In re Accusation of Department of Fair Employment and Housing, 111512 CAFEHC, E 200506 C-1304-00-rse
|Docket Nº:||E 200506 C-1304-00-rse; E 200506 C-1324-00-rse, C 06-07-103, C 07-08-003 Dec. 12-08-P|
|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. TERRA LINDA FARMS, a California general partnership, also doing business as TERRA LINDA PACKING; and TERRA LINDA FARMS, a California corporation, Respondents. MARIBEL RIVAS and MARIA SANTILLAN, Complainants.|
|Case Date:||November 15, 2012|
|Court:||Fair Employment and Housing Commission of California|
DECISION AFTER REMAND
Pursuant to the Judgment of the Hon. Jeffrey Y. Hamilton, Judge of the Superior Court of California, County of Fresno, Kingsburg Division, in Terra Linda Farms et al. v. California Fair Employment and Housing Commission , case number 09 CECG 00483 JH, the Fair Employment and Housing Commissionhereby modifies its December 16, 2008 decision as follows: The Commission reduces the amount of back pay awarded to complainant Maribel Rivas by the amount of $3, 500, for a new back pay award of $3, 074.52, at paragraph 3 on page 24, and paragraph 2 on page 27 in the attached Proposed Decision. Except as so modified, the decision shall be given full force and effect as a final precedential decision of the Commission.
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 of Fair Employment and Housing, respondents, and complainants.
Fair Employment and Housing Commission
Chané e Franklin Minor
Administrative Law Judge Caroline L. Hunt heard this matter on behalf of the Fair Employment and Housing Commission on March 18 through 20, 2008, in Fresno, California. Gregory Fisher, Senior Staff Counsel represented the Department of Fair Employment and Housing (DFEH or Department). Thomas E. Campagne, Esq., and Justin T. Campagne, Esq., of Campagne and Campagne, a Professional Law Corporation, represented Terra Linda Farms. Complainants Maribel Rivas and Maria Santillan, DFEH representative Abraham Mendoza, and respondent's representative Joe Coehlo, attended throughout the hearing. Abel Mena and Veronica Reyes served as Spanish-English interpreters.
After receipt of the hearing transcripts, and the parties' timely filed post-hearing briefs, the last of which was received on September 18, 2008, 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 June 26, 2006, complainant Maria Santillan filed a written, verified complaint, DFEH No. E 200506 C-1304-00-rse, with the DFEH against " Terra Linda Farm, " alleging that, on or about May 12, 2006, Terra Linda Farms retaliated against Santillan by not recalling her to work as a foreperson. The complaint alleged that the reason for the retaliation was that Santillan had supported Maribel Rivas in reporting a sexual harassment complaint against Terra Linda Farms.
2. On June 29, 2006, complainant Maribel Rivas also filed a written, verified complaint, DFEH No. E 200506 C-1324-00-rse, with the DFEH against Terra Linda Farms. Rivas alleged in her complaint that, on or about June 6, 2006, Rivas was denied recall to her position as a sorter at Terra Linda Farms because she had filed a sexual harassment complaint against a Terra Linda Farms' employee.
3. The DFEH is an administrative agency empowered to issue accusations under Government Code section 12930, subdivision (h), of the Fair Employment and Housing Act. (Gov. Code, § 12900, et seq.) (FEHA or the Act).
4. On June 26, 2007, Wanda M. Kirby, in her official capacity at that time as Interim Director of the DFEH, issued an accusation on the complaint brought by Maria Santillan against Terra Linda Farms, a California corporation. The DFEH filed the accusation with the Commission by mail postmarked that same day, June 26, 2006.
5. The Santillan accusation alleged that Maria Santillan was contracted to work at Terra Linda Farms by labor contractor Green Valley Ag, Inc. (not a party to this action) during the annual onion harvest season. The accusation alleged that, in June 2005, Maribel Rivas reported sexual harassment by Terra Linda Farms' employee Alvaro Juarez and obtained a temporary restraining order (TRO). At Rivas' request, Santillan served it on Juarez. Thereafter, in about August 2005, Terra Linda Farms told Santillan that she would not be recalled to work the next season and Terra Linda Farms refused to recall her to work in June 2006. The DFEH alleged that Terra Linda Farms' conduct constituted retaliation against Santillan for engaging in protected activity, in violation of Government Code section 12940, subdivision (h). The DFEH also alleged that respondent failed to take all steps to prevent discrimination, harassment and/or retaliation in the workplace, in violation of Government Code section 12940, subdivision (k).
6. On June 28, 2007, the DFEH issued and filed an accusation on the DFEH complaint brought by Maribel Rivas against Terra Linda Farms, a California corporation. The DFEH filed the accusation with the Commission by mail postmarked that same day, June 28, 2006.
7. In the Rivas accusation, the DFEH alleged that after Maribel Rivas complained to her foreperson Maria Santillan of being sexually harassed by Alvaro Juarez at Terra Linda Farms, and after Rivas obtained a TRO against him, Terra Linda Farms refused to recall Rivas to work for the 2006 season, thereby retaliating against her for opposing practices she believed were forbidden by the FEHA, in violation of Government Code section 12940, subdivision (h). The DFEH also alleged that Terra Linda Farms failed to take all steps to prevent discrimination, harassment and/or retaliation in the workplace, in violation of Government Code section 12940, subdivision (k).
8. On September 7, 2007, on written stipulation of the parties, the Commission ordered the Santillan and Rivas accusations consolidated for purposes of hearing.
9. On February 15, 2008, the DFEH filed first amended accusations in the consolidated Santillan and Rivas cases, amending the captions and body of the accusations to name respondents " Terra Linda Farms, a California general partnership, also doing business as Terra Linda Packing, " in addition to the originally named Terra Linda Farms, a California corporation (hereinafter, collectively Terra Linda Farms).
10. At all relevant times, Terra Linda Farms was an onion grower and packer located in Fresno, California. Terra Linda Farms was a partnership of Joseph Coehlo and his siblings. Its subsidiary, Terra Linda Packing, was also a partnership of the Coehlo siblings. Terra Linda Farms' ranch foreman was Pete Dominguez, who reported directly to Terra Linda Farms' owner, Joseph Coehlo. In 2005, Alvaro Juarez was employed by Terra Linda Farms to manage its the onion sorting operations in its packing shed.
11. At all relevant times, Terra Linda Farms directly employed a workforce of more than five persons and thereby qualified as an employer under the Act. (Gov. Code, §§ 12926, subd. (d); 12940, subd. (h).)
12. Complainant Maribel Rivas immigrated to the United States from El Salvador and had lived in Avenal, California since 1998. Rivas speaks only Spanish. She is unable to read English and has completed just four years of elementary school in El Salvador. She is a single mother with two sons, Alexander and Roberto Reyes.
13. Complainant Maria Santillan has lived in Avenal California since 1979. Also Spanish-speaking, Santillan has not completed elementary school. She and her husband Ernesto Santillan have six children.
14. Starting in 1995, Terra Linda Farms employed Maribel Rivas and Maria Santillan to work during the onion season, grading, sorting and bagging onions as part of its packing operation run on-site at Terra Linda Farms.
15. The onion season lasts from May or June until August or September each year.
16. In 1996, Joseph Coehlo and his long-time friend, Joe Madrid, whom he had known since high school, agreed that Madrid's company, Green Valley Ag, Inc. (Green Valley Ag), would supply Terra Linda Farms with its seasonal workers, rather than Terra Linda Farms employing them directly. Green Valley Ag was a licensed farm labor contractor. Coehlo and Madrid did not reduce their agreement to a written contract, relying instead on an oral agreement.
17. From 1996 on, Green Valley Ag employed and placed farm workers at Terra Linda Farms, as well as at a number of other farms and packing sites in the Fresno region. Green Valley Ag accepted applications from potential farm workers, collected their U.S. Department of Justice [then INS] Form I-9s to verify their employment eligibility status, and issued their paychecks and annual W-2s.
18. Green Valley Ag also ran workplace safety training for the workers at Terra Linda Farms. Amelia Montalvo, who had worked for Green Valley Ag for 20 years, the last 15 as crew supervisor, conducted the training. Montalvo was responsible for overseeing Green Valley Ag's crew operations at each of its different customers' packing sites.
19. Terra Linda Farms compensated Green Valley Ag for its services by paying it a commission, comprised of a percentage added to the farm workers' payroll. The Terra Linda Farms contract represented about 30% of Green Valley Ag's annual income.
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