Bay Area Employment Lawyer Blog

A Reasonable Accommodation May be Required Regardless of Whether an Employee is Found To Be 100% Disabled under the Workers Compensation System

Published on: September 19, 2011 | Siegel LeWitter Malkani

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.

Another Strike Against an Employer’s Attempt to Force an Unfair Arbitration Agreement Down an Employee’s Throat

Published on: September 7, 2011 | Siegel LeWitter Malkani

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.

“Me Too” Evidence of Discrimination Admissible to Prove Discriminatory Intent in Sexual Harassment/Sex Discrimination Cases

Published on: August 30, 2011 | Siegel LeWitter Malkani

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.

Employer Punished for Suing Employee in Retaliation for Employee’s Public Policy Suit

Published on: July 25, 2011 | Siegel LeWitter Malkani

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.”

Sarbanes-Oxley Whistleblower Provision – as Pled- Protects Disclosures to Congress, Federal Agencies & Supervisors, But Not to the Press

Published on: July 18, 2011 | Siegel LeWitter Malkani

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.

Employment, Consumer Class Actions Endangered by Supreme Court

Published on: July 6, 2011 | Siegel LeWitter Malkani

The US Supreme Court’s April 27, 2011 decision in AT&T Mobility LLC v. Concepcion (2011) 563 U.S. _ is just the latest in a disturbing slide of the high court away from individual rights and liberties towards ever increasing corporate impunity.

With its Concepcion decision, the Court further rolls back one of the lasting achievements of the civil rights and environmental movements, class actions.

Class arbitration waivers are at the heart of the US Supreme Court’s decision in Concepcion. At issue in the case was a rule,

Court of Appeals declares that an Employer can Fire its Employee for Threats or Violence against Co-Workers, even if the Cause of the Employee’s Conduct is due to her Mental Disability

Published on: May 26, 2011 | Siegel LeWitter Malkani

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.

Right-to-Sue Letter under Fair Employment & Housing Act Runs One Year after Date Letter Issued, rather than When it was Received

Published on: May 2, 2011 | Siegel LeWitter Malkani

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).

Burden of Proof for Failure to Reinstate Employee after Family Leave Lies with Employer, not Employee

Published on: April 23, 2011 | Siegel LeWitter Malkani

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, (9th Cir. March 17, 2011) 657 F.3d 772.

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.

US Supreme Court Holds that Anti-Retaliation Provision in FLSA Covers Oral Complaints

Published on: April 7, 2011 | Siegel LeWitter Malkani

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.