Sacramento Injury Lawyer Blog

(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.

Continue reading "Firefighter Claims Unlawful Workplace Harassment By Sacramento Fire Dept., Part 19 of 19" »

(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.

Continue reading "Court Reviews Firefighter's Suit For Workplace Harassment, Part 18 of 19" »

(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.

Continue reading "Firefighter Sues For Unlawful Termination By Sacramento Fire Dept., Part 17 of 19" »

(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.

Continue reading "Sacramento Firefighter Subjected To Workplace Harassment, Part 16 of 19" »

(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.

Continue reading "Wrongful Termination Action Filed By Sacramento Firefighter, Part 15 of 19" »

(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.

Continue reading "Workplace Suit Filed By Sacramento Firefighter, Part 14 of 19" »

(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.

Continue reading "Sacramento Firefighter Sues To Prevent Forced Retirement, Part 13 of 19" »

(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.

Continue reading "Firefighter From Sacramento Fights For Job, Part 12 of 19" »

(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.

Continue reading "Firefighter From Sacramento Alleges Workplace Discrimination, Part 11 of 19" »

(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.

Continue reading "Sacramento Firefighter Files Retaliation And Discrimination Claim, Part 10 of 19" »

(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.

Continue reading "Fair Employment Claim Filed Against Sacramento Fire Dept., Part 9 of 19" »

(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.

Continue reading "Sacramento Fire Dept. Discriminated Against Firefighter, Part 8 of 19" »

(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:

Continue reading "DFEH Claim filed By Sacramento Firefighter, Part 7 of 19" »

(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.

Continue reading "Sacramento Firefighter Pushed To Early Retirement, Part 6 of 19" »

(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:

Continue reading "Sacramento Firefighter Sues For Retaliatory Firing, Part 5 of 19" »

(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:

Continue reading "Firefighter From Sacramento Files Suit For Wrongful Termination, " »

(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.

Continue reading "Employment Action Filed Against Sacramento Fire Dept., Part 3 of 19" »

(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.

Continue reading "Sacramento Fire Department Sued For Discrimination, Part 2 of 19" »

(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.

Continue reading "Sacramento Firefighter Sues For Workplace Discrimination, Part 1 of 19" »

(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.

Continue reading "Healthcare Employee Files Discrimination Action For Retaliatory Firing, Part 8 of 8" »

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

Exposing governmental inefficiency and misconduct is a matter of considerable significance. As the Court noted in Connick, public employers should, as a matter of good judgment, be receptive to constructive criticism offered by their employees. 461 U.S., at 149, 103 S.Ct. 1684. The dictates of sound judgment are reinforced by the powerful network of legislative enactments-such as whistle-blower protection laws and labor codes-available to those who seek to expose wrongdoing. See, e.g., 5 U.S.C. § 2302(b)(8); Cal. Govt.Code Ann. § 8547.8 (West 2005); Cal. Lab.Code Ann. § 1102.5 (West Supp.2006) ... These imperatives, as well as obligations arising from any other applicable constitutional provisions and mandates of the criminal and civil laws, protect employees and provide checks on supervisors who would order unlawful or otherwise inappropriate actions.

Further, Defendant's argument that Plaintiff has no legal protection for reporting illegal practices because such reporting was an essential part of her job duties turns logic and law upside down. If Defendant's position were accepted, it would mean that the very employee charged with reporting illegal activity would have no incentive to make a report because the employee would not be protected from retaliation for reporting the illegal conduct. Fortunately, and not surprisingly, California law does not abandon those employees most in need of legal protection, i.e., those who by virtue of their position must report illegal activity. See e.g. Green v. Ralee Eng. Co. (1998) 19 Cal.4th 66, 79 (public policy termination claim properly stated by quality control inspector who complained about unsafe conditions on airplane despite that the quality control inspector, like Plaintiff here, was simply doing his job);

Continue reading "Hospital Employye From Roseville Claims Workplace Discrimination, Part 7 of 8" »

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

Foundation argues that Smith was terminated for legitimate reasons, cannot prove otherwise by showing that the reasons were pretext for retaliatory animus, and therefore it should prevail on summary judgment. As Smith’s claim is a state law claim for retaliation, the California Court of Appeal decision in Mamou v. Trendwest Resorts Inc. (2008) 165 Cal.App.4th 686, is directly on point. As clarified by the Mamou court, while pretext is certainly a relevant issue...the central issue...whether the evidence as a whole supports a reasoned inference that the challenged action was the product of retaliatory animus. (Id. at 715.) At the summary judgment stage, the court's duty is to determine whether the employee's evidence is too weak to sustain a reasoned inference in the employee's favor. (Id. at 718.) If reasonable competing inferences may be drawn from the facts, summary judgment should be denied. Adickes v. S.H. Kress & Co., supra, 398 US at 157; Lake Nacimiento Ranch Co. v. San Luis Obispo County (9th Cir. 1987) 841 F2d 872, 875.

In this case, while a jury could draw a reasoned inference that the very close proximity in time between Plaintiff's complaints and her termination was coincidental, the jury could also draw a reasoned inference that the proximity between the two acts was evidence enough of retaliatory animus. Fisher v. San Pedro (1989) 214 Cal.App. 3d 590, 615 (one may infer retaliation by the proximity in time between protected activity and the allegedly retaliatory employment decision.)

Continue reading "Workplace Discrimination Action Filed Against Roseville Healthcare Provider, Part 6 of 8" »

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

While working at Foundation North Side, Ms. Lane made frequent complaints to upper management, including officers and managing agents such as Oliver Browne and Ethan Jones, regarding the failure of Foundation to address serious patient and staff safety issues. None of Ms. Smith’s complaints received any substantive response, other than her termination. The subjects of these complaints included:

* OSHA violations including concerns about frequent blood splashes and gastric juices deposited on nurses and the failure of Kaiser to install necessary OSHA required eyewash stations.

* The continued use of non-safety needles to avoid accidental punctures of staff.

* Toxicity of a new facility at Richmond and a manager's withholding of the report of work that was being done to correct that toxicity found in the Forensic Analytical report commissioned by Charles Smythe to the employees in the building.

* The loss by Sam White of Personal Air Purification Respirators given to Roseville to protect staff and patients from airborne pathogens and would not find them.

* The lack of fit testing for N-95 respirators at the Roseville facility.

* The placement of tuberculosis patients in non-quarantined rooms, in the general patient population and released back out into the general population, including a 14-year-old child who had tuberculosis and whose mother was a Registered Nurse and whose father came contact with about 500 people daily. Those patients that were quarantined were placed in isolation rooms many of which did not work because air exchange testing had not been performed on an annual basis as is required. In another instance, in 2006, a tuberculosis patient was released by a Registered Nurse to get on a bus and released into the general population.

Continue reading "Roseville Healthcare Provider Sued For Wrongful Termination, Part 5 of 8" »

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

In fact, both the reasons given for Ms. Smith's ultimate termination and the underlying reasons for the draft disciplinary letter which she printed from Mr. White’s screen were pretext for retaliatory action and restraint of Ms. Smith’s efforts to hold the managers in charge of Environmental, Health and Safety accountable for the numerous lapses in employee and patient safety which they have countenanced while she has worked for Foundation (first as a consultant, then as an employee).

Foundation managers expressed concerns about Ms. Smith's communication style when she would communicate that a) there were serious defects in Foundation's workplace safety program, and b) those managers were partly or fully responsible for those serious defects. Hospital workplace safety is governed by state and federal OSHA regulations, as well as other state and federal health regulations, and retaliation against an employee who voices concerns about violations of those regulations is a tortious violation of public policy as well as a violation of Labor Code Sec. 6310:

(a) No person shall discharge or in any manner discriminate against any employee because the employee has done any of the following:

(1) Made any oral or written complaint to the division, other governmental agencies having statutory responsibility for or assisting the division with reference to employee safety or health, his or her employer, or his or her representative.

In addition, Ms. Smith's termination was in violation of Health and Safety Code Section 1278.5:
(b)(1) No health facility shall discriminate or retaliate, in any manner, against any patient, employee, member of the medical staff, or any other health care worker of the health facility because that person has done either of the following:
(a) Presented a grievance, complaint, or report to the facility, to an entity or agency responsible for accrediting or evaluating the facility, or the medical staff of the facility, or to any other governmental entity.

Continue reading "Female Employee Sues Roseville Hospital For Wrongful Termination, Part 4 of 8" »

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

Foundation has a very clear national policy regarding Corrective/Disciplinary Action because it is obligated to have one. Foundation Group (FG) must comply with specific legal/regulatory standards that include, but are not limited to, those indicated by Medicare and other government program billing requirements, Guidance issued by the Centers for Medicare and Medicaid Services, the Department of Health and Human Services, the Compliance Program Guidance issued by the Office of the Inspector General, and HIPAA/Privacy and Security regulations .... FG is required to have well publicized disciplinary guidelines that demonstrate its commitment to compliance and set forth the consequences for violations of compliance mandates. (See, Corrective/Disciplinary Action policy, page 1.)

In other words, state and federal laws and regulations require that Foundation follow its Corrective/Disciplinary Action policy. The last paragraph of that policy states: Employees who report compliance and/or ethics concerns in good faith will not be subject to corrective/disciplinary action for doing so... Nevertheless, even assuming the truth of Foundation's purported reason for terminating Ms. Smith, Ms. Smith was terminated in violation of Foundationr's legally mandated policy because she was terminated for printing out an improperly viewable document to show to Mr. Browne. (See Part 4 of 8.)

Continue reading "Sacramento-area Hospital Sued For Workplace Discrimination, Part 3 of 8" »

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

WRONGFUL TERMINATION IN VIOLATION OF PUBLIC POLICY AND VIOLATION OF LABOR CODE SECTION 6310 (AND HEALTH AND SAFETY CODE SECTION 1278.5)

Foundation has filed a Motion for Summary Judgment on all claims, including the major claim for Wrongful Termination in Violation of Public Policy. For settlement purposes, it is important to recognize that Foundation cannot win summary judgment or summary adjudication on this claim because of the existence of disputed issues of material fact, as well as Foundation's incorrect interpretation of the law.

The pretextual reason given for Ms. Smith's termination was her printing of a memorandum, addressed to her and publicly viewable on her supervisor's computer screen, regarding discipline that her supervisor, Scott Dawson, apparently intended to impose in retaliation for her frequent complaints about the incompetence of Foundation management and Foundation's many continuing safety and OSHA violations. At Ms. Smith's termination hearing Mr. White also falsely claimed that Ms. Smith had accessed his Lotus Notes account and printed other documents from his work computer.

Ms. Smith's termination letter referred to the following reasons for her termination: Violation of the Principle of Responsibilities, breach of confidentiality, invasion of privacy and violation of FG computer assets. (These should have been the reasons for Mr. White's termination.) Ms. Smith printed the draft disciplinary memorandum and brought it to COO Oliver Browne because of Ms. Smith’s concern that Sam White had left it visible on his screen in an open cubicle for everyone to see, thereby violating her privacy rights as an employee. The act of leaving the draft disciplinary memorandum visible for everyone to see violated Foundation's Principles of Responsibility, breached Ms. Smith's right to confidentiality of her personnel records, violated her right to privacy, and was a violation of Foundation's Electronic Assets Usage policy. Instead of properly discharging Sam White for his multiple violations of policy, Foundation, in violation of its own anti-retaliation policy, retaliated against Ms. Smith for complaining about Mr. White’s egregious violation of her confidentiality and privacy and terminated Ms. Smith instead.

Continue reading "Roseville Employee Files Wrongful Termination Action, Part 2 of 8" »

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

Plaintiff's Mandatory Settlement Conference Statement

Plaintiff Elaine Smith, a Workplace Safety Specialist employed at Foundation Hospital in Roseville was wrongfully terminated on January 10, 2006, in violation of public policy and Foudation's own policies. Prior to her termination, Ms. Smith was treated in an abusive and discriminatory manner by her quasi-manager, Ethan Jones, and was underpaid compared to her male counterpart at another hospital within Foundation’s North Side group. At the time of her termination, Foundation failed to return personal property to her and, despite further requests, continued to keep her personal property. To compound its injuries to Ms. Smith, her former supervisor has made false statements which wrongfully prevented Ms. Smith from obtaining subsequent employment.

It is Plaintiff's position that, for statutory and regulatory reasons, Foundation is obligated to follow its policies in terminating individuals who have otherwise made complaints about Foundation’s misfeasance, malfeasance, and nonfeasance. In Ms. Smith’s case, Foundation failed to properly follow its own policies...miserably. Not only did Foundation terminate the wrong person involved in the incident described below, but, in terminating Ms. Smith, Foundation failed to:

1) Provide any rule, guideline or policy which would indicate that the act was an offense subject to discipline or termination.
2) Provide any oral warning prior to termination.
3) Provide any written warning prior to termination.
4) Determine the actual severity of the alleged violation, determine any harm to the affected employee, or determine if there was any personal gain sought by Ms. Smith.

Continue reading "Workplace Discrimination At Sacramento-area Hospital, Part 1 of 8" »