In re Accusation of Department of Fair Employment and Housing, 121812 CAFEHC, E-201011-H-0577-00-mpre

Docket Nº:E-201011-H-0577-00-mpre, C 11-12-014, 12-11
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. AUBURN MAX ENTERPRISES, INC., a California corporation doing business as ARCO AM/PM, Respondent. KRISTINE NAEF, Complainant.
Case Date:December 18, 2012
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.

AUBURN MAX ENTERPRISES, INC., a California corporation doing business as ARCO AM/PM, Respondent.

KRISTINE NAEF, Complainant.

Nos. E-201011-H-0577-00-mpre, C 11-12-014, 12-11

Fair Employment and Housing Commission of California

December 18, 2012

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, respondent, and complainant.

Fair Employment and Housing Commission

Stuart Leviton

Chané e Franklin Minor

Dale Brodsky

PROPOSED DECISION

Administrative Law Judge Ann M. Noel heard this matter on behalf of the Fair Employment and Housing Commission on June 26 to 28 and September 11 to 12, 2012, in Bakersfield, California. David L. Cullen, Staff Counsel, and Brandon Howard and Joseph Blanco, law student interns, represented the Department of Fair Employment and Housing. Indra Lahiri, Esq., of the Law Offices of Indra Lahiri, represented respondent Auburn Max Enterprises, Inc. Nelson Chan, then Chief Counsel for the Department of Fair Employment and Housing, attended part of the proceedings on the first day of hearing. Bruce W. Carter, Administrative Law Judge with the Fair Employment and Housing Commission, attended June 26 to 28, 2012. Complainant Kristine Naef attended throughout the hearing. Representatives of respondent Auburn Max Enterprises, Inc., attended throughout the hearing: Randeep Dhillon on June 26 to 27, and September 11 to12, 2012 and Kamalpreet Sidhu on June 28, 2012.

After conclusion of the evidentiary hearing and receipt of the hearing transcripts, both parties timely filed post-hearing briefs, the latter of which was received on October 16, 2012, and 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 November 16, 2010, Kristine M. Naef (Naef or complainant) filed a written, verified employment discrimination complaint with the Department of Fair Employment and Housing (DFEH). In her complaint, Naef alleged that Auburn Max Enterprises had denied her leave under the California Family Rights Act (CFRA) (Gov. Code § 12945.2). The complaint also alleged that Auburn Max Enterprises had discriminated and retaliated against Naef on the basis of her disability, diverticulitis, and because she had opposed discriminatory conduct against another employee.

2. On December 16, 2010, April 4, 2011, June 20, 2011, and November 7, 2011, Naef filed four amended DFEH complaints, correcting various factual allegations. In the June 20, 2011 complaint, Naef changed the name of respondent to Auburn Max Enterprises, Inc.

3. The DFEH is an administrative agency empowered to issue accusations under Government Code section 12930, subdivision (h). On November 14, 2011, Phyllis W. Cheng, in her official capacity as Director of the DFEH, issued an accusation against Auburn Max Enterprises, Inc., a California corporation, doing business as Arco AM/PM (respondent or Auburn Max). The accusation alleged that respondent violated the Fair Employment and Housing Act, Government Code section 12900, et seq. (the Act or FEHA) by retaliating against Naef for opposing employment practices forbidden by the FEHA, by discriminating against Naef because of her disability, diverticulitis, and by failing to provide reasonable accommodation, a medical leave, for her disability. The DFEH also alleged that respondent failed to take all reasonable steps to prevent discrimination from occurring. The DFEH alleged that this conduct violated, respectively, Government Code section 12940, subdivisions (h), (a), (m), and (k).

4. At all times relevant, Auburn Max was doing business as Arco AM/PM, a gas station and convenience store, located at 4800 Fairfax Road, Bakersfield, California, at the intersection of Fairfax Road and Auburn Boulevard (Auburn Arco), and was an employer within the meaning of Government Code section 12926, subdivision (d). Randeep Dhillon and Kamalpreet Sidhu, a married couple, managed and oversaw the operations of the Auburn Arco AM/PM store. Randeep Dhillon maintained a central business office located at 2400 Carlita Road, Bakersfield, and ran several other convenience stores in the Bakersfield area.

5. At all relevant times, Randeep Dhillon contracted with Dave Enterprises, a merchandising company, to manage its inventory at the Auburn Arco and other gas station/convenience stores managed by Dhillon. Dev Singh, also known as Dave Singh, owned and operated Dave Enterprises. Singh visited the Auburn Arco approximately three times a week, working with the onsite manager to coordinate ordering merchandise needed by the store.

6. From November 2008 to July 15, 2009, the onsite store manager of the Auburn Arco was Melissa Navarro.

7. On January 19, 2009, Randeep Dhillon and Melissa Navarro interviewed Naef to work as a lead cashier at Auburn Arco, making $8 per hour. Dhillon hesitated to hire Naef, telling Navarro that Naef was too old. Navarro told Dhillon that she found Naef's maturity a plus and also liked Naef's business experience. At Navarro's urging, Dhillon hired Naef to work at the Auburn Arco store.

8. Naef enjoyed working for Navarro, who Naef saw as both a very good manager and a friend. Naef suggested and instituted new ways to clean the store, worked hard for Navarro, and received two positive performance reviews.

9. Throughout her employment with Auburn Arco, Naef took notes when given instructions or training and wrote notes to her superiors about her job. Naef's training took longer than that of other employees because Naef wrote everything down. Naef regularly wrote notes to Navarro about incidents in the store, inventory needed, and other matters. Navarro found Naef's note writing annoying, especially when she was giving Navarro instructions, but otherwise considered Naef to be an excellent employee.

10. In June 2009, Navarro received a medical diagnosis of cervical cancer, requiring surgery and medical leave of a month, from July 16, 2009, to mid-August 2009. Navarro immediately began training Naef in the store manager duties so that Naef could assume Navarro's duties as acting store manager in her absence. Dhillon agreed to Navarro's suggestion that Naef act as acting store manager during Navarro's leave.

11. Navarro went on medical leave on July 16, 2009, and Naef assumed the acting store manager position.

12. One afternoon in early August 2009, Naef had a dental emergency, an abscessed tooth, necessitating a root canal. Naef left before the end of her shift, notifying Dhillon. Shortly thereafter, Dhillon replaced Naef as store manager with another cashier, Jaspreet Kuar, by mutual agreement with Naef.

13. In mid-August 2009, Melissa Navarro notified Dhillon that she was ready to return to work. Dhillon refused to reinstate her because she had a 30 pound lifting restriction. Navarro tried again in late August to return to work after her doctor had dropped the lifting restriction. Dhillon again refused to reinstate her because she was continuing to receive cancer treatments.

14. During 2009, Naef told Navarro that she herself had had cancer multiple times, and wanted to be a " cheerleader" for Navarro during her time off from Auburn Max, telling her that she would survive and would return to her previous life. After Dhillon's two August 2009 rejections of Navarro's attempts to return to work, Naef told Navarro not to worry but to concentrate on getting well and the job would be there for her when she was healed.

15. When Melissa Navarro was Naef's manager, Naef had worked a regular, 40 hour per week schedule, generally from 6 a.m. to 2 p.m. When Navarro was acting store manager, she worked 40 hours per week and 18 hours of overtime in a two week period, on day shifts. After Naef was no longer working as acting store manager, and resumed her cashier duties, her hours and shifts changed. From early September 2009 through the end of December 2009, a series of store managers managed the Auburn Arco. These managers assigned Naef a variable schedule, giving her 40 hours of work some weeks but many other weeks only 32 or even 24 hours. For example, for the payroll period ending September 3, 2009, Naef worked 58.50 hours, rather than her previous 80 hours for a two week period. In addition, over 70 percent of the shifts Naef was assigned were graveyard shifts, where she was the only cashier working. Working less than 40 hours per week at minimum wage made it very hard for Naef to pay her bills. The graveyard shifts, working as the only cashier, left Naef feeling isolated and fearful for her safety.

16. In October 2009, Dhillon introduced the acting store manager who had replaced Naef, Jaspreet Kuar, to Naef and the...

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