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Another Tale of Two California Harassment Lawsuits
San Francisco, CA: A California harassment lawsuit has been filed against a janitorial contractor based in Gilroy over allegations of sexual harassment against a female employee by a supervisor. The lawsuit contends that M.A Jones Inc., which also does business as Cleaning Services, did nothing about the harassment allegations, then fired the plaintiff when she reported the behavior. Meanwhile, a separate harassment lawsuit ended in July with a multimillion-dollar verdict in favor of the plaintiff.
The Contra Costa Times (9/30/15) reports the latest lawsuit involves plaintiff Virginia Medina, who worked for M.A. Jones Inc. Medina claims that a supervisor made sexually explicit comments to her, and at one point escorted her to an isolated area where the supervisor attempted to initiate sexual activity, or so it is alleged.
When Medina rebuffed the supervisor’s advances and reported the alleged activity to the defendant’s leadership team, the plaintiff alleges there was no response. She was fired from her position three months later, and alleges the termination was due to her rebuff of her supervisor’s advances and subsequent reporting of the alleged harassment.
The lawsuit has been filed by the US Equal Employment Opportunity Commission, alleging various violations to US federal laws which require that an employer “take effective and immediate action” in such situations, said William Tamayo, the agency’s San Francisco district director, in comments published in the Contra Costa Times. “[Our agency] cannot accomplish its mission of equal employment opportunity unless workers feel secure in their right to speak out against discrimination without the fear of retaliation.”
Medina is of Mexican descent. An attempt to reach a settlement was not successful. The lawsuit was brought to San Jose’s division of the US District Court for the Northern District of California.
Meanwhile, a California harassment and discrimination lawsuit that resulted in an $8.7 million jury award in favor of the plaintiff in July was in the news again earlier this month after defendant Rite Aid Corp. was ordered to pay $1 million in attorney’s fees. The case is Robert Leggins v. Rite Aid Corp., case number BC511139, in the Superior Court of the State of California, County of Los Angeles.
The original California harassment lawsuit was brought by plaintiff Robert Leggins, who worked as a store manager at Rite Aid. Following a robbery attempt during which Leggins was injured, the plaintiff alleges he was harassed and accused of shirking his responsibilities in light of an injury that required several surgical procedures to remedy. Even while recovering, it is alleged that supervisors required him to perform hard manual labor, and mocked him for his injury and his race. Leggins had worked at the Rite Aid since 1985 and was a long-standing employee.
In July a jury dismissed allegations of discrimination, but found for the plaintiff on allegations of harassment and undue punishment. Leggins was awarded $3.7 million for lost wages and other losses, together with $5 million in punitive damages in the California harassment lawsuit.
Undocumented Workers Integral to California Economy
Camarillo, CA: A decision in a wage and hour lawsuit in New York not only carries positive implications for any undocumented worker in the state of California who may feel wronged by an employer, it also lends itself to the depth and breadth of the undocumented workforce in the Golden state.
The New York lawsuit was David Rosas et al v. Alice’s Tea Cup, LLC, Case No. 1:14-cv-08788-JCF, filed July 6, 2015 in the US District Court for the Southern District of New York. The plaintiffs brought wage and hour claims against their employer, citing violations to the Fair Labor Standards Act (FLSA) and other labor laws recognized by the state of New York. The defendant came back with a request for the plaintiffs to verify their immigration status, which the plaintiffs fought on grounds that immigration status was irrelevant to the matters at hand.
The judge in the case agreed, noting in his decision that the risk of injury to the plaintiffs and the potential for intimidation outweighed the probative value of revealing immigration status for reasons of credibility. To wit, US Magistrate Judge James C. Francis IV in his decision noted that “federal courts have made clear that the protections of the FLSA are available to citizens and undocumented workers alike.”
Such a decision translates into a positive for both the undocumented worker in the state of California, and the state economy in general. That’s because undocumented workers - especially those who work in the agricultural community - make up a significant portion of the state economy.
The Ventura County Star (9/13/15) reports that agriculture is a $2 billion industry in Ventura County. To that end, the Central Coast Alliance United for a Sustainable Economy (CAUSE) reports that an estimated 15,000 undocumented immigrants work the fields in Ventura County alone. Using data from the Census Bureau and Public Policy Institute of California, CAUSE estimates there are more than 72,000 undocumented immigrants in the county, about 9 percent of the population.
That’s a significant number. “To put that into context, that’s more than the population of the city of Camarillo,” said Maricela Morales, executive director of CAUSE, in comments published in the Star. “What if we woke up and the entire population of Camarillo was gone? The impact on our county economically and the social fabric of our community...it would be devastating.”
The issue has relevance given the crosshairs of rhetoric undocumented workers appear to be caught within - especially in the context of the Republican nomination debates, and various positions taken by some of the candidates and one in particular who has pledged to deport all undocumented workers from whence they came. This, in spite of the fact that the FLSA and related agencies in the state of California specifically reference the undocumented worker and affords them protections by way of wage and hour laws that protect all workers in the state of California, even undocumented workers regardless of whether or not they are legally authorized to work in the United States.
The undocumented worker who may feel maligned in the state would no doubt be cheered by a recent settlement in a class-action lawsuit reached with the help of the United Farm Workers (UFW) union, which partnered with table grape workers at Sunview Vineyards. According to Kerry Kennedy, president of Robert F. Kennedy Human Rights who was writing in the Sacramento Bee (9/24/15), the settlement was worth $4.5 million.
Frank Barajas, a history professor at California State University Channel Islands, noted in the Star that “the majority of people working in our fields are undocumented,” he said, adding that mass deportations such as those recently debated amongst the Republican nominees would translate to “a complete collapse of our state economy.”
The takeaway for the undocumented worker: you have rights, both federally and in the state of California. And your presence is important to and adds value to the state economy. Any undocumented worker or group of workers who suspect violations of state wage and hour laws, or other statutes both state-centric and federal under the FLSA, would be encouraged to take advantage of rights and protections afforded you and fight for your due.
Former Coach Sues UCSB, Cites Unsafe Work Environment
According to court documents, plaintiff Cathy Neushul was head coach of the UCSB women’s water polo team - known as the Gauchos - for a two-year period spanning 2011 through 2013. The trouble for Neushul began when she noted a funding discrepancy between the women’s and men’s water polo teams at the same facility.
It was noted that a sum of money, identified as $40,000 was allocated in budgetary documents for the women’s team - funds that were going neither to Neushul or her assistant, but instead were going to an individual that was serving as director for both programs.
It is alleged the individual in question spent all of his time and focus with the men’s team, “exclusively [coaching] the men’s team, had very little involvement with the women’s team, never attended a single women’s practice, and was not a presence at their games,” or so the lawsuit claims.
According to the lawsuit, Neushul raised the funding discrepancy with both the Director of Athletics for UCSB as well as the Senior Women’s Administrator on several occasions.
Instead of the matter being resolved, Neushul alleges she was demoted to assistant coach and her salary was cut by $10,000. The school then, or so it is alleged, re-employed the savings combined with the elimination of a part-time assistant coach for the women’s water polo team - for a combined $15,000 - to continue funding an assistant coaching position on the men’s water polo team.
Neushul subsequently resigned from her position and from the university on November 19, 2013. In her California labor lawsuit, Neushul claimed the athletics department at UCSB was no longer “a safe environment,” or so it was alleged.
Neushul claims in her lawsuit that she has suffered humiliation as well as damage to her professional reputation as a coach, as well as loss of compensation and employment-related benefits through her demotion.
Neushul has brought claims for retaliation under Title IX and gender discrimination, as well as for violations of the California Labor Code. The case is Cathy Neushul v. The Regents of the University of California, Case No. 2:15-cv-06286, in the US District Court for the Central District of California.
California ERISA Lawsuit Results in Settlement Exceeding a Half-Million
The total combined award is $630,000. The US Department of Labor (DOL) brought the California ERISA lawsuit after the Feds were apprised of the situation by the trio of whistleblowers, who brought the lawsuit to the DOL and invited the agency to become involved.
According to court documents, whistleblower Cheryle Ann Robbins was employed as a director of the Cement Masons Southern California Trust Funds, working specifically in the audit and collections department. She noted what she viewed to be an irregularity when some employers were allowed to underpay the fund, a violation of ERISA rules. Robbins complained internally. For her trouble, Robbins and two of her associates were eventually terminated from their positions, or so it was alleged by the DOL.
Defendants in the lawsuit included the following individuals who served as trustees for the Cement Masons Southern California Trust Funds: David Allen, Scott Berg, Frank Crouch, Marcos Enriquez, Fitzgerald Jacobs, Bill Lee, Billy Lujan, Jesse Mendez, Larry Nodland, Enrico Prieto, Phil Salerno and Mac Tarrosa as well as Zenith American Solutions, the service provider involved with management of the trust funds. There were 12 trustees in all, with most contributing toward the $630,000 judgment.
Along with Cheryle Ann Robbins, who is to receive $400,000 as part of the settlement, two other individuals who served as whistleblowers and co-plaintiffs in the ERISA lawsuit will receive compensation according to an order signed by US District Judge John A. Kronstadt. Louise Bansmer is to receive $174,000 and Cory Rice will receive $56,000 in compensation.
“There are no good stories about retirement savings crimes, but this case was particularly galling because three people were all punished for doing the right thing,” Assistant Secretary of Labor for Employee Benefits Security Phyllis C. Borzi said in a statement. “Robbins, Rice and Bansmer suffered serious financial consequences because they stood up for what was right. This resolution ensures that they’ll finally get the compensation they deserve.”
The California ERISA lawsuit is Perez v. Brain et al., Case No. 2:14-cv-03911, in the US District Court for the Central District of California.
California Looks to Abolish Forced Arbitration
Arbitration agreements - whether with employees or customers - force a claimant to go through an arbitration process to settle any complaints. In some cases, arbitration can be preferable to a lawsuit. Among the benefits of undergoing arbitration are that arbitration tends to be a quicker and less expensive process than a lawsuit.
Arbitration itself is not necessarily a bad thing, but if the worker signs an agreement to undergo an arbitration process designed and paid for by the employer, the employee has no recourse if the arbitrator - who might be paid for by the employer - finds in favor of the employer. Further, employees might be denied jobs if they refuse to agree to the arbitration.
In other words, some employers might force employees to take part in a complaints system that could be biased in favor of the employer.
Bill AB-465 was recently passed by the California Senate, in a bid to curb this sort of situation. Ultimately, Bill AB-465 - titled “Contracts against public policy” and drafted by Roger Hernandez - would make it illegal for employers to force employees to sign these arbitration agreements.
“This bill would prohibit any person from requiring another person, as a condition of employment, to agree to the waiver of any legal right, penalty, forum, or procedure for any employment law violations,” the preamble to the bill reads. “The bill would prohibit a person from threatening, retaliating against, or discriminating against another person based on a refusal to agree to such waiver, and would provide that any such waiver required from an employee or potential employee as a condition of employment or continued employment is unconscionable, against public policy, and unenforceable.”
Under the bill, any person who waived his or her rights would have to do so voluntarily. Further, the person or organization hoping to enforce such a waiver would have to prove that the waiver was given knowingly and voluntarily. Employees would be able to waive their rights as a condition of employment only if those employees had legal counsel to negotiate the terms of the arbitration agreement.
If AB-465 passes, it would affect agreements dated on or after January 1, 2016.
A Tale of Two California Harassment Lawsuits
One of the California harassment lawsuits involves two female graduate students who have filed suit against UCLA, alleging that officials with the university failed to act on complaints of sexual harassment against a history professor. The plaintiffs are Nefertiti Takla and Kristen Hillaire Glasgow. The two women claim in court documents that they have endured emotional distress and are fearful that the whole situation has damaged their studies. They are also, according to a published report in the Los Angeles Times (6/16/15), fearful of returning to the UCLA campus.
The plaintiffs claim in their lawsuit that university officials, when apprised of allegations involving suggestive comments and unwanted advances, urged the two women to keep mum on the subject and refrain from pursuing formal investigations.
The harassment lawsuit holds that the accused began harassing plaintiff Glasgow in 2008, and that the harassment continued until 2013. Plaintiff Takla also alleges sexual harassment. The lawsuit, filed in June, names as defendants the regents of the University of California. The case is Nefertiti Takla and Kristen Hillaire Glasgow, Plaintiffs, vs. The Regents of the University of California, Case No. 2:15-cv-4418, US District Court, Central District of California, Western Division.
A separate California harassment lawsuit was filed last month in Orange County Superior Court against Cypress College. In their lawsuit, plaintiffs Gabriela Rodas and Porcia Ruiz allege sexual harassment at the hands of a Spanish teacher in 2013. According to the Orange County Register (8/6/15), when the plaintiffs complained to college officials about verbal and physical harassment, they were told that the teacher “has his rights,” according to the report.
The California harassment lawsuit alleges the accused would compliment the women on their clothing. But the accused would also repeatedly touch the plaintiff’s arms and backs, and gaze at their bodies in a sexually suggestive manner. The accused is alleged to have said that he wanted to tell them more but couldn’t because he “would get in trouble because it was inappropriate,” according to the suit.
At one point, the accused embraced one of the women in a bear hug from behind and allegedly touched her breasts and chest, the suit claims. The plaintiffs claim that when they reported this alleged behavior to a dean, they were told that little could be done: “My hands are tied,” is alleged to have been the reply. It is alleged in the California Harassment lawsuit that the same college dean later telephoned one of the plaintiffs and informed her that district administrators had considered transferring her to another school because the accused “has his rights.” The plaintiff’s reply: “What about MY rights?”
The Harassment lawsuit was filed in North Orange County Superior Court in August. Defendants named include Cypress College and the North Orange County Community College District. The lawsuit is Gabriela Rodas, et al v. Cypress College, et al, Case No. 8:2015-cv-00062.
Arbitration Agreement “Unconscionable” in California Wrongful Termination Case
According to court documents, plaintiff Julie A. Carlson worked as the office manager for Home Team Pest Defense Inc. in Antioch, California. After five months on the job in 2013, Carlson was fired.
Carlson sued Home Team in 2014 alleging wrongful termination, harassment, breach of an employment agreement and other claims. Home Team, for its part, moved to compel the case to arbitration. That’s because Carlson had signed - allegedly under duress - an arbitration agreement at the time of her hiring.
The plaintiff had objected to signing the arbitration agreement, given that in her view it was too broad. However, her prospective employer applied a “take-it-or-leave-it” stance to the agreement, requiring that Carlson duly sign the agreement or else the offer of employment would be withdrawn.
The trial court denied Home Team’s application to compel arbitration in the case based on the signed agreement. The appellate panel upheld the lower court’s findings in the California wrongful termination case.
“Carlson was required to sign the agreement without time for reflection, and despite her objections to signing it after being told that a copy of the dispute resolution policy was not available to her for review,” the First Appellate District wrote in the 24-page published opinion. “We agree with the trial court that a high degree of procedural unconscionability accompanied the signing of the agreement in this case.”
The agreement was also one-sided, the appellate court noted. While the plaintiff would have been denied all access to the courts for any of her non-statutory claims, the agreement exempted the defendant from having to arbitrate its most likely claims against Carlson. In other words, the defendant wielded all the power and opportunity for redress against the plaintiff, leaving the plaintiff at the short end of an unbalanced playing field.
“We conclude that the trial court’s findings that the agreement was one-sided, objectively unreasonable, and lacked mutuality was supported by substantial evidence,” the opinion states.
The arbitration issues now settled, the California wrongful termination case can move forward. The case is Julie A. Carlson v. Home Team Pest Defense Inc. et al., Case No A142219, in the California Court of Appeal, First Appellate District.
Longtime Chef Claims Harassment in California Discrimination Lawsuit
The plaintiff in the California discrimination labor lawsuit is Enrique Marquez. He claims to have worked at Benihana in Torrance for some years - from about 1990 until March 27 of this year, or about 25 years - when various alleged affronts to California labor law caused him to quit.
Marquez maintains that in addition to requiring its chefs to provide their own knives for food preparation without reimbursement of same, the plaintiff claims he was denied meal breaks during an eight-hour shift, and forced to work off-the-clock without the necessary provision for overtime.
“Throughout his employment with defendants, plaintiff performed work for defendants and was not paid for some or all hours worked,” the complaint says. “Not only was plaintiff not paid for these additional hours he worked, but with respect to those occasions he was instructed to purchase food products from off-site markets, defendants did not reimburse plaintiff for the mileage he incurred using his personal vehicle traveling to perform the work of defendant,” in violation of the California Fair Employment and Housing Act and the California Labor Code.
There is also a labor law discrimination aspect of his case as well.
The plaintiff asserts that during the latter years of his tenure with his place of employ, he was harassed and bullied by co-workers based on his “actual and/or perceived national origin.” At various times Marquez was perceived as living and working in the US as an illegal immigrant.
The discrimination lawsuit asserts that his employer did nothing to help quell what the plaintiff asserts as a hostile work environment. On those occasions when Marquez complained to his superiors about discrimination and harassment, he was told to stop worrying about it, or so it is alleged. “Plaintiff was severely affected and suffered significant emotional distress as a result of the hostile work environment created by his co-worker,” the complaint says.
“In fact, in response to one complaint, defendants dismissed plaintiff by simply telling him he should not worry about, or ignore, the harassment because his immigration status was secure,” the complaint says. “Despite his multiple complaints, defendants did nothing to address plaintiff’s complaints or address the increasingly troubling hostile work environment.”
The plaintiff is seeking unpaid wages and overtime wages, with prejudgment interest, plus costs and attorneys’ fees. The California discrimination lawsuit is Enrique Marquez, et al. v. Benihana National Corp., et al, Case No. BC59043Q in the California Superior Court for the County of Los Angeles.
California Labor Laws Extend to Undocumented Workers
The truth is, however, even undocumented workers can file complaints about workplace violations without having their residency called into question. A 2002 California law provides undocumented workers full protection under state and federal law. In other words, if a worker who does not have legal documentation has his or her rights violated by an employer, he or she can file a claim against the employer.
This includes violations of discrimination laws. In 2014, according to the Los Angeles Times (6/26/14), California’s Supreme Court ruled that an undocumented worker who alleged he suffered disability discrimination was eligible for protection. Vicente Salas filed a discrimination lawsuit against his employer, alleging he was retaliated against for filing a workers’ compensation claim. The workers’ compensation claim was filed when Salas injured his back while at work.
Although the lawsuit was dismissed by two lower courts - after the employer found out allegedly Salas used someone else’s Social Security number to obtain employment - California’s Supreme Court found Salas could sue for back pay. In its ruling, the court noted the employer had to pay legally mandated wages to employees. Job protections extend to all workers “regardless of immigration status,” the Supreme Court wrote.
Many immigrants who enter the U.S illegally do not speak up about on-the-job violations because they are afraid of deportation. This means they are vulnerable to workplace abuses, although they have the same rights as all other employees.
Among the employment protections undocumented workers are entitled to are minimum wage, overtime, workplace safety - including protection from harassment and assault - certain discrimination laws and retaliation. Furthermore, it is illegal for an employer to report or threaten to report undocumented workers in retaliation for asserting their rights. If these rights are violated, workers can file claims against their employers.
California FMLA Lawsuit Stymied by Tribal Immunity
However, there are various twists in this case given that the lawsuit was filed against the Morongo Band of Mission Indians - the operator of the slot facility - resulting in a ruling that sovereign immunity protects the tribe and its casino from FMLA claims.
The plaintiff in the California FMLA case is Crystal Muller, a former slot machine attendant who filed her complaint last November. According to court documents, Muller alleged she had fallen ill in 2010, requiring sick leave under FMLA. The leave had been approved. However, in mid-2013, Muller was terminated from her position. According to the California FMLA lawsuit, a manager at the casino had reported that Muller’s health issues were related to drug use, and that she was not capable of performing her job.
Muller countered that the drugs she was taking were prescribed for her disability - which wasn’t identified - and that the drugs did not impede her work performance in any way.
According to court documents, Muller lobbied for an appearance before the tribal council to plead her case. In her view, the real reason for her termination had little to do with drug use or job performance and everything to do with approved FMLA leave, and she sought arbitration for her case before her approved FMLA leave was set to expire. However, the plaintiff noted that she did not receive a response from the tribal council until a year later, only to be denied.
In her lawsuit, Muller was seeking either a court ruling forcing arbitration with the tribe through a court order or a grant of equitable relief. The defendants, in their response, moved to have the case dismissed - a move opposed by the plaintiff as being premature, given that in her view she had not exhausted all available remedies at the tribal level.
However, in her ruling, US District Judge Virginia A. Phillips noted that sovereign immunity protected the tribe and the casino it operated from claims under FMLA. Judge Phillips said the tribe did not consent to face FMLA claims by entering a gaming compact with the state of California that obligates the tribe to meet Fair Labor Standards Act requirements and waives sovereign immunity to casino-related personal injury and property damage claims.
“The court will not infer a waiver of immunity as to certain types of claims based on a separate, unrelated waiver of different categories of claims,” she wrote.
“Defendants correctly point out that no tribal remedies are available,” she wrote. “Exhaustion is not required, in a case such as this, where it would be futile.”
The judge also dismissed Muller’s claims against two individual tribal officers, finding their official actions are protected by the tribe’s immunity.
The case is Crystal A. Muller v. Morongo Casino Resort and Spa et al., Case No. 5:14-cv-02308, in the US District Court for the Central District of California.
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