In re Accusation of Department of Fair Employment and Housing, 012710 CAFEHC, E 200708 R-0130-00-r

Docket Nº:E 200708 R-0130-00-r, C 08-09-002, 10-02
Opinion Judge:Caroline L. Hunt, Administrative Law Judge.
Party Name:In the Matter of the Accusation of the DEPARTMENT OF FAIR EMPLOYMENT AND HOUSING v. BK & JG, INC., a Nevada Corporation; and JONATHON GREENBURG, D.D.S., PC, a California corporation, Respondents. MARISSA AYALA, Complainant.
Case Date:January 27, 2010
Court:Fair Employment and Housing Commission of California
 
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In the Matter of the Accusation of the DEPARTMENT OF FAIR EMPLOYMENT AND HOUSING

v.

BK & JG, INC., a Nevada Corporation; and JONATHON GREENBURG, D.D.S., PC, a California corporation, Respondents. MARISSA AYALA, Complainant.

Nos. E 200708 R-0130-00-r, C 08-09-002, 10-02

Fair Employment and Housing Commission of California

January 27, 2010

DECISION

Caroline L. Hunt, Administrative Law Judge.

The Fair Employment and Housing Commission hereby adopts the attached Proposed Decision as the Commission's final decision in this matter. The Commission reduces the amount of compensatory damages awarded in this matter from $35,000 to $15,000.

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, the Commission, respondent, and complainant.

FAIR EMPLOYMENT AND HOUSING COMMISSION

George Woolverton

Stuart Leviton

Patricia Perez

Linda NG

PROPOSED DECISION

Administrative Law Judge Caroline L. Hunt heard this matter on behalf of the Fair Employment and Housing Commission on April 16, 2009, in Los Angeles, California. Frank G. Tiesen, Senior Staff Counsel represented the Department of Fair Employment and Housing (DFEH or Department). Gary S. Brown, Esq., of the Law Offices of Gary S. Brown, represented respondents. Complainant Marissa Ayala and respondents' representative Jonathon Greenburg, D.D.S., attended throughout the hearing.

After receipt of the hearing transcript on May 7, 2009, the matter was deemed submitted. Disposition of this matter was delayed due to disability of the assigned administrative law judge.

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

FINDINGS OF FACT

1. On July 23, 2007, complainant Marissa Ayala filed a written, verified complaint with the DFEH against Jonathon Greenburg, D.D.S., PC, and " Artistic Smiles" of 24155 Magic Mountain Parkway, Valencia, California, alleging that, on December 14, 2006, Dr. Jonathon Greenburg terminated complainant's employment in retaliation for filing an employment discrimination complaint with the DFEH complaint, number E 200607 R-0030, and because of her religion (Jehovah's Witnesses).

2. The DFEH is an administrative agency empowered to issue accusations under Government Code section 12930, subdivision (h), of the Fair Employment and Housing Act. (Gov. Code, § 12900, et seq.) (FEHA or the Act).

3. On July 22, 2008, Phyllis W. Cheng, in her official capacity as Director of the DFEH, issued an accusation against Artistic Smiles Dentistry, Inc., a California corporation; BK & JG, Inc., a Nevada Corporation; and Jonathon Greenburg, D.D.S, PC, a California corporation. The DFEH filed the accusation with the Commission by mail postmarked that same day, July 22, 2008.

4. In its accusation, the DFEH alleged that Artistic Smiles Dentistry, Inc., BK & JG, Inc., and Jonathon Greenburg, D.D.S, PC, committed unlawful practices against complainant by retaliating against her for engaging in protected activity by filing a DFEH complaint against Greenburg's business partner, in violation of Government Code section 12940, subdivision (h).

5. On July 28, 2008, the DFEH filed a Notice of Withdrawal of Accusation as to the entity Artistic Smiles Dentistry, Inc. and dismissed it as a respondent in the DFEH's First Amended Accusation, filed that date. The First Amended Accusation otherwise stated the same allegations as the original accusation.

6. At all relevant times, Jonathon Greenburg, D.D.S, PC, was a California corporation engaged in the practice of dentistry, with a dental office located in Valencia, California. Jonathon Greenburg was the sole shareholder, board member and officer of Jonathon Greenburg, D.D.S, PC, (respondent Greenburg). Respondent BK & JG, Inc., was a Nevada corporation formed by Jonathon Greenburg D.D.S. and Brian Keropian, D.D.S., conducting business in California, developing and marketing sleep apnea aids.

7. At all relevant times, respondent Greenburg employed a workforce of more than five persons and thereby qualified as an employer under the Act. (Gov. Code, §§ 12926, subd. (d); 12940, subd. (h).) The record did not reveal the number of employees employed by respondent BK & JG, Inc.

8. Prior to commencing her employment with respondent Greenburg as a dental assistant in July 2006, complainant Marissa Ayala trained as a dental assistant at Bryman College, receiving her dental assistant certification in 2001.

9. Starting in September 2002, Ayala became employed by Brian Keropian, D.D.S., who maintained a business known as " Southern California Center for Craniofacial Pain," located in Tarzana, California. At all times relevant, Dr. Keropian was a business partner and professional colleague of respondent Greenburg, who practiced dentistry with Dr. Keropian at the Tarzana location, describing himself as an " independent contractor."

10. During the entire four years of her employment at Dr. Keropian's dental office, Ayala worked closely with Dr. Jonathan Greenburg, assigned to him as his principal dental assistant.

11. During her employment at Dr. Keropian's dental practice, Ayala was asked to attend meetings run by a " trainer," whose techniques and practices, in complainant's sincere view, violated her beliefs as one of Jehovah's Witnesses, because the sessions' content was allegedly based on Scientology principles which complainant believed conflicted with her religious beliefs. Ayala asked Dr. Keropian to excuse her from attending future training sessions led by the trainer, offering to work on other matters in the office while the training sessions were being held.

12. On about June 20, 2006, in a meeting held in Dr. Keropian's office, attended by his office manager and Ayala, Keropian told Ayala that he did not consider there was any conflict between the training sessions and her religious beliefs. Ayala explained that she tried to follow her faith as one of Jehovah's Witnesses and was uncomfortable being required to participate in other beliefs, such as Scientology. Keropian responded to Ayala that she either attend the mandatory trainings or be fired.

13. Dr. Keropian refused to excuse Ayala's absence from the trainings and fired her, effective July 20, 2006.

14. Having been fired for what she considered a violation of her religious beliefs as a Jehovah's Witness, Ayala decided within days to file a complaint with the DFEH against Dr. Keropian.

15. Shortly after her firing by Dr. Keropian, Ayala approached Jonathon Greenburg, asking if he would hire her at the other dental office he practiced from, in Valencia, California. Jonathon Greenburg questioned complainant about her intentions of pursuing a complaint against Dr. Keropian. Greenburg was aware that complainant had refused to attend meetings at Keropian's office because they were led by a trainer whom complainant felt violated her religious beliefs. Given his ongoing interrelated business relationship with Keropian, Greenburg did not want complainant to follow up with filing a formal charge against Dr. Keropian.

16. After negotiations over the rate complainant was to be paid, respondent Greenburg agreed to hire complainant at his Valencia office. Initially, there was a misunderstanding as to the rate of pay: whether complainant was to be paid $1,850 a month or, complainant's demand, the same $18.50 per hour she had been earning at Dr. Keropian's office. After consulting with his office manager, respondent Greenburg apologized for the misunderstanding, and acceded to pay complainant's rate of $18.50 per hour, based on an eight hour day, for a rate of $148 per day. Respondent Greenburg further agreed not to require her to attend training sessions lead by Keropian's trainer, who also served as a training consultant at respondent Greenburg's Valencia office.

17. At some point not identified in the record, Keropian and Greenburg established the entity known as BK & JG, Inc., to develop and market sleep aid devices. BK & JG, Inc., shared the same business address as respondent Greenburg's Valencia office. The employees of respondent BK & JG, Inc., were not identified in the record. There was no evidence in the record that complainant ever worked for BK & JG, Inc.

18. Complainant began working directly for respondent Greenburg at his Valencia dental practice, as his dental assistant, effective July 24, 2006.

19. In mid-September 2006, respondent Greenburg's then-office manager walked off the job, and Greenburg came to the conclusion that she had allegedly embezzled money from him. These charges remain contested, subject to a still pending civil action in superior court initiated by the former office manager. Between September and November 2006, respondent Greenburg terminated the employment of eight employees whom he perceived as allied with the former office manager.

20. Respondent Greenburg did not fire complainant, perceiving her as a loyal, independent, hard working employee. At no time did he have any issue with her performance, considering her an " excellent" dental assistant.

21. Also in October 2006, respondent Greenburg acquired Dr. Keropian's entire interest in respondent BK & JG, Inc.

22. At some point during her employment with respondent Greenburg, Ayala informed Greenburg that she was filing a DFEH complaint against Dr. Keropian, saying " I want you to know that I've put in papers...

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