Sacramento Personal Injury Lawyer Blog

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this workplace discrimination/personal injury case and its proceedings.)

In this case, after counsel and the court had gone over the special verdict forms, the court instructed the defendants to revise the special verdict forms with respect to punitive damages. Thereafter, the court instructed the defendants to reorder the special verdict forms. Defense counsel revised Special Verdict Forms VF-1704 and VF-1705 in a manner that did not reflect the law, the jury instructions, or the underlying CACI forms on which they were based. Defense counsel did not advise Plaintiff, nor as far as Plaintiff knows, the court, that they had made these revisions.

The question posed in the defamation special verdict forms given to the jury used a standard that is higher even than that required to be entitled to punitive damages. The question in the special verdict form is Did one or more officers, directors, or managing agents of [XYZ ], acting in a corporate capacity, make the following statement To be able to assess punitive damages against a corporate employer, a plaintiff must show offending conduct of the corporate employee was authorized or ratified by an officer, director, or managing agent of the corporation. (See Civ. Code § 3294(a).)

In speaking with the jurors after their verdict, they asked Plaintiff's counsel who had written the questions. They stated that they wanted to find for Mr. White on the issue of defamation, but that they could not because of the wording of the special verdict forms: there had not been any evidence introduced at trial that answered the questions, and they got no clarification from the jury instructions.

Continue reading "Sacramento Man Seeks New Trial In Sexual Harassment Case, Part 4 of 12" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this workplace discrimination/sex harassment case and its proceedings.)

iii. The harassment was severe and pervasive, The harassing conduct by Plaintiff's supervisor is severe and pervasive enough to alter the terms and conditions of employment. There is a different standard applied with the harassment comes from a supervisor. When it is a supervisor, a hostile work environment can be created by one singular remark. Dee v. Vintage Petroleum. Inc., (2003) 106 Cal. App. 4th 30. Further, repeated use of profanity against an employee, in conjunction with even one remark about the protected class by a supervisor gives rise to a hostile work environment claim. Id. at 35-37. As set forth above, over the course of a few days she was repeatedly attacked, yelled at, cursed at, and numerous comments were made directly about her pregnancy. Because of the comments she became stressed out, developed cramps and bleeding and had to go on bed rest on two separate occasions.

PLAINTIFF HAS AMPLE EVIDENCE TO DEMONSTRATE A TRIABLE ISSUE OF FACT ON HER PUNITIVE DAMAGE CLAIMS

Evidence that a defendant acted with discriminatory intent and evidence of pretext provide sufficient basis to find that defendants acted with malice and oppression. Cloud v. Casey, (1999) 76 Cal.App.4th 895, 911. Further, evidence that a defendant tried to cover up the illegal reason with a false explanation also supports a finding of malice and oppression. Id. at 911. In other words, the same evidence that Plaintiff was fired in retaliation for her complaints of harassment/accommodation requests and because of her pregnancy is ample evidence to show malice and oppression. Plaintiff incorporates sections B & C where she lays out the retaliation and discrimination claims including all the pretext to support each claim.

Continue reading "Pervasive Workplace Harassment Results In Pregnancy Complications For Sacramento Employee, Part 19 of 19" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this workplace discrimination/sex harassment case and its proceedings.)

i. Unwanted harassment because of her pregnancy/disability: Plaintiff was subject to abusive conduct because of her pregnancy. Verbal harassment by itself can support a hostile work environment claim. Lipsett v. University of Puerto Rico, (1st Cir. 1988) 864 F.2d 881, 905. Numerous negative comments were made about her pregnancy by Mr. Davis and Mr. Chan. Including: 1) Telling her multiple times (at least 10 times) that she is not wanted there because she is pregnant and she should either quit or go on disability, 2) Yelling that if she can't handle the job she should quit or go on disability, 3) saying that pregnant women have hormones and attitudes and she should quit or go on disability, 4) disciplining her for talking about her pregnancy, 5) telling her she cannot ask others to help her lift heavy items when her doctor told her not to do so because of her pregnancy, 6) calling her in the office 7 times to change a T-shirt that is fine to begin with, 7) telling her she cannot work unless her note is clearer when it was clear to begin with, 8) laughing at her over her complaints of harassment, 9) cursing at her (shit and fuck), 10) telling her that she is a bad person and 11) suspending her for wanting to go to the doctor. A hostile work environment can also be found when employees engage in forms of intimidation. Birschetein v. New United Motor Mfg., Inc., (2001) 92 Cal. App. 4th 994, 1001-1002[FN1]. As stated above, much of the harassment was intimidation over Plaintiff's job including yelling and swearing.

Continue reading "Sacramento Employer Subjects Pregnant Employee To Uninvited Harassment, Part 18 of 19" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this workplace discrimination/sex harassment case and its proceedings.)

iii. The termination reasons are false which establishes pretext as well
Pretext can be shown by showing the termination reasons are not true. University of So. Calif, v. Sup. Ct., 222 Cal.App.3d at 1036. Here, the reason articulated is totally false. Plaintiff was never insubordinate, abusive or rude. Plaintiff never yelled or cursed. To the contrary she was professional at all times. Also, Plaintiff did provide the necessary paperwork for her leave and also called about when she could return to work.

iv. Failure to follow its own policies is evidence of pretext
Defendant's failure to follow its policy is evidence of pretext. Hill, 855 F.2d at 811; Christine, 785 F.2d at 586-87. Here, Defendant totally failed to follow its own mandatory policies to investigate claims of harassment. There was never any investigation into Plaintiff's claims of harassment. Mr. Davis never did anything to investigate Plaintiff's claims of harassment after she claimed she was harassed. He did not follow any of the steps including documenting, talking with Plaintiff, getting a written statement from Plaintiff, reporting the results to Plaintiff or telling Team Member Services of the complaints. All of which was required to do under the policies.

PLAINTIFF HAS AMPLE EVIDENCE TO DEMONSTRATE A TRIABLE ISSUE OF FACT ON HER HARASSMENT CLAIMS (CLAIMS 5, 6, 9 & 10)

PREGNANCY/DISABILITY HARASSMENT IS UNLAWFUL AND WHEN THE HARASSMENT IS DONE BY A SUPERVISOR THE AMOUNT OF HARASSMENT NEED TO BE ACTIONABLE IS MUCH LESS

Under the Fair Employment and Housing Act ( FEHA ), it is unlawful for any person or employer to harass an employee based on that employee's pregnancy or disability. Cal. Govt. Code § 12940(j)(1). Under FEHA, an employer is strictly liable for workplace harassment by a supervisor. State Dept. of Health Services v. Sup. Ct., (2003) 31 Cal. 4th 1026, 1042.

Continue reading "Hostile Work Environment Leads To Lawsuit By Pregnant Sacramento Employee, Part 17 of 19" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this workplace harassment/sex discrimination case and its proceedings.)

3) Adverse action - Fired and the decision to fire her was made on June 23 - not disputed.

4) Other circumstances suggest discriminatory motive:

The timing of the action suggests a discriminatory motive between the pregnancy and the decision to fire her about one month later. Hanson v. Lucky Stores, Inc., (1999) 74 Cal. App. 4th 215, 224; Flait v. North American Watch Corp., (1992) 3 Cal. App. 4th 467, 476, 479).

Also, discriminatory motive can be established by statements by a decision maker, which shed light on the employer's true motivation. Reeves, 530 U.S. at 148; Cook, 69 F.3d at 1238. Again, both Mr. Davis and Mr. Chan constantly made negative comments about Plaintiff's pregnancy/disability including telling her to quit or go on disability, that a pregnant women is not wanted, that pregnant women have attitudes and hormones and should quit or go on disability, etc.

PLAINTIFF HAS AMPLE EVIDENCE OF PRETEXT
i. The timing of the termination supports pretext:
Pretext may be inferred from the timing of the discharge decision. Hanson, 74 Cal. App. 4th at 224; Flait, 3 Cal. App. 4th at 476, 479). Here, as stated above, the decision came within about one month of her disclosing she was pregnant. There were no plans to fire her before that point and she as considered at least an average employee up to that point.

Continue reading "Pregnant Sacramento Employee UnfairlyTerminated, Part 16 of 19" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this workplace harassment/sex discrimination case and its proceedings.)

PLAINTIFF HAS AMPLE EVIDENCE TO DEMONSTRATE A TRIABLE ISSUE OF FACT ON HER DISCRIMINATION CLAIMS (CLAIMS 1, 2, 7 & 8)

PLAINTIFF HAS DIRECT EVIDENCE OF DISCRIMINATION
As stated above, direct evidence consists of discriminatory statements or actions by the employer. Coghlan, 413 F.3d at 1095. Discriminatory or retaliatory remarks do not have to be made it the direct context of an employment decision to be direct evidence of discrimination. Chuang, 225 F.3d at 1115. Single statements are enough to provide probative evidence of discrimination. Sinai, 3 F.3d at 474. Here, the direct evidence is clear. Both Mr. Davis and Mr. Chan constantly told Plaintiff to quit or go on disability over her pregnancy/disability. Other comments that were made (i.e. don't give a shit, pregnant women have hormones and attitudes and you should quit or go on disability, can't ask for help to lift things, etc.) were made by Mr. Davis and Mr. Chan as well right before she was fired.

There is also direct evidence of hostility to pregnant employees with accommodation requests. When evidence establishes the employer's animus towards the class that plaintiff belongs, this is considered direct evidence and defeats summary judgment. Id.; Cordova, 124 F.3d at 1149. Here, the evidence shows that Plaintiff was discipline for talking about her pregnancy, which was the first step in the discipline that led to her firing.

Also, there is direct evidence of bias by Mr. Davis in his deposition admission. Mr. Davis admitted he viewed Plaintiff disputing the counseling as because she was pregnant.

PLAINTIFF HAS ALSO MET THE PRIMA FACIE CASE OF DISCRIMINATION
Plaintiff can establish a prima facie case of discrimination. The specific elements of a prima facie case may vary depending on the particular facts. Guz v. Bechtel Nat'l. Inc., (2000) 24 Cal. 4th 317, 355. Generally, the plaintiff must provide evidence that: 1) she was a member of a protected class; 2) she was performing competently in the position she held; 3) she suffered an adverse employment action, such as termination, and 4) some other circumstance suggests discriminatory motive. Id. at 355. Here, all four elements are met:

Continue reading "Pregnant Sacramento Woman Discriminated Against By Store Management, Part 15 of 19" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this workplace harassment/sex discrimination case and its proceedings.)

iv. Failure to follow its own policies is evidence of pretext

Defendant's failure to follow its own policy is evidence of pretext. See Hill v. Seaboard Coast Line Railroad Co., (11th Cir. 1989) 855 F.2d 804, 811; Christine v. Foremost Ins. Co., 785 (7th Cir. 1986) F.2d 584, 586-87. Here, Defendant totally failed to follow its own mandatory policies to investigate claims of harassment. There was never any investigation into Plaintiff's claims of harassment. Mr. Davis never did anything to investigate Plaintiff's claims of harassment after she claimed she was harassed. He never informed Team Member Services that Ms. Smith was claiming she was being harassed. He never obtained any written statements from Ms. Smith about the harassment. He never reported any results of any harassment investigation to Ms. Smith. No one from Defendant ever talked to Plaintiff about her complaints of harassment, got a written statement or told her of the results of any investigation into her complaints. All of which was required to do.

DEFENDANT'S LEGAL AUTHORITY AND FACTUAL CLAIMS ARE WRONG
Defendant mis-cites the legal authority on establishing a prima facie case. Defendant says timing is not enough to show a prima facie case. (pg. 12). First, Plaintiff has much more evidence than timing. However, the cited cases do not say that. Loggins v. Kaiser Permanente Intern., (2007) 151 Cal. App. 4th 1102, 1112-1113 says the opposite. Timing is enough to show a prima facie case, just by itself is not enough to show enough pretext. Arteaga v. Brink's Inc., (2008) 163 Cal. App. 4th 327, 353 says the same thing. Timing is enough to show a prima facie case, but by itself is not enough pretext. Id.

Continue reading "Repeated Harassment By Employer Leads To Suit By Sacramento Woman, Part 14 of 19" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this workplace harassment/sex discrimination case and its proceedings.)

ii. The negative comments about Plaintiff's pregnancy, accommodation requests and complaints of harassment show pretext:

Statements by a decision maker, which shed light on the employer's true motivation, demonstrate evidence that the termination was pretextual. Reeves v. Sanderson Plumbing Products, Inc., (2000) 530 U.S. 133, 148. Pretext can be inferred when decision makers make statements that show discriminatory animus. Cook v. Arrowsmith Shelburne. Inc., (2nd Cir. 1995) 69 F.3d 1235, 1238. Here, both Mr. Davis and Mr. Chan constantly told Plaintiff to quit or go on disability in response to her pregnancy and accommodation requests. Second, the other comments that were made (i.e., We don't give a shit about your claims of harassment; pregnant women have hormones and attitudes and you should quit or go on disability; can't ask for help to lift things, etc...) were made by Mr. Davis and Mr. Chan as well right before she was fired. Third, when Plaintiff asked to go to the doctor she was suspended from going back to work.

iii. The termination reasons are false which establishes pretext as well
One of the ways to establish pretext is to show that the reasons given for the termination are not true. University of So. Calif. v. Sup. Ct., 222 Cal.App.3d at 1036. When a record contains evidence demonstrating not only that the legitimate, non-discriminatory reason for the adverse employment decision is false the grant of an employer's motion for summary judgment is inappropriate. King v. Preferred Technical Group, (1999) 166 F.3d 887, 894. Here, the reason articulated is totally false.

Continue reading "Sacramento-Area Store Told Pregnant Employee To Quit, Part 13 of 19" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this workplace harassment/sex discrimination case and its proceedings.)

PLAINTIFF CAN ALSO ESTABLISH A PRIMA FACIE CASE OF RETALIATION
First, the prima facie case is designed to be quite easy to meet. Hodgens v. General Dynamics Corp., (1st Cir. 1998) 144 F3d 151, 161 (under the McDonnell Douglas framework the prima facie burden is quite easy to meet). It is designed to be a de minimis burden. Texas Dept. of Community Affairs v. Burdine, (1981) 450 U.S. 248, 253-254.

To establish a prima facie case for retaliation under FEHA, a plaintiff must establish that: (1) she was engaged in a protected activity; (2) was thereafter subjected to an adverse employment action; and (3) there was a causal link between the two. Addy v. Bliss & Glennon, (1996) 44 Cal.App.4th 205, 217. In response, the employer must set forth a legitimate, non-retaliatory explanation for its conduct. Flait v. North Am. Watch Corp. (1992) 3 Cal.App.4th 467, 476. Then, the employee presents evidence to show that the reason is pretextual. Id.

Here, the prima facie case is met: 1) Plaintiff was engaged in protected conduct: Employers cannot retaliate against an employee for requesting accommodation or for complaining of pregnancy harassment. Cal Govt Code § 12940(h) & (m). Plaintiff requested accommodation in the form of a weight lifting restriction and in the form of a finite amount of time off as a medical leave[FN1]. Also, Plaintiff complained of pregnancy harassment multiple times; 2) Plaintiff was terminated; 3) Plaintiff can establish a casual link as set forth below.

The plaintiff may establish a causal link between protected conduct and an adverse employment action by showing temporal proximity or that they occurred closely in time. King v. Preferred Technical Group, 166 F.3d at 893. Here, the last accommodation request came on June 21, 2006 and the last two complaints of harassment came on June 21 and 22, 2006. There were not plans to fire Plaintiff prior to her last complaint of harassment in the meeting with Mr. Chan on June 22, 2006. The decision to fire Plaintiff was made on June 23, 2006. It was the final decision and nothing would change it.

The causal link is also shown by the false reasons for the termination. Howard v. BP Oil Co., 32 F.3d at 526-527; University of So. Calif, 222 Cal.App.3d at 1036. Here, the reason articulated is totally false. Plaintiff was never insubordinate, abusive or rude. Plaintiff never yelled or cursed. To the contrary she was professional at all times. Also, Plaintiff did provide the necessary paperwork for her leave and also called about when she could return to work.

Continue reading "Pregnant Sacramento Worker Files Claim For Retaliatory Action By Employer, Part 12 of 19" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this workplace harassment/sex discrimination case and its proceedings.)

PLAINTIFF HAS AMPLE EVIDENCE TO DEMONSTRATE A TRIABLE ISSUE OF FACT ON HER RETALIATION CLAIMS (CLAIMS 3, 4, 11, 12)

PLAINTIFF HAS DIRECT EVIDENCE OF RETALIATION
As stated above, summary judgment is not appropriate when there is direct evidence of intentional retaliation. Godwin, 150 F.3d 1217, 1221. Direct evidence consists of discriminatory statements or actions by the employer. Coghlan v. American Seafoods Co., LLC, (9th Cir. 2005) 413 F.3d 1090, 1095. Discriminatory or retaliatory remarks do not have to be made it the direct context of an employment decision to be direct evidence of discrimination. Chuang v. University of California Davis. 225 F.3d at 1115. Single statements are enough to provide probative evidence of discrimination. Sinai v. New England Telephone& Telegraph Co., (1993) 3 F.3d 471, 474.

Here, the direct evidence is clear. First, both Mr. Davis and Mr. Chan constantly told Plaintiff to quit or go on disability over her pregnancy and accommodation requests. Second, the other comments that were made (i.e., We don't give a shit about your claims of harassment; pregnant women have hormones and attitudes; and you should quit or go on disability; can't ask for help to lift things, etc.) were made by Mr. Davis and Mr. Chan as well right before she was fired. Third, when Plaintiff asked to go to the doctor she was suspended to not going back to work.

There is also direct evidence of hostility to pregnant employees with accommodation requests. When evidence establishes the employer's animus towards the class that plaintiff belongs, this is considered direct evidence and defeats summary judgment. Id.; see also Cordova v. State
Farm Ins., (9th Cir. 1997) 124 F.3d 1145, 1149. The evidence shows that Plaintiff was discipline for talking about her pregnancy, which was the first step in the discipline that led to her firing.

Continue reading "Roseville Employer Sued For Workplace Harassment Of Pregnant Employee, Part 11 of 19" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this workplace harassment/sex discrimination case and its proceedings.)

Once a prima facie case of discrimination is established, the burden is on the employer to offer a legitimate nondiscriminatory reason for the adverse employment action. Id. To accomplish this, the [employer] must clearly set forth, through the introduction of admissible evidence, the reasons for the [employee's] rejection. Sada v. Robert F. Kennedy Medical Center, 56 Cal.App.4th at 148; Caldwell v. Paramount Unified School District. 41 Cal.App.4th 189, 202-03 (1995).

If the employer meets its burden of proffering legitimate reasons for the adverse action, then the burden shifts back to the employee to show pretext. See University of So. Calif., 222 Cal.App.3d at 1036. A plaintiff can show pretext in two ways: (1) indirectly by showing that the employer's proffered reason for termination is unworthy of credence because it is internally inconsistent or otherwise not believable, or (2) directly, by showing that unlawful discrimination more likely motivated the employer, or (3) a combination of both (1) and (2). Chuang, 225 F.3d at 1123; Hersant v. California Department of Social Services. 57 Cal.App.4th 997, 1004-05 (1997).

As a general matter, the plaintiff in an employment discrimination action need produce very little evidence in order to overcome an employer's motion for summary judgment. Chuang, 225 F.3d at 1123. The U.S. Supreme Court made clear that a plaintiff's prima facie case, combined with sufficient evidence to reject the employer's reason for the termination, is sufficient to sustain a finding of liability for discrimination. Reeves v. Sanderson Plumbing Products. Inc., (2000) 530 U.S. 133, 148.

Continue reading "Workplace Discrimination Suit Filed By Pregnant Sacramento Woman, Part 10 of 19" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this workplace harassment/sex discrimination case and its proceedings.)

ARGUMENT
SUMMARY JUDGMENT STANDARDS IN WRONGFUL TERMINATION

A plaintiff in a wrongful termination case can overcome summary judgment by one of two ways: 1) offering direct evidence of discriminatory or retaliatory intent or 2) satisfying the elements of the burden shifting process outlined in McDonnell Douglas Corp. v. Green and subsequent cases. (1973)411 U.S. 792, 802-804

Direct evidence is only one of the ways that a plaintiff can successfully oppose a summary judgment motion. When an employee offers direct evidence of discrimination, summary judgment is not appropriate and the burden shifting analysis need not be conducted. Godwin v. Hunt Wesson, (9th Cir. 1998) 150 F.3d 1217, 1221. However, direct evidence of discrimination is not required. Id. The Supreme Court stated that after the prima facie case has been established, merely the rejection of the defendant's proffered reason will permit the trier of fact to infer the ultimate fact of discrimination. Id. at 147 (citing St. Mary's Honor Center v. Hicks, (1993)509 U.S. 502, 511.

In addition to the direct evidence route, the burden shifting analysis can be used. California courts analyzing claims of discrimination under the FEHA apply the same shifting burdens analysis used by federal courts under Title VII. The analysis requires: (1) the Plaintiff first establish a prima facie case of discrimination; (2) the defendant then must produce evidence demonstrating a legitimate, non-discriminatory reason for the termination; and (3) the plaintiff must present evidence creating a triable issue of fact that the employer's stated reason was untrue or a pretext for a discriminatory animus. McDonnell Douglas Corp. v. Green. 411 U.S. 792, 802-04 (1973); Guz v. Becthtel Nat'l Inc. 24 Cal.4th 317, 354-56 (2000)[FN4].

Continue reading "Supervisors At Sacramento-Area Store Harassed Pregnant Employee, Part 9 of 19" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this workplace harassment/sex discrimination case and its proceedings.)

THE REASONS FOR HER TERMINATION ARE TOTALLY FABRICATED

Defendant's reasons for termination are totally fabricated. Plaintiff never yelled at Mr. Chan in the meeting or at any other time. To the contrary, Plaintiff spoke in a normal voice and was not aggressive at all. It was Mr. Chan that was yelling. Also, Plaintiff never refused to change and never refused to do what Mr. Chan said. She always followed his directions. Plaintiff was not insubordination and she was not rude, or harassing, or discourteous with a customer on June 21, 2006 or at any other time to management, any customer or any employee. To the contrary, she always acted professionally towards management, employees and the customers and never violated and polices.

IN VIOALTION OF DEFENDANT''S OWN POLICIES, PLAINTIFF'S COMPLAINTS OF HARASSMENT WERE NEVER INVESTIGATED

Defendant has specific policies that require an impartial and full investigation of an employee's complaints of harassment. Under Healthmart Foods policies, if a Store Leader gets a complaint where there is even an indication of unlawful harassment, it is mandatory that complaint be investigated and the investigation be documented. The specific investigation steps wuld be to: 1) speak with the person claiming harassment, 2) obtain written statements from the employee, 3) talk with the other parties involved and obtain written statements, 4) inform the employee of the results of the investigation and 5) review the results of the investigation with Team Member Services. Plaintiff made multiple complaints of pregnancy and accommodation harassment to Mr. Davis directly and to Mr. Chan.

Mr. Davis admits that Plaintiff complained about harassment. Mr. Davis admits that Plaintiff was complaining that the counseling she got was harassment. He even put in an email that she was complaining of harassment.

Continue reading "Woman From Sacramento Files FEHA Discrimination Claim, Part 8 of 19" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this workplace harassment/sex discrimination case and its proceedings.)

THERE IS DIRECT EVIDENCE THAT THE TERMINATION WAS MOTIVATED BY PLAINTIFF'S PREGNANCY AND COMPLAINTS

There is ample direct evidence that Plaintiff was fired over her pregnancy/accommodation and complaints. First, both Mr. Davis and Mr. Chan constantly told Plaintiff to quit or go on disability over her pregnancy and accommodation requests. Second, the other comments that were made (i.e., don't give a shit about your claims of harassment, pregnant women have hormones and attitudes and you should quit or go on disability, can't ask for help to lift things, etc.) were made by Mr. Davis and Mr. Chan as well. Third, when Plaintiff asked to go to the doctor she was suspended to not going back to work.

Aside from all the comments and statements there is further direct evidence in the actions taken against her. First, Plaintiff was verbally disciplined for talking about her pregnancy. Healthmart Foods uses a progressive discipline scheme with the typical steps being: 1) verbal, 2) 1st written, 3) 2nd written, and 4) final. The verbal/action plan for telling people she was pregnant was the first step of the discipline. In the termination decision, Mr. Davis looked back to see if she had each step and the fact that she did factored into his decision to fire her. He very possibly would not have fired her had she not had all the steps of the discipline.

Continue reading "Roseville Store Sued For Harassment By Pregnant Employee, Part 7 of 19" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this workplace harassment/sex discrimination case and its proceedings.)

Plaintiff is harassed by the other people as well. That same day, Plaintiff is called into the manager's office seven times by Amy Jones. Each time it is to ask Plaintiff to change her shirt. Plaintiff's shirt was appropriate when she arrived to work, but Ms. Jones insists she change. Every time Ms. Jones gives Plaintiff a shirt but calls her in a short time later to make her change again.

Finally, Plaintiff is again threatened with her job over her pregnancy and complaints of harassment. The assistant store leader, Paul Chan calls Plaintiff into his office. Also present is Ms. Jones and Mr. Hermisillo. Mr. Chan falsely claims that Plaintiff gave poor customer service. Plaintiff did not and tells him so. Instead, Plaintiff gave great customer service. Mr. Chan yells at Plaintiff. Plaintiff says she is being harassed over her pregnancy and is stressed out and feels backed into a comer. In response to her complaint of harassment, Mr, Chan tells Plaintiff that she is a bad person and don't give him that shit about harassment. Mr. Chan yells "don't give that fucking shit about harassment."

Plaintiff starts to feel ill and starts to cramp and bleed over her pregnancy. Plaintiff tells Mr. Chan that she is not feeling good and cramping over her pregnancy and wants to see a doctor. In response, Mr. Chan tells Plaintiff that she should go on disability or quit. Plaintiff tells Mr. Chan that she has restrictions and he tells her to quit or go on disability. Plaintiff again asks to leave and go to the hospital and that Mr. Chan is stressing her out with the harassment. Mr. Chan responds do not give me that shit about harassment, go back to work. Mr. Chan tells Plaintiff to go back to work, this is just a verbal warning and not discipline. Plaintiff again says she cannot go back to work because she is cramping and bleeding and wants to go to the doctor. Then, Mr. Chan yells "you're suspended until further notice."

Continue reading "Sex Discrimination Case Filed Against Sacramento-Area Store, Part 6 of 19" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this workplace harassment/sex discrimination case and its proceedings.)

DUE TO THE HARASSMENT PLAINTIFF NEARLY LOSES HER BABY AND IS THEN PLACED ON A MONTH-LONG MEDICAL LEAVE

Because of the harassment, Plaintiff is placed on bed rest after almost losing her baby. During the second meeting, Plaintiff starts to cramp and bleed relating to her pregnancy. She is concerned about her pregnancy and goes to the doctor that a short time later. She nearly loses her baby after having a threatened abortion also known as a threatened miscarriage. She is placed immediately on bed rest. The bed rest last for about a month, which Plaintiff provides all the doctors' notes for to Defendant.

Plaintiff is placed on about a month long medical leave because of her pregnancy. As stated above, Plaintiff's doctors place her on bed rest for about one month. She is also placed on further doctor's restrictions including no lifting over 10 lbs, no long walking, no vacuuming or strenuous activity. She is placed on a Pregnancy disability leave/FMLA leave by Defendant. Her first day back was around June 21, 2006.

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Continue reading "Pregnant Employee Files Action For Sex Harassment, Part 5 of 19" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this workplace harassment/sex discrimination case and its proceedings.)

PLAINTIFF FINDS OUT SHE IS PREGNANT AND DISCLOSES HER PREGNANCY TO HER SUPERIORS AND MANAGEMENT AND THERE IS AN IMMEDIATE NEGATIVE REACTION

Plaintiff finds out she is pregnant and discloses her pregnancy to management. Plaintiff found out she was pregnant in May of 2006. In mid-May of 2006, Plaintiff informed her supervisors that she was pregnant. That included telling Paul Chan.

Immediately after disclosing her pregnancy Plaintiff is treated poorly because of her pregnancy. On May 12, 2006, Plaintiff is issued a verbal warning and placed on an action plan for telling employees she was pregnant. Defendant's admits that one of the reasons for the verbal discipline on May 12, 2006 had to do with Plaintiff discussing her pregnancy. There is no policy against telling employee about a pregnancy, yet Plaintiff was still disciplined. An employee should not be disciplined for telling people she is pregnant. Nonetheless, she was disciplined.

HER PREGNANCY HAD COMPLICATIONS FOR WHICH SHE REQUESTS ACCOMMODATION AND IS TREATED POORLY AS A RESULT

Plaintiff's pregnancy required some accommodations. Plaintiff was told by her doctor to avoid any heavy lifting of items over ten pounds. She informed her co-worker and management about that issue in late May of 2006. Her supervisors admit to knowing of Plaintiff's lifting request. Plaintiff is told by management to tell employees to lift items for her and do not lift herself. Nonetheless, employees refuse to help her. Her supervisors start to act very cold and distant to her right after she asked for the accommodation as well.

Within a few days of disclosing her pregnancy and asking for accommodation, Plaintiff is harassed by her supervisor and she is not wanted because of her pregnancy. In later May of 2006, Plaintiff is called into Mr. Davis's office. He accuses her of false things such as swearing at a customer. Ms. Smith never swore at a customer. Instead, she always treated each customer with great respect. In that conversation, Mr. Davis starts yelling at Plaintiff. He tells her that he does not want her there because she is pregnant and she should either quit or go on disability.

Mr. Davis yells at Plaintiff that she cannot handle the job because she is pregnant and that she should quit. Plaintiff responds that he is harassing her because she is pregnant and to stop yelling at her. He continues to yell at her, telling her to quit or go on disability over her pregnancy. Mr. Davis tells Plaintiff that pregnant women have hormones and attitudes and she should quit or go on disability.

Continue reading "Employee From Sacramento Sues For Workplace Harassment, Part 4 of 19" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this workplace harassment/sex discrimination case and its proceedings.)

THERE WERE NO PLANS TO FIRE PLAINTIFF PRIOR TO HER DISCLOSING HER PREGNANCY

For Plaintiff's entire employment, up to the time she disclosed she was pregnant, she was considered at least an average worker. Plaintiff started working for Whole Food in April of 2004. As detailed below, she disclosed her pregnancy in May of 2006. From the time of her hiring in April of 2004 through May of 2006, when she disclosed her pregnancy, she was considered at least an average employee. Further, an admitted fact is that there were no plans whatsoever to fire Plaintiff prior to her disclosing her pregnancy. No one told Mr. Davis they wanted Ms. Smith fired prior to disclosing her pregnancy. Her supervisors never recommended she be disciplined or fired prior to her disclosing her pregnancy. In fact, her supervisors testified they did not have any problems with her performance prior her disclosing her pregnancy.

Per company policy, most of Plaintiff's discipline record was removed and she is not even on a final warning by the time she disclosed her pregnancy. Defendant has a drop off policy, where after a period of time any discipline drops off and no longer counts against the employee for discipline purposes. How the policy works is any verbal or written discipline drops off after one year. And a final drops to a 2nd corrective after six months and drops off totally after another year. Under that policy, the 7/1/04, 10/26/04, 11/15/04, and the 5/25/05 counseling had completely dropped off. Further, the 12/22/04 and 2/21/05 counseling were dropped down to corrective counseling. At the time that Plaintiff discloses her pregnancy, she is not on any final warning.

Continue reading "Sex Harassment Claim Filed Against Roseville Employer, Part 3 of 19" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this workplace harassment/sex discrimination case and its proceedings.)

STATEMENT OF FACTS
A. PLAINTIFF WORKED FOR DEFENDANT SERVING CUSTOMERS
Plaintiff Gina Smith (hereinafter Plaintiff or Ms. Smith) worked for Defendant for multiple years in the Roseville store. Ms. Smith was hired in April 16, 2004. Her job was to work in prepared foods, serving Healthmart Foods customers various types of food, i.e., pizza, sandwiches, salad, soup, etc. Plaintiff was employed by Defendant until April 27, 2007.

PLAINTIFF WAS A GOOD EMPLOYEE DURING HER EMPLOYMENT WITH DEFENDANT, EARNING MULTIPLE MERIT BASED PAY RAISES

During her employment with Defendant, Plaintiff was a good employee. First, as an introductory employee she was voted on by her team members to work in prepared foods, which requires a positive two-thirds vote. For Plaintiff to be voted on, she had to be performing satisfactory, which she was. Ms. Smith earned three merit based pay raises during her tenure, moving from $9.00 an hour, to $9.25, then $10.25 and then $11.25. She received good performance reviews.

The decision maker admitted she was at least an average employee. Mr. Davis is the Store Leader. He made the decision to fire Ms. Smith. Mr. Davis admitted that from April 16, 2004 through May of 2006 (before he learned she was pregnant), she was an average employee.

During her employment with Defendant, Ms. Smith received favorable marks. First, she was told numerous times by all her supervisors, including Paul Chan that she did an excellent job and was a great employee. She was constantly complimented by staff, customers and her supervisors for her great customer service. Mr. Davis admits to getting positive feedback about Plaintiff's performance from her supervisor. Mr. Davis admits that Ms. Smith's customer service was good, at least at times.

Continue reading "Sacramento-Area Store Sued For Sex Harassment, Part 2 of 19" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this workplace harassment/sex discrimination case and its proceedings.)

Plaintiff GINA SMITH (hereinafter referred to as Plaintiff ) hereby submits her opposition to Defendant HEALTHMART FOODS (hereinafter Healthmart Foods or Defendant ) motion for summary judgment and summary adjudication of issues. This opposition is based on the fact that there are triable issues of fact as to each cause of action.

MEMORANDUM OF POINTS AND AUTHORITIES
INTRODUCTION
This case involves an employee who was in no risk of losing her job for the first 26 months because she was doing a great job, who got pregnant, was constantly harassed about the pregnancy and fired for false reasons one day after her request for accommodation and complained of harassment without any investigation into her claims. Based on the evidence a triable issue of fact exists as to whether his firing was motivated by her complaints, accommodation requests and pregnancy and that she was harassed.

Plaintiff was considered a good employee prior to disclosing her pregnancy. Plaintiff worked for 26 months prior to disclosing her pregnancy. During that time she got 3 pay raises, multiple good reviews and praise for her good work. Also, the undisputed facts show there were no plans to fire her prior to her pregnancy and she was generally thought of as a good employee.

However, that changed after she disclosed her pregnancy. She disclosed her pregnancy in May of 2006. After that she was disciplined for talking about her pregnancy, told to quit because she is pregnant and they did not want pregnant employees, yelled at and cursed at.

Continue reading "Sacramento Woman Sues For Workplace Discrimination, Part 1 of 19" »