(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this workplace discrimination/sex harassment case and its proceedings.)
iii. The termination reasons are false which establishes pretext as well
Pretext can be shown by showing the termination reasons are not true. University of So. Calif, v. Sup. Ct., 222 Cal.App.3d at 1036. Here, the reason articulated is totally false. Plaintiff was never insubordinate, abusive or rude. Plaintiff never yelled or cursed. To the contrary she was professional at all times. Also, Plaintiff did provide the necessary paperwork for her leave and also called about when she could return to work.
iv. Failure to follow its own policies is evidence of pretext
Defendant’s failure to follow its policy is evidence of pretext. Hill, 855 F.2d at 811; Christine, 785 F.2d at 586-87. Here, Defendant totally failed to follow its own mandatory policies to investigate claims of harassment. There was never any investigation into Plaintiff’s claims of harassment. Mr. Davis never did anything to investigate Plaintiff’s claims of harassment after she claimed she was harassed. He did not follow any of the steps including documenting, talking with Plaintiff, getting a written statement from Plaintiff, reporting the results to Plaintiff or telling Team Member Services of the complaints. All of which was required to do under the policies.
PLAINTIFF HAS AMPLE EVIDENCE TO DEMONSTRATE A TRIABLE ISSUE OF FACT ON HER HARASSMENT CLAIMS (CLAIMS 5, 6, 9 & 10)
PREGNANCY/DISABILITY HARASSMENT IS UNLAWFUL AND WHEN THE HARASSMENT IS DONE BY A SUPERVISOR THE AMOUNT OF HARASSMENT NEED TO BE ACTIONABLE IS MUCH LESS
Under the Fair Employment and Housing Act ( FEHA ), it is unlawful for any person or employer to harass an employee based on that employee’s pregnancy or disability. Cal. Govt. Code § 12940(j)(1). Under FEHA, an employer is strictly liable for workplace harassment by a supervisor. State Dept. of Health Services v. Sup. Ct., (2003) 31 Cal. 4th 1026, 1042.
Also, under California law, the requisite amount of harassment to be actionable is less when the harassing done by a supervisor. When it is a supervisor, a hostile work environment can be created by one singular remark. Dee v. Vintage Petroleum, Inc., (2003) 106 Cal. App. 4th 30. Further, repeated use of profanity against an employee, in conjunction with even one remark about the protected class by a supervisor gives rise to a hostile work environment claim. Id. at 35-37.
PLAINTIFF HAS AMPLE EVIDENCE OF HARASSMENT
To prevail on a harassment claim, one must show the following: 1) she was subjected to verbal, physical or other abusive conduct because of her pregnancy/disability; 2) the conduct was unwelcome, and 3) the conduct was sufficiently severe or pervasive to alter the conditions of plaintiff’s employment and create an abusive work environment. Kang v. U. Lim America, (9th Cir. 2002) 296 F.3d 810, 819; Aguilar v. Avis Rent A Car System, Inc., (1999) 21 Cal. 4th 121, 130.
The showing of severity is inversely related to pervasiveness, i.e., the more severe the conduct the less frequent it needs to be to establish a hostile work environment. Ellison v. Brady, (9th Cir. 1991) 924 F.2d 872, 878. A single incident can be enough to show a hostile environment. Id. (See Part 18 of 19.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.