Month: August 2023

Posted on

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.

Posted on

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.

Posted on

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.

Posted on

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.

Posted on

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.

Posted on

$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.”

Posted on

Race, National Origin, Age Discrimination and Retaliation lawsuit filed against HCA Healthcare

Age discrimination is illegal, intentionally inflicts emotional distress. Contact the Age Discrimination Lawyers Helmer Friedman LLP for help.

A federal agency has charged that a for-profit graduate medical education provider in Nashville terminated an employee for filing a discrimination complaint.

HCA Healthcare, Inc. (along with its divisions Tennessee Healthcare Management, Inc. and GME Overhead), a for-profit healthcare corporation based in Nashville that provides graduate medical education in over 2,300 facilities, is facing a lawsuit. The U.S. Equal Employment Opportunity Commission (EEOC) has accused HCA Healthcare of violating federal law by denying a promotion to an employee based on his age, race, and national origin and subsequently firing him in retaliation for complaining about the discrimination.

The employee, who is Asian American, has claimed that despite meeting all necessary qualifications, HCA Healthcare selected an underqualified white candidate for the promotion over him. The Equal Employment Opportunity Commission (EEOC) is seeking injunctive and monetary relief against HCA Healthcare for violating Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act.

Race and national origin discrimination is illegal and harmful, intentionally inflicting emotional and financial distress. Contact the National Origin Discrimination attorneys Beverly Hills Helmer Friedman LLP for help.

It is imperative to abide by state and federal laws that prohibit any form of discrimination based on race or nationality in the workplace. The Civil Rights Act of 1964, specifically Title VII, is a critical law that unequivocally prohibits racial discrimination in every aspect of employment. Employers are legally bound to ensure they do not engage in discriminatory practices such as refusing to hire or promote someone or treating them unfairly regarding compensation or job benefits due to their race or national origin.

Age discrimination and harassment are strictly prohibited by both California and Federal law. It is important to note that the Age Discrimination in Employment Act of 1967 (“ADEA”) is a federal law that provides extensive protection to individuals aged 40 or above from age-based discrimination in employment. Any form of discrimination against a person due to their age with respect to any employment term, condition, or privilege, including but not limited to hiring, firing, layoff, compensation, promotion, or job assignments, is considered illegal under the Age Discrimination in Employment Act.

It is worth noting that HCA Healthcare owns and operates over 100 hospitals and employs over 275,000 people in multiple states and the United Kingdom.

Posted on

Employer’s Retaliation Verdict Reversed – Court Allowed Evidence that Pre-dated Protected Activity

Employment Law Attorneys Helmer Friedman LLP.

Retaliation Verdict In Favor Of Employee Reversed Where Trial Court Allowed Into Evidence Actions That The Employer Took Before The Plaintiff Engaged In The Protected Activity

Kourounian v. California Department of Tax and Fee Administration, 2023 WL 3612540 (2023)

Rafi Kourounian obtained a $425,562 jury verdict in his favor on his claim that the California Department of Tax and Fee Administration retaliated against him for filing an internal complaint with its Equal Opportunity Office (EEO). The Department appealed, contending that the trial court erred in admitting evidence of allegedly retaliatory conduct, which pre-dated the filing of his internal complaint. The Court of Appeal reversed, holding that the trial court erred in admitting evidence about activity that occurred before the filing of his EEO complaints:

As a matter of both logic and law, acts of retaliation must occur after the protected activity. To establish a prima facie case of retaliation, a plaintiff must show that she engaged in protected activity, that she was thereafter subjected to adverse employment action by her employer, and there was a causal link between the two. Because retaliation under FEHA requires the plaintiff to show that the employer was motivated to retaliate by the plaintiff’s protected activity, actions the employer took before the plaintiff engaged in the protected activity necessarily are irrelevant.

Kourounian v. California Department of Tax and Fee Administration, 2023 WL 3612540 * 8 (2023)(cleaned up).

The Court of Appeal also held that the trial court should not have admitted the plaintiff’s EEO complaint because it was hearsay:

Hearsay may be briefly understood as an out-of-court statement offered for the truth of its content. Evidence Code section 1200, subdivision (a) formally defines hearsay as evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated. A ‘statement’ is oral or written verbal expression or the nonverbal conduct of a person intended by him as a substitute for oral or written verbal expression. Documents like letters, reports, and memoranda are often hearsay because they are prepared by a person outside the courtroom and are usually offered to prove the truth of the information they contain. Documents may also contain multiple levels of hearsay. An emergency room report, for example, may record the observations made by the writer, along with statements made by the patient. If offered for its truth, the report itself is a hearsay statement made by the person who wrote it. Statements of others, related by the report writer, are a second level of hearsay. Multiple hearsay may not be admitted unless there is an exception for each level.

There is no doubt that the EEO complaints were prepared outside the courtroom. Thus, like an emergency room report, Kourounian’s written complaints, if offered for its truth, is a hearsay statement made by Kourounian, the person who wrote it.

The fact that Kourounian was available for cross-examination does not transform his statements in the complaints into non-hearsay or provide an exception to the hearsay rule. Hearsay is generally excluded because the out-of-court declarant is not under oath and cannot be cross-examined to test perception, memory, clarity of expression, and veracity and because the jury (or other trier of fact) is unable to observe the declarant’s demeanor. To challenge a testifying witness’s own prior, out-of-court statement as inadmissible hearsay is unusual, but we agree with the defendant that the testifying witness’s own statement to his wife constituted hearsay evidence, for it was an out-of-court statement that was offered for its truth. We are not free to disregard this holding by the Supreme Court and contrary to Kourounian’s claim, neither was the trial court.

The fact that Kourounian is a party, not merely a witness, does not make his out-of-court statements admissible. The Evidence Code provides only limited exceptions to the hearsay rule for the out-of-court statements of a party, and Kourounian has not identified any of them as applicable.

Finally, by way of analogy, federal caselaw is abundant that EEOC charges are inadmissible hearsay, as is the narrative attached to the charge.

Kourounian v. California Department of Tax and Fee Administration, 2023 WL 3612540 * 9 (2023)(cleaned up).

Posted on

Good Faith Is A Defense To Labor Code’s “Knowing And Intentional” Standard

Wage and hour violations employment law attorneys Los Angeles Helmer Friedman LLP.

On Remand From California Supreme Court, Court Of Appeal Holds That Good Faith Is A Defense To Labor Code’s “Knowing And Intentional” Standard

Naranjo v. Spectrum Sec. Servs., Inc., 88 Cal.App.5th 937 (2023), review granted Naranjo v. Spectrum Security Services, 2023 WL 3745105, at *1 (Cal., 2023)

In California, if an employer unlawfully makes an employee work during all or part of a meal or rest period, the employer must pay the employee an additional hour of pay. Labor Code § 226.7(c). In Naranjo v. Spectrum Security Services, Inc., 40 Cal.App.5th 444 (2019), the Court of Appeal held that this extra pay for missed breaks (commonly referred to as “premium pay”) does not constitute “wages” that must be reported on statutorily required wage statements during employment (§ 226) and paid within statutory deadlines when an employee leaves the job (§ 203).

The Supreme Court reversed that portion of the Court of Appeal’s holding, concluding: “Although the extra pay is designed to compensate for the unlawful deprivation of a guaranteed break, it also compensates for the work the employee performed during the break period. The extra pay thus constitutes wages subject to the same timing and reporting rules as other forms of compensation for work.” Naranjo v. Spectrum Security Services, Inc., 13 Cal.5th 93, 102(2022).

The Supreme Court then remanded the matter to the Court of Appeal to resolve two issues that the parties addressed in their respective appeals but that the Court of Appeal did not reach based on its conclusion about the nature of missed-break premium pay: (1) whether the trial court erred in finding that Spectrum Security Services, Inc. had not acted “willfully” in failing to timely pay employees premium pay (which barred recovery under § 203); and (2) whether Spectrum’s failure to report missed-break premium pay on wage statements was “knowing and intentional,” as is necessary for recovery under section 226.

After receiving supplemental briefing following remand, the Court of Appeal concluded as follows: (1) substantial evidence supports the trial court’s finding that Spectrum presented defenses at trial—in good faith—for its failure to pay meal premiums to departing employees and, therefore, Spectrum’s failure to pay meal premiums was not “willful” under section 203; and (2) because an employer’s good faith belief that it is in compliance with section 226 precludes a finding of a knowing and intentional violation of that statute, the trial court erred by awarding penalties, and the associated attorneys’ fees, under section 226.

The California Supreme Court has granted review.