Prescod v. Unemployment Ins. Appeals Bd.

• Citation: 57 Cal.App.3d 29,127 Cal.Rptr. 540
• Court: California Court of Appeals Court of Appeals
• Decision Date: 05 April 1976
• Parties: , 16 Fair Empl.Prac.Cas. (BNA) 1181 Margaret L. PRESCOD, Plaintiff and Appellant, v. CALIFORNIA UNEMPLOYMENT INSURANCE APPEALS BOARD, Defendant and Respondent; WELLS FARGO BANK, N.A., Real Party in Interest and Respondent. Civ. 37109.

Page 540

127 Cal.Rptr. 540

57 Cal.App.3d 29, 16 Fair Empl.Prac.Cas. (BNA) 1181

Margaret L. PRESCOD, Plaintiff and Appellant, v. CALIFORNIA UNEMPLOYMENT INSURANCE APPEALS BOARD, Defendant and Respondent;

WELLS FARGO BANK, N.A., Real Party in Interest and Respondent.

Civ. 37109.

Court of Appeal, First District, Division 2, California.

April 5, 1976.

As Amended April 19, 1976.

Mary C. Dunlap, Equal Rights Advocates, Inc., San Francisco, for plaintiff and appellant.

Evelle J. Younger, Atty. Gen., of the State of California, Elizabeth Palmer, Asst. Atty. Gen., Sheridan H. Brown, Deputy Atty. Gen., San Francisco, for defendant and respondent.

TAYLOR, Presiding Justice.

Petitioner, Margaret L. Prescod, sought an administrative writ of mandate (Code Civ.Proc., § 1094.5) ¹ directing the state Unemployment Insurance Appeals Board to set aside its decision denying her unemployment benefits. After a trial de novo in 1974, the court in the absence of findings of fact and conclusions of law ² entered its judgment denying the writ. Prescod appeals, contending that as a matter of law, she left her employment, not 'voluntarily,' but for 'good cause,' as required by Unemployment Insurance Code section 1256, as after her return from a maternity leave of about three and one-half months, she was first refused reinstatement, then rehired in a lower grade but with the same pay, and as a result, subsequently deprived of a promotional opportunity. She urges that each of these was in violation of the requisite liberal construction of the California Unemployment Insurance Code, as well as California Labor Code section 1410 et seq., Title VII of the Federal Civil Rights Act of 1964 ³ (42 U.S.C., § 2000e--2(a)), and the applicable federal regulations. We have concluded that since the court below failed to consider all of the applicable law and the matter presents a question of first impression in a delicate, emerging and complex area of the law, the proper course is reversal for a new trial de novo.

The pertinent facts, revealed by the administrative record, indicate that in September 1968, Mr. Prescod began working for Wells Fargo Bank, the real party in interest, at a salary of $325 per month in a Grade 4 position. By 1970, she was employed in the credit card department as a senior clerk, at a Grade 5 position, at a salary of $520 per month. Pursuant to the bank's policy for 'Maternity Leave of Absence,' on May 19, 1970, she signed the document, the pertinent portions of which are set forth below, ⁴ and was granted a three and one-half month leave of absence from July 19 until November 1. During her absence, the bank filled her prior position in the credit card department. Upon her return, she was first refused any position and then offered one in the mail room which she refused. The record does not indicate the grade or salary level of this position, let alone whether or not it involved a loss of status. Thereafter, she was offered and accepted a position in the loan accounting department as a general data control clerk at the same salary but at Grade 4; ⁵ she did not regain her preleave Grade 5 status until about two years later, when in December 1972, she was advanced to senior data control clerk, a Grade 6 position; however, she was classified at a modified L--5 Grade ⁶ as pursuant to the bank's promotion policy, she could only move up one step at a time. From August 2, 1972, for a period of about eight months, Ms. Prescod made two requests for a transfer. After both requests were refused, and she was told she was not transferable, she resigned on April 26, 1973; her final salary was $588 a month.

The applicable state ⁷ and federal ⁸ statutes were cited to the referee, who concluded that Ms. Prescod had not left for 'good cause' but because she was dissatisfied with her position and the unavailability of the transfers that she had requested during the last eight months of her employment. The board affirmed the decision on August 2, 1973, indicating that discrimination had not been shown and that if Ms. Prescod felt that her employer had visolated fair employment practices, she could have filed charges with the appropriate agency and continued to work. ⁹

Title VII was passed to prevent the impact of racial and sexual discrimination and applies to employers in interstate commerce, including the bank. Specifically prohibited are discriminatory failures or refusals to hire, discharges, classifications and other discriminatory acts with respect to the terms, conditions or privileges of employment (42 U.S.C., § 2000e--2(a)(2), (b), (c), and (d)). Title VII also makes it unlawful to limit, segregate or classify employees in any way that would tend to deprive an employee of employment opportunities on the basis of sex (42 U.S.C ., § 2000e--2(a)(2). 'The Act proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation. The touchstone is business necessity' (Griggs v. Duke Power Co., 401 U.S. 424, at p. 431, 91 S.Ct. 849, at p. 853, 28 L.Ed.2d 158).

Title VII also created the Equal Employment Opportunity Commission (EEOC) which is charged by law with the enforcement of Title VII, and gave it the authority to issue applicable guidelines for employers. These guidelines are entitled to great deference in the construction of the act (Phillips v. Martin Marietta Corp., 400 U.S. 542, 545, 91 S.Ct. 496, 27 L.Ed.2d 613).

At the trial de novo before the court below, Ms. Prescod expressly cited the applicable federal guidelines, issued by the EEOC, which read as follows: 29 Code of Federal Regulations ' § 1604.10 ¹⁰ Employment policies relating to pregnancy and childbirth.

'(a) A written or unwritten employment policy or practice which excludes from employment applicants or Employees because of vacation for which she is eligible. Normally title VII.

'(b) Disabilities caused or contributed to By pregnancy, miscarriage, abortion, childbirth, And recovery therefrom are, for all job-related purposes, temporary disabilities and should be treated as such under any health or temporary disability insurance or sick leave plan available in connection with employment. Written and unwritten employment policies and practices involving matters such as the commencement and duration of leave, the availability of extensions, the accrual of seniority And other benefits and privileges, reinstatement, and payment under any health or temporary disability insurance or sick leave plan, formal or informal, shall be applied to disability due to pregnancy or childbirth on the Same terms and conditions as they are applied to other temporary disabilities.' ¹¹ (Emphasis supplied.)

In Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158, also cited to the court below, the U.S. Supreme Court, for the first time, indicated that the guidelines of the EEOC issued pursuant to Title VII, had the force of law and expressed the will of Congress. While Griggs dealt with employment barriers that operated to discriminate on the basis of race, an impermissible classification, the case is pertinent here. Although the U.S. Supreme Court has apparently not yet clarified whether a classification based on sex is an inherently suspect ¹² one, the law in California has long been otherwise (Sail'er Inn, Inc. v. Kirby, 5 Cal.3d 1, at p. 17, 95 Cal.Rptr. 329, 485 P.2d 529). While Sail'er was decided primarily on grounds of equal protection, our Supreme Court also found (pp. 8--10, 95 Cal.Rptr. 329, 485 P.2d 529) that the statute there in issue violated article XX, section 18 of the state Constitution, ¹³ as well as (at pp. 10--15, 95 Cal.Rptr. 329, 485 P.2d 529), Title VII. In any event, Title VII represents a flat and absolute prohibition against all sex discrimination in conditions of employment, and provides relief to remedy present and continuing effects of past discrimination (Griggs v. Duke Power Co., supra; United States v. Dillon Supply Company, 4 Cir., 429 F.2d 800; United States v. Sheet Metal Wkrs. Int. Ass'n, Local Union 36, 8 Cir., 416 F.2d 123).

The uncontroverted evidence in the instant case indicates the following: At the proceedings before the referee, the bank indicated that the maternity leave form signed by Ms. Prescod expressed its policy that at the end of her leave she would be reinstated in any position only if there was an opening. ¹⁴ This left the availability of a position at the total discretion of the employer, a clear violation of the applicable EEOC guideline, 29 Code of Federal Regulations, section 1604.10, quoted above, however, she was first refused reinstatement, then offered a job that she turned down, and finally was rehired in a Grade 4 position, one grade lower than the Grade 5 position she held before her maternity leave. After her return, it took two years ¹⁵ for her to again reach Grade 5; as a result, she was subsequently denied a promotion to Grade 6 as the bank's promotion policy prohibited a two-step move. Furthermore, although at the time of her termination she was working at a position classified at a modified Grade 5, the work was, in fact, at Grade 6. The fact that she was rehired in a position at the lower Grade 4 and consequently did not have the same promotional opportunities she had before her maternity leave at Grade 5, established a prima facie violation of the guidelines. As the bank introduced no proof of any business necessity in support of its discriminatory policy, we must, therefore, assume that no justification exists (cf. Satty v. Nashville Gas Company, D.C., 384 F.Supp. 765, 771). This violation of the applicable EEOC guidelines was not considered by the court below. Before the superior court where an applicant's eligibility for unemployment insurance is in issue, the burden of disqualification is on the employer and not the employee (Maywood Glass Co. v. Stewart, 170 Cal.App.2d 719, 339 P.2d 947; 37 Cal.Ops. Atty.Gen. 18).

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