In re Accusation of Department of Fair Employment and Housing, 110111 CAFEHC, E-200910-C-1029-00-s

Docket Nº:E-200910-C-1029-00-s, E-200910-C-1029-01-s, C 10-11-046, 11-12
Opinion Judge:Joan Herrington, Administrative Law Judge
Party Name:In the Matter of the Accusation of the DEPARTMENT OF FAIR EMPLOYMENT AND HOUSING v. RJL GROUP, INC., dba COIT CARPET & DRAPERIES, a California corporation; and RAYMOND LOPEZ, as an Individual, Respondents. NORA ROSE, an Individual, Complainant.
Case Date:November 01, 2011
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.

RJL GROUP, INC., dba COIT CARPET & DRAPERIES, a California corporation; and RAYMOND LOPEZ, as an Individual, Respondents.

NORA ROSE, an Individual, Complainant.

Nos. E-200910-C-1029-00-s, E-200910-C-1029-01-s, C 10-11-046, 11-12

Fair Employment and Housing Commission of California

November 1, 2011

DECISION

Joan Herrington, 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 The Commission designates this decision as non-precedential.

Any party adversely affected by this decision may seek judicial review of the decision under Government Code sections 11523 and 12987.1, 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, respondents, and complainant.

Fair Employment and Housing Commission

Patricia Perez

Linda Ng

Stuart Leviton

Kristina Raspe

PROPOSED DECISION

Administrative Law Judge Joan Herrington heard this matter on behalf of the Fair Employment and Housing Commission on June 9, 2011, in Fresno, California. Frank Tiesen, Senior Staff Counsel, represented the Department of Fair Employment and Housing. No representative for either RJL Group, Inc. or Raymond Lopez appeared. Complainant Nora Rose attended most of the proceedings.

At the conclusion of the evidentiary hearing and receipt of the transcripts, on June 27, 2011, the matter was deemed submitted. (Cal. Code Regs., tit. 2, § 7432(b).)

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

FINDINGS OF FACT

Parties and Jurisdiction.

1. On August 31, 2009, complainant Nora Rose (complainant or Rose) filed written, verified complaints with the Department of Fair Employment and Housing (DFEH) against her former employer, RJL Group, Inc., dba Coit Carpet & Draperies and its President, Raymond Lopez. The complaints alleged that Lopez sexually harassed Rose, thereby creating a hostile work environment, in violation of the Fair Employment and Housing Act, Government Code section 12900, et seq. (FEHA or the Act).

2. The DFEH is an administrative agency empowered to issue accusations under Government Code section 12930, subdivision (h). On March 29, 2011, Phyllis W. Cheng, in her official capacity as Director of the DFEH, issued an accusation against respondents RJL Group, Inc., dba Coit Carpet & Draperies, a California corporation, and Raymond Lopez.

3. The accusation alleged that RJL Group, Inc., dba Coit Carpet & Draperies (RJL Group) employed Rose as its Office Manager, and that her direct supervisor, Chief Executive Officer Raymond Lopez (Lopez) created a hostile work environment for Rose by subjecting her to unwelcome sexual advances, sexual epithets, and vulgar language, and terminated Rose's employment when she refused to succumb to Lopez's sexual advances, thereby discriminating, harassing, and retaliating against Rose based on her sex, in violation of Government Code section 12940, subdivisions (a), (j), and (h), respectively. The accusation further alleged that RJL Group failed to take all reasonable steps necessary to prevent discrimination from occurring, in violation of Government Code section 12940, subdivision (k).

4. At the commencement of the hearing, the DFEH withdrew the claims of discrimination, retaliation, and failure to take all reasonable steps necessary to prevent discrimination and retaliation from occurring, in violation of Government Code section 12940, subdivisions (a), (h), and (k), respectively. The DFEH preceded with its claims of sexual harassment, in violation of Government Code section 12940, subdivision (j), against RJL Group and Lopez (respondents).

5. At all relevant times, RJL Group was a California corporation, doing business as Coit Carpet & Draperies at its store located at 3243 N. Cedar Avenue, Fresno, California (the store). At all relevant times, Lopez was RJL Group's President and Chief Executive Officer. During complainant's employment, RJL Group regularly employed two or more persons, and thus, was an " employer" within the meaning of Government Code, section 12940, subdivision (j)(4)(A). At the time of the hearing in this matter, RJL Group was a suspended corporation.

Procedural History

6. On May 6, 2010, Julie Saldana, the DFEH Consultant, served Interrogatories and Requests to Produce on RJL Group by personally delivering a copy of these discovery requests to Lopez at the store.

7. On July 9, 2010, the DFEH, having received no responses from RJL Group to its discovery requests, filed a Petition for an Order Compelling Compliance with Investigative Discovery with the Superior Court of Fresno County, in Dept. of Fair Empl. and Hous. v. RJL Group, Inc., dba Coit Carpet and Draperies, Case Number 10CECG02388.

8. On September 28, 2010, the Fresno County Superior Court granted the DFEH's petition to compel discovery responses.

9. On December 3, 2010, the DFEH, having received no responses from RJL Group, filed a Certificate of Non-Compliance with the Fresno County Superior Court.

10. On December 16, 2010, Edward D. Fanucchi, Esq. (Fanucchi) resigned as agent for service of process for RJL Group.

11. On February 3, 2011, Julie Saldana, the DFEH Consultant, searched the California Secretary of State Business Portal website, and saw that Fanucchi was still listed as the agent for service of process for RJL Group at Quinlan, Kershaw & Fanucchi, 2125 Merced Street, Fresno, CA, 93721 (Fanucchi's address).

12. On February 10, 2011, the DFEH filed a Request for Dismissal of Dept. of Fair Empl. and Hous. v. RJL Group, Inc., dba Coit Carpet and Draperies, Case Number 10CECG02388.

13. On March 29, 2011, the DFEH filed the accusation, and sent a copy of the accusation and accusation package to RJL Group by certified mail addressed to Edward D. Fanucchi, as agent for service of process for RJL Group, at his address. The DFEH also sent a copy of the accusation and accusation package by certified mail addressed to Lopez at the store. Lopez did not accept delivery.

14. On April 4, 2011, the DFEH received the Domestic Return Receipt (green card) acknowledging delivery of the accusation and accusation package sent to RJL Group.

15. On April 12, 2011, the DFEH served a copy of the accusation and accusation package on RJL and on Lopez, by personally delivering two copies of each to Lopez, one individually and the other as an officer of RJL Group, at the store.

16. On May 5, 2011, the DFEH sent a copy of the Notice of Hearing by certified mail addressed to Fanucchi, as agent for service of process for RJL Group, at his address. The DFEH sent the Notice on Hearing by certified mail addressed to Lopez at the store, but Lopez again did not accept delivery.

17. On May 9, 2011, the DFEH received the green card acknowledging delivery of the Notice of Hearing sent to RJL Group.

18. Also on May 9, 2011, the Commission served a copy of the Order Setting Pre-Hearing Conference by regular mail on all parties at their addresses of record. This order contained the correct time, date, and place of hearing in this matter.

19. On May 10, 2011, the DFEH sent copies of the subpoenas it had served on Michael Marin, Nora Rose, and April Imboden by regular mail addressed to Fanucchi, as agent for service of process for RJL Group at Fanucchi's address, and addressed to Lopez at the store. These subpoenas also contained the correct time, date, and place of hearing in this matter.

20. On May 13, 2011, the DFEH sent two copies of the Notice of Hearing by regular mail to Lopez's address, one addressed to RJL Group, and the other addressed to Lopez.

Complainant's Work History with Respondent

21. In October 2007, RJL Group bought the Coit Carpet & Draperies franchise from Tom Jones, the owner of the neighboring business, Martinizing Drycleaners. Lopez was RJL Group's President and Chief Executive Officer. Lopez cleaned customers' carpets and drapes, with intermittent help from Michael Marin (Marin) and other occasional, casual workers.

22. In late October or early November 2007, Lopez recruited Rose from her position as Receptionist for Martinizing Drycleaners, and hired her as RJL Group's Office Manager.

23. Rose's duties as Office Manager included answering telephones, taking orders to clean carpets and drapes, and collecting and delivering carpets and drapes. Within a few months of her hire, Lopez trained Rose to assist him in cleaning carpets and drapes.

24. On January 19, 2008, Lopez loaned Rose $8,000 to buy a car on the understanding that she would repay him at the rate of $400 per month. When Rose reported back to work after purchasing the car, Lopez offered her a celebratory drink. When Rose refused the drink, Lopez grabbed her face, and tried to kiss her. Rose pushed him away, stating, " No, that's not happening." Lopez persisted in trying to kiss Rose, and tried to " push himself" on her. Rose told him, " If that's what you think you're getting for helping buy the car, then just take it back." Lopez replied, " I just like to break women, and I think you can be broke (sic)."

25. Thereafter, Lopez began telephoning Rose after hours on a regular basis to urge her to go out with him. Rose believed that Lopez was intoxicated whenever he telephoned her because his speech was slurred and barely coherent. At times...

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