LCW Partner Jesse Maddox and Associate Daniel Bardzell recently obtained a victory on behalf of a hospital in an arbitration involving alleged violations of the Fair Employment & Housing Act (FEHA).
In 2016, a maintenance engineer filed a lawsuit against the hospital and his former supervisor alleging claims for 1) race harassment; 2) race discrimination; 3) failure to prevent harassment and discrimination; 4) wrongful termination (retaliation); 5) intentional infliction of emotional distress; and 6) negligent infliction of emotional distress. The employee alleged he was forced to go on stress leave in 2014 after his department director made three comments about the race between late 2012 and January 4, 2014; and another manager told him he would be moved to the night shift in March 2014. The employee submitted a written complaint to the hospital about these allegations, and the hospital immediately commenced an investigation. While on leave, the employee submitted a note from his health care provider indicating that he could return to work, but not at any of the hospital’s many facilities. As a result, the hospital separated the employee in March 2015 due to its inability to accommodate him. After the employee initiated his lawsuit, the hospital successfully moved to compel arbitration of the issues.
After the employee presented his case at the arbitration, the hospital moved for judgment as to all of the employee’s causes of action. As a preliminary matter, the hospital argued that the employee did not timely exhaust his administrative remedies. Under the FEHA at the relevant time, an employee was required to first file a complaint with California’s Department of Fair Employment and Housing (DFEH) within one year of the alleged misconduct. In this case, the employee did not file a DFEH complaint until January 16, 2015. Thus, the hospital argued that any harassing conduct prior to January 16, 2014, including all of the alleged comments about race, were time-barred. Further, because the employee did not amend or refile his DFEH complaint after the hospital terminated his employment in March 2015, he did not exhaust his administrative remedies with respect to the termination of his employment.
The hospital argued that even assuming that the employee’s claims were not barred, they still failed. For example, as to the harassment claim, the hospital contended that the employee did not prove severe or pervasive harassment. In order to be actionable harassment, the conduct must be “sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” Because none of the three comments were physically threatening or egregious, and because they occurred sporadically over a period of 14-months, the employee could not demonstrate they were “severe” or “pervasive.”
The hospital also argued that the employee failed to prove his discrimination claim. The employee testified he believe he was being moved from the day shift to the swing shift because of comments he had made during a town hall meeting in early March 2014. Thus, he could not prove that his proposed shift change was based on race, and this allegation could not support a discrimination cause of action. Because the employee asserted he could not work at any hospital facility, there was no evidence the hospital terminated him because of his race, and the hospital had legitimate reasons to end his employment.
Further, the hospital argued the employee could not establish a causal connection between his complaints and the alleged adverse acts. Although the complaint alleged the department director harassed him in March 2014, the employee did not present any evidence showing who made the decision to terminate his employment or whether the decision-maker knew about the complaint. Therefore, he could not establish a causal connection between his complaint and his termination.
The hospital also contended the employee could not establish his intentional infliction of emotional distress or negligent infliction of emotional distress claims. The arbitrator agreed and entered judgment in the hospital’s favor on all of the employee’s causes of action.
NOTE:
LCW is proud to have won this arbitration but also to have saved our client the time and expense involved in a trial. Note that while this case involved claims for wrongful termination, intentional infliction of emotional distress, and negligent infliction of emotional distress, public employees are generally barred by case law from bringing such claims against public education employers. Note also that effective in 2020, the legislature amended the FEHA to extend the time an employee has to file a DFEH claim from one to three years.