In re Accusation of Department of Fair Employment and Housing , 110111 CAFEHC, E-200910-E-0591-00-se

Docket Nº:E-200910-E-0591-00-se, C 10-11-024, 11-11
Opinion Judge:Ann M. Noel, Administrative Law Judge.
Party Name:In the Matter of the Accusation of the DEPARTMENT OF FAIR EMPLOYMENT AND HOUSING v. DELTA THRIFT STORES, a California business form unknown, also known as Delta Thrift Store, LLC, Respondent. SILVIA CASTANEDA, 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.

DELTA THRIFT STORES, a California business form unknown, also known as Delta Thrift Store, LLC, Respondent. SILVIA CASTANEDA, Complainant.

Nos. E-200910-E-0591-00-se, C 10-11-024, 11-11

Fair Employment and Housing Commission of California

November 1, 2011

DECISION

Ann M. Noel, Administrative Law Judge.

The Fair Employment and Housing Commission hereby adopts the attached Proposed Decision as the Commission's final decision in this matter.

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 complainant.

Fair Employment and Housing Commission

Patricia Perez

Stuart Leviton

Linda Ng

Kristina Raspe

PROPOSED DECISION

Administrative Law Judge Ann M. Noel heard this matter on behalf of the Fair Employment and Housing Commission on September 13-14, 2011, in Stockton, California.

Alexander Henry, Staff Counsel, represented the Department of Fair Employment and Housing. Sheila Pham, DFEH Student Intern, made the DFEH's opening argument and attended throughout the hearing. John Rau, a non-attorney, represented respondent Delta Thrift Stores. Complainant Silvia Castaneda attended throughout the hearing.

After receipt of the hearing transcripts on September 26, 2011, 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 December 30, 2009, Silvia Castaneda (Castaneda or complainant) filed a written, verified complaint with the Department of Fair Employment and Housing (DFEH) against Delta Thrift Store. The complaint alleged that Delta Thrift Store terminated complainant's employment on July 10, 2009, after she had taken a pregnancy disability leave, in violation of the Fair Employment and Housing Act, Government Code section 12900, et seq. (the Act or FEHA).

2. The DFEH is an administrative agency empowered to issue accusations under Government Code section 12930, subdivision (h). On December 28, 2010, Phyllis Cheng, in her official capacity as Director of the DFEH, issued an accusation against " Delta Thrift Stores, a California business, form unknown, also known as Delta Thrift Store, LLC" (Delta Thrift or respondent). In the accusation, the DFEH alleged that Delta Thrift: 1) terminated Castaneda's employment because of her sex, female, and pregnancy-related disability; 2) failed to take all reasonable steps to prevent discrimination from occurring; 3) failed to make a reasonable accommodation for disability; 4) failed to engage in the interactive process with Castaneda; 5) failed to allow a pregnancy disability leave; and 6) failed to provide Castaneda with a reasonable accommodation for her pregnancy. This alleged conduct, the DFEH asserted, violated, respectively Government Code sections 12940, subdivisions (a), (k), (m), and (n) and 12945, subdivisions (a) and (b)(1).

3. From 2009 through August 2011, Delta Thrift operated a retail store selling used clothing, jewelry, electronics, toys, books, household items and furniture at 7912 West Lane # 221, in Stockton, California (the " store" or the " " Delta Thrift store" ). Up until March 21, 2011, Delta Thrift was a limited liability corporation in which John Rau had a 50 percent interest and the remaining 50 percent interest was held by Gabrielle Woods and Joe Manfre. Rau acquired 100 percent of the company on March 21, 2011, after litigation with Woods and Manfre.

4. In 2009 and 2010, Delta Thrift's store operated two shifts per day, employing approximately 15-16 employees per shift working as cashiers, donation sorters or shift supervisors. Seven employees per shift worked as cashiers: five staffing cashier stations, with an additional two " floaters" to relieve the cashiers when they took breaks.

5. The parties stipulated that, at all relevant times, Delta Thrift was an " " employer" under Government Code sections 12926, subdivision (d), 12940, and 12945.

6. On February 14, 2009, Delta Thrift hired Castaneda, then aged 18 years, to work as a cashier at its store earning $8.00 per hour, working 40 hours per week on the night shift. The cashier duties included operating a cash register, working an ATM machine, and replacing clothing on hangers that had been discarded on the floor by customers. The job required standing and occasional stooping to pick up a discarded clothing item, but no other lifting.

7. Castaneda worked two or three months on the night shift. Sabrina (surname undisclosed) and Sheila Mariscal were Castaneda's shift supervisors on the night shift and Veronica " Ronny" Arondola was the night manager. In about April 2009, Castaneda transferred to the day shift. Maria Andrade was Castaneda's immediate shift supervisor and Chieng Vieng was the manager on the day shift. Gabrielle Woods and Joe Manfre shared overall senior management responsibilities for Delta Thrift until March 21, 2011.

8. Castaneda was a good worker, earning praise from both Ronny Arondola and Chieng Vieng. When Castaneda moved from night shift to day shift, she was assigned to work as the main cashier. Castaneda told Delta Thrift management that she was interested in being trained to be a supervisor or manager for the company.

9. In early May 2009, Castaneda became pregnant.

10. On June 10, 2009, Castaneda visited a Planned Parenthood clinic for a pregnancy test. The clinic confirmed that Castaneda was pregnant. Castaneda called her shift supervisor Chieng Vieng to inform him of this news. The next day, Castaneda gave a doctor's note confirming her pregnancy to Vieng's assistant, Jasmine (surname undisclosed), who worked in Delta Thrift's office.

11. Castaneda was excited and happy about her pregnancy, sharing her news with Miguel Almazan, her romantic partner; Carmen Solis, her roommate and best friend; and Delta Thrift employees. At least four other Delta Thrift employees were also pregnant, including a co-worker Amy (surname undisclosed) and shift supervisor Sheila Mariscal.

12. Beginning in mid-June 2009, Castaneda experienced frequent morning sickness. She was nauseated throughout every day and was constantly dizzy. Notwithstanding these symptoms, Castaneda did not ask for any accommodations to perform her duties.

13. On June 25, 2009, Castaneda visited her obstetrician-gynecologist, Melba Berbano, M.D., about her morning sickness and dizziness. Dr. Berbano recommended medication and bed rest for Castaneda to control her symptoms. Dr. Berbano gave Castaneda a note taking her off work for two weeks until July 10, 2009. That note estimated Castaneda's due date to be February 9, 2010.

14. After her doctor's visit, Castaneda immediately gave Dr. Berbano's note to Gabrielle Woods and one of Delta Thrift's supervisors, Sabrina. Woods told Castaneda that she could take two weeks off, but her job was not guaranteed upon her return. Woods asked Castaneda to tell her when she was ready to return to work.

15. On June 25, 2009, Castaneda went out on a 17-day leave, following her doctor's orders.

16. On numerous occasions, Gabrielle Woods told her managers, supervisors and employees that she expected pregnant employees to work, without accommodation or taking pregnancy disability leave or, in the alternative, to cease employment at Delta Thrift. On one occasion in the first half of 2009, Woods told shift supervisor Sheila Mariscal that Woods wanted pregnant employees to do their jobs and, if they could not, there were " plenty of people who need jobs." In June 2009, Woods told her supervisors that all employees, including those who were pregnant, needed to be on the floor, rather than taking breaks if they felt nauseous, or submitting doctors' notes when they were sick because of their pregnancy. During Castaneda's leave between June 25, 2009 and July 13, 2009, Gabrielle Woods told her managers and employees that " being pregnant is not a disability" and that " an employee can work while pregnant." Gabrielle Woods told a co-worker of Castaneda's, Nicole Eggros, do not " get pregnant like all the other girls" and expressed disapproval that Castaneda had taken leave because of her pregnancy.

17. Some time near the end of June 2009, Ronny Arondola addressed a meeting of the store's night crew and named all of the Delta Thrift employees who were pregnant, including Castaneda, to the assembled employees. Arondola told the crew on behalf of Delta Thrift's management that pregnant employees were not to slow down or to take any extra breaks, and if they did so, she directed the supervisors to write up the employee and to provide the information to Gabrielle Woods.

18. On July 10, 2009, Castaneda called Gabrielle Woods to inform her that her leave was ending and to ask Woods what Castaneda needed to do to return to work. Woods told Castaneda to bring in a return-to-work note from her doctor.

19. On July 10, 2009, Castaneda visited Dr. Berbano to obtain a return-to-work note. Dr. Berbano gave Castaneda a note stating that Castaneda was nine weeks pregnant and that she could return to work on July 13, 2009, on light duty...

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