grounds there was evidence that would support a finding of an adverse action: Ms. Light was moved to a different office, was subjected to verbal and physical attack during a confrontation, was told she would no longer work at the Department when her out-of-class assignment was over, had a training offer for a position rescinded, was later rejected for promotion to that position, and had her scheduled hours reduced to zero. The appellate court also determined there was direct evidence of retaliatory intent based on a supervisor’s statements that if Ms. Light did not follow orders she would be moved to a different workplace and her work at the District would end. As for the disability claim, the Fourth District affirmed the dismissal because there was no evidence the Department knew of Ms. Light’s disabilities before it took adverse action, only vague references to workplace stress.

One day’s rest in seven

August 3, 2017, Ninth Circuit Court of Appeals, Christopher Mendoza v. Nordstrom, Inc.: Mr. Mendoza on behalf of himself and other Nordstrom employees sued Nordstrom under the California law that requires one day’s rest from work in seven. (Labor Code sections 551 and 552.) An exception applies when the employee works less than six hours. The trial court ruled in favor of Nordstrom on grounds that although Mr. Mendoza worked seven consecutive days over two work weeks on three separate occasions, he worked less than six hours on some, but not all, of those days. The Ninth Circuit affirmed the decision, but for different reasons. The California Supreme Court had decided that the seven-day period is only for each workweek and the exception only applies when the employee works less than six hours on all seven days. It was undisputed that Mr. Mendoza did not work seven consecutive days within any one work week.

Civil penalty versus unpaid wages

August 2, 2017, Fifth District Court of Appeal, Richard Esparza v. KS Industries, L.P.: KS Industries, L.P. sought to compel arbitration of Mr. Esparza’s claims, on behalf of himself and other employees, for civil penalties and wages arising from minimum wage and overtime violations, meal and rest break violations, timely payment of wages, failure to provide pay statements, and failure to reimburse business expenses. Mr. Esparza relied on Labor Code sections 558 and 1197.1 to contend that recovery of the unpaid wages was a form of civil penalty, which could not be forced into arbitration. The Fifth Circuit disagreed, pointing out that section 558 provides that the employee recovers 100 percent of the underpaid wages, whereas a civil penalty action (Labor Code Private Attorney’s General Act) requires 75 percent of the recovery to go to the State of California.

Hostile work environment

July 31, 2017, Ninth Circuit Court of Appeals, Cynthia Fuller v. Idaho Department of Corrections: Ms. Fuller sued the Idaho Department of Corrections for its response to a co-worker raping her on three occasions outside of the workplace. The Ninth Circuit reversed the trial court’s dismissal of her case. The appellate court determined that a reasonable jury could conclude that the IDOC effectively condoned the rapes by requiring Ms. Fuller to return to a workplace run by supervisors who showed public support for her rapist, eagerly anticipated his return, and continued to pay him while denying her paid leave. As a result, IDOC created a hostile work environment by making it more difficult for Ms. Fuller to do her job, to take pride in her work, and to desire to stay in her position.

Vacation pay at time of separation

July 28, 2017, Fourth District Court of Appeal, Nathan Minnick v. Automotive Creations, Inc.: Mr. Minnick sued Automotive Creations, Inc. on behalf of himself and other employees alleging that their employer’s policy violated California law because it required employees who worked for less than one year to forfeit vested vacation pay. The appellate court noted that the California Supreme Court interpreted Labor Code section 227.3 to mean that once vested, vacation pay may not be forfeited. The Fourth District agreed with a Second District decision (Owen v. Macy’s, Inc. (2009) 175 Cal.App.4th 462), which provides that the employer may establish a waiting period before the employee becomes eligible to earn vacation, and if the employer’s policy is clearly stated, the waiting period policy is enforceable. The Fourth District affirmed the dismissal of the case.

Anti-SLAPP motion and retaliation

July 26, 2017, Fourth District Court of Appeal, Aram Bonni v. St. Joseph Health System: Mr. Bonni sued St. Joseph Health System for whistle-blower retaliation. St. Joseph filed a special motion to strike the complaint (“anti-SLAPP motion”), which the trial court granted. The court of appeal reversed. The Fourth District reviewed the recent Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057 decision, which counseled that in ruling on an anti-SLAPP motion, courts should consider the elements of the challenged claim and what actions by the defendant supply those elements and consequently form the basis for liability. The Fourth District determined that Mr. Bonni’s claim, based on Labor Code 1278.5, arises from St. Joseph’s retaliatory purpose or motive, and not from how that purpose is carried out, even if by speech or petitioning activity. It then observed that Mr. Bonni’s complaint did not allege any specific written or oral statement or writing which allegedly formed the basis of his retaliation claim. Instead, he alleged that an abusive peer review process was initiated by the hospitals because he made complaints about unsafe conditions at the hospitals. Consequently, his claim was not based merely on St. Joseph’s peer review process, or on statements made during those proceedings, but on the retaliatory purpose or motive by which it was undertaken.

Posted by deanroyerlaw in Employment