In re Accusation of Department of Fair Employment and Housing, 100212 CAFEHC, E-201011-M-1055-00-s
|Docket Nº:||E-201011-M-1055-00-s, E-201011-M-1055-01-s, C 11-12-027, 12-07|
|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. BIZI ELECTRONICS, LLC, a California corporation, and LARRY JAVAHERI, an Individual, Respondents. CHRISTINA MARY FLAMER, Complainant.|
|Case Date:||October 02, 2012|
|Court:||Fair Employment and Housing Commission of California|
The Fair Employment and Housing Commission hereby adopts the attached Proposed Decision as the Commission's final decision in this matter.
The Department of Fair Employment and Housing is directed to effect service of the decision on respondents.
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, respondents, and complainant.
Fair Employment and Housing Commission
Chané e Franklin Minor
Administrative Law Judge Caroline L. Hunt heard this matter on behalf of the Fair Employment and Housing Commission on July 17, 2012, in Oakland, California. Fernando T. Aceves, Staff Counsel, and Kayla Sargent, Law Clerk, appeared for the Department of Fair Employment and Housing (DFEH). There was no appearance by or on behalf of Bizi Electronics, LLC, or Larry Javaheri. Complainant Christina Mary Flamer attended the proceedings throughout.
On receipt of the hearing transcript and the DFEH's post-hearing brief on August 25, 2012, 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 22, 2011, Christina Mary Flamer (complainant or Flamer) signed a written, verified DFEH complaint against Larry Javaheri, as an individual (the Javaheri complaint), alleging that Javaheri had sexually harassed her and discriminated against her during her employment, within the preceding year, in violation of the Fair Employment and Housing Act, Government Code section 12900, et seq. (FEHA or the Act). On January 24, 2011, the DFEH received and date-stamped the Javaheri complaint filed on that date.
2. On February 2, 2011, Flamer signed a written, verified DFEH complaint against Bizi Electronics (Bizi Electronics complaint), reciting the same allegations of sexual harassment and discrimination by Javaheri during complainant's employment. The DFEH received Flamer's Bizi Electronics complaint on February 11, 2011.
3. The DFEH processed Flamer's Bizi Electronics complaint together with the Javaheri complaint, assigning and stamping both complaints with a filing date of February 11, 2011, notwithstanding that the Javaheri complaint was already date-stamped January 24, 2011. Both complaints were entered into the DFEH Case Management computer system (CMIS) as filed on February 11, 2011. DFEH used the CMIS system to track the timelines and deadlines in all of the complaints filed. DFEH consultant Brenda Nichols, to whom Flamer's complaints were assigned for investigation, considered the two cases " tied together, " as the CMIS identified both cases as filed on February 11, 2011.
4. The DFEH is an administrative agency empowered to issue accusations under Government Code section 12930, subdivision (h). On February 10, 2012, Phyllis W. Cheng, in her official capacity as Director of the DFEH, issued an accusation against Bizi Electronics, LLC, a California corporation (Bizi Electronics), and Larry Javaheri, as an individual (collectively, respondents). In its accusation, the DFEH alleged that respondents subjected Flamer to sexual harassment, creating a hostile work environment, in violation of Government Code section 12940, subdivision (j). The DFEH also charged that Bizi Electronics discriminated and retaliated against Flamer by terminating her employment and making false statements to prospective employers, in violation of Government Code section 12940, subdivisions (a) and (h). Finally, the DFEH alleged that Bizi Electronics failed to take all reasonable steps to prevent discrimination and harassment from occurring, in violation of Government Code section 12940, subdivision (k).
5. At all times relevant, respondent Bizi Electronics was a California limited liability corporation doing business in 2010 at 3596 Utah Street, Suite A, and 7087 Commerce Circle, in Pleasanton, California. Bizi Electronics' principal and general manager was respondent Larry Javaheri, also known as Bahzad Javaheri. At all times relevant, Bizi Electronics was engaged in the business of the sale of electronic parts, such as hard drives, and other computer information technology (IT) components. The company employed between seven and twenty employees, primarily as data entry clerks, as well as administrative assistants and sales clerks. Bizi Electronics maintained a website and, in response to customer orders, shipped electrical IT components around the world.
6. In March 2010, complainant Christina Flamer responded to a Craigslist advertisement for an administrative assistant position at Bizi Electronics. Flamer had recently graduated from Mount Holyoke College in Massachusetts, with a major in Economics and a minor in Spanish, and was looking for her first post-college job.
7. In March 2010, respondent Javaheri interviewed Flamer at 3596 Utah Street, Pleasanton. Javaheri described himself as the " owner" of Bizi Electronics, a " " start-up" company. Javaheri told Flamer that the pay was to be $10 per hour, with a raise to $15 after a three-month probationary period. During the course of the interview, Javaheri asked Flamer if she was " the type of person to file a sexual harassment complaint." Flamer thought that the question was odd but did not, at the time, regard it as a warning sign of Javaheri's future conduct.
8. On March 22, 2010, Flamer started work at Bizi Electronics as an administrative assistant, working full time, Mondays through Fridays, at the rate of $10 per hour. Javaheri was her direct supervisor. Nicole Leong was the company's finance administrator.
9. The first few weeks of Flamer's employment at Bizi Electronics were without problems, as Flamer learned data entry and the company's sales procedures. Javaheri began giving Flamer additional responsibilities, including interviewing candidates for employment at Bizi Electronics. Flamer noticed, with increasing discomfort, that Javaheri made frequent comments about the appearance of the female candidates. Although he acted friendly toward her, Flamer observed that over time, Javaheri's remarks became inappropriate and sexist. For example, on April 7, 2010, Javaheri commented about a female job candidate, " Oh, I don't want to look at that every day."
10. That same day, on April 7, 2010, Javaheri wrote an instant message (IM) to Flamer, stating, " [D]o not hire anyone for their looks, we have you for that already." Flamer did not respond to Javaheri's comment, trying to ignore it, and moved back to IM work-related topics. She kept a copy of the IM, thinking that she should start documenting Javaheri's inappropriate conduct, but was unsure of what she could do.
11. Bizi Electronics had no human relations or complaint department, and did no training in sexual harassment prevention. Flamer never received any kind of employee handbook or anti-discrimination policy, and Bizi Electronics did not post a DFEH antidiscrimination poster in the workplace.
12. In mid-April 2010, Javaheri promoted Flamer to the position of sales manager, raising her pay to $11 per hour, plus a commission of 10 percent on parts sold.
13. On April 20, 2010, Javaheri became angry after Flamer sold an HP part listed in the company's inventory for $800. Although Javaheri had set the sales price, he started screaming at Flamer for selling the part too low. In front of a number of Flamer's co-workers, Javaheri shouted at Flamer, " What are you, a fucking prostitute' What, are you going to sell your ass on the street like a cheap whore" ' Javaheri then stormed away, leaving Flamer and her co-workers stunned. Javaheri's verbal attack made Flamer feel awful and disrespected. She became very upset, going into her office, where she shook with distress, and was " all teared up." She felt foul and uncomfortable, as if she had done something wrong, and was somehow inadequate. Co-worker Jemellyn David told Flamer, " I can't believe he said that, " while finance administrator Nicole Leong said, " That's disgusting."
14. At times during the course of Flamer's employment at Bizi Electronics, Javaheri criticized Flamer's nervous habit of occasionally pinching her mouth together with her fingers. He warned her that he would dip her fingers in pepper. Flamer considered this comment harmless. On one occasion, however, on April 26, 2010, Javaheri asked Flamer, " Why do you keep touching your mouth when you see me' Do you want to do something to me" ' Javaheri then looked down at his crotch and thrust his hips forward toward Flamer's mouth, as if to suggest an act of oral sex. Flamer was embarrassed, horrified and repulsed. She turned away, becoming bright red. Javaheri then walked away, laughing. Flamer looked at her co-worker Sara Quisenberry who was present at the time, with disgust, as if to say, " Eew, that's so sick." Flamer felt violated and victimized by Javaheri's conduct. She felt that Javaheri had been horrible, and had made her really...
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