In re Accusation of Department of Fair Employment and Housing, 041312 CAFEHC, E200910-H-0770-00-pe

Docket Nº:E200910-H-0770-00-pe, C 10-11-026, 12-03
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. AUBURN MAX ENTERPRISES, INC., a California corporation, doing business as ARCO AM PM, Respondent. MELISSA NAVARRO, Complainant.
Case Date:April 13, 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.

AUBURN MAX ENTERPRISES, INC., a California corporation, doing business as ARCO AM PM, Respondent.

MELISSA NAVARRO, Complainant.

Nos. E200910-H-0770-00-pe, C 10-11-026, 12-03

Fair Employment and Housing Commission of California

April 13, 2012

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, nunc pro tunc , makes the following typographical correction to the proposed decision: at page 14, lines 9 and 10 of the fourth paragraph, , replacing, " This policy is at variance for the FEHA protections, and obviates an individualized assessment of a reasonable accommodation request." with " This policy is at variance with the FEHA protections, by obviating an individualized assessment of a reasonable accommodation request."

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, respondent, and complainants.

Fair Employment and Housing Commission

Stuart Leviton

Danielle Nava

Chané e Franklin Minor

Dale Brodsky

PROPOSED DECISION

Administrative Law Judge Caroline L. Hunt heard this matter on behalf of the Fair Employment and Housing Commissionon October 11 and 12, 2011, in Bakersfield, California. David L. Cullen, Staff Counsel, represented the Department of Fair Employment and Housing (DFEH). Daniel K. Klingenberger, Esq., of Dowling, Aaron and Keeler, represented Auburn Max Enterprises, Inc. Complainant Melissa Navarro attended throughout the hearing.

After the closing of the evidentiary record and receipt of the hearing transcripts, 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 January 11, 2010, complainant Melissa Navarro (Navarro or complainant) filed a written, verified complaint with the Department of Fair Employment and Housing (DFEH) against Auburn Max Enterprises, Inc., a California corporation, doing business as Arco AM/PM. The complaint alleged that, during the preceding year, Navarro had been denied reasonable accommodation and had been discriminated against on the basis of medical condition/disability (cervical cancer) when her employment was terminated, 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), of the FEHA. On January 10, 2011, Phyllis W. Cheng, in her official capacity as Director of the DFEH, issued an accusation alleging that respondent Auburn Max Enterprises, Inc., a California corporation, doing business as Arco AM PM (Auburn Max Enterprises or respondent), unlawfully discriminated against Navarro because of her disability (cervical cancer) by terminating her employment, in violation of Government Code section 12940, subdivision (a). The DFEH's accusation also alleged that respondent failed to provide Navarro with reasonable accommodation in the form of medically certified leave for her disability, in violation of Government Code section 12940, subdivision (m), and failed to take all reasonable steps to prevent discrimination from occurring, in violation of Government Code section 12940, subdivision (k).

3. On January 12, 2011, the DFEH filed a first amended accusation against Auburn Max Enterprises, adding an allegation that respondent failed to engage in a timely, good faith interactive process with complainant, in violation of Government Code section 12940, subdivision (n). The amended accusation otherwise contained the same allegations as the original accusation.

4. At all relevant times, Auburn Max Enterprises was doing business as Arco AM/PM, a gas station and convenience store, located at 4800 Fairfax Road, Bakersfield, California (Fairfax Arco AM/PM) and was an employer within the meaning of Government Code section 12926, subdivision (d). Randeep Dhillon and his wife, Kamalpreet (Kamal) Sidhu, managed and oversaw the operations of the Fairfax Arco AM/PM store. Randeep Dhillon maintained a central business office located at 2400 Carlita Road, Bakersfield, and ran several other convenience stores in the Bakersfield area, including a store located at the intersection of Beale Boulevard and Monterey Avenue, Bakersfield (Beale Monterey Arco AM/PM).

5. Complainant Navarro grew up in Bakersfield, where she had worked primarily in fast food restaurants since the age of 15. In 2008, when she began working for respondent, Navarro was 39 years old, and a single mother, with four children.

6. On September 12, 2008, Navarro was hired as a cashier at the Beale Monterey Arco AM/PM, earning eight dollars per hour. Navarro's direct supervisor there was Amajit [last name omitted from the record].

7. In November 2008, Amajit informed Navarro that she was being transferred to a position as the manager at Auburn Max Enterprises' Fairfax Arco AM/PM store. Navarro was pleased because she regarded the move as a " huge" promotion to a managerial position. After two weeks of training, on December 1, 2008, Navarro assumed her full duties managing the Fairfax Arco AM/PM store. Navarro's duties included completing computerized reports, submitting inventory orders, supervising the employees, relieving the cashiers on break, tabulating the daily gas pump readings, changing vendor displays, and ensuring that the store was operating smoothly.

8. In 2008 and 2009, respondent employed about six employees at the Fairfax Arco AM/PM, including cashiers, who served the customers, operated the cash registers, prepared food, and kept the premises neat and clean, and stockers, who replenished inventory.

9. As onsite manager of the Fairfax Arco AM/PM store, Navarro worked six days per week, Monday through Saturday, from 6:00 a.m. until 4:00 p.m. She initially earned $11.25 per hour, which respondent later increased to $11.75 per hour. Navarro's weekly pay checks covered 40 hours of work and she was also eligible for a " bonus, " payable up to $1, 800 per month, based on her meeting various sales and inventory quotas. While employed at the Fairfax Arco AM/PM store, Navarro's bonus averaged $900 per month.

10. Throughout the later part of 2008 and the first half of 2009, Navarro had been experiencing irregular vaginal bleeding, and was monitored monthly by medical providers at Sagebrush Medical Clinic. After hemorrhaging at work and going to the Emergency Room, Navarro was referred to John R. Owens, M.D., a board-certified obstetrician and gynecologist. Dr. Owens performed a Pap Smear, followed by a colposcopy examination, and a cervical biopsy, which showed Navarro had a cervical intraepitheal neoplasia, CIN 3, a serious irregularity of the cervical tissue. Dr. Owens next scheduled Navarro for a cone biopsy, to remove a cone-shaped area of the abnormal cervical tissue for testing. The cone biopsy was scheduled for June 11, 2009.

11. On June 8, 2009, Dr. Owens's office prepared a medical note taking Navarro off work for four days, from June 11 to June 14, 2009. The note indicated that Navarro was to undergo surgery on June 11, 2009, and could return to work without medical restrictions on June 14, 2009. On June 9, 2009, Navarro filled out respondent's form entitled " Absence Request, " requesting medical leave for the four days, and indicating that she was to have a cervical cone biopsy. On June 9, 2009, Navarro submitted both Dr. Owens' note and the Absence Request to Randeep Dhillon's administrative assistant, Alondra Hernandez, at respondent's business office on Carlita Road. Respondent subsequently approved Navarro's leave request.

12. On June 11, 2009, Navarro underwent the cervical cone biopsy, then returned to work, as scheduled, on June 15, 2009. The pathology report showed an invasive squamous carcinoma. Because Navarro's cancer called for invasive surgery, including a radical hysterectomy, Dr. Owens referred her to John Schlaerth, M.D., a gynecological oncologist specializing in female cancer, at Kern Medical Center in Bakersfield.

13. On June 19, 2009, Kern Medical Center's Gynecology Oncology Clinic prepared a doctor's note for Navarro stating that she was scheduled for surgery in four weeks' time, and would need six weeks off from work following the surgery. On June 20, 2009, Navarro took the medical note to respondent's business office on Carlita Road. She subsequently met with Randeep Dhillon and Kamal Sidhu, explaining that she had cancer, and needed surgery, but did not want to lose her job, and would postpone her surgery if necessary. Dhillon asked Navarro what her plan was, and what would happen if she had complications or problems affecting her ability to return to work. Navarro responded that she wanted to train one of the employees, Kristine Naef, to take over Navarro's job duties while Navarro was out. Dhillon and Sidhu told Navarro, " Yes, go get your surgery; go get your cancer taken care of. Your job will be there when you get back."

14. On July 14, 2009, Navarro filled out respondent's Absence Request form, requesting medical leave from July 16 to August 27, 2009, due to her scheduled surgery, " Hysterectomy & removal of ovaries/tubes."...

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