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Employee’s Claims Under FEHA Properly Dismissed

If you have information about violations of The False Claims Act contact an attorney for information about Whistleblower protection and rewards.

Employee’s Claims Under FEHA Based On Her Termination For Refusing To Get A Flu Vaccine Without A Medically Recognized Contraindication To Getting The Flu Vaccine Were Properly Dismissed

Hodges v. Cedars-Sinai Medical Center, 2023 WL 3558767 (2023)

Deanna Hodges is a former employee of Cedars-Sinai Medical Center. As a condition of her continued employment, she was required to get a flu vaccine unless she obtained a valid exemption—one establishing a medically recognized contraindication to getting the flu vaccine. Her doctor wrote a note recommending an exemption for various reasons, including her history of cancer and general allergies. None of the reasons was a medically recognized contraindication to getting the flu vaccine. Cedars denied the exemption request. Hodges still refused to get the vaccine. Cedars terminated her. Hodges sued Cedars for disability discrimination and related claims under the Fair Employment and Housing Act (FEHA). The trial court granted Cedars’s motion for summary judgment.

On appeal, the Court of Appeal affirmed:

  • There is no triable issue of fact as to physical disability discrimination.

Plaintiff argues her cancer history and neuropathy amount to a physical disability because they “make it impossible for her to work as she cannot work as she cannot get vaccinated. Her disabilities limited her ability to safely receive the vaccine.” To be clear, the plaintiff admits her cancer history and neuropathy in no way otherwise limited her ability to work.

By this argument, the plaintiff asserts she has a physical disability within the meaning of section 12926, subdivision (m)(1), which provides that a physiological condition that affects one or more enumerated body systems and “limits a major life activity” is a “physical disability” for purposes of FEHA. Working is expressly defined as a major life activity.

In moving for summary judgment, Cedars introduced evidence that the plaintiff was not disabled and could not prove she was disabled. It offered official guidance from the CDC and testimony from [a medical expert] that there were only two medically recognized contraindications for getting the flu vaccine. It offered testimony from the plaintiff and [plaintiff’s physician] that she had never been diagnosed with either contraindication. [Plaintiff’s physician] further acknowledged that none of the conditions he listed on her exemption form were recognized contraindications for getting the flu vaccine. If this were not enough, Cedars also offered evidence that, before she was terminated, [plaintiff’s physician] advised plaintiff to reconsider her decision not to get the vaccine and that, under CDC guidelines, plaintiff’s cancer history was not a contraindication but rather an indication—a condition making it advisable—that a person get vaccinated.

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Racial Harassment, Discrimination and Infliction of Emotional Distress at Tesla

Tesla must pay $137 million to a Black employee who sued for racial discrimination.

A former Black contractor, Owen Diaz, who worked as an elevator operator at Tesla’s factory in Fremont, California, has been awarded $137 million by a federal jury in San Francisco over claims that he was subjected to racial harassment and discrimination at work.

Owen Diaz filed a lawsuit claiming that he and others were called the N-word by Tesla employees, that he was told to “go back to Africa,” and that employees drew racist and derogatory pictures that were left around the factory.

Diaz complained about the discriminatory treatment to Tesla and contracted companies Citistaff and nextSource, but nothing was ever done to stop it.

The jury award included $130 million in punitive damages and $6.9 million in emotional damages, according to the verdict, which is believed to be the largest award in a racial harassment case involving a single plaintiff in U.S. history.

Diaz’s attorney, Larry Organ, hopes this verdict sends a message to corporate America to look at their workplace and take proactive measures to protect employees against racist conduct.

Tesla’s vice president of people, Valerie Capers Workman, stated that Tesla followed up on Diaz’s complaints and that the staffing agencies fired two contractors and suspended another. Workman acknowledged that in 2015 and 2016, Tesla was not perfect, but the company has come a long way from five years ago.

 

Original reporting by Joe Hernandez at NPR.

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Prospective Release Of Claims Did Not Violate Civil Code section 1668

Age discrimination and harassment are illegal.

Prospective Release Of Claims Did Not Violate Civil Code section 1668 (A Statute Providing That A Contract Releasing A Party From Future Violations Of Law Is Invalid As Against Public Policy)

Castelo v. Xceed Financial Credit Union, 2023 WL 3515225 (2023)

Xceed Financial Credit Union employed Elizabeth Castelo as its Controller and Vice President of Accounting. In November, Xceed informed Castelo her employment would be terminated effective December 31st. On November 19, the parties entered into a Separation and General Release Agreement, in which, among other things, Xceed agreed to pay Castelo a severance payment in consideration for a full release of all claims, including a release of age discrimination claims. The Agreement also provided that, as of Castelo’s separation date, she would have to sign Exhibit “A” to the Agreement reaffirming her commitment to abide by the terms of this Agreement and effectuating a full release of claims through her December 31st separation date. The releases extended to all known and unknown claims arising directly or indirectly from Castelo’s employment. Xceed intended that Castelo would sign the reaffirmation on the date of her separation (December 31st). However, Castelo signed it on the same date she signed the main Separation Agreement, on November 19th.  Xceed did nothing to correct that error. Castelo remained employed by Xceed until December 31. In January, Xceed paid Castelo, and Castelo accepted the settlement payment. Castelo made no attempt to revoke the Separation Agreement or Reaffirmation at any time before or after receiving payment.

In August, Castelo filed a lawsuit alleging age discrimination and wrongful termination in violation of Fair Employment and Housing Act (FEHA). The parties stipulated to arbitration. Xceed filed a motion for summary judgment based on the releases in the Separation Agreement and the Reaffirmation, and the arbitrator granted the motion. Castelo moved to vacate the arbitration award, arguing that the arbitrator exceeded his powers by enforcing a release made unlawful by Civil Code section 1668, which prohibits pre-dispute releases of liability in some circumstances. The trial court denied the motion to vacate and entered judgment confirming the arbitration award. The Court of Appeal affirmed:
The arbitrator correctly ruled the release did not violate Civil Code section 1668. Castelo signed the separation agreement after she was informed of the decision to terminate her but before her last day on the job. At the time she signed, she already believed that the decision to terminate her was based on age discrimination and that she had a valid claim for wrongful termination. The alleged violation of FEHA had already occurred, even though the claim had not yet fully accrued. Accordingly, the release did not violate section 1668 because it was not a release of liability for future unknown claims.

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Happy Labor Day!

Happy Labor Day

Labor Day is just around the corner, which means it’s time to break out the grill, gather your loved ones, and have a blast. But do you ever stop to think about the history behind this awesome holiday? If you’re curious and want to impress your friends and family with some fun facts, check out this quick rundown of Labor Day.

Labor Day is an epic celebration of the achievements of American workers, observed every year on the first Monday in September. The roots of this holiday go back to the late 1800s when labor activists worked tirelessly to establish a federal holiday recognizing the incredible contributions that workers make to America’s strength, prosperity, and well-being.

But before it was a nationwide holiday, Labor Day was recognized by individual states and passionate labor activists. The movement to secure state legislation began with municipal ordinances in 1885 and 1886. New York was the first state to introduce a bill, but Oregon was the first to pass a law recognizing Labor Day on February 21, 1887. And the momentum only grew from there – by the end of the decade, more than half of all states had adopted the holiday. It wasn’t until 1894 that Congress passed an act making the first Monday in September a legal holiday.

The question of who founded Labor Day is a hotly debated one. Some believe it was Peter J. McGuire, a co-founder of the American Federation of Labor, who suggested the idea of a “general holiday for the laboring classes” back in 1882. But others argue that it was actually machinist Matthew Maguire who proposed the holiday while serving as secretary of the Central Labor Union in New York. Recent research seems to support Maguire’s claim, and the Paterson Morning Call even declared him the “undisputed author of Labor Day as a holiday.” Regardless of who came up with the idea, both McGuire and Maguire attended the country’s first Labor Day parade in New York City in 1882 – a historic moment that would pave the way for generations of hardworking Americans to celebrate their contributions to this great nation.

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Racial Discrimination and Harassment at Kansas Community College

Protecting students from harassment and other discrimination is a top priority of the Justice Department’s Civil Rights Division.

Settlement to Address Racial Discrimination and Harassment at Highland Community College

Summary

  • The Justice Department investigated allegations of discriminatory treatment against Black students at Highland Community College in Kansas.
  • The settlement requires the college to improve transparency and fairness in disciplinary proceedings and enhance policies and training on campus security to prevent discrimination.
  • HCC will also strengthen policies and procedures for addressing students’ complaints of racial discrimination.
  • The college will reform policies on discipline, campus security, housing, and racial harassment and revise procedures for responding to complaints of racial discrimination.
  • HCC will train campus security and other staff on effective de-escalation techniques and non-coercive methods of gathering information.
  • The college will survey and improve the climate and culture of their main campus, cultivate safe and welcoming spaces for Black students, and ensure equitable access to educational programs and activities regardless of race.

The Justice Department has reached a settlement agreement with Highland Community College (HCC) in Kansas following an investigation into allegations of racial harassment and discriminatory treatment against Black students. The complaints stated that Black students were subjected to searches, surveillance, and harsher disciplinary measures leading to their removal from campus housing or even expulsion.

As part of the settlement, the college will improve the transparency and fairness of their disciplinary proceedings to prevent such discrimination. They will also enhance their policies, procedures, and training on campus security to promote non-discriminatory interactions with students. Additionally, HCC will strengthen its policies and procedures for addressing students’ complaints of racial discrimination.

It is important to note that no student should have their educational experience hindered by discrimination based on their race. The Justice Department is committed to safeguarding the civil rights of college students across the country to pursue higher education in a safe, welcoming, and discrimination-free environment.

Under Title IV of the Civil Rights Act of 1964, the department opened its investigation in January 2022. The college cooperated fully and expressed a desire to make positive changes for its students by revising policies and practices, training employees, and enhancing student engagement to improve campus climate.

Under the agreement, Highland Community College will reform policies on discipline, campus security, housing, and racial harassment. They will also revise their procedures for responding to students’ racial discrimination complaints and ensure that they are handled by trained employees. Additionally, they will train campus security and other staff on effective de-escalation techniques and non-coercive methods of gathering information. The college will also survey and improve the climate and culture of its main campus, cultivate safe and welcoming spaces for Black students, and ensure equitable access to educational programs and activities regardless of race.

It is crucial to be aware of the issues of discrimination in educational environments and the steps being taken to address them. For more information, visit the Justice Department’s website at www.justice.gov/crt or the Educational Opportunities Section at www.justice.gov/crt/educational-opportunities-section/educational-opportunities-section.

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Edison Sued for Sexual and Racial Harassment

Edison sued for racial harassment and sexual harassment.

Jury Awarded $440 Million in Harassment Lawsuit Against Edison

A Los Angeles jury awarded $ 440 million in punitive damages to two men who alleged they were forced out of their jobs at Southern California Edison after complaining about repeated sexual and racial harassment at a South Bay office.

That decision came after jurors awarded $ 24.6 million in compensatory damages to plaintiffs Alfredo Martinez and Justin Page on Wednesday, bringing the total to more than $ 464.6 million.

These two men had the courage to stand up and report the harassment.

Martinez said he witnessed sexual and racial harassment and abuse during the 16 years he worked at Edison. His lawsuit states one such complaint: Two female workers approached him in March 2017 to complain of sexual harassment. They told Martinez because he was “just about the only supervisor” who could be trusted and had not participated in the harassment.

Martinez alleged that after 16 years at Edison, he had been pushed out of his supervisor job in April 2017 by constructive termination — a claim accusing the employer of creating or permitting intolerable working conditions in order to force out a worker — after reporting widespread sexual harassment and racist language.

SCE’s and Edison’s response was to pretend the problem was limited to a handful of bad actors, ignoring the culture of tolerance for harassment and discrimination that was bred in the South Bay office.

During the eight-week trial, lawyers for Martinez and Page presented evidence they said showed Edison’s South Bay office had a fraternity-like culture in which racial and sexual harassment was widespread, common, and sometimes ignored.

“These two men had the courage to stand up and report the harassment,” one attorney said. “SCE’s and Edison’s response was to pretend the problem was limited to a handful of bad actors, ignoring the culture of tolerance for harassment and discrimination that was bred in the South Bay office.”

Edison’s management did not take the harassment seriously.
The jury award was unusual in that the $ 440 million in punitive damages exceeded by $ 140 million, the amount that their attorney suggested to the jury. The jury awarded punitive damages of $ 400 million to Martinez — $ 100 million from Southern California Edison and $ 300 million from parent company Edison International. The jury awarded Page $ 40 million in punitive damages — $ 10 million from SCE and $ 30 million from Edison International.

The $ 22.37 million in compensatory damages for Martinez is believed to be among the largest in California history for a Fair Employment and Housing Act case.

Edison officials said they would seek a new trial to overturn the verdict.
“The jury’s decision is not consistent with the facts and the law and does not reflect who we are or what we stand for, and we intend to challenge it and seek a new trial,” an SCE spokeswoman said.

In a trial brief, Edison’s legal team argued that the two men had attempted to exploit the “plight of their former female coworkers to create liability where none exists. ” Edison acknowledged in court papers that Martinez and Page reported supervisors ” at the location where they worked were engaging in sexually inappropriate conduct toward female employees. ”

But Edison’s lawyers alleged that Martinez ” violated multiple SCE policies when he falsified the time records of an employee who reported to him. ” In the trial brief, they noted that Page, while reporting the harassment of female colleagues, did not say he was also a victim until later.

Martinez’s lawyers allege that within about 30 days of his reporting the harassment, six retaliatory complaints came in against him. They allege that Edison conducted a sham investigation and used the complaints to push him out of his job.

In court filings, Page alleged that he was threatened with retaliation after he anonymously reported the harassment. Page, who began working for Edison in 2015, transferred out of South Bay to a Fullerton office, but the threats followed him to that location, and he took a leave of absence from which he has yet to return, according to court filings.

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Employee’s PAGA Claims Not Arbitrable If Arbitration Agreement Specifically Excluded

Arbitration in Employment contracts.

Employee’s Individual, Nonrepresentative PAGA Claims Not Arbitrable Because The Parties’ Arbitration Agreement Specifically Excluded PAGA Claims From Arbitration

Duran v. EmployBridge Holding Company, 2023 WL 3717207 (2023)

Griselda Duran was employed defendant EmployBridge, LLC. As part of her employment application, plaintiff electronically signed an arbitration agreement. The arbitration agreement (1) states it is governed by the Federal Arbitration Act; and (2) contains a broad agreement to arbitrate claims:

In the event there is any dispute between [Duran] and the Company relating to or arising out of the employment or the termination of [Duran], which [Duran] and the Company are unable to resolve informally through direct discussion, regardless of the kind or type of dispute, [Duran] and the Company agree to submit all such claims or disputes to be resolved by final and binding arbitration, instead of going to court, in accordance with the procedural rules of the Federal Arbitration Act.

Except as prohibited under applicable law, [Duran] and the Company expressly intend and agree that: (1) class action, collective action, and representative action procedures shall not be asserted nor will they apply, in any arbitration proceeding pursuant to this Agreement; (2) neither [Duran] nor the Company will assert any class action, collective action, or representative action claims against each other in arbitration, in any court, or otherwise; and (3) [Duran] and the Company shall only submit their own respective, individual claims in arbitration and will not seek to represent the interests of any other person.

Should any term or provision, or portion of this Agreement, be declared void or unenforceable or deemed in contravention of law, it shall be severed and/or modified by the court, and the remainder of this Agreement shall be fully enforceable.

Duran sued EmployBridge to recover civil penalties under PAGA for Labor Code violations suffered by her and other employees. EmployBridge moved to compel arbitration of Duran’s claims on an individual, nonrepresentative basis. The trial court denied the motion because the arbitration agreement specifically excluded PAGA claims from arbitration.

EmployBridge appealed arguing that the arbitration agreement’s exclusion of PAGA claims from arbitration did not actually mean that all PAGA claims were excluded from arbitration; rather, EmployBridge argued that individual PAGA claims had to be arbitrated. The Court of Appeal affirmed the denial of the motion to compel arbitration:

This appeal challenges the denial of a motion to compel arbitration of claims to recover civil penalties under the Labor Code Private Attorneys General Act of 2004. The denial of the motion was based on the trial court’s determination that the agreement to arbitrate specifically excluded PAGA claims. We conclude the trial court correctly interpreted the agreement’s carve-out provision stating that “claims under PAGA … are not arbitrable under this Agreement.” This provision is not ambiguous. It is not objectively reasonable to interpret the phrase “claims under PAGA” to include some PAGA claims while excluding others. Thus, the carve-out provision excludes all the PAGA claims from the agreement to arbitrate.

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Liability Under FCA Depends On Whether Defendants Believe They Lied

If you have information about violations of The False Claims Act contact an attorney for information about Whistleblower protection and rewards.

Liability Under FCA Depends On Whether Defendants Believe They Lied

United States et al. ex rel. Schutte et al. v. Supervalu Inc. et al., 2023 WL 3742577 (2023)

The False Claims Act imposes liability on anyone who “knowingly” submits a “false” claim to the Government. 31 U. S. C. §3729(a). In some cases, that rule is straightforward: If a law authorized payment of $100 for “each” medical test, and a doctor knows that he did five tests but submits a claim for ten, then he has knowingly submitted a false claim. But sometimes, the rule is less clear. If a law authorized payment for only “customary” medical tests, some doctors might be confused when it came time for billing. And, while some doctors might honestly mistake what that term means, others might correctly understand whatever “customary” meant in this context—and submit claims that were inaccurate anyway. The cases before the Supreme Court involved a legal standard similar to that latter example: In certain circumstances, pharmacies are required to bill Medicare and Medicaid for their “usual and customary” drug prices. And, critically, these cases involved defendants who may have correctly understood the relevant standard and submitted inaccurate claims anyway. The question presented is thus whether the defendants could have the scienter required by the FCA if they correctly understood that standard and thought that their claims were inaccurate.

In a unanimous decision authored by Justice Thomas, the Supreme Court held that the answer is yes: What matters for an FCA case is whether the defendant knew the claim was false. Thus, if defendants correctly interpreted the relevant phrase and believed their claims were false, then they could have known their claims were false.

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Whistleblowers Protected from Retaliation Covered by Labor Code 1102.5(b).

Whistleblower protection lawyers in Beverly Hills - Helmer Friedman LLP.

Labor Code Section 1102.5(b) Encompasses A Report Of Unlawful Activities Made To An Employer Or Agency That Already Knew About The Violation

People ex rel. Garcia-Brower v. Kolla’s, Inc., 2023 WL 3575254 (2023)

In Mize-Kurzman v. Marin Community College Dist., 202 Cal.App.4th 832, 858 (2012), the Court of Appeal oddly held that whistleblower protections are not available for employees who disclose illegal conduct to the employer or to a government or law enforcement agency if the employer or government or law enforcement agency was already aware of the illegal conduct. In Kolla’s, the California Supreme Court rejected the reasoning in Mize-Kurzman and held that the Labor Code whistleblower retaliation statute does not require that a reported violation be unknown to the recipient.

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$20,000 Sexual Harassment / Retaliation Case Settlement with Bojangles Restaurants, Inc

Sexual harassment causes long term damage to the victims psyche.

U.S. Equal Employment Opportunity Commission Settles Federal Charges Female Employee Was Sexually Harassed, Then Transferred and Denied Promotional Opportunity Because She Complained

Bojangles’ Restaurants, Inc., a Delaware corporation operating in Greensboro, North Carolina, has been ordered to pay $20,000.00 and provide other relief as part of a settlement agreement with the U.S. Equal Employment Opportunity Commission (EEOC) to resolve a sexual harassment and retaliation lawsuit.

The EEOC’s lawsuit alleges that a female team member at a Bojangles fast food restaurant in Greensboro was subjected to severe sexual harassment from March 2020 to June 2020 by the restaurant’s general manager, who made numerous sexual remarks and inappropriately touched and grabbed her. The employee was then denied the opportunity to participate in a management training program and was transferred to a different location as retaliation after complaining about the general manager’s conduct.

This type of alleged behavior is in violation of Title VII of the Civil Rights Act of 1964, which prohibits sexual harassment in the workplace and prohibits retaliation against employees who oppose sexual harassment.


Employees have a right to be free from sexual harassment in the workplace. Employers cannot tolerate such conduct or allow managers to retaliate against employees for reporting the harassment.

The EEOC filed suit in U.S. District Court for the Middle District of North Carolina (Equal Employment Opportunity Commission v. Bojangles’ Restaurants, Inc., Civil Action No.: 1:22-cv-00739) after first attempting to reach a pre-litigation settlement through its voluntary conciliation process.

As part of the two-year consent decree, which applies to specific restaurants, Bojangles is required to pay $20,000.00 in damages to the affected employee, train managers and employees on sexual harassment, refrain from discriminating against employees on the basis of sex, including in the administration of management training programs, and refrain from retaliating against employees who complain of sexual harassment.

Bojangles has also agreed not to rehire the offending manager. “Employees have a right to be free from sexual harassment in the workplace,” said Melinda C. Dugas, regional attorney for the Charlotte District. “Employers cannot tolerate such conduct or allow managers to retaliate against employees for reporting the harassment.”