In re Accusation of Department of Fair Employment and Housing, 071411 CAFEHC, E-200708-A-1193-00-pe

Docket Nº:E-200708-A-1193-00-pe, C 08-09-086, 11-08
Party Name:In the Matter of the Accusation of the DEPARTMENT OF FAIR EMPLOYMENT AND HOUSING v. ACME ELECTRIC CORPORATION, a division of ACTUANT CORPORATION, a Wisconsin Corporation, Respondent. CHARLES R. WIDEMAN, Complainant.
Case Date:July 14, 2011
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.

ACME ELECTRIC CORPORATION, a division of ACTUANT CORPORATION, a Wisconsin Corporation, Respondent.

CHARLES R. WIDEMAN, Complainant.

Nos. E-200708-A-1193-00-pe, C 08-09-086, 11-08

Fair Employment and Housing Commission of California

July 14, 2011

DECISION

Administrative Law Judge Joan Herrington heard this matter on behalf of the Fair Employment and Housing Commission from May 3 through 5, 2010, in San Rafael, California. Frank G. Tiesen, Senior Staff Counsel, and Susan Saylor, then Acting Chief Counsel, represented the Department of Fair Employment and Housing. Linda M. Doyle, Esq. of McDermott, Will & Emery, LLP, represented Acme Electric Corporation. Complainant Charles (Rich) Wideman and Acme Electric Corporation's representative Kathy Stimes, Human Resource Leader, attended the proceedings throughout.

At the conclusion of the evidentiary hearing and receipt of the transcripts, the parties' post-hearing briefs were timely filed, and on July 11, 2010, the matter was deemed submitted. (Cal. Code Regs., tit. 2, § 7432(b).) On October 27, 2010, Administrative Law Judge Joan Herrington issued her proposed decision.

On February 2, 2011, the Commission decided not to adopt this proposed decision and notified the parties of the opportunity to file further argument (NOFA) by March 28, 2011. (Cal. Code Regs., tit. 2, § 7434, subd. (b).) The parties timely filed written argument.

After consideration of the entire record and review of the parties' further argument, we issue our per curiam decision, setting out the findings of fact, determination of issues and order.

FINDINGS OF FACT

Parties and Jurisdiction.

1. On June 6, 2008, Charles " Rich" Wideman (complainant or Wideman) filed a written, verified complaint with the Department of Fair Employment and Housing (DFEH or Department) against Acme Electric Corporation, a division of Actuant Corporation, a Wisconsin corporation. The complaint alleged that Acme Electric failed to engage in a timely, good faith, interactive process with Wideman regarding reasonable accommodation, failed to provide him reasonable accommodation, and discriminated against him based on his physical disability (cancer) and medical condition (cancer) by issuing a negative 2007 performance evaluation criticizing Wideman " for not being able to travel and perform at the same rate at non-disabled employees" and by terminating his employment, in violation of the Fair Employment and Housing Act, Government Code section 12900, et seq. (FEHA).

2. The DFEH is an administrative agency empowered to issue accusations under Government Code section 12930, subdivision (h). On June 5, 2009, Phyllis W. Cheng, in her official capacity as Director of the DFEH, issued an accusation against Acme Electric.

3. The DFEH alleged that Acme Electric Corporation, a division of Actuant Corporation, a Wisconsin corporation (respondent or Acme Electric) denied Wideman medical leave for his own serious health condition (cancer), in violation of Government Code section 12945.2 of the California Family Rights Act (CFRA).1 The accusation also alleged that, on a continuing basis, Acme Electric failed to engage with Wideman in a timely, good faith, interactive process regarding reasonable accommodation; failed to provide him reasonable accommodation for his travel limitations; discriminated against him based on his physical disabilities, or perceived physical disabilities, by criticizing his performance based on his travel limitations and " false and misleading statements," and by terminating his employment; retaliated against him; and failed to take all reasonable steps to prevent discrimination and harassment from occurring, in violation of Government Code section 12940, subdivisions (n), (m), (a), (h), and (k), respectively.

4. On June 15, 2009, the DFEH filed a first amended accusation, correcting various factual allegations regarding the February 21, 2008 meeting in which Acme Electric notified Wideman that his employment was being terminated, but otherwise realleging the allegations set forth in the original accusation.

5. At all relevant times, Acme Electric was a limited liability corporation based in Lumberton, North Carolina. Acme Electric manufactured and sold primarily power conversion equipment, such as transformers, to two types of customers: distributors (sales representatives, who bought the product to resell at a margin to local customers) and original equipment manufacturers (" OEMs," who bought directly from Acme Electric). At all relevant times, Acme Electric directly employed more than 50 employees nationwide, including Wideman, who worked from his home office in Novato, California. Acme Electric was an " employer" within the meaning of sections 12926, subdivision (d), and 12945.2, subdivision (c)(2), of the Government Code.

6. At all relevant times, Actuant Corporation wholly owned Key Components, Limited Liability Corporation (KCI), which wholly owned Acme Electric, Marinco, and other companies whose names are not relevant to these proceedings. KCI's subsidiaries sold electrical components to different niche markets. Marinco manufactured and sold electronic components for marine industrial use at a facility located in Napa, California, and directly employed more than fifty (50) employees within seventy-five (75) miles of Novato, California.

7. Complainant Wideman was an employee of Acme Electric from February 3, 2004 to March 1, 2008, who developed kidney cancer in 2006 and prostate cancer in 2007.

Wideman's Pre-Cancer Job Performance

8. On February 3, 2004, Acme Electric's Sales Manager, John Currall, hired Wideman as a Regional Sales Manager of the Western Region, which then consisted of Hawaii, Washington, Oregon, California, Idaho, Nevada, Montana, Wyoming, Utah, Colorado, Arizona, New Mexico, North Dakota, South Dakota, and Minnesota. Each region was divided into territories assigned to a sales representative (usually an agency that manufactured electronic components).

9. Although the Western Region was geographically larger than Acme Electric's other regions (Northeast, Southeast, and Midwest), at the time of Wideman's hire, it generated the least sales. Under Wideman's predecessor, sales in all but three territories in the Western Region (Southern California, Southern Nevada, and Arizona) had declined below sales in territories in Acme Electric's other regions.

10. Wideman had worked in the electrical supply industry throughout his career, and was widely known and well-connected. Burton Schraga, chairman of two leading electrical supply industry associations (National Association of Electrical Distributors and Elite Distributors Insurance Company), and owner of Bell Electrical Supply, had dealt professionally with Wideman for over 25 years. Schraga was familiar with Wideman's reputation as a reliable, personable regional sales manager of electrical supply components, who could gain invaluable access to any potential customer. Wideman was also unusually highly qualified for a Regional Sales Manager, in that he had a degree in electrical engineering. Customers, such as Schraga, could, and did, discuss their electronic component needs with Wideman on a professional level. Wideman brought valuable experience and contacts to his position as Regional Sales Manager of Acme Electric's Western Region in that he had worked in a similar position for a rival company, Cooper Bussmann, during the previous five years.

11. Nick Arena, then General Manager of Acme Electric, required Wideman, as a Regional Sales Manager, to develop the territories in his region by servicing existing customers and sourcing new ones. Arena did not require Acme Electric's Regional Sales Managers to travel throughout their respective regions provided that they increased sales sufficiently. Because Wideman was already so familiar with his customer base, he dealt with his customers by telephone and email more than Acme Electric's other Regional Sales Managers.

12. As part of Wideman's duties as a Regional Sales Manager, Arena authorized him to sign contracts with sales representatives, assign them territories based on their local contacts in the electrical supply industry, and terminate contracts of underperforming sales representatives. For example, at the time of Wideman's hire, his supervisor, John Currall, encouraged Wideman to terminate the contract of the Minnesota sales representative, Grissinger-Johnson, but gave Wideman discretion to see if he could work with this agency. Wideman traveled with a Grissinger-Johnson representative three times, with several months' gap between trips to allow for follow-up, before replacing this agency with another, AJB.

13. On December 31, 2004, Actuant Corporation (Actuant), a holding company based in Wisconsin, bought KCI. Although Actuant distributed its own employee handbook to its subsidiaries' employees, Wideman did not receive one, so had no notice of his disability rights or how to obtain them. Actuant's employee handbook relied on federal law and did not reference California law.

14. At all relevant times, Acme Electric's employees used Actuant's policies, procedures, and forms for their personnel review processes. Performance reviews covered Acme Electric's fiscal year that began on September 1 and ended on August 31. Actuant's 2005 personnel review form was divided into two parts: " " Individual Goals," which assessed the extent to which an employee had achieved the previous year's mutually agreed upon goals; and " Behavioral Rating" , which assessed an employee's " behavior critical to the success of Actuant."

15. Actuant used a four step process to evaluate...

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