In re Accusation of Department of Fair Employment and Housing, 020211 CAFEHC, E200708-M-0474-00-pr

Docket Nº:E200708-M-0474-00-pr, E200708-M-0474-01-pr, C 08-07-031
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. EMPOWER TELEFUNDRAISING, business form unknown, and ROBERT COHEN, as an individual, Respondents. DEVON KERRY CLARE, Complainant.
Case Date:February 02, 2011
Court:Fair Employment and Housing Commission of California

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


EMPOWER TELEFUNDRAISING, business form unknown, and ROBERT COHEN, as an individual, Respondents. DEVON KERRY CLARE, Complainant.

Nos. E200708-M-0474-00-pr, E200708-M-0474-01-pr, C 08-07-031

Fair Employment and Housing Commission of California

February 2, 2011


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.

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 of Fair Employment and Housing, the Commission, respondents, and complainant.

Fair Employment and Housing Commission

George Woolverton

Stuart Leviton

Kristina Raspe

Patricia Perez

Linda NG


Administrative Law Judge Caroline L. Hunt heard this matter on behalf of the Fair Employment and Housing Commission on April 27 and 28, 2010, in Oakland, California. Megan Elsea, Staff Counsel, represented the Department of Fair Employment and Housing (DFEH). Marissa Meyers, a non-lawyer representative, appeared for respondent Robert Cohen, sole proprietor of Empower Telefundraising. Complainant Devon Clare and respondent Robert Cohen were present throughout the hearing.

The hearing transcripts were received on May 17, 2010, and the matter was deemed submitted.

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


1. On October 11, 2007, and November 7, 2007, Devon Clare filed two written, verified complaints filed with the DFEH against Empower Telefundraising and Robert Cohen, respectively. In her complaints, Clare alleged that she was harassed, suspended and fired because of her disabilities (hearing/vision impaired), in violation of the Fair Employment and Housing Act (FEHA or Act). (Gov. Code, § 12900 et seq.)

2. The DFEH is an administrative agency empowered to issue accusations under Government Code section 12930, subdivision (h). On October 10, 2008, Phyllis W. Cheng, in her official capacity as Director of the DFEH, issued an accusation against " Empower Telefundraising, business entity unknown" and " Robert Cohen, as an individual" (Cohen or respondent). The accusation alleged that respondent violated the FEHA by retaliating against complainant based on her opposition to unlawful practices, in violation of Government Code section 12940, subdivision (h); discriminated against complainant based on her disability (hearing and vision impaired), in violation of Government Code section 12940, subdivision (a); and failed to take all reasonable steps necessary to prevent discrimination from occurring, in violation of Government Code section 12940, subdivision (k).

3. At all times relevant, Empower Telefundraising was a sole proprietorship owned by respondent Cohen. Empower Telefundraising was a telemarketer fundraiser that employed " callers," to make telephone calls to potential donors for pledges and donations. At the time of the events alleged in the DFEH's accusation, respondent's offices were located at 1432 University Avenue, Berkeley, California. At all times relevant, Empower Telefundraising had five or more employees, and was an employer within the meaning of Government Code sections 12926, subdivision (d), and 12940, subdivisions (a), (h), and (k).

4. On January 30, 2000, Empower Telefundraising hired complainant Clare as a " " caller." Her duties involved telephoning prospective donors to solicit monetary donations and pledges. She worked 30 hours a week, from 3:00 p.m. to 9:00 p.m., and her starting pay was $10.00 per hour. When Clare initially joined Empower Telefundraising's sales staff in 2000, there were at least 10 employees, plus Stephen Yaver, general manager, who supervised the sales staff and ran the fundraising campaigns, and respondent Cohen's wife, Marissa Meyers, who worked part-time as the company's bookkeeper. From 2002 to September 2006, Cohen did not work on Empower Telefundraising's premises, due to illness, leaving the day-to-day managerial decisions to Yaver.

5. Complainant Clare had a physical condition that she described at hearing as " low vision" and had been diagnosed with " ocular albinism" and " nystagmus." Clare's eyes were sensitive to light. She preferred natural light to fluorescent light, and often wore sunglasses to shield her eyes from various light sources, and preferred " a place where the lights were dimmer." Clare also testified that she experienced progressive hearing loss since 1999, and, as a result, " needed help with noise," such as other people's voices. She preferred an environment " where the sound was less." Clare wore hearing assistive devices or hearing aids.

6. Since the early 1990's, Clare had worked at various telephone fundraising companies in the Bay Area, where she met Steven Yaver and professional fundraising callers, including Ron Martel. Yaver and Martel both knew of Clare's history of complaints about bright light, the sounds of other people's voices, and the noise made by the facsimile transmission (fax) machine. On Clare's first day of work at Empower Telefundraising, she insisted that Martel move his desk, because she did not want to hear his voice. Martel complied, although he felt it was an imposition. All staff members at Empower Telefundraising tried to speak softly and keep the lights turned down for Clare's comfort.

7. Empower Telefundraising's sales staff were located in the " call room." When the company moved its offices to 1432 University Avenue, Berkeley, general manager Stephen Yaver had his own office. Next to his office was a storage room, referred to as the " turf," where the company kept the sales leads, mailers, envelopes and tally sheets, which callers retrieved throughout the work day, as needed, up to 12 times each work shift.

8. In 2004, Yaver decided to assign Clare to her own separate area outside the call room. He offered her a space to set up an office in the turf. Yaver reasoned that it " made sense ... at the time" and was more " practical," given Clare's issues with light and noise. Clare understood that other staff members needed to retrieve mailers and tally sheets from the turf throughout the work shift.

9. In her separate work station within the turf, Clare set up a circular desk and several lamps, furnished to her by respondent. She kept the overhead fluorescent lights turned off. When staff members needed to retrieve materials from the turf, particularly after nightfall, they had to turn on the overhead lights to locate the materials. On occasion, Clare expressed irritation when the lights were turned on.

10. In 2006, Empower Telefundraising faced economic pressure from declining revenue. The company reduced its sales staff and cut back the remaining callers' hours on Friday shifts by one hour.

11. In late summer 2006, respondent Cohen announced that he was returning to work at Empower Telefundrai sing's offices. Cohen informed Clare that he might need to use her work space in the turf as his office. Cohen was aware that Clare reported sensitivities to bright light and noise. He assured Clare that if he needed to move into the turf, the company would provide her with comparable accommodations by building a space for her within the main call room. Clare became anxious at the prospect that she might have to move out of her private work space. While Cohen told her that moving her was only a possibility and had not yet been decided, Clare became concerned at the uncertainty.

12. Empower Telefundraising held weekly sales staff meetings at 4 p.m. every Monday. During the sales meetings held in late summer and fall 2006, Clare questioned Cohen repeatedly about what was to happen with the potential office move. Clare also questioned Cohen about announced reductions in the employees' dental and health benefits and challenged Cohen's rationale for reducing employees' sick leave and vacation pay. Clare also asserted that she had the right to see the company's financial statements. Cohen felt that Clare was destroying the " family atmosphere" of the office. He asked Clare to discuss her issues in person with him, rather that publicly in the staff meetings, but Clare persisted in challenging him during the meetings.

13. In fall 2006, Empower Telefundraising arranged for a building contractor, Chester [last name not supplied in the record], to inspect the work space in the call room and plan the building of a light-protected and sound-reduced area for Clare. Around the same time, in September 2006, general manager Stephen Yaver resigned to take a higher-paying position with the Sierra Club. A short time later, Cohen resumed working onsite at Empower Telefundraising's premises, moved into Yaver's vacated office, and took over direct managerial responsibility of his company.

14. In the six months prior to fall 2006, Clare's sales performance had declined substantially. Each caller at Empower Telefundraising was expected to raise about $100 per hour. Clare's hourly tally in the latter part of 2006 was about one quarter of that goal, or $25 per hour.

15. In late fall 2006, Clare...

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