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Employment (More)

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• Action by an unsuccessful job applicant for a law enforcement position alleging that the prospective employer, a federal law enforcement agency, engaged in disability discrimination, failed to reasonably accommodate or engage him in the interactive process, and retaliated against him when he requested an appeal in violation of the Rehabilitation Act.  Applicant has a congenital defect that restricted the full extension of his elbow, which he claimed would not prohibit him from carrying out the essential duties of a federal agent, but which nonetheless prejudiced the scoring of his physical fitness test. The government alleged that no discrimination or retaliation occurred, that applicant was reasonably accommodated on his fitness test, and that applicant nonetheless failed the test even with an accommodation. Resolved following mediation.​

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• Action by a probationary instructor alleging that his former employer, a public college, engaged in race discrimination, harassment, and retaliation after he complained about denial of the opportunity to self-evaluate his performance. The college denied any wrongdoing.  It alleged that the instructor had not performed up to standard and that he had voluntarily resigned.  In addition, college alleged that instructor failed to properly exhaust his administrative remedies, and that his action was time barred. Resolved by mediator’s proposal.

 

• Pre-litigation action by a development manager alleging that her former employer, a medical center, engaged in FEHA pregnancy and CFRA family leave discrimination and harassment, retaliated against her for taking leave and for complaining, failed to prevent such conduct, and constructively terminated her in violation of public policy.  Employer alleged that former employee was reasonably accommodated on every request, had underperformed, and had voluntarily resigned. Resolved by mediator’s proposal.

 

• Pre-arbitration action by in-house attorney alleging that her former employer, a communications start-up, engaged in FEHA disability discrimination, harassment and retaliation, failed to engage in the interactive process and reasonable accommodation, committed promissory estoppel, wrongful termination in violation of public policy, and unfair business practices.  Employer alleged that the company had liberally accommodated attorney with more than three months of leave for her anxiety, childcare and home-schooling needs, as well as surgery during the COVID-19 pandemic.  However, attorney was unable to perform the essential functions of her job with or without an accommodation, and an indefinite leave would have caused undue hardship to the company.  Resolved by mediator’s proposal.

 

• Action by 11-year forklift operator alleging that her former employer, a logistics company, engaged in FEHA disability discrimination, harassment and retaliation, failed to engage in the interactive process and reasonable accommodation, committed various wage-and-hour violations, engaged in unfair competition, and wrongfully terminated her.  Employer alleged that the company had engaged in the interactive process and reasonably accommodated employee multiple times in accordance with her doctor’s notes, and that she took meal and rest breaks as documented on time sheets. Company further alleged that it was employee’s numerous attendance issues that led to her termination.  Resolved by mediator’s proposal.

 

• Action by short-term shipping employee alleging that his former employer, a package labeling company, engaged in various wage-and-hour violations, as well as FEHA violations by failing to prevent co-workers from harassing him as a “sissy” and crybaby,” retaliating against him for his disability after he hurt his back, failing to engage in the interactive process and provide reasonable accommodation, and engaged in unfair business practices.  Company alleged that employee, who worked there for less than two months, took meal and rest breaks as documented on time sheets, was fully and timely compensated, was provided the interactive process, and was reasonably accommodated for every request.  However, company alleged that employee failed to report any co-worker harassment and was terminated for consecutive days of no call/no show.  Resolved by mediator’s proposal. 

 

• Action by a janitor alleging that his former employer, a restaurant, engaged in various wage-and hour violations, as well as discriminated and retaliated against him for his disability after he hurt his knee, failed to engage in the interactive process, failed to reasonably accommodate him, and engaged in unfair business practices. Restaurant alleged that janitor, who worked there for three weeks, took meal and rest breaks as documented on time sheets, took three days off after he allegedly hurt his knee, returned to work with a doctor’s note showing no restrictions, never asked for an accommodation, did not show up for work, then allegedly told a coworker he found another job and never returned to work.  Resolved in post-mediation negotiations.

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• Action by a 25-year pharmacy technician alleging that his former employer, a hospital, engaged in FEHA disability and age discrimination, failed to prevent discrimination, retaliated against him for having taken CFRA and FMLA leave, and wrongfully terminated him in violation of public policy. Employer alleged that it had repeatedly cooperated and granted intermittent CFRA leaves to the technician.  Employer alleged that technician’s termination was justified, because he had lost a narcotic prescription, had repeatedly failed to identify expired medications on incomplete inventories, and was dishonest about it.  Resolved following mediation.

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• Action by remote telephone case worker alleging that her former employer, a senior center, engaged in age and disability discrimination, failed to engage in the interactive process and reasonably accommodate her following her workers’ compensation leave, and retaliated against and wrongfully terminated her. Employer alleged that case worker had no work restrictions and never requested reasonable accommodation.  In addition, case worker’s job classification was eliminated in a layoff.  She was given retraining and the opportunity to apply for vacancies, and was offered a severance package as an option.  Moreover, the vast majority of similarly-situated employees found new positions with employer, of which 94 percent were over the age of 40.  Resolved by mediator’s proposal. 

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• Pre-litigation action by baker alleging that her former employer, a specialty bakery and its managing agent, engaged in perceived disability and medical condition (diabetes) discrimination and harassment, and engaged in retaliation when baker complained.  During the pandemic, when a co-worker’s boyfriend was first exposed to COVID-19, both co-worker and baker were quarantined and underwent COVID-19 testing.  When the results were negative, baker and co-worker returned to work.  Later, baker had a skin rash, and again quarantined, and underwent another COVID-19 test as well as an antibody test.  After receiving negative results on these tests, baker asked to return to work without requesting for any accommodation.  Rather than returning baker to work, employer instead placed her on continuous unpaid leave and replaced her position with a new employee without any apparent disability or medical condition.  Employer alleged baker’s underlying diabetic condition made her a direct threat to herself in the event she were to be exposed to COVID-19 in its store.  Employer also alleged it could not afford to upgrade its air conditioning system, something baker had not requested.  Resolved by mediator’s proposal. 

 

• Action by probationary truck driver alleging that her former employer, a trucking company, assigned her to mentors who sexually and racially harassed her on the road, retaliated when she complained, committed various wage and hour violations, and wrongfully terminated her.  Employer alleged driver was terminated for causing two trucking accidents. Resolved by mediator’s proposal. 

 

• Action by an executive alleging that her former employer, a bank, engaged in gender, national origin and age discrimination, breach of contract, breach of the covenant of good faith and fair dealing, and wrongful termination. Employer alleged former executive’s termination was justified for poor performance. Resolved by mediator’s proposal.

 

• Actions by temporary employee alleging that her former employers, a shipping company and the staffing agency that arranged her hiring, discriminated against her on the basis of pregnancy, failed to engage in the interactive process, failed to prevent and remedy that discrimination, wrongfully terminated her, and intentionally and negligently inflicted emotional distress upon her.  Temporary employee pursued one action against shipping company in court and the other action against staffing agency in arbitration.  Employers denied the allegations, alleged temporary employee never informed them she was pregnant, never requested any accommodation, and resigned after failing to compete favorably for a permanent position.  Resolved globally by mediator’s proposal.

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• Action by accounts manager alleging that his former employer, an airline industry business, engaged in disability and racial discrimination, harassment and retaliation, violation of CFRA, failure to prevent such conduct under the FEHA, wrongful termination, wage and hour violations, and intentional and negligent infliction of emotional distress. Employer denied the allegations, and alleged former employee was terminated for cause for failing to timely complete a random drug test. Resolved through mediation.

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• Action by an electrician alleging that his former employer, an electrical systems company, engaged in racial harassment, retaliation, and failure to prevent such conduct under the FEHA, as well as violated the Labor Code. Employer denied the allegations and alleged former employee had attendance and punctuality problems, and had voluntarily quit to take on other work. Resolved through mediation.

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• Action by a retail account executive alleging that her former employer, a package management business, engaged in pregnancy and marital status discrimination and harassment, retaliated against her for complaining about the same, and wrongfully terminated her because she married and planned to start a family. Employer alleged former employee’s termination was justified, because she violated the company’s zero tolerance policy for making racially inappropriate comments in the workplace. Resolved through mediation.

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• ERISA interpleader actions brought by pension plan administrator and group life insurer of deceased employee to resolve the identify of his surviving spouse, beneficiary of the plan and policy. During his lifetime and working years, decedent had married his first wife of many years, then separated from but never divorced her. Decedent nonetheless indicated that he was not married on his pension plan. After decedent retired and began receiving his pension, he married his second wife. He later designated first wife as beneficiary on his life insurance. After finding two marriage certificates between decedent and his two wives but no marriage dissolution of any kind, pension plan administrator and insurer identified first wife as the beneficiary. Second wife cross claimed against all parties asserting that she was the proper beneficiary. First wife cross claimed against second wife asserting her beneficiary status. Mediation continuing.

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• Action by former assistant manager alleging that her former employer, a studio and its supervisor, engaged in sex discrimination, harassment and retaliation, and wrongfully terminated her for being a whistleblower. Employer alleged plaintiff was openly insubordinate and disrespectful to her supervisor, a legitimate reason for her termination. Resolved by mediator’s proposal.

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• Action by pharmacy technician supervisor alleging her former employer, a multinational corporation operating a chain of warehouse clubs, engaged in gender and associational discrimination, and retaliation, failed to prevent discrimination and retaliation from occurring, wrongfully terminated and defamed her, and put her in a false light. Employer alleged former employee’s termination was justified, because she violated the company’s pharmacy security policies and practices.  Resolved in mediation.

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• Pre-litigation complaint by human resources employee alleging that her employer, a non-profit agency, discriminated and harassed her on the bases of race, national origin and ancestry, and failed to reasonably accommodate her disability. She also alleged that the employer retaliated against her after she complained by conducting an investigation and putting her on paid administrative leave. The employer alleged the employee bullied her co-workers and could not perform the essential functions of the job with or without accommodation. Resolved through mediation.

 

• Action by worker, who became emotionally distraught after witnessing an accidental death in the workplace, alleging that his former employer, an auto detail business, engaged in disability discrimination, harassment and retaliation, and failed to engage in the interactive process or provide reasonable accommodation. Employer alleged that plaintiff had filed for workers’ compensation, but he had never provided a doctor’s note requesting accommodation for any disability, was terminated for absenteeism, and had obtained a PTSD diagnosis only after his termination.  Resolved through mediation.

 

• Action by IT Director alleging that his former employer, a non-profit, engaged in disability discrimination and retaliation, failed to engage in the interactive process and reasonable accommodation, failed to prevent discrimination and harassment, did not comply with various wage and hour provisions, and engaged in unfair business practices. The employer alleged that plaintiff was in an exempt executive position, that he did not report his alleged disability or request any accommodation, that he was terminated for stealing company property and accessing confidential information, and that he made unauthorized purchases for his own gain on the company’s credit card.  Resolved through mediation.

 

• Action by dishwasher alleging that her former employer, a restaurant, discriminated against and harassed her on the basis of her disability, retaliated against her, failed to engage in the interactive process and reasonably accommodate her, failed to take all reasonable steps to prevent discrimination and harassment, violated various wage and hour statutes, and committed other torts.  The restaurant alleged the employee was terminated for disruptive behavior and poor performance, and she could not perform the essential functions of her job with or without accommodation.  Resolved by mediator’s proposal.

 

• Action by records technician alleging that her former employer, a municipality, failed to engage in the interactive process and reasonably accommodate her disability; that her former supervisor harassed and retaliated against her because of her disability; and that the municipality’s contractor performing fitness for duty examinations failed to provide her with a copy of her medical report. The municipality alleged the former employee could not perform the essential functions of the job with or without accommodation; and the contractor alleged lack of standing and mootness. Resolved through mediation.

 

• Action by emergency management coordinator alleging that her employer, a municipal fire department, and a firefighter engaged in sexual harassment, retaliation, failure to take all reasonable steps to prevent harassment, negligent hiring, sexual battery, battery, and gender violence. The defendants alleged the firefighter’s conduct was neither unwelcome nor severe or pervasive enough to constitute a hostile work environment.  Resolved by mediator’s proposal.

 

• Action by customer service agent alleging that her former employer, a shipping business, discriminated against her on the basis of disability following return from taking family leave for her own serious health condition, retaliated against her for taking such leave, and terminated her on the pretext that she was not punctual.  Former employer alleged it had provided former employee with leave under the law, fully accommodated her, and terminated her following counseling for repeated instances of unsatisfactory attendance.  Resolved by mediator’s proposal.

 

• Appeal by employer, a management services organization for hospital-based physician groups, and its lead doctor challenging the trial court’s denial of their motion to compel arbitration. Former employee, a hospital coordinator, alleged that doctor had created a hostile work environment by his sexually explicit texts and conduct, and that employer had retaliated by wrongfully terminating her after she complained. The defense alleged employee was terminated for poor performance. Resolved by mediator’s proposal.

 

• Action by 69-year-old teacher alleging her former employer, a school district, discriminated against and harassed her on the basis of her age, and retaliated against her after she complained. The former employer alleged the teacher refused to accept constructive feedback on her performance, was the subject of complaints and an investigation for acting out toward students, and had had elected to retire. Resolved by mediator’s proposal.

 

• Action by professor alleging his former employer, a public university, retaliated against him following an administrative settlement of his complaint for age, race and disability discrimination. The professor claimed that the university failed to honor the terms of the settlement agreement, impeded his research and teaching opportunities, and barred him from attending professional conferences. The university alleged the professor had earlier elected to benefit from a faculty early retirement program that permitted him to both collect a pension and work part-time, an option that limited his teaching and research activities, and travel had not been authorized under the federal program that funded the professor’s work. The trial court granted summary judgment for the university. The appellate court found triable issues and overturned the trial court. Resolved by mediator’s proposal.

 

• Action by truck driver alleging his former employer, a multinational corporation operating a chain of warehouse clubs, engaged in disability discrimination, failed to prevent discrimination and harassment, did not reasonably accommodate him, failed to engage in the interactive process, did not provide him with statutory family leave rights, and retaliated against and wrongfully terminated him. The employer alleged the former employee behaved unprofessionally and could not perform the essential functions of his job with or without accommodation. Resolved in mediation.

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• Appeal by confirmation director with 32 years of service alleging her former employer, a church, wrongfully terminated her in retaliation for being a whistleblower about its financial, employment, record keeping and clergy activities. She also alleged the church breached its oral and implied contract to not terminate her except for good cause, defamed her, and intentionally caused her emotional distress. The employer alleged that the former employee was terminated for insubordination and disruptive behavior. The trial court sustained the church's demurrers, granted summary adjudication, and assessed costs in favor of the employer. The former employee alleged insufficient evidence, reversible error and abuse of discretion on appeal. Resolved in mediation.

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• Action by dialysis technician alleging his former employer, a medical provider, retaliated against him for being a whistleblower on a potential HIPAA violation by wrongfully terminating his employment. The employer alleged that former employee had abandoned patients in the middle of their treatment by leaving work without permission. Resolved in mediation.

 

• Action by female physician alleging her employer, a medical provider, discriminated against her by paying her less than a male counterpart performing substantially similar work, when viewed as a composite of skill, effort, and responsibility, and performed under similar working conditions. She further alleged that employer retaliated against her for demanding wage parity and for being a whistleblower. Employer alleged that any difference in compensation was due to bona fide factors other than sex, including merit, the quality or quantity of work and seniority, and denied any retaliation occurred. Resolved by mediator's proposal. ​​

 

• Action by construction worker alleging his former employer, a construction company, wrongfully terminated and discriminated against him because of his disability and perceived disability. Former employer alleged that the matter was preempted by a collective bargaining agreement compelling arbitration, and that employee had failed to take advantage of his union's grievance procedure, did not engage in the interactive process, and could not have performed the essential functions of the job with or without accommodation. Resolved by mediator's proposal.

 

• Action by 58-year-old foreman with 20 years of tenure alleging that his former employer, a manufacturer, wrongfully terminated him  because of his age and disability, and retaliated against him for taking family and medical leave for his own serious health condition. The employer alleged that the employee failed to perform and business necessity required his dismissal. Resolved by mediator’s proposal.

 

• Action by foreclosure specialist alleging that her former employer, a financial services company, wrongfully terminated her because she had taken family and medical leave as well as disability leave for surgeries related to her serious cancer-related genetic condition, and because she had complained about unpaid commissions. The employer alleged that the employee’s job was eliminated as part of a layoff. Resolved by mediator’s proposal.

 

• Action by sales customer service representative alleging that her former employer, an auto parts business, discriminated against and harassed her because of her sex and sexual orientation, retaliated against her for having complained, failed to prevent discrimination and harassment, and committed various torts. The employer alleged that the employee did not suffer adverse job action and had failed to report her complaints to human resources. Resolved by mediator’s proposal.

 

• Action by district manager alleging his former employer, an auto parts business, discriminated and retaliated against him for taking family and medical leave for the birth of his child and wrongfully terminated him. The employer alleged the employee failed to perform. Resolved by mediator’s proposal.

 

• Action by cook alleging her former employer, a restaurant, retaliated against her because of her association with a family member’s disability, and for complaining about health and safety as well as meal and rest break violations. The restaurant alleged the employee had elected to quit her job to appear on a televised cooking show and had no return rights. Resolved by mediator’s proposal.

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• Action by facilities manager alleging her former employer, a university, discriminated against and harassed her because of her race and sex, retaliated against her for complaining, constructively terminated her, and committed other compensation violations and torts against her. The university alleged the employee failed to exhaust her administrative remedies. Resolved by mediator’s proposal.

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• Action by seasonal employee alleging her former supervisor and former employer, a governmental agency, sexually harassed, battered, assaulted, discriminated, retaliated, created a hostile work environment, failed to prevent such conduct, and intentionally inflicted emotional distress against her. The employer alleged that it took reasonable steps to prevent discrimination and retaliation from occurring, and the employee failed to avoid the consequences by not using the employer's complaint procedure. Resolved following mediation.

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