Month: September 2023

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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.