Workplace Discrimination/Sexual Harassment

Fair Employment Claim Filed Against Sacramento Fire Dept., Part 9 of 19

September 7, 2009 | by Moseley Collins

(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.)

ACTS OCCURRING PRIOR TO JUNE 10, 2004 ARE ACTIONABLE UNDER THE CONTINUING VIOLATION DOCTRINE

The defendant concedes that evidence of retaliation or discrimination outside the technical limitation period may still be actionable under the continuing violation doctrine. Here, there was extensive evidence to justify the jury’s application of the continuing violation doctrine.

A. Plaintiffs Retaliation and Disability Discrimination Claim.
It should be noted that plaintiff’s retaliation and disability discrimination claims were not based on one discrete act of retaliation or discrimination. Rather, his claims were based on a series of retaliatory and discriminatory acts that ultimately led to the formal end of his employment on January 20, 2005. As noted by the California Supreme Court in Yanowitz; there is no requirement that the employer’s retaliatory acts constitute one swift blow, rather than a series of subtle, yet damaging, injuries. Id, at 1055. Plaintiffs employment did not end abruptly-it unraveled slowly based on a series of related acts that were intended to prevent him from returning to work.In Yanowitz, the plaintiff alleged that she had suffered a series of retaliatory acts. The defendant contended that retaliatory acts that occurred prior to 1-year before the filing of her DFEH administrative charge were barred by the statute of limitations set forth in Government Code §12960(d). The Yanowitz Court disagreed, finding that the continuing violation doctrine applied to claims of retaliation that are based on a series of unlawful acts, some of which are within the limitations period. The Court held that retaliation claims based on a series of related acts constitute a continuing violation if they meet the following requirements: (1) the acts are sufficiently similar in kind; (2) have occurred with reasonable frequency; and (3) have not acquired a degree of permanence. Id., at 1058.

Sacramento Fire Dept. Discriminated Against Firefighter, Part 8 of 19

September 3, 2009 | by Moseley Collins

(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.)

If the defendant believed Mr.Carter was permanently disabled as a firefighter, then it had an ongoing duty under the law to alert him to job vacancies and to attempt to place him in vacant positions outside the Fire Department. See See Prilliman v. United Air Lines, Inc. (1997) 53 Cal.App.4th 935, 947; See Spitzer v. Good Guys, Inc. (2000) 80 Cal.App.4th 1376, 1389; Jensen v. Wells Fargo (2000) 245 Cal.App.4th 245, 263; California Code or Regulations, Title 2, §7293.9(a).

The trial testimony is also clear that from April 26, 2004 through the end of Mr.Carter’s employment in January of 2005, the City failed to schedule an interactive process meeting to discuss accommodation strategies. This was an ongoing violation of the law that continued well into the one-year statutory period. Director Ezell conceded that this was an oversight and that had she engaged in the interactive process Mr.Carter’s employment might have been saved. She also conceded that instead of proceeding with the retirement application into the one-year statutory period, she could have retracted the application and instead granted Mr.Carter additional medical leave as an accommodation. Again, allowing a medical leave of absence for an employee to recover from a perceived disability is a form of reasonable accommodation that was continuously rejected by the defendant well into the one-year statutory period.

DFEH Claim filed By Sacramento Firefighter, Part 7 of 19

August 31, 2009 | by Moseley Collins

(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. Failure to Accommodate / Failure to Engage in the Interactive Process

Tellingly, the defendant’s moving papers are completely devoid of any argument in favor of its assertion that plaintiff failed to identify acts in support of his claims for failure to accommodate or failure to engage in the interactive process within one-year of the June 10, 2005 DFEH filing. This is because the heart of those claims occurred within the one-year statutory period. This is consistent with the jury’s special verdict.

The chain of events started when plaintiffs treating physician released him to return to work, without restrictions, on February 2, 2004. The defendant did not permit plaintiff to return from his medical leave of absence. Instead, on February 26, 2004, the defendant directed plaintiff to take a fitness-for-duty evaluation. On April 6, 2004, the evaluator concluded that plaintiff was presently unfit, but offered no opinion on his prognosis. Regardless, on April 26, 2004, the defendant submitted an application for involuntary retirement without even consulting plaintiff. Again, this was done even though the City had no information about Mr.Carter’s prognosis for recovery. The jury found that this was an act of disability discrimination and retaliation.

Thereafter, Mr.Carter made good faith attempts to overturn the impact of the fitness-for-duty evaluation by attempting to engage the defendant in the interactive process. He did this on August 10, 2004, by submitting a note from his treating doctor indicating that he had been re-evaluated, that his perceived mental health issues were in remission, and that he was ready to return to work. It is well settled that providing an employee a protected leave of absence (and allowing the employee to return from a medical leave when he or she is healed) is a form of reasonable accommodation under the FEHA. See Hanson v. Lucky Stores (1999) 74 Cal.App.4th 215, 226; EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship, #915-002 (10/17/2002). Despite this medical release, however, the City did not accommodate Mr.Carter (i.e. it did not allow him to return from his medical leave). Mr.Carter also made good faith efforts to convince the City to send him to an independent physician for evaluation of his ability to function as a firefighter, despite any perceived mental disability. Director Moore rejected that reasonable request for accommodation on July 12, 2004:

Sacramento Firefighter Pushed To Early Retirement, Part 6 of 19

August 27, 2009 | by Moseley Collins

(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 defendant claims that the two discriminatory acts identified above occurred prior to June 10, 2004, and are thus not actionable. Specifically, the defendant contends that plaintiff was sent to a fitness for duty evaluation on February 26, 2004, and that an involuntary retirement application was filed on April 26, 2004. Unfortunately for the defendant, that doesn’t tell the whole story. On August 10, 2004, Mr.Carter was re-evaluated by his treating physician, and released to be returned to work without restrictions. The release indicated that Mr.Carter’s episode of Major Depression was in complete remission. Critically, the next day, on August 11, 2004, the City sent Mr.Carter for a fitness for duty evaluation. That date is well within one-year of the filing of the DFEH charge, which was filed on June 10, 2005.

Moreover, when Mr.Carter objected to attending the August 11th evaluation, which was scheduled for August 17th, the City solicited a follow-up fitness for duty evaluation on Mr.Carter from Dr. Stephanie Z.. That follow-up fitness-for-duty report was issued on September 4, 2004. Again, this date is well within one-year of the June 10, 2005 DFEH charge.

It should also be noted that although the City submitted an involuntary retirement application for consideration on April 26, 2004, that application was pursued and pending from April 26, 2004 all the way until January 20, 2005. Thus, a discriminatory and retaliatory retirement application was actively pursued both before June 10, 2004 (the one-year point) as well as after June 10, 2004. That means that the retirement application, which the jury clearly found was an act of retaliation and disability discrimination, was actively pursued by the City well into the one-year statutory period.

Sacramento Firefighter Sues For Retaliatory Firing, Part 5 of 19

August 25, 2009 | by Moseley Collins

(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 IDENTIFIED NUMEROUS ACTS OF DISCRIMINATION AND RETALIATION WITHIN THE 1-YEAR LIMITATIONS PERIOD

With respect to plaintiff’s disability discrimination and retaliation claims, he identified numerous acts that occurred within one-year of the filing of his DFEH Charge. Therefore, the jury’s determination that his complaint with the DFEH was timely is easily explainable. That is, even if you ignore the continuing violation doctrine, plaintiffs disability discrimination and retaliation claims are still timely.

A. Disability Discrimination and Retaliation Claim
The Special Verdict Form on these causes of action asked if plaintiff filed a timely complaint of discrimination with the California Department of Fair Employment and Housing. The answer was: Yes.

The defendant claims the jury’s finding on timeliness is impossible because the two acts plaintiff identified, as set forth in Special Verdict Question #4, #5 and #10 occurred more than one year prior to the filing of the DFEH administrative charge. Special Verdict Question #5 reads as follows:

Was the City’s purported belief that Michael Carter had a perceived mental disability a motivating reason for the City’s decision to send Michael Carter for a fitness for duty evaluation and/or subsequently apply for an involuntary disability retirement?
Question #10 reads as follows:

Firefighter From Sacramento Files Suit For Wrongful Termination

August 22, 2009 | by Moseley Collins

(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.)

STANDARDS GOVERNING MOTION FOR NEW TRIAL RULING

A new trial shall not be granted upon the ground of insufficiency of the evidence to justify the verdict or other decision …unless after weighing the evidence the court is convinced from the entire record, including reasonable inferences therefrom, that the court or jury clearly should have reached a different verdict or decision. See, CCP §657. The California Constitution limits the power of the trial court to grant a new trial unless, after examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice. See Rutter Group’s Civil Trials and Evidence; 18:352 (2007); California Constitution, Article VI, Section 13; Maher v. Saad (2000) 82 Cal.4th 1317, 1324. Given the state of the evidence, the only miscarriage of justice that could possibly result would be if the jury’s verdict were thrown out.

TIMING OF EVENTS

A detailed timeline of the evidence at trial is attached to the Declaration of Tom Barry, and is part of the Memorandum of Points & Authorities in Opposition to the JNOV. The chronology helps illustrate the continuity of the unlawful employment acts, and clearly demonstrates that unlawful activity continued into the one-year statutory period.

THE FEHA’S STATUTE OF LIMITATIONS IS LIBERALLY CONSTRUED
The provisions of the California Fair Employment and Housing Act shall be construed liberally for the accomplishment of the purposes thereof. See Government Code §12993(a). In accordance with this overall objective, it is well settled that the section 12960(d) administrative statute of limitations must be liberally construed. In Romano v. Rockwell International (1996) 14 Cal.A4th 479, 494, the California Supreme Court stated the following: In order to carry out the purpose of the FEHA to safeguard the employee’s right to hold employment without experiencing discrimination, the limitations period set out in the FEHA should be interpreted so as to promote the resolution of potentially meritorious claims on their merits. Similarly, while discussing the timeliness of filing an administrative charge with the Department of Fair Employment and Housing, the California Supreme Court stated the following:

Employment Action Filed Against Sacramento Fire Dept., Part 3 of 19

August 19, 2009 | by Moseley Collins

(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.)

2) With respect to acts that occurred prior to June 10, 2004 (and this would include the initial referral for a fitness-for-duty evaluation and the submission of an involuntary retirement application) the jury had evidence that these acts were sufficiently linked to a course of retaliatory and discriminatory conduct that continued into the one-year limitations period, and were thus actionable as well under the continuing violation doctrine.

3) The statute of limitations on a FEHA claim only begins to run when an alleged adverse employment action acquires some degree of permanence or finality. See Yanowitz v. L’Oreal, supra, at 1058. The jury had sufficient evidence to conclude that the City’s decision to send Mr.Carter to a fitness for duty evaluation and apply for an involuntary disability retirement did not acquire a degree of permanence or 22 finality until well within the one-year statutory period, and perhaps as late as the date the retirement took effect on January 20, 2005.

4) As detailed by the California Supreme Court in Romano v. Rockwell, the statute of limitations in a case like the present one is not triggered by the date on which Mr.Carter was notified of the City’s intent to terminate him (the April 26th submission of involuntary retirement papers) but rather the date of actual separation, which was January 20, 2005-a date well within the one-year limitations period. This is because of equitable tolling considerations that encourage informal conciliation. See Richards, supra, at 820.

Sacramento Fire Department Sued For Discrimination, Part 2 of 19

August 17, 2009 | by Moseley Collins

(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.)

To sum up plaintiff’s position, there are at least four independent reasons that support the jury’s determination that plaintiff filed a timely charge with the Department of Fair Employment and Housing:

1) The jury had evidence to find that actionable conduct occurred within one-year of the June 10, 2005 administrative filing with the DFEH. These acts included:

a) Sending Mr.Carter to a fitness for duty evaluation on August 11, 2004.

b) Soliciting a follow-up fitness for duty evaluation on September 4, 2004.

c) Pursuing what the jury determined was a retaliatory and discriminatory disability retirement application from April 26, 2004 through January of 2005, despite many opportunities to retract the application, and/or take acts that would potentially have eliminated the need for the Retirement Board to act.

d) Failing to accommodate Mr.Carter from April 26, 2004 (the date the retirement application was submitted) all the way through the end of his employment in January of 2005. This included the City’s decision on July 12, 2004, to refuse plaintiff’s reasonable request to have his perceived mental disability and capacity to work evaluated by an independent physician. This also included the City’s ongoing failure to consider transferring Mr.Carter to a vacant position outside the Fire Department. It also included the City’s ongoing failure to consider extending Mr.Carter’ medical leave rather than moving forward (unnecessarily) with a retirement application that the jury determined was discriminatory and retaliatory. Finally, it included the City’s failure to allow Mr.Carter to return from a mental health leave of absence on multiple occasions, despite releases 23 from his physician on February 2, 2004, as well as August 10, 2004.

Sacramento Firefighter Sues For Workplace Discrimination, Part 1 of 19

August 14, 2009 | by Moseley Collins

(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’s Opposition to Defendant City of Sacramento Fire Department’s Motion for a New Trial
INTRODUCTION AND SUMMARY OF THE ARGUMENT

The defendant’s Motion for a New Trial is based on recycled arguments that have already been rejected by both the Trial Court and the Jury. As the court will recall, the jury in this case rendered a nearly unanimous verdict in plaintiff’s favor on each of his four causes of action, resulting in a Judgment against the Defendant in excess of 1 million dollars.

The defendant’s central argument is premised on getting the Court to adopt an extremely strict approach to the statute of limitations. Any such interpretation would be directly at odds with multiple California Supreme Court decisions, which have repeatedly held that the FEHA’s statute of limitations is to be interpreted liberally to promote the resolution of potentially meritorious claims on the merits. See Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028; Richards iv CH2M Hill, Inc. (2001) 26 Cal.4th 798; Romano v. Rockwell (1996) Cal.4th 479.

The defendant’s argument can be fairly summarized as follows: The FEHA provides for a one-year statute of limitations, which is set forth in Government Code §12960. Plaintiff filed his charge with the Department of Fair Employment and Housing on June 10, 2005. Therefore, the argument goes, plaintiff is prohibited from suing on discriminatory or retaliatory acts that occurred prior to June 10, 2004. It should be noted that the defendant made precisely the same argument in its Motion in Limine #4. Plaintiff opposed the motion, contending that not only were there discriminatory and retaliatory acts that occurred within 1-year of the June 10, 2005 DFEH charge, but that acts occurring before June 10, 2004 were actionable due to the continuing violation doctrine, as described in the landmark California Supreme Court case of Yanowitz v. L’Oreal. The Court denied defendant’s Motion in Limine #4, and the case proceeded to trial.

Healthcare Employee Files Discrimination Action For Retaliatory Firing, Part 8 of 8

June 28, 2009 | by Moseley Collins

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the proceedings.)

DISPARATE TREATMENT CLAIM

Although discovery has not been pursued with regard to this claim, Ms. Smith contends that Ethan Jones (her quasi-supervisor for a period of time because her direct supervisor rarely came to work) and Charles Green, her second level supervisor treated her differently than males in comparable positions.

More significantly, Ms. Smith’s supervisor, Sam White, who Plaintiff will testify was completely incompetent, frequently absent, and was the person who left her confidential evaluation on the computer screen was never terminated despite his incredibly poor performance.

EQUAL PAY ACT CLAIM
While Ms. Smith worked for Foundation, she suffered wage discrimination as defined by the state and federal Equal Pay Acts. Ms. Smith’s salary was very low for her position. Many others in her position were managers but she was refused that title. Plaintiff alleges that the male hired in her prior position shortly after she asked to be transferred to Rosevillewas paid $6,000 more a year than she was in that same position.
Foundation argue the reason for the pay discrepancy was the male employee’s greater qualifications, but Ms. Smith will testify that the qualifications which actually applied to the job in question were equal; it was the pay that was different.