In re Accusation of Department of Fair Employment and Housing, 071411 CAFEHC, E200809-R-0120-00-pe

Docket Nº:E200809-R-0120-00-pe, C 09-10-001, 11-07-P
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. AIR CANADA, a Canadian Corporation, Respondent. CAROLINE MESSIH-ZEMAITIS, Complainant.
Case Date:July 14, 2011
Court:Fair Employment and Housing Commission of California

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


AIR CANADA, a Canadian Corporation, Respondent.


Nos. E200809-R-0120-00-pe, C 09-10-001, 11-07-P

Fair Employment and Housing Commission of California

July 14, 2011


Ann M. Noel, Administrative Law Judge.

Having unanimously denied both respondent Air Canada's and the Department of Fair Employment and Housing's Petitions for Reconsideration, the Commission this date hereby orders as follows:

1. The Commission vacates its original decision number 11-04-P in this case.

2. The Commission nunc pro tunc redacts the following sentence from pages 17-18 in finding of fact 94 of the decision: " Dr. Slonim noted that Zemaitis was depressed, both by her physical condition and the fact that her injury had cost Zemaitis her job."

3. The Commission corrects the following typographical errors in the proposed decision. On page 25, line two, the first sentence of that paragraph should read: " The DFEH asserts that Air Canada failed to provide Zemaitis reasonable accommodation." On page 28, second paragraph, line three should read: " workers which failed adequately to address long-term disabled employees; 3) did not have ...."

With the corrections noted above, the Commission affirms its April 7, 2011 adoption of the attached Proposed Decision as the Commission's final decision in this matter and reaffirms that it designates the decision as precedential. (Gov. Code, §§ 12935, subd. (a), 12972, subd. (a); Cal. Code Regs., tit. 2, § 7435, subd. (a).)

Chairman George Woolverton recused himself and did not participate in the deliberation or decision in this case or in the reconsideration decision.

Commissioner Stuart Leviton's dissent follows 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, respondent, and complainant.

Fair Employment and Housing Commission

Patricia Perez

Kristina Raspe

Linda Ng


Administrative Law Judge Ann M. Noel heard this matter on behalf of the Fair Employment and Housing Commission on February 16-18, April 20-22, June 8 and 28, 2010, in Los Angeles, California. Phoebe P. Liu, Senior Staff Counsel, represented the Department of Fair Employment and Housing (DFEH). Philip C. Semprevivo, Jr., Esq., and Elaine N. Chou, Esq., of Biedermann, Reif, Hoenig & Ruff, LLC, represented respondent Air Canada. Complainant Caroline Messih-Zemaitis and Air Canada representative Michel LeBlanc were present throughout the hearing.

Both parties timely filed closing briefs on September 2, 2010, and the matter was 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.


1. On July 17, 2008, complainant Caroline Messih Zemaitis (Zemaitis or complainant) filed a written, verified complaint with the DFEH against her former employer, Air Canada. The complaint alleged that from September 12, 2007, through December 20, 2007, Air Canada failed to engage Zemaitis in the interactive process, denied her reasonable accommodation, refused to let her bid on a shift at her workplace, and terminated her employment because of her physical disability, a back injury, and her sex, female. The complaint alleged that this conduct violated 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). On July 16, 2009, Phyllis W. Cheng, in her official capacity as Director of the DFEH, issued an accusation against respondent Air Canada, a Canadian corporation (Air Canada or respondent). The accusation alleged that Air Canada discriminated against Zemaitis on the basis of perceived or actual physical disabilities, spinal and knee injuries and carpal tunnel syndrome, in violation of the FEHA. The accusation alleged that, after Zemaitis sustained on-the-job injuries, affecting her spine, knees and wrists, she took a recuperative leave. When her doctors cleared her to return to work with modified work duties, Air Canada refused to reinstate her, engage in the interactive process or provide reasonable accommodation and instead, terminated her employment. The accusation also alleged that Air Canada failed to take all reasonable steps to prevent discrimination from occurring. The DFEH asserted that this conduct violated, respectively, Government Code section 12940, subdivisions (a), (n), (m), and (k). The DFEH sought an order of back pay, benefits, out-of-pocket expenses, reinstatement or front pay in lieu of reinstatement, compensatory damages for emotional distress, an administrative fine, and a variety of affirmative relief.

3. At all relevant times, respondent Air Canada, a Canadian corporation, was an international airline and provider of scheduled passenger and cargo services in Canada and to over 170 destinations on five continents, including the Los Angeles International Airport (" LAX") in Los Angeles, California. Air Canada employed more than 100 employees in California. Air Canada was an " employer" within the meaning of Government Code sections 12926, subdivision (d), and 12940, subdivisions (a), (k) (m), and (n).

4. In December 1993, Air Canada hired Zemaitis as a Customer Service Agent at the LAX passenger terminal.

Job Duties for Air Canada Customer Service Agents and Warehousemen

5. Air Canada's Customer Service Agents located at its air terminals assisted passengers with ticketing and baggage, including at the LAX air terminal. At all relevant times, the Air Canada Customer Service Agent position required agents regularly to lift baggage from the customer check-in counter to a luggage conveyor belt behind the counter, up to 100 bags per day. When Customer Service Agents were first hired, Air Canada showed them an instructional video about the proper way to lift heavy objects.

6. Air Canada also employed Customer Service Agents at its various cargo facilities to handle air freight clerical work. These jobs were referred to as " Customer Service Agent - Cargo."

7. Prior to 1991, Customer Service Agent - Cargo positions throughout Air Canada's system also performed duties in Air Canada's warehouses, lifting and moving air freight. In 1991, Air Canada created a " Warehouseman" position 1 at a lower classification and pay grade than its Customer Service Agents, transferring the physical, heavy lifting job duties of the Customer Service Agent - Cargo to the Warehousemen who worked exclusively in Air Canada's warehouses. Air Canada classified its Customer Service Agents, both at its air terminals and at its cargo facilities, as " J03s," while Warehousemen were classified as " J02s," with less pay and responsibilities than Customer Service Agents. At both its air terminals and its air cargo facilities, Air Canada also employed Lead Customer Service Agents, who supervised Customer Service Agents. At the air cargo facilities, the Lead Customer Service Agent also supervised Warehousemen. This position was classified as " J05" and paid more than the " J03" position.

8. Notwithstanding this 1991 reclassification, the job description for the Customer Service Agents position listed Warehouseman duties along with clerical duties. Whether Customer Service Agents in cargo facilities were required to continue to perform Warehouseman functions was a source of controversy between Air Canada and its Customer Service Agent - Cargo employees.

9. Since 1979, the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (" IBT") has represented the United States-based fleet and passenger service employees of Air Canada, including IBT Local Union # 986 (Local 986), covering LAX Air Canada employees. At all relevant times, IBT's and Air Canada's labor relations were governed by a collective bargaining agreement (CBA or contract), negotiated in 1999 and in effect through the date of hearing.

10. The " Letter of Agreement No. 20" appended to the Air Canada — IBT contract, dated September 2, 1999, stated that, in settlement of a grievance filed by Air Canada's Customer Service Agents at the John F. Kennedy (JFK) airport cargo facility, agents there would no longer be required to perform warehouseman duties. Customer Service Agents at other Air Canada cargo facilities, including at LAX, cited this Letter of Agreement as validating their claim that it was unlawful under the CBA to require them to perform warehouseman duties. Air Canada's management, however, cited the same document as indicating that only at JFK were Air Canada's cargo agents allowed to forego warehouseman duties.

11. The Customer Service Agent — Cargo position job duties at LAX were clerical, with the primary duty to process cargo for shipment on Air Canada's fleet of planes through the company's computer accounting system. Customer Service Agents in the cargo facility could work in one of the following positions: import-export, accounting, front counter, bookings or vacation relief for other employees. A Customer Service Agent working at the import-export position compared information listed on the shipment received with information inputted into the computer, and filed the appropriate paperwork with the United States Customs Office...

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