In re Accusation of Department of Fair Employment and Housing, 101910 CAFEHC, E-200607-A-1082-00-rs

Docket Nº:E-200607-A-1082-00-rs, E-200607-A-1082-01-rs, C 07-08-062, 10-04-P
Party Name:In the Matter of the Accusation of the DEPARTMENT OF FAIR EMPLOYMENT AND HOUSING v. LYDDAN LAW GROUP, LLP and JEFFREY LYDDAN, as an Individual, Respondents. ROBIN L. WILLIAMS, Complainant.
Case Date:October 19, 2010
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.

LYDDAN LAW GROUP, LLP and JEFFREY LYDDAN, as an Individual, Respondents. ROBIN L. WILLIAMS, Complainant.

Nos. E-200607-A-1082-00-rs, E-200607-A-1082-01-rs, C 07-08-062, 10-04-P

Fair Employment and Housing Commission of California

October 19, 2010

DECISION

Administrative Law Judge Caroline L. Hunt heard this matter on behalf of the Fair Employment and Housing Commission from April 21 through 23, 2009, in San Francisco, California. Megan Elsea, Staff Counsel, and Susan Saylor, then Acting Chief Counsel, represented the Department of Fair Employment and Housing. Carla Hartley, Esq., of Dillingham & Murphy, LLP, represented Lyddan Law Group, LLP and Jeffrey Lyddan. Complainant Robin Williams and Jeffrey Lyddan, Esq., attended the proceedings throughout.

The administrative law judge issued her proposed decision on May 4, 2010. On June 2, 2010, the Commission decided not to adopt the proposed decision and notified the parties of their opportunity to file further argument (NOFA) by June 17, 2010. (Cal. Code of Regs., tit. 2, § 7434, subd. (b).) The Commission requested written argument from the parties on the following specific issue:

Whether there can be a violation of the failure to take all reasonable steps to prevent discrimination and harassment from occurring (Gov. Code, § 12940, subd. (k)) absent a finding of either unlawful discrimination or harassment under the Fair Employment and Housing Act.

Both the Department of Fair Employment and Housing, by its Staff Counsel Megan Elsea and then-Acting Chief Counsel Susan Saylor, and Lyddan Law Group, LLP, and Jeffrey Lyddan, by their counsel Carla Hartley, Esq., timely filed their post-hearing briefs in further argument (NOFA briefs).

After consideration of the entire record and review of the parties' NOFA briefs, we now issue our decision, affirming the administrative law judge's proposed decision that the DFEH did not establish that respondents are liable for sexual or racial harassment under the Fair Employment and Housing Act (the Act or FEHA). (Gov. Code, § 12940, subd. (j).) We further affirm that the DFEH did not prove that respondents retaliated against complainant or violated her right to a discrimination-free work environment. (Gov. Code, § 12940, subds. (a) and (f).)

We also agree with the administrative law judge's determination that the DFEH, in the exercise of its police powers, established that respondents are liable for the unlawful employment practice of failing to take all reasonable steps to prevent discrimination or harassment (Gov. Code, § 12940, subd. (k)), as discussed more fully below. We clarify, however, that we expressly do not create a private cause of action for an independent (k) violation. Rather, we find the prosecution of an independent (k) violation to be exclusively the province of the DFEH.

Accordingly, we issue our per curiam decision, setting out the findings of fact, determination of issues and order. We designate this decision as precedential. (Gov. Code, §§ 12935, subd. (a), 12972, subd. (a); Cal. Code Regs., tit. 2, § 7435, subd. (a).)

FINDINGS OF FACT

Complaint and Accusation

1. On May 30, 2007, Robin L. Williams (complainant or Williams) filed written, verified complaints with the Department of Fair Employment and Housing (DFEH or Department) against Lyddan Law Group, LLP, and Jeffrey Lyddan, as an individual. The complaints alleged that, in the preceding year, Jeffrey Lyddan had created a hostile work environment and discriminated against complainant on the bases of race, religion, and sex, by making race-related comments and sending derogatory emails. The complaints further alleged that Lyddan Law Group and Jeffrey Lyddan retaliated against Williams when she protested, in violation of the FEHA, Government Code section 12900, et seq.

2. The DFEH is an administrative agency empowered to issue accusations under Government Code section 12930, subdivision (h). On May 29, 2008, Phyllis W. Cheng, in her official capacity as Director of the DFEH, issued an accusation against Lyddan Law Group, LLP, and Jeffrey Lyddan, as an individual (collectively, respondents).

3. In its accusation, the DFEH alleged that respondents subjected Williams to sexual and racial harassment, creating a hostile work environment, in violation of Government Code section 12940, subdivision (j). The DFEH also charged that respondents failed to provide complainant a workplace free of discrimination, in violation of Government Code section 12940, subdivision (a), and retaliated against complainant for opposing the harassment, in violation of Government Code section 12940, subdivision (h). Finally, the DFEH alleged that respondents failed to take all reasonable steps to prevent discrimination and harassment from occurring, in violation of Government Code section 12940, subdivision (k).

4. On October 7, 2008, the DFEH filed a first amended accusation, amending various dates, adding factual allegations of the alleged retaliatory acts, amending some job titles and paragraph numbers, and otherwise realleging the allegations set forth in the original accusation.

5. On March 17, 2009, the DFEH filed a second amended accusation, in which the DFEH added factual allegations with details of specific emails and alleged retaliatory acts; deleted the charge that respondents terminated Williams' employment; added that Williams was " forced to resign" effective May 8, 2007; corrected spelling and paragraph numbering, and otherwise realleged the allegations set forth in the original accusation.

Williams' Work History With Respondent Lyddan

6. Beginning in September 1999, complainant Williams began working as a paralegal at the law firm Carroll, Burdick & McDonough, LLP, in San Francisco, California. In 2000, Jeffrey Lyddan, an attorney licensed to practice law in California, joined the firm, becoming a partner.

7. Williams is an African American female. Lyddan is a Caucasian male.

8. In April 2006, Lyddan left Carroll, Burdick & McDonough, LLP, to join Gordon & Rees, LLP, also in San Francisco. Lyddan brought staff from his former firm with him to Gordon & Rees, including Williams and two associates, David Bona, Esq., and Linda Yen, Esq.

9. In June 2006, after an ethical conflict arose between Lyddan's representation of a major client and Gordon & Rees, LLP, Lyddan established his own firm, Lyddan Law Group, a California limited liability partnership, practicing within the Gordon & Rees' offices at 275 Battery Street, 18th Floor, San Francisco, CA, 94111. Lyddan was managing partner of Lyddan Law Group, directly employing and supervising attorneys David Bona and Linda Yen, legal assistant Nicole Dill and, after Dill left, Penny Doering (later Mackey), part time case clerk Manisha Brown, and paralegal Williams. From June 2006 to the date of hearing, respondent Lyddan Law Group was an employer within the meaning of Government Code sections 12926, subdivision (d), and 12940, subdivisions (a), (h), (j), and (k), and Jeffrey Lyddan was a supervisor, within the meaning of Government Code sections 12926, subdivision (r), and 12940, subdivision (j).

10. Williams's duties as a paralegal at Lyddan Law Group involved helping prepare cases for trial, including setting up exhibit binders, coordinating expert witnesses and their travel schedules, and preparing deposition summaries and exhibits for trial. Lyddan Law Group paid her $58,000 a year.

11. During their six years working together, Lyddan thought highly of the quality of Williams' work, and he believed they enjoyed a good working relationship.

Alleged Offensive Conduct

12. During the course of Williams' employment at Lyddan Law Group from July to December 2006, Lyddan sent emails to his employees, including Williams, and made remarks and gestures as follows:

(a) In about July 2006, Lyddan questioned Williams about case clerk Manisha Brown's first name, mispronouncing " Manisha" several times, and asking, " What kind of name is that?" Williams explained that Manisha was an African American name pronounced " Maneesha." Williams thought that Lyddan was making fun of the name because it was not a " typical" American name, but African American. Lyddan asked again, " What kind of name is that?"

(b) In July 2006, in Williams' presence, Lyddan made " rapper" hand gestures, in imitation of a " Pimp My Ride" television show host and rapper, Xzibit.

(c) Also in July 2006, in Williams' presence, Lyddan, while referring to " " John Doe," 1 a African American, dreadlock-wearing employee of Gordon & Rees, mimicked the smoking of a marijuana cigarette. Williams was angry at Lyddan's inaccurate generalization.

(d) In July 2006, when Penny Doering interviewed for a job at Lyddan Law Group, Lyddan commented in front of Williams, while rubbing his hands together, that one of the applicants was " young," " cute" and wearing a " little cute skirt."

(e) In late July 2006, shortly after Penny Doering joined Lyddan Law Firm, Doering described to her co-workers and Lyddan a recent incident where an individual had been fatally shot by police officers. Williams remarked that she thought that the police were " overzealous" in their actions. Lyddan told Williams that she just thought that because she was black. Williams found Lyddan's remark " slightly" offensive, unsure if Lyddan was using a racial stereotype. She told Lyddan that she held her views because she was a liberal Democrat.

(f) On August 4, 2006, Lyddan wrote an email to Williams, Bona and Yen about a pending clergy abuse case that they were working on, involving a Hispanic child who had been chained up and...

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