Employment Law

DFEH Documents Increased Complaints in 2017 Litigation Report

Why it matters

What has the Department of Fair Employment and Housing (DFEH) been up to? The California agency published a report on its fifth year of activity, highlighting an increase in complaints filed. With a 5 percent uptick from 2016, the DFEH received almost 25,000 administrative complaints and inquiries during 2017, with approximately 90 percent of those related to employment (roughly 5 percent were housing-related, and the remainder fell under the Unruh Civil Rights Act, the Disabled Persons Act or the Ralph Civil Rights Act). Of the employment-related complaints, almost 20 percent were based on alleged age discrimination and retaliation, a jump of 11 percent over the prior year. The most complaints came from Los Angeles County (with 30 percent of the DFEH’s total docket), followed by Orange and San Diego counties. The agency also noted that it increased its settlement revenues by 12 percent, hitting almost $13 million for the year.

Detailed discussion

The largest state civil rights agency in the country, California’s Department of Fair Employment and Housing (DFEH) strives to protect state residents from unlawful discrimination in employment, housing and public accommodation, as well as from hate violence and human trafficking.

In 2017, DFEH received 24,779 complaints from members of the public who alleged that their civil rights were violated. More than half of these claims were requests for an immediate right-to-sue letter in employment cases; the remaining claims were investigated by the agency.

Employment complaints topped the list. Within that category, age-related discrimination was the most complained-about topic, constituting 19 percent of the total claims (a rise of 11 percent over the prior year), followed by disability. In third place, there was a tie between engagement in protected activity claims and sex- and gender-based discrimination claims. Discrimination based on race, sexual harassment, family care and national origin rounded out the list.

Complaints were filed by residents across the state, with Los Angeles County taking the top spot. Orange, San Diego, San Bernardino and Riverside counties completed the top five in number of complaints by county residence.

The DFEH settled 888 cases in 2017, with a combined monetary value of $12,984,367.92, although the agency noted that other forms of relief are often included in such deals. “Most Department settlements also include ‘affirmative relief’ in the form of injunctions, training and monitoring, or changes in policies that increase fair employment or housing opportunities, or that decrease the likelihood of future discrimination or hate violence,” according to the report. “Some settlements include only affirmative relief and no economic recovery.”

Of the 140 cases referred to the Legal Division by the Enforcement Division last year, 39 percent, or 54 cases, were employment-related. The Legal Division filed a total of 35 civil complaints on behalf of 49 individual complainants. The most common basis for a case filed in court: disability discrimination. Retaliation was the second most common claim, followed by sexual harassment.

The DFEH also took the opportunity to note improvements to the agency’s processing time frames. The average amount of time to conduct an intake interview after an intake form was submitted decreased by 30 percent in 2017, the agency said, dropping from 86 days to 60 days. And the average amount of time to close a case after an intake form was submitted fell from 413 days to 319 days in 2017, a decline of 22 percent.

To read the 2017 annual report, click here.

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Employee’s Characterization of Leave as ‘Personal’ Precludes Suit

Why it matters

Where an employee explained his need for leave only by saying it was “personal” and failed to explain he underwent surgery during his absence or to provide a doctor’s note, he cannot hold his employer liable for disability discrimination under state law, a California federal court has ruled. Ryan Brown was fired after almost 25 years of employment with a winery for excessive absences. The final straw came in 2016 when he initially reported an absence as “FMLA [Family and Medical Leave Act] pending.” But he then informed his employer the absence was personal even though he underwent surgery for a cyst. Despite several warnings about his absences, Brown did not provide documentation or doctor’s notes for the leave and was terminated. He sued under state law, alleging disability discrimination, failure to accommodate and wrongful discharge. The court granted summary judgment in favor of the winery, holding that the plaintiff presented no evidence that his employer knew or perceived that Brown suffered from a disability, particularly considering that he described his need for leave as personal.

Detailed discussion

Ryan Brown began working for Constellation Brands, Inc. (CBI), in July 1992. In 2015, he developed a chronic medical condition and requested intermittent medical leave under the Family and Medical Leave Act (FMLA) to care for his condition. CBI granted the request. Brown knew that reporting potential absences to CBI included calls to both the company’s human resources (HR) department and Liberty Mutual, its third-party leave vendor.

In June 2016, Brown required emergency surgery for a serious medical condition. Initially, he told CBI that the leave was “FMLA pending.” The next day, however, he informed HR that his absence for the coming week was “personal.” Brown did not tell anyone that he took time off for surgery, and he did not inform Liberty Mutual that he wanted FMLA leave for his absences.

The company’s attendance policy stated CBI could terminate an employee if he or she incurred nine instances of absenteeism. In August, CBI disciplined Brown for having too many attendance infractions, citing his absences in June and July.

Brown complained, arguing that some of the infractions against him occurred when he was on medical leave due to the emergency surgery, but he did not provide a doctor’s note or any other paperwork. CBI terminated Brown in September for violations of its attendance policy.

Alleging that the absences were a pretextual reason for his termination and that he was actually fired because CBI perceived him as disabled and unable to perform his job duties, Brown filed suit against his former employer. He claimed CBI discriminated against him based on his disability or perceived disability, failed to accommodate his disability, and retaliated against him for requesting accommodation, among other causes of action.

CBI moved for summary judgment, and U.S. Magistrate Judge Barbara A. McAuliffe granted the motion.

The court first determined that the employer demonstrated a legitimate, nondiscriminatory reason for Brown’s termination: his violation of the company’s attendance policy. “The record demonstrates that Plaintiff incurred numerous attendance infractions, and the absences at issue … were unexcused,” the court said. “It also is undisputed that Plaintiff designated his leave as ‘personal’ … and he did not request FMLA leave through Liberty Mutual for any of the dates … despite his awareness of the relevant procedures.”

Shifting to Brown to introduce evidence sufficient to raise a genuine issue of material fact as to whether CBI’s reason was pretextual, the court found the plaintiff failed to meet his burden.

“A reasonable trier of fact could not conclude that Plaintiff’s verbal request for ‘personal’ leave for [the dates at issue], without more, was sufficient to put CBI on notice that he required or sought FMLA leave,” Judge McAuliffe wrote. “Plaintiff presents no evidence that he ever informed Liberty Mutual (or CBI) that he had a new condition unrelated to his stomach ailments for which he could already take intermittent leave or that CBI knew that Plaintiff sought FMLA leave for any other condition. Indeed, Plaintiff testified at his deposition that he did not specifically tell CBI that he had emergency surgery to remove an abscess.”

Brown argued that he initially characterized the leave in question as “FMLA pending,” which was enough to create a triable issue of fact. But the court disagreed, noting that Brown himself called the leave “personal” and did not inform CBI or Liberty Mutual of the surgery, the court said.

Further, when he returned to work, he did not produce a doctor’s note excusing his absences, nor did he produce any medical documentation until after his termination, the court said, and it was undisputed that Brown was aware of CBI’s policies and procedures to take FMLA leave.

“Accordingly, CBI is entitled to summary judgment on Plaintiff’s first cause of action for disability discrimination,” the judge wrote. “The remainder of Plaintiff’s complaint is based upon alleged disability discrimination, and because CBI is entitled to summary judgment on that claim, the Court finds that CBI is entitled to summary judgment on the remainder of his claims.”

To read the order in Brown v. Constellation Brands, Inc., click here.

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New Advice Memos From NLRB on Facebook Posts

Why it matters

In a new advice memoranda from the National Labor Relations Board (NLRB) Office of the General Counsel, the general counsel considered whether an employee at H&M Construction engaged in protected concerted activity by posting comments on Facebook about how the company’s employees were treated by their general contractor. Determining that the remarks were not a personal gripe but concerted activity for mutual aid, the GC found that the employer violated Section 8(a)(1) of the National Labor Relations Act (NLRA) by laying off the employee who made the social media posts.

Detailed discussion

Georgia Pacific (GP) contracted out to H&M Construction the on-site landfill management services for a paper mill in Alabama. In 2015, an H&M equipment operator at the landfill saw a sign announcing a Veterans Day function for GP’s veteran employees but not for veteran employees of its contractor.

The employee mentioned the sign to a co-worker who was a veteran, who responded “that’s bulls***.” A few days later, GP displayed on its Facebook page posts featuring and praising some of its veteran employees, including one about a worker at a nearby mill. The H&M employee commented on the post:

“Yeah well I think it’s cheesy that at yalls mill in AL y’all are gonna have a little get together for the ‘mill hand’ veterans, but not the in house contractors that work at the mill everyday that are veterans. Yeah that’s pretty disgusting if you ask me.”

He later added another comment: “Oops well I’m not gonna give special treatment to some veterans just because of where they work. They all deserve equal respect SMFH [shaking my freaking head].”

A corporate public relations employee for GP saw the posts, and the GP supervisor informed an H&M supervisor about the Facebook comments. Although the GP supervisor did not ask or instruct H&M to take any personnel action against the employee, the H&M supervisor determined it “would be unwise” for the employee to return to the mill and that the employee should be laid off.

The employee was called to the mill office and told he was being let go because of the Facebook posts, with the H&M supervisor stating the order came from “higher up.” In response, the employee filed a charge under Section 8(a)(1) of the National Labor Relations Act (NLRA).

Section 7 of the NLRA provides that employees have the right to engage in concerted activities for mutual aid or protection, the GC wrote, and that is precisely what the employee’s Facebook posts were. “[T]he Charging Party’s Facebook comments were concerted activity because they sought to bring employee complaints to management’s attention and to initiate or induce group action,” according to the advice memo.

“It is important to recognize that the Charging Party is not a veteran, and therefore his posts’ primary message advocated not on his own behalf, but on behalf of veterans working for GP’s contractors,” the GC added. “This negates any inference that the Charging Party was expressing a purely personal gripe. Moreover, the Charging Party’s Facebook posts should be read to advocate for better treatment and working conditions on behalf of contractor employees generally.”

Expressions of support for immediate co-workers and other contractors’ employees by advocating for a positive change to their lot as employees “constituted a basic form of concerted activity covered by Section 7,” the GC explained, and therefore the employee’s termination was a violation of Section 8(a)(1).

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