In re Accusation of Department of Fair Employment and Housing, 061312 CAFEHC, E-200809-H-1066-00-se

Docket Nº:E-200809-H-1066-00-se, C 09-10-061, 12-05
Party Name:In the Matter of the Accusation of the DEPARTMENT OF FAIR EMPLOYMENT AND HOUSING v. GAREEBEE ENTERPRISES, INC., dba ARCO AM PM, a California Corporation, Respondent. YEIMY GUADALUPE BENITEZ, Complainant.
Case Date:June 13, 2012
Court:Fair Employment and Housing Commission of California

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


GAREEBEE ENTERPRISES, INC., dba ARCO AM PM, a California Corporation, Respondent.


Nos. E-200809-H-1066-00-se, C 09-10-061, 12-05

Fair Employment and Housing Commission of California

June 13, 2012


This matter was heard on behalf of the Fair Employment and Housing Commission by former Administrative Law Judge Joan Herrington on November 16-18, 2010, and on January 13, 2011, in Bakersfield, California. Alexander Henry, then Staff Counsel, represented the Department of Fair Employment and Housing (DFEH). Daniel K. Klingenberger, Esq., of Dowling, Aaron & Keeler, L.L.C., represented Gareebee Enterprises, Inc. Jonathan Graham and Virginia Martinez, certified court interpreters, served as Spanish-English interpreters throughout the hearing. Complainant Yeimy Guadalupe Benitez attended all days of hearing. Gareebee Enterprises, Inc.'s representative, Kamalpreet Sidhu, attended the first three days of hearing.

The parties timely filed post-hearing briefs. On July 6, 2011, Administrative Law Judge Herrington issued her proposed decision. On July 14, 2011, the Commission declined to adopt the proposed decision and notified the parties of their opportunity to file further argument.

After review of the parties' further argument and consideration of the entire record, we issue our final decision in this matter.


1. On June 16, 2009, complainant Yeimy Guadalupe Benitez (Benitez or complainant) filed a written, verified complaint with the DFEH against her employer, Gareebee Enterprises Inc., dba Arco AM PM. The complaint alleged that Gareebee Enterprises, Inc., dba Arco AM PM denied Benitez reasonable accommodation and reduced her hours because of her pregnancy and sex, in violation of the Fair Employment and Housing Act (FEHA). (Gov. Code, § 12900, et seq.)

2. On October 26, 2009, Benitez filed an amended DFEH complaint alleging that Gareebee Enterprises, Inc., dba Arco AM PM, retaliated against her by terminating her employment because of her pregnancy and sex and because she had filed a DFEH complaint.

3. The DFEH is an administrative agency empowered to issue accusations under Government Code section 12930, subdivision (h). On June 14, 2010, Phyllis W. Cheng, in her official capacity as Director of the DFEH, issued an accusation against Gareebee Enterprises, Inc., dba Arco AM PM, a California corporation (Gareebee Enterprises or respondent). The accusation alleged that Gareebee Enterprises failed to provide reasonable accommodation for Benitez's pregnancy, reduced Benitez's hours rather than provide her with needed breaks, and retaliated against Benitez for filing a discrimination complaint with the DFEH by terminating her employment. The DFEH alleged that this conduct violated Government Code sections 12940, subdivisions (a) and (h), and 12945, subdivision (b)(1).1 The DFEH further alleged that respondent failed to take all reasonable steps to prevent discrimination from occurring, in violation of Government Code section 12940, subdivision (k).

4. At all relevant times, Gareebee Enterprises was a California corporation doing business as Arco AM PM, a gas station and convenience store, located at 8116 Lamont Avenue, Lamont, California (Arco Lamont). Respondent regularly employed five or more persons for 20 consecutive weeks and thus qualified as an employer under Government Code sections 12926, subdivision (d), 12940, subdivision (a), and 12945, subdivision (b)(1), and California Code of Regulations, title 2, section 7286.5, subdivision (a)(1).

5. At all relevant times, Randeep Dhillon and his wife, Kamalpreet Sidhu, were responsible for the overall management and supervision of respondent's employees. Dhillon was respondent's Vice-President and Human Resources Manager. Sidhu was respondent's Corporate Secretary, and worked in the business office.

6. On August 30, 2006, Benitez began working at Gareebee Enterprises' Arco Lamont store as a " Cashier/Backup." Benitez was employed on a full time basis, worked an average of 35 hours per week and earned $8 per hour, or $560 per two week pay period.

7. As Cashier, Benitez assisted customers with their convenience store purchases, conducted daily inventories, restocked shelves, and cleaned the cash register workstation. Cashier duties required prolonged standing while completing customer transactions. When there were no customers in the store, cashiers could sit on a step-stool or milk crate behind the counter. Cashiers could not sit while completing transactions at the register. In her duties as Backup, Benitez cleaned the store and cooked take-away menu items in the adjacent kitchen. Backup duties required lifting more than 20 pounds.

8. Every shift, respondent's employees had a paid 30-minute on-duty meal period which they were allowed to take when no customers were in the store. This meant that lunch breaks were irregular. Each employee was also entitled to two 10-minute off duty rest breaks during each shift. During breaks, employees could sit on the milk crate or step stool behind the register or on a folding chair stored in the office.

9. Milagros Ramos was Benitez's immediate supervisor and the onsite Arco Lamont Store Manager, working Monday through Saturday from 6:00 a.m. to 3:00 p.m. As Store Manager, Ramos supervised all store employees and created, posted and modified all employee work schedules. She resolved any questions regarding employees' ability to perform job duties. Ramos issued warnings and disciplinary write-ups and discussed job performance problems with employees. Ramos told employees to call her with any problems and not to call Dhillon or Sidhu without obtaining her permission first.

10. Respondent had an absence policy at Arco Lamont requiring store employees to notify Ramos when they were late to work, sick, or needed time off during a scheduled shift. To cover the shift, Ramos either arranged for another employee to work or substituted for the absent employee herself. Under respondent's absence policy, to obtain a major change in an employee's regular work schedule, such as an extended leave of absence or a reduction in hours, an employee was required to submit a written request to Ramos.

11. Benitez's primary language was Spanish and she had a limited understanding of English. Ramos generally communicated with Benitez in Spanish.

12. Arco Lamont's employees worked four to five days per week on one of three shifts: morning shift, 6:00 a.m. to 2:00 p.m.; afternoon shift, 2:00 p.m. to 10:00 p.m.; or night shift, 10:00 p.m. to 6:00 a.m. Ramos posted a two week schedule that started on Thursday and ended on Wednesday, assigning a cashier and backup to each shift. Ramos posted this schedule outside her office on the Tuesday preceding the start of the schedule. The schedule tracked the two week pay period.

13. Benitez usually worked the morning shift, preferring it because it was easier for her to arrange childcare for her two children, then four and eight years old. Kern County's Community Connection for Childcare provided Benitez with subsidized childcare. The program required Benitez to work a minimum number of hours, and to have her employer regularly verify her schedule and earnings.

14. Respondent had a progressive discipline policy set out in its employee handbook. The policy began with a verbal warning, followed by a written warning, probation, suspension, and finally termination of employment. Under respondent's policy, infractions regarded as serious, such as three consecutive unauthorized absences, could result in immediate termination of employment. Respondent kept a Disciplinary Log for all its employees where unauthorized absences and other company infractions were noted.

15. Both Dhillon and Ramos considered Benitez a good employee. Dhillon thought Benitez was " hard working" and " always on time, getting the job done." Dhillon characterized Benitez as his " favorite employee."

16. In early April 2009, Benitez learned from her doctor, Umaima S. Jamaluddin, M.D., that she was pregnant and that she had developed gestational diabetes, a medical condition related to her pregnancy.

17. The day after her doctor's appointment, Benitez told Ramos and Dhillon that she was pregnant. Ramos and Dhillon congratulated Benitez on her pregnancy and asked her to bring in a doctor's notice confirming her pregnancy. Dhillon asked Benitez if she would prefer to be assigned lighter duties. In Benitez's presence, Dillon suggested that Ramos assign Benitez only cashier duties during her pregnancy.

18. In the first and second weeks of April, Benitez needed to take more frequent bathroom breaks and more regular rest and lunch breaks because of her pregnancy. Benitez primarily performed cashier duties during these weeks.

19. In early April 2009, Benitez used the milk crate behind the counter to sit on when working as a cashier and there were no customers.

20. On April 11, 2009, Ramos issued a written warning to Benitez for taking too many breaks during her work hours. At Dhillon's direction, Ramos wrote that a doctor's note was required for Benitez to receive any accommodations in her duties. The written warning stated: " We can not make one exception on your pregnancy or your personal health till [sic] we see a doctor note. And last meeting we ask you bring a doctor note [sic]. If you don't you can take a leave of absence till [sic] you [sic] better now. Company is hoping you to [sic] perform full time job duties." Ramos told Benitez not to return to work and not to expect accommodations without a doctor's note confirming that she was pregnant. Benitez...

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