Bay Area Employment Lawyer Blog

Ms. Rogers was a long term employee of Los Angeles County, serving as a personnel officer in the Executive Office, when she took a nineteen week medical leave of absence. When she returned to work, Los Angeles County notified her that she had been transferred to another position in a different department. Ms. Rogers considered this transfer to be a demotion, so she retired and filed a lawsuit alleging that her rights were violated under the California Family Rights Act (CFRA), California's version of the federal Family & Medical Leave Act (FMLA). Ms. Rogers alleged a claim for interference, noting that the County interfered with her right to take a medical leave by transferring her to a position that was not comparable to the position she held when she went out on her leave. She also claimed retaliation, arguing that the County retaliated against her for exercising her right to take a leave protected by CFRA. Rogers v. County of Los Angeles (2011) 198 Cal.App.4th 480.

The case went to jury, and the jury found in Ms. Rogers's favor on both claims, awarding her $356,000. However, that wasn't the end of the story. Unfortunately for Ms. Rogers, the Court of Appeal reversed the jury's award on both claims. First, the Court of Appeal found that, in order for Ms. Rogers to bring a claim for interference, in which she claimed that she should have been reinstated to the same or a comparable position, she needed to have taken a leave of absence protected by CFRA. Since CFRA provides for leaves of 12 weeks or less, simply put, her 19 week leave of absence left her flat out of luck on her claim for reinstatement or interference.

Then the Court of Appeal addressed Ms. Rogers's second claim, for retaliation. It held that the employer presented evidence that the transfer was part of an overall plan to reorganize the Executive Office. When the employer made the decision to transfer Ms. Rogers, she had only been on a leave of absence for one month, and there was no evidence that the decision maker was aware that the leave would be for an extended period of time. Although the trial court noted that the jury may have doubted the employer's motive, the Court of Appeal found that all the evidence was undisputed and that this doubt was not enough. In other words, the Court of Appeal voted for the employer on this issue based upon a lack of evidence.

This case should serve as a cautionary tale for employees who take family or medical leaves. First, if it is at all possible medically, return to work within the time frame protected under the statute, i.e. for CFRA or FMLA, twelve weeks. Second, with a CFRA retaliation claim - just like other retaliation claims - the more evidence of discriminatory motive or pretext there is, the more likely the retaliation claim will survive. And, remember, as with any other case, the trial judge or the appellate court, whether it should or not, may come in and act as the thirteenth juror and take away an employee's victory.

Jody LeWitter
February 16, 2012

Autozone did not accept responsibility for the fact that its managers, and thus Autozone itself, were found guilty of sexual harassment, leading it to appeal the jury's verdict and claim that the plaintiff's testimony was somehow "inherently improbable." The California Court of Appeal was able to accurately discern that the vile and filthy conduct of Autozone's managers made plaintiff's work environment a living hell for three weeks, resulting in a just verdict of sexual harassment. Fuentes v. Autozone (Nov. 16, 2011, B224034) _ Cal.App.4th _ [11 C.D.O.S. 13926].

Poor Ms. Fuentes, a part time customer service representative, was just trying to do her job at Autozone. Her manager had the audacity to humiliate her by grabbing her and spinning her around in front of laughing customers, instructing her to, "show your butt to the customers and that way you can sell more." When the customers returned later that day, the manager went at it again, ordering Fuentes: "Get ready to turn around for them." The Court of Appeal accurately characterized this conduct as "humiliating Fuentes by exploiting her body."

To add insult to injury, when Ms. Fuentes developed a fever blister on her lip, the same store manager started a vicious set of graphic discussions about how Ms. Fuentes must have obtained the blister, and how it was really herpes. This led to another manager spinning the rumor further, telling a coworker, "Be careful where you put your dick at with Marcelo [Fuentes]," implying that this described conduct was the cause of her blister. Some of these discussions occurred in front of laughing customers and coworkers. Some were repeated back to Ms. Fuentes. Ms. Fuentes testified regarding how these comments humiliated her and how, because she was having problems with certain male customers, she was concerned for her safety as she walked home from work at night.

The jury found for Ms. Fuentes on her claim of sexual harassment. Autozone appealed the jury's verdict in Ms. Fuentes's favor. It tried to make a mountain out of a molehill, asserting that some minor inconsistencies in the testimony (such as the dates on which certain things happened or the specifics of exactly what happened between witnesses) made plaintiff's testimony "inherently improbable" and thus the verdict should somehow be reversed! The Court of Appeal rejected this pathetic attempt to avoid liability, noting that "The evidence in this case is not 'inherently improbable.' It presents a common situation where there are inconsistencies and contradictions in trial testimony . . . this is for resolution by the jury. We infer the jury credited Fuentes's testimony and the testimony corroborating it . . . ."

It is important to note that this opinion stands for the proposition that for conduct to be "severe or pervasive" as required by the current case law on sexual harassment, it need not be long term. The court specifically noted that the three week period over which Ms. Fuentes was mistreated was a sufficient amount of time. This court noted that the conduct in question was especially egregious because the manager used the plaintiff's body in a way that was physically humiliating, and that the herpes rumors unreasonably interfered with the plaintiff's ability to do her job.

The Court distinguished Ms. Fuentes's situation from that of plaintiffs in other cases where the courts found for the employer (e.g., the conduct was specifically aimed at Fuentes, distinguishing Lyle v Warner Brothers Television Productions (2006) 38 Cal.4th 264; the conduct involved a physical threat and/or plaintiff's immediate supervisor, distinguishing Mokler v. County of Orange (2007) 157 Cal.App.4th 121; the conduct was not a few specific incidents spread out over a period of years, distinguishing Haberman v. Cengane Learning, Inc. (2009) 180 Cal.App.4th 365).

What this court--and all courts, really--should have said is: whether or not there is a hostile environment is a question of fact based on a totality of the circumstances from the point of view of the female employee in this predicament, and that this question is for the triers of fact, not the judges who consistently wish to substitute their own opinions and fact finding for that of the jury. It is only in rare and unique circumstances that the court should move in and take this determination away from the jury. Courts cannot seem to help themselves from overstepping their bounds, demonstrating, time and time again, that the courts are still male dominated and biased, and that they still do not understand what it means to be a working woman who simply wants to be afforded the basic dignity of being treated as a peer and equal, in accordance to her work performance, rather than her perceived sexuality. Once the courts somehow finally understand this, sexual harassment claims will take their place as equal to other claims, the law will be less convoluted, and women will be provided with the protections they are entitled to under the law.

Jody LeWitter
December 27, 2011

In the arena of sexual harassment, we've come a long way, baby. In general, the public is more aware of what conduct is forbidden in the workplace, and many employers train managers and employees alike to prevent such conduct. As a society, we are much more likely to have work environments free from sexual harassment than we were when the U.S. Supreme Court first clearly defined sexual harassment hostile environment cases as illegal in Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986).

However, this progress should not make us close our eyes to inexplicable legal decisions where the courts simply don't seem to get it. First, there is the judicially created doctrine that a claim for sexual harassment must involve conduct that is "severe or pervasive." This judicial fiction can be used to permit abhorrent conduct in the workplace, and label it as "not sexual harassment." Second, the concept of "severe or pervasive" is, to put it mildly, a subjective concept subject to the decision maker's own bias or perspective. In particular, the bias of judicial gatekeepers, who throw out sexual harassment cases before they reach a jury or overturn jury verdicts finding the plaintiff was a victim of sexual harassment, keeps getting in the way. Judges can simply declare that the conduct isn't severe or pervasive enough and voilà, the plaintiff has not been harassed!

This leads me to comment on the recent case of Brennan v Towsend & O'Leary, ___Cal.App.4th___ (October 18, 2011). In Ms. Brennan's case the jury found that the employer created a hostile environment. The judge overturned the jury's verdict on a judgment notwithstanding the verdict (JNOV). The Court of Appeal agreed, claiming that the conduct was not, in its judicial opinion, severe or pervasive.

However, determining whether or not conduct is severe or pervasive is not an objective determination; it is in the eye of the beholder. Thus, we must ask: not severe or pervasive enough according to whom? The conduct in the Brennan case was severe or pervasive enough for the jury. The superior court judge originally let the evidence go to trial, suggesting at least initially that the judge must have thought it was severe or pervasive enough for the jury to hear.

So, let's look at the facts here, and you can vote yourself. The fact that readers may differ on whether the conduct was severe or pervasive is just my point: this is a jury question, not a gatekeeper question. I personally can't quite get over the fact that the trial judge and three Court of Appeal judges went out of their way to protect a manager who referred to the plaintiff in a corporate email as a "big-titted mindless one." This was not the only sexist language or conduct in the workplace. What about the company sponsored party where one of the owners wore a Santa hat with the word "bitch" printed across it? Or what about the owner who repeatedly questioned the plaintiff about her sex life, along with inappropriate hand gestures? And once Ms. Brennan complained, she was retaliated against. As noted in the dissent, although the retaliation was not sexual in nature, it was sex based.

I do believe that Ms. Brennan may have been in a better position if her complaint had included a claim for retaliation. However, that is no reason to second guess the jury's judgment and discretion. We think we know sexual harassment when we see it. How dare these four judges take away Ms. Brennan's verdict to justify their own personal and subjective beliefs that the environment wasn't hostile enough! We still have a long way to go, baby!

Jody LeWitter

November 27, 2011

The conservative US Supreme Court's activist agenda is in full throttle in the mandatory arbitration arena. In the AT&T v. Concepcion case (see prior blog of July 6, 2011), the US Supreme Court planted its thumb squarely on the employer's side of the scales of justice by overturning past law and holding that there is no per se invalidation of class action arbitration provisions (Concepcion is a consumer class action case). Now the US Supreme Court apparently wishes to tip the scales at the opposite end of the spectrum: by applying this class action holding to individual Berman hearings brought by California workers for the payment of wages. The US Supreme Court has reached out and vacated (as well as remanded) the California Supreme Court's holding in Sonic-Calabasas v. Moreno (2011) 51 Cal.4th 659. Why can't the US Supreme Court stay out of our backyard?
The holding which the US Supreme Court vacated was quite modest. It simply upheld an employee's right to a "Berman hearing" before the California Labor Commissioner, pursuant to California Labor Code, section 98, for the payment of unpaid wages. Berman hearings are a streamlined administrative procedure for employees to recover unpaid wages--including overtime, meal and rest period pay, and waiting time penalties--without having to go to court, allowing many employees who cannot afford a lawyer the ability to stand up for their workplace rights. The right to a Berman hearing protected by the California Supreme Court in Sonic-Calabasas was limited to the first instance only; the California Supreme Court permitted the employer to enforce a mandatory arbitration of the employee's next step appeal, which would have otherwise taken place in the superior court.
The US Supreme Court vacated this opinion in light of Concepcion. See, Sonic-Calabasas, Inc. v Moreno (October 31, 2011) No. 10-1450. Does the US Supreme Court really believe that this minor right to an administrative hearing in the first instance should be wiped out? Does it really believe that an employer has a right to hijack a benign administrative process to entitle an employee to obtain his or her basic wages?
The US Supreme Court ought to keep its tentacles out of California' s modest procedural apparatus for an employee to obtain his or her wages. It is downright hypocritical for the Court to pay lip service to states' rights when it serves conservative interests, and ignore states' rights when it might be used to protect an employee.
We can only hope that the California Supreme Court, on remand, stands its ground. This may be high hope given the recent argument before the California Supreme Court in Brinker Restaurant v. Superior Court, 85 Cal.Rptr.3d 688 (Oct. 22, 2008) (petition for review granted; case argued November 8, 2011), which addressed meal and rest break issues and in which all the justices uniformly appeared not to understand the fundamental role of the law in providing employees with basic rights, such as meal and rest periods.

Jody LeWitter

November 20, 2011

Nielsen Media Research convinced the district court to grant summary judgment in this age discrimination case, and the district court held that plaintiff, Ms. Earl, failed to prove that Nielsen's actions were a pretext for discrimination. Earl v. Nielsen Media Research, Inc., --- F.3d ----, 2011 WL 4436250 (9th Cir. Sept. 26, 2011). Nielsen measures television program audiences. Ms. Earl was a recruiter, whose job was to recruit certain households to permit Nielsen to install television monitoring devices on their premises. Nielsen fired Ms. Earl, age 59, claiming that after a dozen years of work, she violated company policy by failing to verify the home address of a recruit. Ms. Earl had also previously violated policies, which had resulted in her placement on a Development Improvement Plan (DIP), but nonetheless, she received a good performance review and was never placed on the more serious Performance Improvement Plan (PIP).

Earl appealed the granting of summary judgment and claimed that circumstantial evidenced established that her firing was a pretext for age discrimination. The Ninth Circuit agreed, primarily relying on the fact that similarly situated younger employees were treated more leniently. In doing so, the Ninth Circuit provided a more practical and plaintiff-friendly definition of "similarly situated employees" (including what constitutes similarly situated conduct), making it more difficult for defendants to slice and dice the conduct in question and claim that the comparative younger employees were not really similarly situated.

The Earl v. Nielsen case rejected the notion that to be similarly situated the (younger) employees in question have to violate the exact same policy or commits the exact same transgression. Looking at factors such as whether the policy serves the same purpose and is of comparable seriousness, the Court counseled for the use of a "common sense" approach. Here the younger comparators signed up houses that did not meet Nielsen's criteria, whereas Earl's recruits met the criteria but she recorded an incorrect address. The Court found that these were comparators as they were similarly situated and/or committed similar transgressions. The court rejected the notion that the conduct of the comparators must be identical.

The Court also clarified that substantially younger employees can include employees who are themselves within the protected class, that is, employees who are over 40 years of age. Where Ms. Earl was 59 years old, a 42 year old was substantially younger for purposes of the age discrimination.

Lastly, the Court addressed the question of whether failure to follow company policies and procedures provides evidence of pretext, holding that it does. The Court found that plaintiff presented sufficient evidence to suggest that company policy and procedure required the institution of a PIP, not just a DIP, prior to termination. Thus, the fact that Ms. Earl was put on a DIP prior to her termination, rather than a PIP, was a violation of company policy which serves as further evidence of pretext. The Court did note that, regardless of whether Ms. Earl presented sufficient evidence that company policies and procedures required a pre-termination PIP, since the company said it did so for a younger employee, the evidence clearly demonstrated that younger employees were treated more leniently. This itself was an alternative grounds for establishing pretext, the pretext being that that younger employees were treated more favorably, regardless of whether company policy or procedure so required it.
This case warns wayward lower courts not to toss out discrimination cases by making their own findings regarding "motivation and intent," instead of leaving these fact intensive questions where they should remain, shall remain and hopefully always do remain: with the fact finder, and preferably the jury.

Jody LeWitter
October 18, 2011

Mr. Cuiellette was a police officer employed by the City of Los Angeles. Due to an on-the-job injury, he was no longer able to perform the duties of a field officer. He filed a workers compensation claim and was rated 100% disabled. The City reassigned him to a light duty desk job, which he could perform. When the City realized that Mr. Cuiellette was rated as 100% disabled, it promptly ended his light duty assignment and sent him packing.

Mr. Cuiellette sued, claiming disability discrimination. He claimed that, regardless of the workers compensation disability rating for his officer job, he could do the essential elements of his light duty desk job. The jury agreed, resulting in a $1.5 million judgment, and an appeal. Cuiellette v City of Los Angeles, 194 Cal. App. 4th 757 (April 22, 2011).

The California Court of Appeals upheld the verdict. It declared that a "rating received in the worker's compensation proceeding was not, as a matter of law, a legitimate nondiscriminatory reason for an employer's adverse employment action." Indeed, an employer must engage in the interactive process, and carefully analyze whether an employee can perform the essential functions of his or her job, or other vacant jobs, with or without a reasonable accommodation, regardless of any disability rating. Here, in particular, the Court noted that the City of Los Angeles had a policy and practice of permitting injured employees to perform desk jobs on a long term basis. Thus, it was inappropriate to require that Mr. Cuiellette prove that he could perform the essential elements of his field job, rather than his desk job.

There are quite a number of employers out there that refuse to engage in the interactive process when an employee is found to be mostly disabled by the workers compensation system. The court Cuiellette established that this is wrong. In addition, Cuiellette makes clear that, in at least some instances, a temporary job may be as good as a permanent one. It is important for employees to be aware of their independent rights under the Fair Employment & Housing Act and the Americans with Disabilities Act when they become disabled, and to hold the employer accountable for fully and faithfully engaging in the interactive process.

Jody LeWitter
September 19, 2011

Ms. Zullo worked for a newspaper publisher, Inland Valley Publishing Company. The employer's handbook contained a policy requiring mandatory arbitration of employment disputes. The handbook stated that any arbitration would be governed by the American Arbitration Association rules, but failed to set forth those rules in detail. The handbook did require that an employee who filed an arbitration demand meet strict timelines, altered the law by shortening potential statute of limitations, and required that an employee respond to an arbitrator's communication within ten business days. The remedy for an employee's violation of these rules was the dismissal of his or her claims. In order to work for Inland, an employee was required to sign and acknowledge this handbook.

After Ms. Zullo was fired, she filed a lawsuit in court. Inland sought an order to send her case to arbitration. The trial court ordered that the case be sent to arbitration. However, the Court of Appeals reversed, holding that the arbitration agreement was unconscionable. Zullo v. Superior Court, 197 Cal. App. 4th 477 (2011).

It is getting rather tiresome reading all the ways in which employers heavy handedly force employees to "agree" to arbitrate their claims, as well as all the ways in which the employers attempt to manipulate the arbitration process to favor the employer. Even though courts generally keep overturning such overreaching agreements, employers keep promulgating them. The reason is because most employees don't always have the resources and where-with-all to hold the employer to the letter of the law.
Employees are thus required -again and again - to contest these unfair, unequal and illegal arbitration agreements. Here the Court found that the agreement was procedurally unconscionable where the rules weren't clear from the face of the handbook and the situation was really a take-it-or-leave-it one. Interestingly, the Court also found that no testimony need be presented to prove this unconscionability as the handbook "speaks for itself."

The Court also found that the agreement was substantively unconscionable because it altered the law (here the statute of limitations) in favor of the employer, made up timelines (e.g., respond to the employer within 10 business days) to the detriment of the employee, and applied to claims an employee would bring, but not claims an employer might bring.

I can only wish Ms. Zullo the best of luck pursing her claims in state court, where they belong.

Jody LeWitterSeptember 7, 2011

Ms. Panjota, as well as a number of other women, had the bad fortunate of working for an employment lawyer, Mr. Anton, who should have known better. One must wonder how Mr. Anton got any work done, given that this case makes it look like every moment of his work day was spent spewing vile epithets at his female staff, as well as pulling the elastic on a female employee's underwear and asking an employee to wear see through clothes.

During the trial of this case, Ms. Panjota's lawyers tried, over and over again, to present to the jury the ample evidence that Mr. Anton's obscene and abusive conduct and statements were based on his discriminatory feeling s towards women. Besides presenting Ms. Panjota's own riveting testimony, Ms. Panjota's lawyers also wanted to present "me too" evidence, i.e. evidence regarding the manner in which Mr. Anton treated other female employees. Over and over again, the Kern County trial judge refused to admit a wide variety of "me too" evidence, even though Ms. Panjota explained that the evidence was to establish Mr.Anton's (discriminatory) state of mind. Panjota v Anton, ___ Cal.App.4th ___ ( August 9, 2011).

Thank goodness Ms. Panjota's counsel did not give up, and created a good fact record. This permitted the Court of Appeals to understood the errors of the lower court's ways. The Court of Appeals held, in a 54 page opinion, that this "me too" evidence should have been admitted because Anthon's intent was at issue, and the way Anton treated and spoke to other female employees shed light on whether his intent was discriminatory or merely rude and disgusting.

The Court of Appeals aptly explained that, "Anton's case was premised on the claim that his frequent use of profanity at a loud volume was always directed at situations, not people; it happened in the present of men as well as women; and Anton would never have tolerated harassing behavior by anyone in his office, let alone perpetrated it himself." Given that this was Anton's case (or his defense, so to speak), the court ruled that he opened the door to this "me too" evidence "to rebut claims made by defense witnesses", and that the evidence was relevant to "show that he harbored a discriminatory intent or bias based on gender" and to "impeach his credibility". What were they ( a lawyer who harassed his staff in such a blatantly sexist way, and a trial judge charged with making fair evidentiary rulings) thinking?

At least the Court of Appeals was thinking. It understood that Anton's state of mind towards his female employees could help prove that the hostile environment in which Ms. Panjota worked was sex-based and that the reason she was fired was due to her sex. Now, Mr. Anton has the opportunity to show what he should be thinking by offering up a substantial sum of cash to Ms. Panjota before he is forced to go back and face a jury which will hear the full story!

Jody LeWitter
August 30, 2011

Dr. Jadwin sued his employer, Kern County, in federal court, for placing him on administrative leave in retaliation for his complaints about patient care and other violations. This underlying federal case subsequently resulted in a verdict of over $500,000.00 to Dr. Jadwin.

Instead of heeding the warning of being particularly careful not to retaliate, or appear to retaliate, against an employee with a pending claim, the County of Kern threw caution to the wind and sued Dr. Jadwin in state court, claiming that the good doctor filed a false claim for $3125 in expenses. Fresno's claim against Dr. Jadwin was assigned to mandatory arbitration where Dr. Jadwin prevailed. After a variety of inappropriate maneuvering by the County, the State Court ruled that Fresno's claim was frivolous and brought to harass Dr. Jadwin.

The Court of Appeals, in County of Kern v Jadwin (July 5, 2011) --- C.A. 4th -- --, 2011 WL 2611819, affirmed the finding by the trial court that the case was frivolous and upheld the trial court's award of $50,000.00 in attorney's fees. The Court of Appeals agreed with the lower court that the facts "'paint a picture . . .' of a lawsuit filed and maintained for the purpose of harassing Jadwin."

This case drives home the lesson that an employer must tread lightly once an employee has filed a claim, and should ensure that the employee is treated the same as other employees. It is equally true that, once an employee makes or anticipates making a claim of any sort, he or she should understand that his/her actions may be put under the employer's microscope, and thus the employee should use every effort to comply with all company rules and regulations and perform work in an exemplary manner while under this microscope!

Jody LeWitter
July 25, 2011

Nicolas Tides and Matthew Neuman both worked for Boeing in the State of Washington and both were concerned that Boeing's practices violated the Sarbanes-Oxley Act. The two employees complained internally, on multiple occasions, that they believed the system in place at Boeing permitted unauthorized users to alter the company's internal controls rating system. Tides and Neuman, subsequently and independently, spoke to the press about their concerns, even though they were aware of a corporate policy prohibiting such conduct. Boeing fired both employees for unauthorized disclosures to the press. Both sued, claiming violations of Sarbanes-Oxley's whistleblower protections pursuant to 18 U.S.C. Section 1514A(a)(1).
Unfortunately for both Mr. Tides and Mr. Neuman, 18 U.S.C. Section 1514A(a)(1) explicitly sets forth a list of the three entities or people to whom a whistleblower may report a perceived violation of the law for purposes of the Sarbanes-Oxley whistleblower protection statute, and none of these included the press. The court in Tides v The Boeing Co., --- F.4th ---- (9th Cir. May 3, 2011), sets forth the statutory protection as extended to 1. Federal regulatory or law enforcement agencies, 2. Congress, or 3. A supervisor. See 18 U.S.C. Section 1514A(a)(1). Thus, when Boeing brought a motion claiming that these employees' actions were not protected under the Sarbanes-Oxley whistleblower section above, because they disclosed to the press, the Ninth Circuit agreed with Boeing.
There is some saving grace for those who face retaliation for making complaints of illegal practices in the State of California. First, learn from the mistakes above and complain to a specified person or entity under the statute. Second, if the wrongdoing violates other statutes, look at the possibility of using other statutory remedies. Third, if the wrongdoing violates the general public policy of the State of California, consider whether you might have a common law public policy claim. Lastly, if your claim is under Sarbanes-Oxley, consider using a different provision of the statute, such as 18 U.S.C. Section 1514A(a)(2). This provision protects employees who "file, cause to be filed, testify, participate in, or otherwise assist in a proceeding filed or about to be filed (with any knowledge of the employer) relating to an alleged violation of" parts of Sarbanes-Oxley. The Ninth Circuit in this case did not reach the question of whether there would have been a claim had the employees in the Tides case used that statutory provision.
Jody LeWitter
July 18, 2011

Ms. Wills worked for Orange County and was terminated for violating the County's policy against threatening conduct and/or violence in the workplace. Willis submitted evidence that her behavior in violation of the policy was due to a disability - her bipolar disorder. Wills also submitted evidence that the County was aware that she suffered from bipolar disorder, and that the disorder caused her threatening conduct. Wills v Superior Court, __Cal.App.4th ___ (April 13, 2010).

Before this case, no California court, nor any court interpreting California's Fair Employment & Housing Act, had ever ruled on the legality or illegality of taking action against an employee for conduct - considered by the employer to be misconduct - which was caused by a disability. The employer urged the court to adopt its position that, if the employer asserted that the firing was due to the conduct rather than the disability, its action was protected.

The Court of Appeals ruled for the employer, and declared that the employer's action in firing Ms. Wills for threating conduct did not constitute disability discrimination. The Court did, however, refrain from the wholesale adoption of the employer's position, refusing to extend its holding beyond the facts of the case. In other words, the Court stated that the termination was justified in the limited circumstances presented, where the conduct included threats of violence or violence.

The Court opined that "consistent with the federal courts' interpretation of the ADA, we interpret FEHA as authorizing an employer to distinguish between disability-caused misconduct and the disability itself in the narrow context of threats or violence against coworkers." The Court went on to warn, "We express no opinion on whether FEHA permits an employer to distinguish between disability-caused misconduct and the disability itself in any factual setting other than threats or violence against coworkers."

This holding should not, in any way, result in any further encroachments on the rights of disabled employees other than where violence or threats of violence occur. According to the Court, "We emphasize we are not presented with a situation involving misconduct impacting an employee's job performance the employer potentially could address through accommodation. For example, an employer could accommodate an employee whose disability caused chronic tardiness or absenteeism by altering the employee's work schedule." Let's just hope the courts draw the line tight here, and that this case is not a slippery slope to courts being tugged at by employers to find further reasons not to reasonably accommodate a disabled employee.

Jody LeWitter
May 26, 2011

Nothing is more important than filing a lawsuit within the applicable time limits. One never knows if the court reviewing the case will be sympathetic to an argument that a claim wasn't really filed late. The best and only lesson to be learned is never to put yourself in the position to argue that a claim wasn't really late. This is unfortunately what Mr. Hall learned when filing a lawsuit for discrimination under the California Fair Employment & Housing Act (FEHA).
There are really two deadlines for filing a discrimination claim under the FEHA. First, an employee must exhaust his or her administrative remedies by filing a charge of discrimination with the California Department of Fair Employment & Housing (DFEH) (note: employees can usually file alternatively with the federal Equal Employment Opportunity Commission). The statute of limitations to file this administrative charge with the DFEH is generally one year (there is a 90 day extension for late discovered claims).
Then, if an employee then wants to sue in court, the DFEH will generally issue to the employee a right-to-sue letter. This letter itself gives the employee the second deadline, which is when the employee must file a complaint in court. According to the FEHA, an employee has one year to file in court (there are sometimes exceptions such as equitable tolling, continuing violations or some circumstances where one agency - either the DFEH or EEOC - is still investigations or conducting some further determinations or reviews).
The case of Hall v Goodwill Industries of Southern California (March 16, 2011) __ Cal.App.4th __, addresses the question of, for purposes of a right-to-sue letter: "one year from what?" The California Government Code, Section 12965(b) provides that the employee must file a lawsuit "within one year from the date of that notice."
Mr. Hall's right-to-sue letter was dated December 24, but received by his attorney on December 31. Hall filed his complaint in court one year before he received notice of the right-to-sue letter, but not one year before the right-to-sue letter was dated.
The Court held that the language of the FEHA (i.e. "within one year from the date of that notice") was unambiguous and clear, and therefore Mr. Hall should have known that he had to file one year from the date the letter was "issued" or dated, rather than one year from when he received it.
The statute refers to the right-to-sue letter as "the notice" and thus I can see how someone might determine that he or she has one year from the date of the letter. However, I can equally imagine that it would be easy to read the term "the notice" as when the employee received notice. Notice can be both sent and received, on different days, causing confusion. Certainly the drafters of this statute could have made the language more crystal clear. Calling less than pristine statutory language "unambiguous" is disingenuous and unfair. One would have hoped that a court would use the broader and more liberal interpretation of "the notice." That it did not is simply another warning to employees and their lawyers to get their cases filed, and remember that a court may also come up with an interpretation of the law that defies logic!

Jody LeWitterMay 1, 2011

Under federal law, an employee can bring a claim against an employer for failure to reinstate him or her after a family leave permitted under the Family & Medical Leave Act (FMLA) (state law provides the same protection under the California Family Rights Act (CFRA)). An employer can defend against such a claim by proving that it has a legitimate reason to fail to return the employee to work, such as the employee cannot perform the essential functions of the position. 29 CFR Section 825.214(b). After Ms. Sanders took a one month family leave due to chemical sensitivities, her doctor returned her to work. Sanders and her doctor believed she could return to work because her employer, the City of Newport, had stopped using the type of paper that was causing her medical problems. The City of Newport refused to reinstate her, claiming that it could not provide her with a safe workplace, and did not know exactly what caused her chemical sensitivities. Sanders v. City of Newport, __ F.4d ___ (9th Cir. March 17, 2011).

This case was tried in federal district court in Oregon on both a FMLA and a state family leave claim under Oregon law. Regarding the FMLA claim, Ms. Sanders asserted that it was the employer's burden to prove that she was denied reinstatement for a legitimate reason. The district court disagreed, and instructed the jury that it was the employee's burden of proof. Thankfully, the Ninth Circuit reversed, agreeing with Ms. Sanders, and establishing the important precedent that the employer bears the burden of proof on its claim that it has a reason not to return an employee back to work after a family leave.
Employees in California also have the protection of CFRA and CFRA itself indicates that the employer must "guarantee" reinstatement. Gov. Code Section 12945(a) and 2 Cal. C. Regs. Section 7297.2(a), (c). Although this doesn't address the burden of proof issue, presumably the courts will interpret CFRA the same as FMLA for this issue.
Who bears the burden of proof in any case and on any issue is often an unglamorous but exceedingly critical point. An employee has the right to reinstatement after a family leave. This is an important and fundamental right. Forcing an employee to disprove the employer's own assertion that there was good reason to violate the right to return to work after a FMLA leave would have turned this important right on its head. The Ninth Circuit's family friendly ruling, making the employer prove its case, was the only sensible solution.

Jody LeWitter
April 23, 2011

Mr. Kasten was fired by Saint-Gobain because he complained that the company prevented its workers from being paid for the time they spent "donning and doffing" (putting on required protective gear). He claimed that the location of the company's time clocks caused this problem. Kasten v. Saint-Gobain Performance Plastic Corp., __ U.S. __ (March 22, 2011).

The Fair Labor Standards Act prohibits employers from discharging "any employee because such employee has filed any complaint" asserting a violation of the Act. 29 U.S.C. Section 215(a)(3). This case turned solely upon the Supreme Court's holding that the phrase "filed any complaint" includes the making of an oral complaint, here to Saint-Gobain's officials.

The Court held that the "purpose and context" of the anti-retaliation provision led it to this interpretation. It noted that very real problems could occur if the provision did not protect those who complained orally: it could prevent government agencies from using hotlines; it could discourage the use of informal workplace grievance procedures; and it could make it difficult for workers who are less educated to complain. This led the Court to adopt a broad interpretation of the statute.

It is a cause for celebration every time this Supreme Court, with its largely pro-business slant, votes for the rights and concerns of employees. This case does provide more protection for employees around the country who complain about wage and hour violations, although the Ninth Circuit had, already, interpreted FLSA this way, to include oral complaints and thus California employees were already protected when making oral complaints. Lambert v Ackerley, 180 F.3d 997 (9th Cir. 1999).

The Court did note that Saint-Gobain argued to the Supreme Court that FLSA's anti-retaliation provision only applied to complaints to the government, not to private employers. Holding that Saint-Gobain abandoned this argument, the Court may have unnecessarily muddied the waters around this issue, as complaints to the employer, private or otherwise, are just the types of complaints that have historically been protected. Over ten years ago, the Ninth Circuit, noting well established law, clearly ruled that complaints to the employer are protected. Lambert v Ackerley, 180 F.3d 997 (9th Cir. 1999). Indeed, if the "purpose and context" of FLSA's anti-retaliation provision covers oral complains, it should covers complaints to non-governmental organizations and complaints by an employee to his or her own employer. After all, it would be illogical for this Supreme Court to urge employees to go straight to the government to complain about FLSA violations and leave the employer/private business out of the loop.

Jody LeWitterApril 7, 2011