Articles Posted in Workplace Discrimination/Sexual Harassment

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this workplace/sex discrimination case and its proceedings.)

It should also be pointed out that to the extent that the Retirement Board found Mr. Carter unfit and suitable for retirement in January of 2005, that mental disability could have been caused by the City’s earlier retaliation and discrimination. This much is suggested by Dr. X.’s testimony.

Finally, the Retirement Board made a decision on plaintiff’s retirement. The issues before this court, including whether Mr. Carter was discriminated against or retaliated against were never before the Retirement Board. Similarly, the Retirement Board’s never confronted the issue over whether the process and the information that it was asked to rely on was tainted by retaliatory or discriminatory motives, which was necessarily the case given the jury’s verdict. It issued no binding decision on that question, nor could it have.

It is well-known that in the area of employment law the chain of causation is not broken by the intervention of an innocent actor that was relying on information that was tainted by a retaliatory or discriminatory animus. To establish an entitlement to judgment as a matter of law, it is not enough to show that one actor acted for lawful reasons when that actor may be found to have operated as a mere instrumentality or conduit for others who acted out of discriminatory or retaliatory animus. Reeves v. Safeway (2004) 121 Cal.App.4th 95, 113. If a supervisor makes another a tool for carrying out a discriminatory action, the original actor’s purpose will be imputed to the tool, or through the tool to the common employer. Id. To put it simply, an employer does not negate the element of causation by showing that some responsible actors, but not all, were ignorant of the occasion for retaliation or discrimination. Id, at 108.

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this workplace/sex discrimination case and its proceedings.)

Nowhere does Dr. X. challenge the Retirement Board’s January of 2005 decision to retire plaintiff. There simply isn’t any testimony relating to the decision of the Retirement Board.

Dr. X. was also critical in establishing that the fitness-for-duty evaluators acted unprofessionally (not just incompetently) which bolstered plaintiff’s argument that the evaluators and the City had a tacit understanding that the goal was to get rid of Mr. Carter by way of the evaluation. Finally, the fact that there was no reasonable basis to conclude that plaintiff was “unfit” at the time the evaluation was initially scheduled, but that Dr. Z. found Mr. Carter was unfit anyway, despite normal psychological testing, further buttressed plaintiffs arguments that he was set up. Again, this did not attack the decision of the Retirement Board, which was to retire plaintiff.

EXCESSIVE DAMAGE

The jury’s verdict on future lost earnings was completely consistent with the testimony at trial. Had the City not referred Mr. Carter to what the jury found was a retaliatory and discriminatory fitness-for-duty evaluation, he would have returned to work and continued on with his career as a firefighter. There would never have been a Retirement Board Hearing. In calculating plaintiffs damages, plaintiffs expert, Dr. Y., assumed that plaintiff was not sent to a fitness-for-duty evaluation in February of 2004, and instead returned to work. He then assumed that plaintiff worked until the age of 65 and calculated future wage loss on that basis.

It is also significant to note that the jury found that the City’s decision to apply for Mr. Carter’s disability retirement was an act of retaliation and discrimination. Obviously, if the City did not pursue a retaliatory and discriminatory retirement application, there would have been no Retirement Board Hearing. Instead, plaintiff would have returned to work and continued to earn his pay and benefits as a firefighter well into the future.

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this workplace/sex discrimination case and its proceedings.)

IT WAS NOT ERROR TO ALLOW EVIDENCE OF ACTS THAT OCCURRED PRIOR TO JUNE 10, 2004
A. Events from February of 2004 to January of 2005.

For reasons exhaustively explained earlier in this brief, including the continuing violation doctrine, the court correctly overruled the defendant’s Motion in Limine #4, thus permitting the jury to consider actionable events during the period between February of 2004 and January of 2005.

B. Background Evidence from 1999-2002

The court also permitted plaintiff to describe events that occurred between 1999 and 2002 as relevant background information. For this same reason, presumably, the court allowed the City to introduce evidence relating to plaintiff’s 1994 vandalism conviction.

This was a retaliation case where the plaintiff had filed many racial discrimination complaints over the years. The jury would have had great difficulty understanding the case, including assessing whether the City ultimately acted in good faith, without allowing Mr. Carter to describe the cause and severity of his many complaints. The City’s failure to respond to these complaints was also highly relevant to the consideration of whether it ultimately had innocent motivations when it got rid of Mr. Carter. An innocent employer would presumably have thoroughly investigated the complaints and issued findings. An uncaring employer was more likely to have retaliated against Mr. Carter. Moreover, the City claimed that it sent Mr. Carter to a fitness for duty evaluation, in part, because he had filed numerous unfounded discrimination complaints. By allowing plaintiff to present relevant, limited background evidence of his racial discrimination complaints, the jury learned that the City never bothered to investigate Mr. Carter’s complaints, and thus had no basis to conclude that they were unfounded. The evidence was appropriately admitted.

THE COURT CORRECTLY ALLOWED DR. X. TO CALL INTO QUESTION THE FINDINGS OF DR. Z.

Plaintiff contended that the City’s decision to send him to a fitness-for-duty evaluation and then to pursue an involuntary retirement application against him caused him emotional harm. It would have been a manifest injustice to prevent plaintiff from introducing Dr. X.’s testimony on this point. This would effectively have prevented him from putting on a general damages case.

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this workplace/sex discrimination case and its proceedings.)

B. The Application for Involuntary Disability Retirement was an Adverse Employment Action

The defendant cynically claims that it had a duty to apply for plaintiffs disability retirement because of the following language in Government Code §21153:

Notwithstanding any other provision of law, an employer may not separate because of a disability a member otherwise eligible to retire for disability but shall apply for disability retirement of any member believed to be disabled… [emphasis added]

This argument can be dispensed with very quickly: First of all, the duty to retire only comes into play once a decision to separate a disabled employee is made. In other words, there is no duty to retire an employee believed to be disabled “unless a decision has first been made to separate that employee from employment. The problem this creates for the defendant is that the jury found that the City’s motivation in separating Mr. Carter was unlawful retaliation and disability discrimination, not because of any sincerely held belief that he was permanently disabled as a firefighter.

Importantly, the jury was instructed that Government Code §21153 only comes into play when the employer believes that the employee has a permanent disability. That is because many disabled employees have temporary conditions, or chronic conditions that are likely to get better over time or with treatment. Obviously, there is no rule that requires the City to automatically separate all employees believed to be disabled. The disability must sincerely believed to be permanent. That is devastating to the defendant because Roni Moore admitted under cross-examination that she submitted plaintiffs retirement application, and then pursued that application for months with no information on his prognosis. The jury found that the retirement application was motivated by retaliation and prejudice-not a good faith assessment of Mr. Carter’s long-term ability to work.

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this workplace/sex discrimination case and its proceedings.)

PLAINTIFF WAS SUBJECT TO AN ADVERSE EMPLOYMENT ACTION
A. The Fitness for Duty Evaluations

The jury in this case determined that the defendant sent Mr.Carter to an involuntary psychological fitness for duty evaluation in retaliation for his numerous complaints about workplace discrimination. Incredibly, the City’s Human Resources Director, Roni Moore, admitted that this was one of her reasons for sending Mr.Carter to a fitness-for-duty evaluation. And Ms. Moore testified at trial that she could understand how outsiders, including the jury, could easily perceive her actions as retaliatory.

As a result of the City’s decision to send Mr.Carter to a fitness-for-duty examination, he was not permitted to return to his work as a firefighter, notwithstanding a medical release from his treating psychiatrist. This caused him both economic and emotional harm. The evidence also strongly suggested that the City tried to bias the fitness-for-duty examiner against Mr.Carter by disparagingly referring to his “numerous” discrimination complaints as “unfounded,” and by providing the examiner with uniformly negative information about Mr.Carter’s long career as a firefighter.

When Mr.Carter was re-evaluated by his treating physician on August 10, 2004, and cleared to return to work, the City refused to allow him to return, instead sending him to another fitness-for-duty exam with the same biased Psychology Office that had declared him unfit the first time around. This again prevented Mr.Carter from returning to his job, causing him both economic and emotional damage. When Mr.Carter objected to going back to a biased examiner, the City solicited a follow-up report from that examiner anyway, even though there had been no follow-up. Plaintiffs expert at trial, Dr. X., testified that this action was completely outrageous and unprofessional.

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this workplace/sex discrimination case and its proceedings.)

In Birschtein v. New United Motor Manufacturing, Inc. (2002) 92 Cal.App. 4th 994, 1004, the California Court of Appeals noted that the foundation of the [California Supreme Court’s] rationale supporting application of the continuing violation doctrine in FEHA discrimination litigation is not so much accommodation itself as a process of conciliation. It is clear from these authorities that the statute of limitations on plaintiff’s claims did not begin running as soon as the City applied for involuntary retirement. The limitations period only began running when that decision had a permanence or finality attached to it, which was on the date of the formal discharge, or January 20, 2005. In other words, the conciliation efforts that intervened, including plaintiff filing a grievance over the retirement application, the requests for accommodation, the submission of new medical releases, the requests for a neutral and independent second medical opinion, and the repeated efforts to prompt a good faith interactive dialogue, delayed the running of the one-year statute of limitations period until well after June 10, 2004.

B. Plaintiff’s Disability Discrimination / Failure to Accommodate Claim
Plaintiffs failure to accommodate and failure to engage in the interactive process claim are also subject to the continuing violation doctrine. Indeed, in Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798, the California Supreme Court specifically applied the continuing violation doctrine to a FEHA claim involving an alleged failure to accommodate a disability. The Court reasoned that the FEHA statute of limitations should not be interpreted to force upon a disabled employee engaged in the process of seeking reasonable accommodation the unappealing choice of resigning at the first sign of disability discrimination or, on the other hand, persisting in the reconciliation process and possibly forfeiting a valid claim should that process prove unsuccessful. See Yanowitz, supra, citing Richards, at 821.

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this workplace/sex discrimination case and its proceedings.)

Significantly, in Yanowitz the California Supreme Court addressed this tolling concept as it relates to the continuing violation doctrine: In Richards, we recognized that a strict approach to the statute of limitations could encourage early litigation, and that in order to minimize the filing of unripe lawsuits and to promote the conciliatory resolution of claims, the FEHA statute of limitations should be interpreted liberally to allow employers and employees an opportunity to resolve disputes informally. Id., at 1057. That is precisely what plaintiff tried to do: That is, he tried to convince the City not to move forward with his retirement application in a variety of ways, but had no success. This had the effect of delaying the triggering of the statute of limitations on plaintiff’s disability and retaliation claims. As the California Supreme Court stated in Richards:

[I]t is contrary to the purposes of the FEHA to interpret its statute of limitations to encourage premature litigation at the expense of informal conciliation…

In Richards, the employer argued that the statute of limitations on a FEHA discrimination claim began running at the time the employee was notified that the employer intended to discharge him, rather than on the official date of the discharge, and that as a result, the employee’s claims were untimely because they were filed more than one-year after notification. Here, the City is really making the same argument. The City claims that the FEHA’s statute of limitations began running on the day plaintiff became aware that the City was seeking his retirement (April 26th, when the retirement application was submitted) rather than on the day the employment relationship was actually severed, which wasn’t until January 20, 2005.

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this workplace/sex discrimination case and its proceedings.)

THE STATUTE OF LIMITATIONS WAS TOLLED WHILE PLAINTIFF FOUGHT FOR HIS JOB
A. Retaliation and Discrimination

In Yanowitz, the California Supreme Court held that in a retaliation case.. the statute of limitations begins to run when an alleged adverse employment action acquires some degree of permanence or finality. Id., at 1058. In other words, the statute did not begin running as soon as plaintiff was sent to a fitness for duty exam, or as soon as the City applied for an involuntary retirement. The statute only began running once those acts acquired some degree of permanence or finality. Unlike a straight termination, where the damage is immediate and permanent, the damage caused by the City’s acts was not permanent or final at the time that they occurred. Plaintiff remained an employee of the City of Sacramento, even after the retirement application was submitted on April 26, 2004. Plaintiff made realistic efforts to make sure that the City’s retaliatory acts did not become permanent or final.

There was no “permanence” to his predicament until plaintiff was formally retired in January of 2005. Prior to that, Plaintiff remained an employee, and he did everything in his power to return to work. That is, he did everything he could to make sure that his predicament didn’t become permanent. He made good faith attempts to overturn the impact of the fitness-for-duty evaluation by submitting notes from his doctor indicating that his mental health issues were in remission. He filed a grievance challenging the fitness for duty evaluation. He made good faith efforts to convince the City to send him to an independent physician for evaluation of his working capacity.

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this workplace/sex discrimination case and its proceedings.)

Significantly-and fatally for the defendant’s statute of limitations argument-the jury returned a verdict in favor of the plaintiff on his claim for failure to engage in a good faith interactive process and failure to accommodate-both of which were clearly based primarily on events that occurred within one-year of the June 10, 2005 DFEH filing. Moreover, the interactive process and failure to accommodate claims were so closely connected to the disability discrimination and retaliation claims as to be almost derivative of them. It was plaintiffs contention that the City’s failure to accommodate him and failure to engage him in the interactive process was simply part of a retaliatory and discriminatory course of conduct that was designed to prevent him from returning to work. Indeed, the defendant’s failure to accommodate plaintiff and failure to engage him in the interactive process had the effect of cementing the impact of the retaliatory and discriminatory application for disability retirement. Put another way, the result of the City’s failure to accommodate Mr.Carter and failure to engage him in a good faith interactive process, was that the City persisted into the one-year statutory period with what the jury found was a discriminatory and retaliatory retirement application. A jury had every reason to conclude that these various acts of discrimination were sufficiently similar in kind to establish a continuing violation.

In summary, based on the chronology of events at trial, which is outlined in Section III, it is clear that a jury found that the defendant committed numerous unlawful acts within the limitations period, and that these acts were sufficiently similar in kind to the discriminatory and retaliatory acts that occurred prior to June 10, 2004 [particularly the initial fitness-for-duty referral (2/26/04) and the submission of a disability retirement application (4/26/04)] to constitute a continuing violation.

It should be pointed out that the California Supreme Court has interpreted this “sufficiently similar in kind” prong of the continuing violation test liberally, “recognizing … that similar kinds of unlawful employer conduct, such as harassment or failures to reasonably accommodate, may take a number of different forms.” See Richards, supra, at 823.

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this workplace/sex discrimination case and its proceedings.)

1) Sufficiently Similar in Kind

Plaintiff presented evidence that retaliatory and discriminatory acts that were extremely similar in kind occurred both before and after the one-year limitations period. For instance, the City sent Mr.Carter to a fitness-for-duty evaluation on February 26, 2004 (before the one-year period), as well as on August 11, 2004, and again on September 4, 2004 (after the one-year period). The City submitted a discriminatory and retaliatory retirement application on April 26, 2004 (before the one-year period) and pursued that same discriminatory and retaliatory application after June 10, 23 2004 (into the one-year period). On February 2, 2004 (before the one-year period) the defendant refused to allow plaintiff to return from a mental health leave of absence, despite a release from his treating physician.

The same thing occurred on August 10, 2004 (into the one-year period). The defendant arbitrarily refused to process plaintiff’s grievance over the fitness for duty conclusion in May of 2004 (before the one-year period) as well as on July 12, 2004 (into the one year period). The defendant refused to accommodate plaintiff both before and after June 10, 2004. The defendant refused to engage plaintiff in the interactive process both before and after June 10, 2004. This group of facts, standing alone, is sufficient for the jury to have found a continuing violation with respect to all four of plaintiff’s causes of action.

Significantly, the retaliatory and discriminatory acts that were identified at the trial of the matter all had one thing in common: they were intended to prevent plaintiff from returning to work.[FN5] The same thing was true of his claims for failure to accommodate and failure to engage in the interactive process. When the City repeatedly refused plaintiffs reasonable requests for accommodation it prevented him from returning to work. When the City failed to engage plaintiff in a good faith interactive process it prevented him having a fair chance to discuss returning to work in some capacity. When the City retaliated against plaintiff by sending him to a fitness for duty evaluation on February 26, 2004 and August 11, 2004, it prevented him from returning to work.

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