In Accusation of Department of Fair Employment and Housing, 121812 CAFEHC, E200809-R-0120-00-pe

Docket Nº:E200809-R-0120-00-pe, C 09-10-001, 12-12
Opinion Judge:Ann M. Noel, Administrative Law Judge
Party Name:In the Matter of the Accusation of the DEPARTMENT OF FAIR EMPLOYMENT AND HOUSING v. AIR CANADA, a Canadian Corporation, Respondent. CAROLINE MESSIH-ZEMAITIS, Complainant-Intervenor.
Case Date:December 18, 2012
Court:Fair Employment and Housing Commission of California

In the Matter of the Accusation of the DEPARTMENT OF FAIR EMPLOYMENT AND HOUSING


AIR CANADA, a Canadian Corporation, Respondent.

CAROLINE MESSIH-ZEMAITIS, Complainant-Intervenor.

Nos. E200809-R-0120-00-pe, C 09-10-001, 12-12

Fair Employment and Housing Commission of California

December 18, 2012


Ann M. Noel, Administrative Law Judge

The Fair Employment and Housing Commission hereby adopts the attached Proposed Decision as the Commission's final decision in this matter.

Any party adversely affected by this decision may seek judicial review of the decision under Government Code section 11523, Code of Civil Procedure section 1094.5, and California Code of Regulations, title 2, section 7437. Any petition for judicial review and related papers shall be served on the Department, respondent, and complainant-intervenor.

Fair Employment and Housing Commission

Stuart Leviton

Chané e Franklin Minor

Dale Brodsky

Danielle Nava


On April 7, 2011, the Fair Employment and Housing Commissionadopted the administrative law judge's proposed decision in Dept. Fair Employ. & Hous. v. Air Canada (Apr. 7, 2011) No. 11-04-P. On June 22, 2011, both the Department of Fair Employment and Housing and respondent Air Canada timely filed petitions for reconsideration of the decision.

On July 14, 2011, the Fair Employment and Housing Commissiondenied both petitions for reconsideration and issued a new decision, Dept. Fair Employ. & Hous. v. Air Canada (July 14, 2011) No. 11-07-P [2011 WL 4424426 (Cal.F.E.H.C.)] (hereafter, Air Canada (Zemaitis) I ). That decision found that Air Canada had violated the Fair Employment and Housing Act, Government Code section 12900, et seq., (the FEHA), by discriminating against complainant Caroline Zemaitis (complainant-intervener or Zemaitis) on the basis of her disabilities, by failing to provide reasonable accommodation, by failing to engage in the interactive process, and by failing to take all reasonable steps to prevent discrimination, in violation of Government Code section 12940, subdivisions (a), (m), (n), and (k).

On August 8, 2011, Air Canada filed a writ of administrative mandate in Los Angeles Superior Court. On October 6, 2011, the Commission stipulated to stay its order in Air Canada (Zemaitis) I until conclusion of the appellate litigation in this matter.

On April 20, 2012, respondent Air Canada offered Zemaitis reinstatement to a position as Customer Service Agent-Cargo at Air Canada's Los Angeles International Airport's Air Cargo office in Los Angeles, California. On April 21, 2012, Zemaitis accepted Air Canada's reinstatement offer. Zemaitis returned to work for Air Canada on May 7, 2012.

On May 1, 2012, the Honorable Ann I. Jones of the Los Angeles Superior Court denied the writ of administrative mandamus and entered an Amended Final Judgment [Amended Final Judgment]. The Amended Final Judgment modified the Commission's order in Air Canada (Zemaitis) I to provide, in relevant part:

1) Air Canada's petition for writ of administrative mandamus is denied and the stipulated-stay order staying implementation of the Commission's July 14, 2011 final decision denying reconsideration issued in the action entitled Department of Fair Employment and Housing v. Air Canada , FEHC Decision No. 11-07-P [ Air Canada (Zemaitis) I ] is hereby vacated and dissolved upon entry of this Final Judgment.

c. Reinstatement: Within 20 days of entry of this Final Judgment, [Air Canada shall] offer to reinstate Zemaitis to the first available position as a Customer Service Agent-Cargo at its Los Angeles International Airport facility, or a substantially comparable position, together with all seniority, rank, status, and other terms and conditions and privileges of employment she would have enjoyed had she not been unlawfully denied reinstatement on September 13, 2007, and reinstate her in that position if she accepts the offer. Zemaitis shall have 10 days to accept or reject the offer.

d. Front Pay: Within 60 days of entry of this Final Judgment, Air Canada and the Department of Fair Employment and Housing (Department) shall attempt to reach agreement on the amount owed Zemaitis in post-hearing front pay, calculated from February 16, 2010, through the date on which she accepts or refuses the offer of reinstatement. The amount shall be reduced by any wages or earnings actually earned by complainant in that period, and shall bear interest, calculated at the rate of 10 percent per year, running from the date the earnings accrued, and compounded annually, until the date of payment. The parties shall, within 70 days of the entry of the Final Judgment, report the agreed amount to the Commission for its approval, or report their failure to agree. Air Canada shall pay the agreed amount within 10 days after the Commission approves it, and verify said payment to the Commission in writing. If Air Canada and the Department do not reach an agreement, or the Commission does not approve, this element of the damages award shall be returned for further hearing. The Commission shall retain jurisdiction over this case for the purpose of determining, if the parties are unable to agree, the amount of front pay to be ordered.

On July 30, 2012, complainant Caroline Zemaitis moved to intervene in this matter. On August 6, 2012, the Commission granted complainant Caroline Zemaitis's request to intervene. (Cal. Code Regs., tit. 2, § 7425, subd. (a).)

On August 10, 2012, Air Canada notified the Commission of its compliance with the terms of the Amended Final Judgment. Respondent also advised, however, that the parties were not able to reach agreement on the amount of post-hearing lost earnings payable to Zemaitis. Thus, the issue currently before the Commission for determination is the amount of front pay and benefits due complainant Caroline Messih Zemaitis.

On October 3-4, 2012, the matter came for hearing in Los Angeles, California, Administrative Law Judge Ann M. Noel presiding on behalf of the Commission. Caroline Messih Zemaitis, complainant-intervener, appeared in pro per. Phoebe Liu, Senior Staff Counsel, represented the Department of Fair Employment and Housing (Department) and Elaine Chou, Esq., of Biederman, Hoenig, Semprevivo, P.C., represented Air Canada (respondent or Air Canada). Michel LeBlanc, a representative for respondent Air Canada, and complainant-intervener's husband Paulus Zemaitis attended throughout the hearing.

The parties timely filed post-hearing briefs, and the matter was deemed submitted on October 31, 2012.

After consideration of the record and arguments, the administrative law judge makes the following findings of fact, determination of issues, and order.


1. The period for which complainant's lost earnings may be calculated is from February 16, 2010, to April 21, 2012, the date Zemaitis accepted Air Canada's offer of reinstatement (hereafter, referred to as the " front pay period"). The Amended Final Judgment ordered Air Canada to pay the first 7.5 weeks of 2010 as back pay, leaving the remaining 44.5 weeks in the front pay period. The parties stipulated that Zemaitis's rate of pay for this period was $21.96 per hour.

2. Prior to her termination by Air Canada on September 13, 2007, Zemaitis worked 40 hours per week. Upon reinstatement, on May 7, 2012, Zemaitis resumed working 40 hours per week.

3. Zemaitis did not have paid employment during the front pay period.

4. Air Canada's Customer Service Agents are covered by a collective bargaining agreement between Air Canada and the International Brotherhood of Teamsters (hereafter the collective bargaining agreement). By the terms of this collective bargaining agreement, Air Canada provides its employees one floating holiday and eight recognized holidays per year.

5. Receiving $21.96 per hour and working 40 hours per week, Zemaitis earns $45, 677 per year from her job at Air Canada.

6. Zemaitis and her husband Paulus Zemaitis filed a 2011 joint tax return indicating that their income for that year was $80, 265. The marginal income tax rate for this income is 25 percent.

7. In 2012, Air Canada paid Zemaitis money owed to her as part of the judgment in Air Canada (Zemaitis) I , which totaled $102, 737.60 in back pay, $19, 720 in lost benefits, and $125, 000 in compensatory damages, plus 10 percent interest, compounded annually on all of these amounts. These sums placed Zemaitis and her husband in the 33 percent marginal tax bracket for 2012.


8. Under the terms of the collective bargaining agreement, Zemaitis earned 20 working days of vacation per year, or four weeks. Upon reinstatement, Zemaitis took the 20 vacation days due her for 2011. Zemaitis did not have the option to take vacation days accrued during 2010. Air Canada requires all employees to take their vacation allotment every year. Zemaitis may use her 2012 vacation in 2013.

9. Pursuant to the collective bargaining agreement, Air Canada employees were offered medical and dental plans. From 2005 to 2007 and through the date of her termination, Zemaitis elected and paid for single coverage, requiring her to contribute a monthly fee of $17 for health and $8 for dental for a total of $25 per month as her contribution for that coverage.

10. From February 16, 2010 through April 21, 2012, Zemaitis was covered under her husband Paulus Zemaitis's medical and dental plans. During this period, Zemaitis incurred $2, 646 in unreimbursed medical expenses as follows:

Date of Expenses Medical Provider Unreimbursed Amount

10/25/11 St. Johns' Health Center $1, 258.46

10/25/11 Krasne

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