In re Accusation of Department of Fair Employment and Housing, 101910 CAFEHC, E200708-M-1449-00se

Docket Nº:E200708-M-1449-00se, C 09-10-031, 10-06
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. GOLDSTAR VAN LINES, a California Corporation, Respondent. MICHELLE ROBBINS, 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.

GOLDSTAR VAN LINES, a California Corporation, Respondent. MICHELLE ROBBINS, Complainant.

Nos. E200708-M-1449-00se, C 09-10-031, 10-06

Fair Employment and Housing Commission of California

October 19, 2010

          DECISION

          Caroline L. Hunt, Administrative Law Judge.

         The Fair Employment and Housing Commission hereby adopts the attached Proposed Decision as the Commission's final decision in this matter. The Commission also, nunc pro tunc , corrects the typographical error on page 17, paragraph two, line seven, replacing the quotation mark after the word " " creditors" with an apostrophe.

         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 complainants.

         Fair Employment and Housing Commission

         George Woolverton

         Dave Carothers

         Patricia Perez

         Stuart Leviton

         PROPOSED DECISION

         Administrative Law Judge Caroline L. Hunt heard this matter on behalf of the Fair Employment and Housing Commission on March 30, 2010, in Oakland, California. Claudia A. Baldwin, Senior Staff Counsel, and Susan Saylor, then Acting Chief Counsel, appeared for the Department of Fair Employment and Housing (DFEH). There was no appearance for respondent Goldstar Van Lines, Inc. Complainant Michelle Robbins attended throughout the hearing.

         After receipt of the hearing transcripts and submission of the DFEH's post-hearing brief on May 24, 2010, the case was submitted for decision.

         After consideration of the entire record and arguments, the administrative law judge makes the following findings of fact, determination of issues, and order.

         FINDINGS OF FACT

         1. On May 12, 2008, complainant Michelle Robbins (Robbins or complainant) filed a written, verified complaint with the DFEH against her employer, Goldstar Van Lines. The complaint alleged that Goldstar Van Lines demoted complainant from her position as a claims adjuster and terminated her employment because of her pregnancy, in violation of 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 December 31, 2009, Phyllis W. Cheng, in her official capacity as Director of the DFEH, issued an accusation against Goldstar Van Lines, a California corporation (Goldstar Van Lines or respondent). In its accusation, the DFEH alleged that, after Robbins informed her employer Goldstar Van Lines that she was pregnant, respondent demoted her to a lower-paying job, pressured her to take less than six weeks pregnancy leave and, on March 27, 2008, terminated her employment because of her pregnancy. The DFEH alleges that respondent's conduct constitutes discrimination based on complainant's sex, in violation of Government Code section 12940, subdivision (a), and denial of pregnancy disability leave, in violation of Government Code section 12945, subdivision (a). The DFEH also alleges that respondent failed to take all reasonable steps to prevent discrimination from occurring, in violation of Government Code section 12940, subdivision (k).

          3. At all times relevant, Goldstar Van Lines, Inc. was a California corporation operating as a moving company. Dror Shoval, also known as " Danny Shoval" or " Danny Johnson," and his wife, Sivonne Shoval, also known as " " Michelle Johnson," 1 established and operated Goldstar Van Lines. Dror Shoval was respondent's corporate agent for service of process, and respondent's principal executive office was located at 3984 Washington Boulevard, Fremont, California, 94538.

         4. At all times relevant, Goldstar Van Lines employed at least five employees for 20 consecutive weeks, within the meaning of California Code of Regulations, title 2, section 7286.5, subdivision (a) (1), and qualified as an " employer" under Government Code sections 12926, subdivision (d), 12940, subdivision (a), and 12945, subdivision (a).

         5. On May 15, 2007, Robbins began working at Goldstar Van Lines at 4805 Hannover Place, Fremont, California, as a sales representative. Robbins was one of five sales representatives employed at Goldstar Van Lines. Michelle Johnson, manager, was Robbins' immediate supervisor. Her husband Dror Shoval was the company's CEO.

         6. Robbins' duties at Goldstar Van Lines included making telephone calls to customers to convince them to use respondent as their moving company; making reservations for moving services; and maintaining a database of clients' scheduled moves. Robbins was employed full time, working a 40 hour a week, plus one to two Saturdays each month. Goldstar Van Lines paid Robbins $8.00 per hour, plus a five percent commission on sales. Goldstar Van Lines calculated commissions for their sales staff as a percentage of the cost of the " line haul" or move, payable the month after the commissions were earned. The minimum line haul fee charged by Goldstar Van Lines was $1,000, and each sales representative's minimum commission was $50.00. Bonuses, in the form of gift certificates, were paid to the sales representative who booked the most line hauls each month.

         7. Each morning at Goldstar Van Lines, Robbins' supervisor, Michelle Johnson, compiled a list of customer " leads" and distributed the names to the sales staff, including Robbins. The leads included the business names and contact information for potential customers. In her first six months as a sales representative, Robbins maintained a database of about 250 customers.

         8. Robbins enjoyed her work at Goldstar Van Lines and she looked forward to going to work each day. The office atmosphere among the sales representatives was competitive and friendly. Each month, all the sales representatives competed to log the highest monthly sales, and the company awarded gift cards or cash bonuses to the winner. When the winner was announced, the sales representatives gave " high fives" and offered congratulations. Robbins received the award for generating the highest sales on three different occasions.

          9. In the fall of 2007, Dror Shoval and Michelle Johnson set up a new business, which they called Compass Claims Management, located upstairs from Goldstar Van Lines. Compass Claims Management solicited the business of moving companies to handle customers' complaints, assessed the claims, and made recommendations to the moving companies on how much they should pay for loss or damaged goods.

         10. In the first week of October 2007, Michelle Johnson asked Robbins whether she was interested in being promoted to a new position as a claims adjuster at Compass Claims Management. Johnson told Robbins that her good performance warranted the promotion. Robbins accepted eagerly, and they agreed that she would start upstairs on October 15, 2007. Robbins was highly motivated to accept the new position and the opportunity to earn more money, because her family, comprised of her husband Robert, a truck driver, and their two daughters, Amber and Amanda, 13 and 9 years old, respectively, was experiencing financial difficulties. The promotion to the claims adjuster position increased Robbins' rate of pay to $15.00 per hour, plus commissions at the flat rate of $50.00 per new client.

         11. On October 13, 2007, Robbins learned that she was pregnant. That same day, Robbins told Michelle Johnson about her pregnancy. Johnson expressed her happiness for Robbins, giving her a hug and " sharing the joy."

         12. As had been agreed, on October 15, 2007, Robbins started working as a claims adjuster in the upstairs offices. Her duties included selling Compass Claims Management's services to moving companies; determining the value of claims for loss or damage; and recommending a monetary amount for settlement of the claim. She worked with both Danny Shoval and Michelle Johnson, and their attorney, Michael Garcia, Esq.

         13. In both October and November 2007, Robbins worked on setting up the claims procedures for Compass Claims Management. She contacted potential clients, using a database of moving companies, and signed up five new clients, managed the claims of 13 of those clients' customers, and settled eight complaints.

         14. In mid-November 2007, Michelle Johnson told Robbins that Goldstar Van Lines was demoting her back into her former sales representative position because the company could not afford to keep her claims adjuster job " open" while Robbins took leave to have her baby. Johnson also told Robbins that it would be " easier" for her to return to sales after her pregnancy leave, than to the claims adjuster position.

         15. Effective November 15, 2007, Goldstar Van Lines demoted Robbins back to the sales representative job, reducing her rate of pay to $8.00 per hour, while increasing her commission rate to six percent of sales. Even after Robbins moved back into sales, respondent required her to continue working on existing claims, although she was no longer paid as a claims adjuster. Respondent also required Robbins to train her successor, Robert, whose last name was not provided in the record, hired by respondent at the beginning of December 2007, to replace Robbins as a claims adjuster.

          16. Notwithstanding Robbins' job at Goldstar Van Lines, and her...

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