California Business Litigation Blog

A lawsuit which seeks class action status was filed against Costco Wholesale Inc. claiming violations of California wage and hour laws. Mary Pytelewski, a full time employee at a San Diego area Costco store for over 10 years filed the suit.

Pytelewski alleges that Costco company policy requires employees to clock out and then remain locked in the store for 15 minutes while managers close the store each night. In addition to wage and hour violations, her attorneys state that Costco’s practice of locking the employees inside the store after they clock out is the equivalent of false imprisonment. The lawsuit seeks $50 million in damages.

When Pytelewski complained about the practice she was "rebuffed and ridiculed at every turn." Then she was given a negative evaluation, and a supervisor was assigned to her cash register at closing time to watch her.

Her attorney David Sanford stated "Costco makes the false claim that locking these employees inside its warehouses until store managers and supervisors complete their closing routines is necessary for store security."

By my calculations, IF Ms. Pytelewski was a full time employee who was prevented from leaving 15 minutes a day, 5 days per week, 50 weeks per year for 10 years that would equal 37,500 minutes. That is 625 hours, or the equivalent of over 78 eight hour workdays without hourly or overtime pay.

If the allegations are true, I wonder how many other Costco employees will join the lawsuit, in California as well as other states.

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In 2000 Elizabeth Raymond was hired as an executive assistant by Larry Flynt Publications Inc. (L.F.P.). Raymond signed an agreement to the terms of her employment as outlined in the L.F.P. employee handbook. That handbook contained a provision in which Raymond agreed that any dispute for sexual discrimination or harassment would be submitted for arbitration.

When Raymond was fired in 2002, she filed suit alleging sexual harassment in violation of the Fair Employment and Housing Act. L.F.P. filed a motion to compel arbitration, which was granted.

The arbitrator found L.F.P. liable for creating/maintaining a hostile work environment and awarded Raymond $175,000 in compensatory damages and punitive damages of $500,000 against Larry Flynt and $250,000 against L.F.P.

The arbitration agreement signed by Raymond also contained the following judicial review clause: “Any party may apply to a court of competent jurisdiction for entry of judgment on the arbitration award. The court shall review the arbitration award, including the ruling and findings of fact, and shall determine whether they are supported by competent evidence and by a proper application of law to the facts. If the court finds that the award is properly supported by the facts and law, then it shall enter judgment on the award; if the court finds that the award is not supported by the facts or the law, then the court may enter a different judgment (if such is compelled by the uncontradicted evidence) or may direct the parties to return to arbitration for further proceedings consistent with the order of the court.”

Los Angeles Superior Court Judge Kenneth R. Freeman’s found the “Judicial Review” clause unenforceable and upheld the $925,000 award in favor of Elizabeth Raymond. Larry Flynt and L.F.P appealed.

The Court of Appeal ruled yesterday in favor of Judicial Review, reversed Judge Freeman’s ruling and remanded the case for consideration of the Flynt defendants’ legal challenges to the award.

The Court of Appeal’s opinion may be found HERE.

Continue reading "Court of Appeal Reverses Discrimination Award Against Larry Flynt Publications" »

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In Varisco v.Gateway Science and Engineering, the California Court of Appeals upheld a Los Angeles Superior Court ruling which determined that Al Varisco was in fact an "Independent Contractor", not an employee of Gateway. Plaintiff Varisco alleged that the “at will” clause in his contract with Gateway established employee status.

From the opinion, which can be found HERE:

"Appellant Al Varisco sued respondent Gateway Science and Engineering for wrongful termination of employment and similar causes of action, all of which depended on the allegation that he had been Gateway's employee. Gateway moved for summary judgment on the ground that Varisco was not an employee, but an independent contractor. The trial court found for Gateway, and we affirm. All the undisputed facts add up to an independent contractor relationship. A single clause in the parties' letter
agreement which allowed either party to terminate at will did not transform that relationship into an employment relationship."

The Court of Appeals reviewed the following to before affirming Varisco’s status as an “Independent Contractor”.

Control is the principal factor in determining whether an individual worker is an employee or an independent contractor. "An independent contractor is 'one who renders service in the course of an independent employment or occupation, following his employer's desires only in the results of the work, and not the means whereby it is to be accomplished.' Thus, the most significant question in the independent contractor/employee determination is "'whether the person to whom service is rendered has the right to control the manner and means of accomplishing the result desired.

Case law has identified secondary indicia of the nature of the relationship. These are:

(a) whether the one performing services is engaged in a distinct occupation or
business;

(b) the kind of occupation, with reference to whether, in the locality, the work is
usually done under the direction of the principal or by a specialist without supervision;

(c) the skill required in the particular occupation;

(d) whether the principal or the worker
supplies the instrumentalities, tools, and the place of work for the person doing the work;

(e) the length of time for which the services are to be performed;

(f) the method of payment, whether by the time or by the job;

(g) whether or not the work is a part of the regular business of the principal;

(h) whether or not the parties believe they are creating the relationship of employer-employee."

Related Citations may be found in the opinion document. If you have questions related to employment law problems, feel free to contact Sylvester, Oppenheim & Linde.

Please Note: While the above information can be beneficial for the purpose of employment law, the IRS definition of Independent Contractor status remains to be a question best answered by a Certified Public Account (CPA) or Tax Law professional.

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This month the U.S. Equal Employment Opportunity Commission released a comprehensive document designed to reduce confusion related to the performance and conduct of employees protected by the Americans with Disabilities Act.

Employers will be pleased to see that this document clearly answers many ADA related performance and conduct questions. The document includes 30 questions with answers using 48 examples of actual cases, documented by 90 footnotes.

For your convenience, you will find the Table of Contents below, including direct links to each section. You will find the entire document HERE. As always, if you have questions related to employment lawsuits, feel free to contact me.

TABLE OF CONTENTS

I. Introduction

II. Basic Legal Requirements

III. Application of ADA Legal Requirements to Performance and Conduct Standards

A. Performance standards

B. Conduct standards

C. Questions pertaining to both performance and conduct issues

D. Seeking medical information when there are performance or conduct problems

E. Attendance issues

F. Dress codes

G. Alcoholism and illegal use of drugs

H. Confidentiality issues arising from granting reasonable accommodation....

I. Legal enforcement

In case you missed the latest EEOC religious discrimination guidelines, you can read about them HERE.

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After being terminated by Sun Constructors (Sun) in 2006, Juan Morales filed a wrongful termination lawsuit. Sun claimed that Morales was bound by an arbitration clause in the employment agreement signed upon his employment. Morales claimed that since the agreement was in English, he did not understand its terms when he signed it, thus he could not be bound by it since he does not speak or understand English. The District Court agreed with Morales. Sun appealed.

According to the opinion written by Judge Michael A. Chagares of the US Court of Appeals Third Circuit, when Morales was hired in 2004 he passed a written exam in English and attended a 2 ½ hour orientation which explained the employment agreement. Sun provided a bilingual employee to translate for Morales during the orientation. The bilingual employee testified that he did not specifically explain the arbitration clause to Morales.

Judge Chagares ruled in favor of Sun, and remanded the case back to District Court with instructions to enter a stay pending arbitration. In his opinion, Judge Chagares cited an 1875 US Supreme Court decision, Upton v. Tribilcock that said: "It will not do for a man to enter into a contract, and, when called upon to respond to its obligations, to say that he did not read it when he signed it, or did not know what it contained."

Judge Chagares continued “Morales, in essence, requests that this Court create an exception to the objective theory of contract formation where a party is ignorant of the language in which a contract is written. We decline to do so. In the absence of fraud, the fact that an offeree cannot read, write, speak, or understand the English language is immaterial to whether an English-language agreement the offeree executes is enforceable.”

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On August 7, 2008, the California Supreme Court unanimously ruled in Edwards v. Arthur Andersen that the state legislature effectively restricted the ability of employers to prevent employees from working for competitors.

The Opinion States: “We conclude that Andersen’s noncompetition agreement was invalid. As the Court of Appeal observed, “The first challenged clause prohibited Edwards, for an 18-month period, from performing professional services of the type he had provided while at Andersen, for any client on whose account he had worked during 18 months prior to his termination. The second challenged clause prohibited Edwards, for a year after termination, from ‘soliciting,’ defined by the agreement as providing professional services to any client of Andersen’s Los Angeles office.” The agreement restricted Edwards from performing work for Andersen’s Los Angeles clients and therefore restricted his ability to practice his accounting profession.”

With a few exemptions primarily related to the sale of a business, the court essentially voided all California non-competition agreements.

California Business and Professions Code Section 16600 states:

Except as provided in this chapter, every contract by which
anyone is restrained from engaging in a lawful profession, trade, or
business of any kind is to that extent void.

Still in effect are the protections for the employer in the Uniform Trade Secrets Act which prevent employees from “stealing” the employer’s client list.

This case also takes on issues related to “employee release” agreements often signed upon termination of employment.

The Supreme Court held that employee release agreements in which the employee releases the employer from “any and all” claims do not waive statutory protections provided to the employee in Labor Code Section 2802.

Continue reading "California Supreme Court Rejects Validity of Most Non-Competition Agreements" »

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David McNary suffers from Diabetes and Graves’ Disease. He worked for Schreiber Foods as a sanitation employee on its dairy equipment. His co-workers knew of these conditions and would occasionally pitch in to help when he needed it. He was free from any work restrictions related to his health.

In September 2005, while cleaning trash compactors, McNary felt dizzy and light headed. He left the compactor area, put his feet up on a table and closed his eyes.

Two supervisors found him with his head back, his mouth open, and his eyes shut. McNary explained his medical conditions and denied he was sleeping. The Company subsequently terminated him for sleeping on the job.

In January, 2006 McNary filed a complaint against Schreiber alleging a violation of the Americans with Disabilities Act (ADA). McNary claimed discrimination based on his physical condition. He also claimed to have informed management and co-workers about his conditions and need to take brief breaks to relieve eye pain and dizziness.

Following discovery, The District Court found that Schreiber provided a legitimate nondiscriminatory reason for McNary’s termination; sleeping on the job in violation of company policy and granted Schreiber’s motion for Summary Judgment.

McNary appealed.

The United States Court of Appeals for the Eighth Circuit stated “We review de novo the district court's grant of summary judgment to [Schreiber]. Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.”

Notably, the Court of Appeals added,

"[F]ederal courts do not sit as a super-personnel department that reexamines an entity's business decisions." One reason we emphasize this point is that a number of plaintiffs present a sympathetic situation in which the employer's judgment in imposing discipline may appear poor or erroneous to outsiders. It is tempting to think that the role of the federal courts is to offer a remedy in that sort of case. Whether we might believe that [Schreiber] was unduly harsh in its treatment of [McNary], however, is not a matter to be considered in deciding this appeal. Our authority is to determine only whether there is a genuine issue for trial on the question whether [Schreiber] discharged [McNary] because of his [disability].

It could be inferred from that statement that McNary might have seen a better result if he had claimed that Schreiber failed to provide reasonable accommodation for his disability. But, he sued for wrongful termination and lost in District Court and on appeal.

McNary v. Schreiber Foods, Inc. (8th Cir. 8/1/08)

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The EEOC reports that discrimination claims, including those based on religion, are on the rise. New guidelines for religious discrimination went into effect July 22, 2008. The following information is directly from the new Section 12 of the EEOC compliance manual.

The entire “Directives Transmittal” is available HERE. The transmittal also contains 14 examples of what constitutes discrimination and what does not. Reading through it would be a great refresher for employers and HR staff.

Directives Transmittal Dated 7/22/08

SUBJECT: EEOC COMPLIANCE MANUAL

PURPOSE: This transmittal covers the issuance of Section 12 of the new Compliance Manual on “Religious Discrimination”. The section provides guidance and instructions for investigating and analyzing charges alleging discrimination based on religion.

EFFECTIVE DATE: Upon receipt

DISTRIBUTION: EEOC Compliance Manual holders

OBSOLETE DATA: This Section of the Compliance Manual replaces Section 628: Religious Accommodation, EEOC Compliance Manual, Volume II and its Appendices: Appendix A, Policy Statement on Ansonia Board of Education v. Philbrook and Religious Accommodation; Appendix B, Policy Guidance On ‘New Age’ Training Programs Which Conflict With Employees’ Religious Beliefs; and Appendix C, Religious Objections to Unionism. It also replaces the following policy documents: Religious Organizations that Pay Women Less than Men in Accordance with Religious Beliefs; Religious Organization Exemption Under Title VII of the Civil Rights Act of 1964, as amended; and Policy Statement on Goldman v. Weinberger (Accommodation of the Wearing of Religious Dress).

The Commission’s Guidelines on Discrimination Because of Religion, 29 C.F.R. Part 1605, remain in effect.

This Section of the Compliance Manual is designed to be a practical resource for employers, employees, practitioners, and EEOC enforcement staff on Title VII’s prohibition against religious discrimination. The Section defines religious discrimination, discusses typical scenarios in which religious discrimination may arise, and provides guidance to employers on how to balance the needs of individuals in a diverse religious climate.[10] The Section is organized by legal topic, as follows:

I - Coverage issues, including the definition of “religion” and “sincerely held,” the religious organization exception, and the ministerial exception.
II - Disparate treatment analysis of employment decisions based on religion, including recruitment, hiring, promotion, discipline, and compensation, as well as differential treatment with respect to religious expression; customer preference; security requirements; and bona fide occupational qualifications.
III - Harassment analysis, including religious belief or practice as a condition of employment or advancement, hostile work environment, and employer liability issues.
IV - Reasonable accommodation analysis, including notice of the conflict between religion and work, scope of the accommodation requirement and undue hardship defense, and common methods of accommodation.
V - Related forms of discrimination, including discrimination based on national origin, race, or color, as well as retaliation.

Continue reading "With Claims Rising EEOC Releases New Religious Discrimination Guidelines" »

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Today the U.S. Supreme Court made it more difficult for employers to defend lawsuits based on the Age Discrimination Employment Act (ADEA). In Meacham v. Knolls Atomic Power Laboratory, the Supreme Court ruled that the burden of proving that any termination having a disparate impact on older workers was based on reasonable factors, falls on employers.

From page one of the opinion:

When the National Government ordered its contractor, respondent Knolls, to reduce its work force, Knolls had its managers score their subordinates on “performance,” “flexibility,” and “critical skills”; these scores, along with points for years of service, were used to determine
who was laid off. Of the 31 employees let go, 30 were at least 40 years old. Petitioners (Meacham, for short) were among those laid off, and they filed this suit asserting, inter alia, a disparate-impact claim under the Age Discrimination in Employment Act of 1967 (ADEA), 29 U. S. C. §621 et seq. To show such an impact, Meacham relied on a statistical expert’s testimony that results so skewed according to age could rarely occur by chance; and that the scores for “flexibility” and “criticality,” over which managers had the most discretionary judgment, had the firmest statistical ties to the outcomes. The jury found for Meacham on the disparate-impact claim, and the Second Circuit initially affirmed. This Court vacated the judgment
and remanded in light of its intervening decision in Smith v. City of Jackson, 544 U. S. 228. The Second Circuit then held for Knolls, finding its prior ruling untenable because it had applied a “business necessity” standard rather than a “reasonableness” test in assessing the employer’s reliance on factors other than age in the layoff decisions, and because Meacham had not carried the burden of persuasion as to the reasonableness of Knolls’s non-age factors.

Continue reading "U.S. Supreme Court Intensifies Burden on Employers Defending Age Discrimination Lawsuits" »

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Earlier this month the California Supreme Court ruled on 2 issues related to the California Family Rights Act (CFRA) and the Family Medical Leave Act (FMLA) regarding the termination of hospital employee Antonina Lonicki.

Lonicki claimed she was suffering major depression and work related stress. On advice of her physician she requested medical leave and stopped coming to work. Lonicki’s request for medical leave was denied, but she was told she could take paid time off.
She was also told to return to work by a certain date or face termination.

Lonicki sought the opinion of a psychiatrist who documented her depression and recommended another 30 day medical leave. Her employer Sutter Health Central terminated her. She sued her former employer for violating the CFRA by firing her and by failing to follow CFRA procedures when questioning the validity of her sick leave.

Defendant (Sutter Health) moved for Summary Judgment. Sutter’s argument was that plaintiff was not entitled to medical leave under the CFRA because, in the period for which she sought medical leave, she had a part-time job at a different hospital (Kaiser) where her tasks were substantially similar to those she was hired to perform at defendant’s hospital in Roseville. Sutter further asserted that Lonicki’s part time job showed that she did not have a “serious health condition” as required for medical leave under CFRA and FMLA.

The Trial Court granted the Motion for Summary Judgment and upheld the termination. Lonicki appealed and the California Court of Appeal also upheld the termination and Summary Judgment. Lonicki appealed to the California Supreme Court.

The Supreme Court refused to hold that working in a comparable job was "conclusive" evidence no serious health condition justified leave. This Supreme Court opinion paves the way for a trial in which Lonicki’s termination and rights under FMLA and CFRA will be determined.

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In 2003 twelve San Francisco Police Officers sued the Police Department alleging that black officers were being favored for promotions to lieutenant. While the city admitted no wrongdoing, a settlement was reached 2 years ago. The settlement was delayed by the City’s approval process and decisions about how to split the proceeds among the plaintiffs.

From 1999 to 2003 thirty-nine lieutenant promotions were made after testing. The suit claimed that 5 black officers were promoted to lieutenant while better qualified officers had been passed over.

Lawyers for the plaintiffs - nine white officers, two Latinos and an Asian American – claimed that such results were statistically impossible without preferential treatment.

San Francisco Police officials have said that race was not a factor in the questioned promotions, all of which were made under acting Chief Alex Fagan who is no longer with the department.

After attorneys fees, one officer will receive $200,000, eight will receive $100,000 each and three will receive $50,000 each.

Alexis Thompson, spokeswoman for City Attorney Dennis Herrera said “This settlement puts to rest old challenges to a series of old promotions under an old administration."

This case in not unique. In Jacksonville Florida four lieutenants in the Fire Department claimed their promotions to Captain were blocked by Fire Chief Ray Alfred. A jury sided with the firefighters and awarded $220,000.

Last year, New Orleans District Attorney Eddie Jordan resigned after a judge found his office liable for $3.7 Million in a reverse discrimination lawsuit. Jordan was accused of firing 35 white employees and hiring black employees to replace them.

Continue reading "San Francisco Police Department Reverse Discrimination Lawsuit Settled for $1.6 Million" »

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Before Gary Ross was hired by Raging Wire Telecommunications Inc., he was honest about his off the job use of marijuana for medicinal purposes. He even provided Raging Wire a copy of his doctor’s note. Days after he started, Raging Wire fired him, citing his off site drug use.

Since the Compassionate Use Act of 1996 was passed, California employers have been confused about how the act applied to employment laws. In a 5 to 2 decision, the California Supreme Court finally provides clarity.

The Court concluded that the Compassionate Use Act gives gives medical marijuana users a defense against criminal prosecution in state court -- but provides no additional rights under employment law.

After affirming that marijuana remains an illegal drug under federal law, majority author Justice Kathryn Mickle Werdegar wrote that the California Fair Employment and Housing Act "does not require employers to accommodate the use of illegal drugs”.

Justices Carlos Moreno and Joyce Kennard issued a joint opinion that concurred on some points but mostly dissented.

The bottom line is that this opinion by the California Supreme Court was very pro business and provided long overdue clarity for California employers. Here is Raging Wire’s Press Release about the decision.

Continue reading "California Supreme Court Gives OK to Fire Medical Marijuana Users" »

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American Apparel CEO Dov Charney is accused of taking meetings in his underwear, verbally disparaging women and generally creating a hostile work environment according to the lawsuit plaintiff Mary Nelson. Based on this msnbc story, calling Charney a colorful character would be an understatement. Photo of Charney is courtesy of American Apparel.

Charney contends that he has built a workplace where freedom and creativity are critical to the success of American Apparel. He admits to running around his office in underwear while designing a new line, and even to being his own underwear model.

But Mary Nelson’s lawsuit is not his first. Which brings me to the topic of this post.

Sexual harassment is wrong, and it is clearly against the law. If your company has had one harassment lawsuit, that is one too many. Every employment lawsuit filed against a company makes it easier for any employee to file the next one, and the next one and the one after that.

Every problem related to harassment, discrimination, hostile work environment, etc. needs to be addressed and resolved promptly. Next, steps must be taken to insure that the problem never happens again to any employee.

Lawsuits will happen to every employer. Maybe you don’t take meetings in your underwear but if your company is doing anything else which might be inviting lawsuits, today would be a good day to make some changes.

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In November 2002 Zachary Casella was hired by Southwest Dealer Services, Inc. On April 3, 2003 Casella’s employment was terminated. Casella had been a representative for Southwest Dealer Services, a company which provides aftermarket products for car dealers. Casella claims he had been required to track dealer practices which he felt were illegal and/or unethical. After he complained to Eric Hamann, President of Southwest Dealer Services, he was fired.

Casella sued Southwest Dealer Services for wrongful termination. A jury returned a special verdict in favor of Casella on each of his claims against defendants, and awarded Casella a total of $480,003, including punitive damages.

Southwest Dealer Services appealed. Their basis for appeal? Southwest Dealer Services claimed that the practice of “payment packing” (described in detail in the decision) was not illegal when they terminated Casella’s employment.

The Court of Appeal disagreed.

The decision names numerous automobile dealerships and dealer groups in Southern California, but specifically alleges “Payment Packing “ at only one; Spreen Honda. Is it a good business decision to expose your client’s questionable business practices to the public in a lawsuit just to defend a wrongful termination lawsuit? When you lose, do you want to further expose your client during an appeal? Do you suppose Spreen Honda or any or the other dealers mentioned are still clients of Southwest Dealer Services?

This is a great example of the type of thinking that creates business litigation cases. Winning lawsuits are based on good business decisions and successful legal strategies.

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The Walt Disney Co., the world's largest theme-park operator, has been sued by three people who allege that the company's ban on Segway personal transporters at its theme parks is in violation of federal disability laws.

No one seems to be claiming that they were denied access to Walt Disney World or any other Disney Theme Park. The allegations seem to be that they (disabled guests who can stand but not walk long distances) could not use their Segways.

While not commenting on the lawsuit, Disney Spokesperson Jacquee Polak stated "Our primary concern is the safety of all our guests and our cast members. We have a long history of being a leader in creating accessible experiences for our guests with disabilities."

Depending on model and equipment, most Segways weigh between 110 and 120 pounds. Add the weight of a small rider at 140 pounds and you have a total weight of 250 pounds and above.

Imagine the injuries to Disney guests if a Segway traveling at a speed 10 to 12 mph accidently hit one or more guests.

Disney welcomes the use of manual and electric wheelchairs and 4 wheel power chairs by disabled guests. Disney even has them available for rental.

With the utmost respect for all people with disabilities, I agree with Disney on this issue. The safety of Disney guests is more important than the wishes of a few who want to see Disneyland on a Segway. Wheelchairs and powerchairs are far more safe in crowded venues.

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If you have ever wondered why so many employees at your bank carry the title of Vice President, the decision in Ramanathan v. Bank of America could shed some light. The California Court of Appeals reversed a trial court decision, which will allow Padmanabhan Ramanathan to move forward with his wrongful termination suit against Bank of America.

The banks position was that the National Banking Act Sec. 24(Fifth) of the bank act bestows the power “[t]o elect or appoint directors, and by its board of directors to appoint a president, vice president, cashier, and other officers, define their duties, require bonds of them and fix the penalty thereof, dismiss such officers or any of them at pleasure, and appoint others to fill their places.”

The most entertaining part of the decision was found in the footnotes…… At oral argument, the Bank’s counsel argued that if the Bank chose to designate all of its employees, “including janitors, maintenance workers, everyone” as “vice presidents,” then they too would all be covered by the provisions of the NBA. The judge labeled this a “startling assertion”.

In spite of such a sound “legal” argument, Superior Court Judge Jeffrey W. Horner, writing on assignment for the Court of Appeal gave more weight to Ramanathan’s declaration that he had no employees working under his supervision, had no control over anyone else’s employment, was primarily involved in the design and development of software applications, and had nothing to do with banking operations or customer service.

Continue reading "Court of Appeals to Bank of America: When is a Vice President not a Vice President?" »

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We regularly receive requests to explain the process of litigation, which we always communicate (using dialog NOT monologue) to prospective clients during our initial consultation. We hope you will find our lawsuit synopsis helpful. Feel free to forward it to others and remember to contact us with any questions about any business or employment lawsuit.

The litigation process generally involves four (4) phases. The length of each phase varies with the legal and factual complexities of each case.

The initial phase takes place before anything is filed in court. The attorney meets with the client to determine the facts of the claim being advanced by the client or the client's defense to a claim brought by another. In either case, it is essential that the client meet with the attorney at the earliest opportunity as valuable rights may be lost by delay. Once the attorney meets with the client, the attorney will review any documents relevant to the matter, research the applicable law and possibly speak to witnesses in order to chart a course which is in the best interest of the client.

The next phase involves the filing of an initial pleading in court. Typically, this is the filing of a Complaint or an Answer to a Complaint. The discovery process begins, which may include serving the other side with written questions, called Interrogatories, obtaining evidence which may be in the possession of the adversary or some other party and taking depositions, the oral questioning of parties and witnesses.

Once this phase has been completed, the case is ready to be tried. A trial may be in front of a Jury or a Judge and can vary in length depending upon the number of witnesses and quantity of exhibits offered. Under our system of jurisprudence, the plaintiff has the burden of proof. The plaintiff's case goes first. The defendant then has an opportunity to respond to the plaintiff's case with witnesses and evidence to support the defense. If the defendant has brought a Cross-Complaint, it is tried in the same manner. Otherwise, the plaintiff has an opportunity to put on a rebuttal case to counter the evidence offered by the defendant and, on occasion, a defendant may offer a sur-rebuttal to reply to the evidence offered by plaintiff in the rebuttal case.

The final phase of litigation involves the post-trial matters including motions to vacate or correct the judgment, appeals and efforts to collect on the judgment.

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In Madden vs. Del Taco, Patrick Madden claimed he fell from his wheelchair and was injured when he attempted to pass a concrete trash barrel on a ramp leading to an entrance to a Del Taco restaurant. The obstruction had forced him to navigate his wheelchair to enter the restaurant. Unfortunately, the walkway was too narrow with the addition of the trash barrel and Plaintiff’s wheelchair went off the curb. Madden fell over and out of the chair, injuring himself as a result. Del Taco moved for summary judgment and, in so doing, claimed that the trash barrel was merely a temporary obstruction which was moved to a wider portion of the ramp immediately following the incident. In addition, the store had another entrance which presented no obstructions. Based upon this showing, the trial court granted summary judgment in favor of Del Taco.

The Court of Appeal reversed. It found the presence of the trash container to be a prima facie violation of the Americans with Disabilities Act (ADA) which provides that no individual may be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages or accommodations of any place of public accommodation. Such a violation was also a violation of the Unruh Act (Civil Code § 54) which guarantees individuals with disabilities to have the same right as the general public to the full and free use of public places.

The Court of Appeal observed the requirements of ADA extend beyond the initial construction or alterations of existing structures. Indeed, it imposes a duty to remove any barrier to access, where removal is readily achievable. The ADA does not make any distinction between temporary or permanent obstructions to access hence, the placement of a concrete trash barrel, even if temporary, is a prima facie violation of ADA and the Unruh Act where a disabled person is hindered in his or her access to the premises.

Continue reading "As Del Taco and Other Public Establishments Have Learned Obstructions, Even Temporary Ones May Give Rise to ADA and Unruh Act Liabliity" »

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The U.S. Equal Employment Opportunity Commission (EEOC) today announced the settlement of a discrimination lawsuit against GLC Restaurants, Inc. (GLC) for $550,000 and substantial remedial relief on behalf of a class of teenage workers who were sexually harassed by a middle-aged male supervisor, including unwanted touching and lewd comments.

Flagstaff based GLC is a franchisee doing business as McDonald’s Restaurants in California and Arizona.

The EEOC maintained in the suit that the male supervisor in question was a repeat offender who subjected eight young women, who were part-time crew members, to a sexually hostile workplace at the McDonald’s run by GLC in Cordes Junction, Ariz. Previously, the same male manager allegedly harassed teen female employees at a GLC-owned McDonald’s Restaurant in Camp Verde, Ariz. The EEOC said that GLC knew of this manager’s earlier conduct but failed to take appropriate action to prevent him from repeating the unlawful behavior at another of its restaurants. The EEOC also alleged that the working conditions for one teenager in Cordes Junction were so intolerable that she was forced to resign.

In addition to paying $550,000 to the eight young women, the EEOC settlement by consent decree requires GLC to provide training and other relief aimed at educating its employees about sexual harassment and their rights under Title VII of the Civil Rights Act. Under additional terms of the settlement, Prescott attorney Milton W. Hathaway, Jr, the private lawyer for four of the young women, will apply to the court for an award of attorney fees up to $400,000.00.

The EEOC filed the suit in U.S. District Court for the District of Arizona after investigating multiple charges of discrimination and exhausting its efforts to reach a voluntary settlement (EEOC v. GLC Restaurants, Inc., d/b/a McDonald’s Restaurant, Civil Action No. CIV- 05-0618-PCT-DGC).

If you are an employer with a problem employee, think twice about reassigning him or her within your company. Effective, well documented lawful termination might be a less costly alternative. Further, employee problems seldom get better with time. The phrase “nip it in the bud” is right on target here.

Lastly, if the EEOC comes knocking, do absolutely everything possible to reach a voluntary settlement instead of waiting for a lawsuit to be filed. Our federal government is a powerful adversary with deep pockets. Follow these simple suggestions and you just might keep them out of yours!

Posted by Richard Oppenheim | Permalink | Email This Post

Posted In: Employment Law

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