In re Accusation of Department of Fair Employment and Housing, 040612 CAFEHC, E-200910-E-0758-00-e
|Docket Nº:||E-200910-E-0758-00-e, E-200910-E-0758-02, C 10-11-043, 12-02|
|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. CYPRESS MEADOWS ASSISTED LIVING, also known as CYPRESS MEADOWS ANTIOCH, LLC and LINDA SUNIGA, as an individual, Respondents. MARTHA CHAVEZ, Complainant.|
|Case Date:||April 06, 2012|
|Court:||Fair Employment and Housing Commission of California|
Pursuant to California Code of Regulations, title 2, section 7437, subdivision (c), the attached Proposed Decision is hereby deemed adopted as the Commission's final decision in this matter, 100 days having elapsed since the December 27, 2011 issuance of the proposed decision.
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, respondents, and complainant.
Ann M. Noel, Executive and Legal Affairs Secretary On behalf of the Fair Employment and Housing Commission
Administrative Law Judge Ann M. Noel heard this matter on behalf of the Fair Employment and Housing Commissionon October 4, 2011, in Concord, California. Megan Elsea, Senior Staff Counsel, represented the Department of Fair Employment and Housing. Audrey Hsia, DFEH Student Intern, made the DFEH's opening argument and attended throughout the hearing. Vincent Malfitano, D.D.S., co-shareholder of Cypress Meadows Assisted Living, LLC, represented respondents in pro per. Complainant Martha Chavez, DFEH representative Gabriella Diaz, and Fair Employment and Housing Commissionlaw extern Christopher Banks attended throughout the hearing. Elizabeth Abello served as the Spanish-English interpreter.
After receipt of the hearing transcript on October 25, 2011, the matter was deemed submitted.
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 March 22, 2010, complainant Martha Chavez (complainant or Chavez) filed two written, verified complaints, with the Department of Fair Employment and Housing. The first complaint, filed against Linda Suniga, alleged that from December 1, 2009, through December 28, 2009, Suniga, the cook at Cypress Meadows, verbally harassed Chavez because of her national origin and created a hostile work environment. The second complaint against Chavez's employer, Cypress Meadows, alleged that Cypress Meadows retaliated against Chavez on December 28, 2009, by placing her on an indefinite unpaid leave after she was granted a restraining order against Suniga on December 24, 2009.
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). On March 21, 2011, Phyllis Cheng, in her official capacity as the Director of the DFEH, issued an accusation against Linda Suniga and Cypress Meadows Assisted Living, also known as Cypress Meadows Antioch, LLC (Cypress Meadows). The accusation alleged that from December 1, 2009, through December 28, 2009, Suniga unlawfully discriminated against Chavez by harassing her based on Chavez's national origin (Mexican), thereby violating Government Code section 12940, subdivision (j). The accusation also alleged that Cypress Meadows unlawfully discriminated against Chavez by: (1) harassing her because of her national origin; (2) terminating her in retaliation for complaining about the harassment; and (3) failing to take all reasonable steps necessary to prevent discrimination from occurring in the workplace. The DFEH alleged that this conduct violated Government Code section 12940, subdivisions (j), (h), and (k), respectively.
3. On September 20, 2011, the DFEH withdrew its accusation against respondent Linda Suniga, after it had negotiated a settlement with her.
4. At the hearing in this case, the DFEH withdrew all claims against respondent Cypress Meadows except for retaliation, and dropped its prayer for lost wages and out-of-pocket expenses.
5. At all relevant times, Cypress Meadows was an assisted living facility for seniors located in Antioch, California, and was an employer within the meaning of Government Code section 12926, subdivision (d). Cypress Meadows is a Limited Liability Corporation registered with the State of California as Cypress Meadows Antioch L.L.C. Vincent Malfitano, D.D.S. was the founder and one of two shareholders of Cypress Meadows, the other shareholder being his wife, Roselyn Malfitano. At the time of the accusation, Christina Landry was the facility's Human Resources/Office Manager.
6. Complainant Chavez was born in Guadalajara, Mexico, and later immigrated to the United States. Chavez is a native Spanish speaker who speaks and reads limited English.
7. On May 15, 2006, Cypress Meadows hired Chavez as a caregiver. Her duties included caring for the residents, serving them food prepared in Cypress Meadows' kitchen, and escorting residents to various daily activities. While employed by Cypress Meadows in 2009, Chavez worked the morning shift, from 6 a.m. until 2:30 p.m. Chavez was paid $8.50 per hour. Chavez enjoyed her job and liked caring for the residents.
8. Respondent Cypress Meadows employed Linda Suniga as its head of Dietary Services. During 2009, Suniga worked from 7 a.m. until 3:30 p.m., Monday through Friday. Suniga's job duties included supervising a 10-employee kitchen staff who prepared meals for over 100 residents.
9. In early December 2009, Chavez complained to Christina Landry, respondent's Human Resources/Office Manager that Linda Suniga screamed at the caregivers when they came to pick up food in the kitchen. Landry said that she would relay Chavez's complaints to the owner, Dr. Malfitano. Chavez believed that Suniga yelled at her because Chavez did not speak or understand English well.
10. On December 10, 2009, Dr. Malfitano held a meeting with Suniga and the caregivers, including Chavez. Dr. Malfitano supported Suniga and threatened to fire Chavez and the other caregivers. As a result, Chavez believed that Dr. Malfitano did not take her complaints of abuse seriously.
11. That same day, after completing her shift at Cypress Meadows, Chavez filed a Temporary Restraining Order (TRO) against Suniga in Superior Court for the County of Contra Costa, in Pittsburg, California. She was accompanied by another Cypress Meadows' caregiver, Julia Chavez (no relation to complainant). Due to complainant's limited English comprehension, a man " who was present in the court" helped her with the TRO. In the TRO, complainant claimed, verbatim, the following about Suniga:
She always call us names like we are nothin like pice a trash. We always work on the pressure. The owner never take care nothin is why we have to come to this court. They do it only to the ispanic people so we fell like we need to do something about it. All this start it went we report hers to the owner. Is went she start doing all this to us. She the uss her power to make are live miserable. We have witnes we can bring all the coworkers cz I'm no [not] the only one is all the ispanic employees.
12. The Court granted the TRO that same day, December 10, 2009. At a date unspecified in the record, but shortly thereafter in December 2009, Chavez gave a copy of the TRO to a co-worker to give to Suniga. Suniga received the TRO on a date unspecified in the record, but shortly after December 10, 2009.
13. On December 24, 2009, the Honorable Commissioner Lowell Richards of the Contra Costa Superior Court granted Chavez a six month Restraining Order After Hearing to Stop Harassment (Restraining Order) against Linda Suniga, ordering her " not to harass, to attack, strike, threaten, assault, hit, follow, stalk, destroy personal property, keep under surveillance or block movements" of Chavez. The Restraining Order also forbade contacting Chavez and ordered Suniga to stay at least two yards away from Chavez.
14. On December 25, 2010, Suniga received a copy of the Restraining Order and showed it to Christina Landry, who, in turn, informed Penny Augustine, Cypress Meadows' Business Administrator.
15. In late December 2009, Cypress Meadows' management called a meeting to address the issues in the Restraining Order. Attending this meeting were, for Cypress Meadows' management, Dr. Vincent Malfitano, Christina Landry, and Penny Augustine. Also present at the meeting were Suniga, Chavez, and a number of other caregivers. During the meeting, which lasted approximately 30 minutes, Dr. Malfitano and Augustine reiterated to the staff that Suniga was a supervisor, and that caregivers must comply with her orders. They briefly discussed Chavez's claims of harassment, which Dr. Malfitano and the other management did not credit. Dr. Malfitano called Chavez's claims " ridiculous." Cypress Meadows' management did not ask Chavez about her charges at any time, before the meeting, during the meeting or thereafter. Cypress Meadows' management did not discuss at the meeting or thereafter how to effectuate the terms of the Restraining Order, including keeping a two yard distance between Chavez and Suniga.
16. Cypress Meadows' kitchen was approximately six yards wide by 18 yards long, with an eight foot counter that separated the cooks from the caregivers, including Chavez. When...
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