In re Accusation of Department of Fair Employment and Housing, 101910 CAFEHC, E200607-A-0811-00-mpe

Docket Nº:E200607-A-0811-00-mpe, C 07-08-049, 10-05-P
Party Name:In the Matter of the Accusation of the DEPARTMENT OF FAIR EMPLOYMENT AND HOUSING v. AVIS BUDGET GROUP, INC., a Delaware Corporation, Respondent. ELEANOR REED, Complainant.
Case Date:October 19, 2010
Court:Fair Employment and Housing Commission of California

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


AVIS BUDGET GROUP, INC., a Delaware Corporation, Respondent.

ELEANOR REED, Complainant.

Nos. E200607-A-0811-00-mpe, C 07-08-049, 10-05-P

Fair Employment and Housing Commission of California

October 19, 2010


Administrative Law Judge Ann M. Noel heard this matter on behalf of the Fair Employment and Housing Commission on May 18 through 20, 2009, and June 12, 2009 in San Francisco, California. Gregory J. Fisher, then Associate Chief Counsel, represented the Department of Fair Employment and Housing (DFEH). Nelson Chan, Senior Staff Counsel, represented the DFEH in its brief filed in further argument. Paula Champagne, Esq., of Littler Mendelson, P.C., represented respondent Avis Budget Group, Inc. Complainant Eleanor Reed and Avis Budget Group representative Christine T. Connolly Dixler, Esq., were present throughout the hearing.

Both parties timely filed closing briefs on August 17, 2009. The DFEH filed a rebuttal brief on August 20, 2009, and the matter was submitted on that date. On March 25, 2010, Administrative Law Judge Ann M. Noel issued her proposed decision.

On March 30, 2010, the Commission decided not to adopt this decision and notified the parties of the opportunity to file further argument (NOFA) by April 27, 2010. (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. We designate this decision as precedential. (Gov. Code, §§ 12935, subd. (a), 12972, subd. (a); Cal. Code Regs., tit. 2, § 7435, subd. (a).)


1. On March 19, 2007, complainant Eleanor Reed (Reed or complainant) filed a written, verified complaint with the DFEH against her former employer, Budget Rent-a-Car. The complaint alleged that from May 14, 2006 to December 11, 2006, Budget Rent-a-Car treated complainant differently because of her race, African American, and mental disability, and failed to reasonably accommodate her mental disability. 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 March 18, 2008, Phyllis W. Cheng, in her official capacity as Director of the DFEH, issued an accusation against respondent Avis Budget Group, Inc., a Delaware corporation (Avis Budget Group or respondent). The accusation alleged that Avis Budget Group discriminated against Eleanor Reed on the basis of her mental disabilities: generalized anxiety disorder, cyclothymic adjustment disorder with depression, and post traumatic stress disorder, in violation of the FEHA. Specifically, the accusation alleged that from June 20, 2006 through June 22, 2007, respondent: 1) failed to reasonably accommodate Reed's disabilities; 2) failed to engage in a timely, good faith, interactive process regarding reasonable accommodation of Reed's disabilities; 3) made unlawful inquiries about Reed's disabilities; 4) treated Reed differently than other similarly-situated employees in the terms, conditions and privileges of her employment; and 5) failed to take all reasonable steps necessary to prevent discrimination from occurring. The DFEH asserted that this conduct violates, respectively, Government Code section 12940, subdivisions (m), (n), (f), (a), and (k). The DFEH sought an order of back pay, benefits, out-of-pocket expenses, reinstatement, reinstatement of seniority rights, compensatory damages for emotional distress, an administrative fine, and a variety of affirmative relief.

3. On September 26, 2008, the DFEH filed an amended accusation which, in addition to the above allegations, also alleged that respondent had discharged and retaliated against Reed for opposing practices forbidden by the FEHA and for filing a complaint against respondent for its alleged violation of the FEHA, in violation of Government Code section 12940, subdivision (h). The amended accusation also asked for the alternative of front pay in lieu of reinstatement.

4. At a date unspecified in the record but prior to February 3, 2009, Reed retained a private attorney, Richard Rogers, Esq., to represent her in a private lawsuit alleging retaliation against respondent, filed in federal court. On February 3, 2009, the DFEH filed a second amended accusation that limited its claims in this administrative action to those alleged in the original accusation, not to include unlawful termination of employment and retaliation prior to Reed's layoff. The second amended accusation specifically eliminated the retaliation charge, Government Code section 12940, subdivision (h), sought lost wages only up to June 26, 2007, and did not seek emotional distress damages either for Reed's layoff or for respondent's failure to reinstate her from that layoff.

5. In 2000, Budget Rent-a-Car, Inc. (Budget) was a rental car company incorporated in Delaware and doing business in California. In November 2002, Cendant Corporation (Cendant), a New York corporation, purchased Budget, adding this company to its rental car company portfolio, which included Avis Rent-a-Car. On September 6, 2006, Cendant divided its holdings and formed respondent Avis Budget Group, Inc. from the two separate rental car companies, Avis Rent-a-Car and Budget. Each entity during the respective time periods noted— Budget (2000 through November 2002), Cendant (November 2002 through September 2006), and Avis Budget Group (September 2006 through the date of hearing)— did business in California renting cars to the public, employing customer service representatives at its car rental counters, and employing rapid return agents assisting customers return their rental cars.

6. Avis Budget Group is a successor employer for Cendant and Budget, this status uncontested by the parties. The responsibilities of Avis Budget Group's customer service representatives remained the same under the ownership of Budget, Cendant and Avis Budget Group. Avis Budget Group is an employer within the meaning of Government Code section 12926, subdivision (d) and 12940, subdivisions (m), (n), (f), (k), and (a).

7. On February 24, 2000, Budget hired complainant Eleanor Reed as a full-time Customer Service Representative at San Francisco International Airport. As a Customer Service Representative, Reed worked at the Budget car rental counter renting cars to customers. She received " Counter Sale Incentives," a form of commission, for selling rental car insurance, car upgrades and pre-paid gasoline to customers. Reed was a good sales agent and did well selling these items and earning commissions.

Reed's Mental Health Medical History from February 2000 to June 2006

8. On February 8, 2000, Reed began treatment with Kaiser Permanente mental health professionals in Redwood City for treatment of symptoms of anxiety and depression. Her doctors prescribed medication for depression, which alleviated her depression symptoms.

9. On June 22, 2001, Reed had an appointment with Paul T. Wilson, M.D., Ph.D., Chief of Psychiatry at Kaiser Permanente in Redwood City and told him that she continued to experience anxiety. After discussing Reed's symptoms with her, Dr. Wilson diagnosed Reed with major depression and Post Traumatic Stress Disorder (PTSD) caused by extreme physical and sexual violence and emotional abuse from a family member during her childhood and further physical and emotional abuse from her former husband when she was an adult. Reed's primary PTSD symptom diagnosed by Dr. Wilson was persistent anxiety, with a heightened sense of threat to stimuli in her environment, caused by " boundary" violations to her personality and body from the abuse she had undergone. Dr. Wilson noted that once Reed felt threatened, her PTSD manifested with " flight or fight" coping mechanisms to manage the anxiety, manifested either by physically fleeing stressful situations to avoid the threat or, if she felt that she had no option but to stay, exploding in an emotional outburst. Reed had experienced anxiety arising out of her interactions with some employees and supervisors. Reed worried that co-workers were conspiring against her and that managers would not allow her to respond to allegations against her. In contrast, Reed's PTSD symptoms were not triggered by her interactions with rental car customers and she was able to perform her customer sales representative functions dealing directly with customers.

10. As part of Reed's medical treatment, on June 22, 2001, Dr. Wilson concluded that, to manage Reed's anxiety level, he would limit the number of hours that she worked, reducing her work hours from eight hours per day to six. At that time in June 2001, Reed was on a California Family Rights Act (CFRA) leave for reasons that were unspecified in the record. That leave was due to expire June 28, 2001. Dr. Wilson supplied Reed with a medical note for her employer, requesting a modified work schedule upon her return from her CFRA leave. The note did not specify the reason for the reduced work schedule. That same day, Reed submitted Dr. Wilson's note to her employer, requesting a modified work schedule of six-hours per day upon her return from CFRA leave, beginning June 29 and ending July 31, 2001, later extended by a Kaiser mental health professional, Dr. Hinda Sack, Ph.D., to August 20, 2001. Budget agreed to the reduced work schedule and to the extension. After August 20, 2001, Reed returned to working an eight-hour-a-day schedule.

11. Reed continued to see Dr. Wilson regarding...

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