In re Accusation of Department of Fair Employment and Housing, 040612 CAFEHC, E 200910-E-0831-00-rs

Docket Nº:E 200910-E-0831-00-rs, E 200910-E-0831-01-rs, C 10-11-049, 12-01
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. PEKING EXPRESS, a California business entity, form unknown; and QIANG HUANG also known as JOHN WONG, an Individual, Respondents. GABRIELA L. AGUIRRE, Complainant.
Case Date:April 06, 2012
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.

PEKING EXPRESS, a California business entity, form unknown; and QIANG HUANG also known as JOHN WONG, an Individual, Respondents.

GABRIELA L. AGUIRRE, Complainant.

Nos. E 200910-E-0831-00-rs, E 200910-E-0831-01-rs, C 10-11-049, 12-01

Fair Employment and Housing Commission of California

April 6, 2012

          DECISION

          Caroline L. Hunt, Administrative Law Judge

         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 20, 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

         PROPOSED DECISION

         Administrative Law Judge Caroline L. Hunt heard this matter on behalf of the Fair Employment and Housing Commissionon September 27, 2011, in Oakland, California. Alexander G. Henry, Staff Counsel, represented the Department of Fair Employment and Housing (DFEH), and was assisted by Naomi Pontious, law student. Respondent Qiang Huang and his wife Qi Zhen Lui attended the proceedings. Complainant Gabriela L. Aguirre and her mother Ofelia Villegas were also present throughout the hearing. Amanda Chen served as Mandarin-English interpreter and Pablo Chang-Castillo served as Spanish-English interpreter.

         The transcript was received on October 25, 2011, and the case was deemed submitted on that date.

         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 April 19, 2010, complainant Gabriela L. Aguirre filed two written, verified complaints with the Department of Fair Employment and Housing (DFEH) against " Peking Express, " and " John Huang, 1 as an individual." The complaints alleged that, from November 24 to December 1, 2009, complainant was subjected to workplace sexual harassment by " John Wong, owner." The complaints also alleged that John Wong retaliated against complainant by terminating her employment after she opposed the sexual harassment. Finally, the complaints alleged that the alleged conduct violated the Fair Employment and Housing Act (the Act or FEHA). (Gov. Code § 12900, et seq.)

          2. The DFEH is an administrative agency empowered to issue accusations under Government Code section 12930, subdivision (h). On April 18, 2011, Phyllis W. Cheng, in her official capacity as Director of the DFEH, issued an accusation against respondent Peking Express, a California business entity, form unknown, and respondent Qiang Huang, also known as John Wong, an individual (respondent Huang). The DFEH's accusation alleged that, from November 23, 2009, to December 1, 2009, respondent Huang, owner of Peking Express, subjected complainant to unwanted verbal and physical sexual harassment, thereby creating a hostile work environment in the workplace, in violation of Government Code section 12940, subdivision (j).

          3. At all times relevant, respondent Huang and his wife Qi Zhen Liu owned and operated a restaurant known as Peking Express, located at 1774 Tuolomne Street, Vallejo.

         4. In 2007, complainant Aguirre worked as a server at the Tuolomne Street Peking Express restaurant for a period of about 12 months, without incident.

         5. In August 2009, Huang's son, Xu Peng (Paul) Huang, opened a second Peking Express, located at 145 Plaza Drive, Vallejo (Plaza Drive Peking Express). Respondent Huang co-signed the lease documents for the new restaurant with his son. In October 2009, Xu Peng Huang withdrew from day-to-day management and operation of the Plaza Drive Peking Express, and respondent Huang took over the ownership and running of the restaurant, working there each day.

         6. At all times relevant, at the Tuolomne Street location, respondent Huang employed two chefs, Shun Quan Li and Oscar Gomez. Respondent Huang's wife Qi Zhen Liu worked in the front of the restaurant as a food server and cashier. At the Plaza Drive Peking Express, respondent also employed two chefs, Lunggi Augusta and Tak Kin Wong. Oscar Gomez also worked as relief chef at the Plaza Drive restaurant on the regular chefs' days off, Mondays and Thursdays. Huang customarily picked up Chef Wong each morning to give him a ride to work. On the days Gomez worked at the Plaza Drive restaurant, Huang drove him there from the Tuolomne location.

         7. At all times relevant, respondent Huang, doing business as Peking Express, qualified as an employer under Government Code section 12940.

         8. In November 2009, respondent re-hired complainant to work as a part-time server and cashier at Plaza Drive Peking Express. On November 2, 2009, after a day of training, complainant was scheduled to work from 10:30 a.m. to 3:00 p.m., four days a week, with a meal break for lunch. Complainant's rate of pay was $70 for the day she was trained and thereafter, $35 for each half day (calculated as four hours, plus a meal break).

         9. Both Peking Express restaurants were open for business from 11:00 a.m. to 8:30 p.m., seven days per week. The restaurants' employees began their work days at 10:30...

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