Education Matters: November 2022 by lcwlegal

November 2022

Education Matters

Table Of Contents 03

Gender Discrimination

Unemployment

Retirement

COVID/Religious Exemptions

Negligence

Title IX

Benefits Corner

Firm Victories

Did You Know...?

Due Process

Discrimination

Consortium Call Of The Month

Contributors: T. Oliver Yee Partner | Los Angeles Savana Jefferson Associate | Sacramento Stephanie J. Lowe Associate | San Diego

Connect With Us! @lcwlegal Copyright © 2022 Requests for permission to reproduce all or part of this publication should be addressed to Cynthia Weldon, Director of Marketing and Training at 310.981.2000. Cover Photo: Attributed to pexels.com

Education Matters is published monthly for the benefit of the clients of Liebert Cassidy Whitmore. The information in Education Matters should not be acted on without professional advice. To contact us, please call 310.981.2000, 415.512.3000, 559.256.7800, 916.584.7000 or 619.481.5900 or e-mail info@lcwlegal.com.

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gender discrimination

plaintiff ’s protected class got the job. Here, because Plaintiff could not plausibly plead element (4), he suffered no “discrete harm,” in the trial court’s view, and would suffer none until someone else got the job. Plaintiff appealed.

In 2017, Mark Charlton-Perkins (Plaintiff), a male research scientist, applied to be a professor at the University of Cincinnati (University). A designated search committee considered all of the applicants and interviewed the top four candidates, which included two females and two males, including the Plaintiff. The committee took a final vote on the candidates, and rated Plaintiff as the favorite by a vote of three to one, followed by the two women. The other male candidate was eliminated.

On appeal, the U.S. Court of Appeal for the Sixth Circuit disagreed with the trial court. The Sixth Circuit relied on Supreme Court precedent that the prima facie case requirement for a case of discrimination under Title VII is not an “inflexible rule,” and may vary under particular factual circumstances. The Sixth Circuit stated that Plaintiff suffered an injury when the University did not select him for the position, and this injury had nothing to do with whether or not someone else got the job. The Sixth Circuit concluded that Plaintiff also adequately alleged that the University’s cancellation of the job search was itself discriminatory. The University not only failed to hire him because of his gender, but they then canceled the search itself as a pretext to conceal the discriminatory reason for the failure to hire.

Under the Collective Bargaining Agreement between the faculty and University, the search committee was vested with the authority to determine the candidate to be selected for the position. Dr. George Uetz, the Department Chair, told the search committee that Kenneth Petren, the Dean of College of Arts and Sciences, wanted “to focus on the women candidates first.” Dr. Uetz also conveyed that Dean Petren “felt that he might make a case to hire two strong women candidates.” The search committee chair responded to Dr. Uetz by stating that “putting two lower ranked candidates up first is not only against the recommendation of the committee but also plain discrimination.” Shortly after, the Dean informed the faculty that he was cancelling the search in its entirety.

November 2022

Sixth Circuit Holds University Cannot Avoid Gender Discrimination Lawsuit By Cancelling Job Search.

Charlton-Perkins v. University of Cincinnati (6th Cir 2022) No. 21-3840, 2022 WL 1819628. NOTE: This is a case from the Sixth Circuit and therefore not binding authority in California. However, this case provides educational institutions with insight on a federal court’s reasoning involving failureto-hire cases, and warns employers that it cannot avoid liability for discriminatory failure-to-hire by cancelling a job search as a pretext to cover up its discrimination.

Plaintiff sued the University claiming they failed to hire him due to his gender. Plaintiff alleged that he was the most qualified candidate for the position but was passed over for the position because University officials preferred the two lower-ranked female finalists for the position. The trial court dismissed Plaintiff ’s complaint, finding that Plaintiff did not suffer a harm because no one else got the position. Looking to principles from Title VII, the trial court reasoned that no injury “in fact” occurs unless the plaintiff (1) is a member of a protected class, (2) was qualified for and applied for the job, (3) was denied it, and (4) an individual of similar qualifications not in the

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Don’t Miss Our Upcoming Legislative Roundup Webinar!

Public Agency Legislative Roundup Tuesday, December 6 10:00 - 11:00am

California Governor Gavin Newsom signed into law a number of new bills passed in this year’s Legislative Session that will impact California employers. Many of these new laws will go into effect on January 1, 2023. This webinar will provide an overview of key new legislation involving labor and employment laws that will impact California’s public agencies.

Who Should Attend:

Management and Supervisory Personnel, Human Resources Staff and Agency Counsel

Presented By: Che I. Johnson

For more information, visit our website.

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Court Upholds University Of Colorado’s Vaccination Policy.

On September 1, 2021, the University of Colorado (University) implemented a vaccination policy such that unvaccinated individuals who did not have a medical or religious exemption would not be allowed to access the University’s Medical Campus facilities. On September 24, 2021, the University amended its vaccination policy. Under the amended policy, medical accommodations were still available to employees and students, but religious accommodations were no longer available to students. Current and former employees and students of the University’s Medical Campus (Plaintiffs) sued the University alleging that the University violated their rights by denying their requests for religious exemptions from the University’s COVID-19 vaccination requirement, and requested that the court stop the enforcement of the amended policy through injunctive relief. The U.S. District Court of Colorado denied Plaintiffs’ request for injunctive relief. The court concluded that with respect to the amended policy, Plaintiffs had not shown a likelihood of success on the merits because the policy is neutral on its face and as applied to Plaintiffs, generally applicable, and rationally related to the goal of protecting public health. The court first noted that under the Constitution, the right of free exercise to religion does not relieve an individual of the obligation to comply with an otherwise valid and neutral law that is generally applicable. The court stated that the University’s amended policy is neutral because it applies to anyone who works or learns in the University’s Medical Campus. The policy does not restrict any religious practices because of their religious nature.

November 2022

covid / religious Exemptions

The court also found the policy was neutral as applied to Plaintiffs. Allowing employees, but not students, to request religious accommodations treats employees and students differently, but it does not single out religion or religious practices. Additionally, the Plaintiffs have not shown a likelihood of establishing that the University implemented the amended policy “with the aim of suppressing religious belief, rather than protecting the health and safety of students, staff, and the community.” The court noted that contrary to this, the fact that the University amended its policy while navigating a global pandemic does not show that its reasons for denying religious exemptions for students are pretextual. The court also found that the University has a compelling interest in ensuring that employees and students associated with the University’s medical campus are vaccinated against COVID-19 for their patients’ health and safety, as well as their own. The court noted that during this pandemic, the public interest is not served by adding to that burden additional uncertainty about colleagues’ vaccination status. Does v. Board of Regents of the University of Colorado (2022) Case No. 0:22-cv-01027. NOTE: This is a Colorado case and therefore not binding in California. However, this case provides insight as to how a federal court interpreted a University’s COVID-19 vaccination policy.

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title ix U.S. Department Of Education Released Guidance Regarding Pregnancy And Related Conditions.

DOJ Announces $21 Million In Grant Awards To Reduce Sexual And Domestic Violence On College Campuses.

The Department of Education’s Office for Civil Rights (OCR) enforces Title IX of the Education Amendments of 1972, which prohibits discrimination based on sex in education programs or activities that receive Federal financial assistance. The Department’s Title IX regulations prohibit discrimination based on pregnancy and related conditions in institutions that receive Federal funds. On October 4, 2022, the OCR released guidance reminding schools of Title IX’s application to discrimination and exclusion regarding pregnancy and related conditions. Schools must not discriminate or exclude any student from their education program or activity, or an employee or applicant from employment, based on pregnancy, childbirth, false pregnancy, termination of pregnancy, or recovery from pregnancy. The OCR’s guidance states that schools must treat pregnancy, childbirth, false pregnancy, termination of pregnancy, and recovery therefrom the same as any other temporary disability, and provide the student or employee with leave. The OCR’s guidance also provides information on how students, employees, or applicants for employment who may have been discriminated against based on pregnancy or related conditions on how to file a complaint through their school’s grievances procedures. The guidance notes that anyone can file a complaint with OCR, include students, parents and guardians, employees, community members, or and others who experience or observe discrimination in education programs or activities based on sex, including pregnancy and related conditions, as well as based on race, color, national origin, disability, and age.

On September 22, 2022, the Department of Justice (DOJ) announced nearly $22 million in upcoming grant awards to address and prevent sexual assault, domestic violence, dating violence, and stalking on college campuses; and to provide services to youth victims and children exposed to such violence, and engage men and boys as allies.

The U.S. Department of Education’s Office for Civil Rights October 4, 2022 news release is available at: https://www2.ed.gov/about/offices/list/ocr/docs/ocrpregnancy-resource.pdf.

The Office on Violence Against Women (OVW) will award $10,688,200 through 36 grants to address and prevent domestic violence and sexual assault on college campuses through the Grants to Reduce Sexual Assault, Domestic Violence, Dating Violence and Stalking on Campus Program. In addition, the Consolidated Youth and Engaging Men Grant Program will award $11,031,653 through 25 grants to implement programming that encourages men and boys to be role models and change agents in their communities working toward the goal of eliminating sexual and domestic violence. The OVW will announce grant solicitations for both grant programs in late fall 2022. Associate Attorney General Vanita Gupta commented that these grants will help colleges and universities develop prevention policies, offer survivor-centered services, and train campus police to meet the needs of their students. These grants also provide critical intervention services to children and young adults, in addition to engaging them to be leaders in combatting violence. The Department of Justice Office of Public Affairs News Release is available at: https://www.justice.gov/opa/pr/ justice-department-announces-2172-million-reducesexual-and-domestic-violence-campus-support.

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November 2022

Compensation Questions? Negotiation Issues? We Have Webinars For Your Needs!

Using Compensation Surveys & Data During Negotiations Tuesday, December 13, 2022 10:00am - 11:00am

This webinar will address one of the most important topics of the labor negotiations process. Both employers and employees look at the relevant marketplace as one of the most important considerations in determining what to propose and ultimately what to agree to in negotiations. Well done compensation surveys can help you both support the positions you are asserting at the collective bargaining table and show your elected officials who provide direction and authority where your wages and benefits are above and below the relevant marketplace. Data can also be used to help you support your positions, convince the labor association why your position has merit, and help you reach an agreement. Being able to use compensation surveys and data to help you requires that you plan in advance of your negotiations to gather the information that you will need. This webinar will address the key issues to make this part of the negotiations process one that helps you reach an agreement.

FLSA Compliant Automated Payroll Systems – Is It Possible? Tuesday, January 17, 2023 10:00am - 11:00am

Are you one of the many public agencies looking to address payroll processing issues through a payroll system upgrade? Or perhaps your agency just completed transitioning to a new system and are looking to ensure correct set up? Join Lisa Charbonneau, one of LCW’s FLSA specialists, for this one-hour webinar, which will go over some of the most common FLSA compliance problems with automated payroll systems, including overtime calculations, timely payment of compensation, alternative work schedules, work periods, and rounding / de minimis time. The webinar will also discuss best practices to ensure FLSA compliant automated payroll processing and how to self-audit for FLSA compliance. • www.lcwlegal.com •

firm victories

LCW Successfully Upholds A Peace Officer’s Termination For Dishonesty And Excessive Force.

LCW Partner Jennifer Rosner and Associate Attorney Danny Ivanov succeeded in upholding a county’s termination of a peace officer. The officer was accused of using excessive force during a pursuit, and subsequently lying about his actions in both his supplemental police report and investigative interview. The case began on May 5, 2020, when a passenger in a vehicle involved in a pursuit fled the vehicle. After deputies apprehended the fleeing passenger-suspect, the officer kicked the suspect’s head and left side of his body. When the suspect turned his head, the officer then kicked him three more times in the face. The officer later placed his knee on the suspect’s head. When the suspect cried out in pain, the officer slapped him and said: “Shut up, shut your mouth.” The officer’s force caused bleeding and facial fractures that required medical attention. The officer filed a supplemental report that falsely indicated he kicked the suspect four to five times in the arm, shoulder, and upper torso, and not the head and face. The arbitrator found that the preponderance of the evidence indicated that the officer’s use of force was inappropriate, unnecessary, and unreasonable. The kicks to the face and head were unreasonable because they were not applied to arrest, prevent escape, or overcome resistance. The arbitrator rejected the officer’s claims that he did not intend to kick the suspect in the face or head, and that he did not recall kneeling on the suspect’s head. The arbitrator cited to the U.S. Supreme Court’s decision in Graham v. Connor, 490 US 386 (1989), in deciding it was irrelevant whether the officer used force in good faith or maliciously. In Graham, the Court determined that an objective reasonableness standard applied to a civilian’s claim that law enforcement officials used excessive force when making an arrest.

The arbitrator also found that the officer had acted dishonestly by not properly documenting his use of force and by omitting relevant information pertaining to where the officer applied the force on the suspect’s body. The arbitrator noted that regardless of the officer’s intentions, he still misrepresented and omitted information concerning the incident, which violated the department’s policy against dishonesty.

LCW Successfully Upholds The Removal Of An FTO Assignment For Delayed And Inadequate Response To A 911 Call. LCW Partner Scott Tiedemann and Associate Attorney Alex Wong convinced the Superior Court to uphold a City Manager’s decision to remove a police officer from his premium-paid, Field Training Officer (FTO) assignment. The case began on May 16, 2018, when the City’s police department received a 911 call from a teenager. She was home caring for her younger sibling while her neighbor was outside her house yelling that he had “f…ed up.” The call was logged into the CAD system, along with the information that the neighbor- subject had previously been convicted for substance abuse and involuntarily committed to a mental facility. At approximately 4:43am, the FTO received the call from dispatch and responded he was “enroute to call.” The teenager’s home was 1.2 miles from the police station, and no more than a 5-minute drive. The FTO and his trainee did not arrive at the home until 15 minutes later because they took time at the station to “wrap up” lunch, reorganize chairs, set the alarm, and use the restroom. The FTO had been to the subject-neighbor’s house because the subject had previously “barricaded” himself in his home and the officer had spent 45 minutes to coax the subject out. Once the FTO and his trainee arrived at the 911 caller’s home, only the trainee got out and inspected

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November 2022

the location with a flashlight. When the trainee did not see anything, he returned to the car. The officers did not contact either the teenager who called in the complaint, or anyone at the neighbor’s residence. They marked the call “completed” four minutes after they arrived on scene. After an investigation and an advisory hearing, the City Manager decided to permanently remove the officer from his FTO assignment. The officer appealed his reassignment to the California superior court. The court reviewed whether the City Manager’s decision was a prejudicial abuse of his discretion. An abuse occurs if an administrative decision: was not reached in the manner required by law and the agency’s rules; was not supported by the findings at the hearing; or if the evidence at the hearing did not support the decision’s findings. The court found that any errors in the decision-making process did not prejudicially affect the officer’s rights. The court found that the weight of the evidence supported the City Manager’s decision. First, the 15-minute delay was not justified because a minor had called 911 at 4:43 am to report that a tall, young man was outside her house ringing her doorbell and cursing. The CAD notes also indicated that the man had convictions for substance abuse, failure to appear and probation violations. Because the officer had not identified any good reason to delay the response, the evidence supported the finding that his 15-minute response was a neglect of duty. Second, the court found that the weight of the evidence showed that the officer’s decision to remain in the car while the trainee searched the area also violated numerous Police Department policies. Most importantly, letting the trainee search alone in those circumstances was inconsistent with both officer safety and the need for an FTO to demonstrate the right way to do police work. The court concluded that the City Manager’s decision to remove the officer from his FTO assignment and pay was within his discretion and consistent with good cause. The court noted that the FTO is an important assignment that is responsible for training new officers in Department policies and procedures. The officer’s misconduct reasonably supported the decision to remove the officer from his FTO assignment due to his failure to meet those high standards.

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Seminars • www.lcwlegal.com •

Webinars 9

due State Agency’s Skelly Letter Failed To Provide Employee Adequate Notice Of Discipline. One summer evening in 2017, Sergeant Steven Rodgers, a Department of Corrections and Rehabilitation (CDCR) employee, was working an evening “contraband surveillance watch” shift at the Pelican Bay Security Housing Unit (SHU). Contraband surveillance watch is a procedure for monitoring inmates suspected of hiding drugs or weapons inside their body. The inmate is physically restrained and placed in a cell under constant observation until they excrete the contraband, or 72 hours has elapsed. The restraints prevent the inmate from accessing and re-ingesting the contraband before staff can retrieve it. Each watch is divided into shifts that a sergeant supervises. At least twice during the shift, the supervising sergeant is required to help the officer ensure the restraints are secure and comfortable. Pelican Bay’s policy states a preference that these checks occur at the beginning and end of every shift, though it is not mandatory.

Angulo and Palafox said Rodgers allegedly told them he was “too busy” at the time. At approximately 10:30 pm, Palafox again asked Rodgers to do the check, to which Rodgers told Palafox to “pencil whip” (a military term that means to forge or falsify) the form to show the check as completed. Rodgers also allegedly said if anything happened, he’d “take the hit”. The officers then contacted another Sergeant, who contacted Rodger’s supervisor Lieutenant Vanderhoofven. The officers said they asked Rodgers again at 11:15 pm to conduct the restraint check, at which point he “became irritated” for repeatedly asking him. Around midnight, approximately two hours into the shift, Rodgers conducted the restraint check and discovered one of the inmate’s leg cuffs were not doublelocked.

At around 2:00 am, Lt. Vanderhoofven visited the facility to discuss proper procedures with Rodgers after hearing Rodgers was “refusing” to conduct the check. After the Lieutenant left, Rodgers allegedly returned to the watch area and angrily asked the officers, “Which one of you mother f…ers spoke to another sergeant about this?” The next morning, at approximately 5:30 am, Sergeant Reynoso arrived to take over as supervising sergeant and the At approximately 10:00 pm that officers asked him to do the check night, correctional officers Angulo with them. When Rodgers arrived and Palafox began their shift and approximately 10 minutes later to do requested Rodgers to conduct the the final check and discovered it had first restraint check. The officers’ already been completed, he became testimony differs as to what happened upset again and said, “What the hell, next. you trying to have another sergeant do my job?”

Rodger’s version of events is different. He states he never neglected his duty to perform the restraint checks, but that he simply was too busy to perform the checks at the times the officers repeatedly asked. Rodgers was angry the officers were falsely accusing him of neglecting the restraint checks when Rodgers was simply telling them that he would conduct the checks later. In May 2018, CDCR served Rodgers with a Notice of Adverse Action (NOAA) stating that his salary would be reduced by 10 percent for two years, effective the end of that month. The NOAA alleged Rodgers: (i) neglected his duties by “refusing to perform” the inspection at the beginning of shift; (ii) treated his subordinates in a “discourteous and disrespectful” manner when he angrily, and with profane language, “confronted and intimidated” them about reporting his neglect of duty to another sergeant; and (iii) “misused [his] authority” when he directed the officers to “pencil whip” their inspection documentation, thereby “instructing them to fill in inaccurate information regarding the restraint inspections on official records.” Rodgers requested a hearing. The hearing officer largely credited Rodgers’ testimony over the officers’ testimony. The hearing officer found the allegation that Rodgers had refused to perform a timely restraint check at the beginning of the shift was unsubstantiated. This is because Rodgers repeatedly said he would do the check later because he was tending to other duties. Palafox’s watch form corroborated Rodgers’ testimony

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that he performed the check approximately 45 minutes into the shift. The hearing officer concluded the document falsification allegation was unsubstantiated, because he credited Rodgers’ testimony to “pencil in” the form, not “pencil whip” it. The only specific allegation the hearing officer upheld was the discourteous confrontation charge. The hearing officer found that Rodgers had been angry and used profanity, but for a different reason than what was alleged in his NOAA. He found Rodgers was angry because Rodgers believed the officers had falsely accused him for a neglect of duty he had not committed; Rodgers did not believe the officers had accurately reported any misconduct because Rodgers had indeed completed and/or was willing to complete the required restraint checks.

years based on a single allegation of misconduct. Because the hearing officer found Rogers engaged in only one of the several charges of misconduct listed in the NOAA, Rodgers lacked appropriate notice that only one charge could subject him to the full penalty proposed.

The Court rejected the SPB’s argument that the penalty should be upheld because the hearing officer found that Rodgers’ discourteous treatment of the officers was likely to recur and could chill the officers’ willingness to report any future misconduct. The Court said the problem is not with the charge of discourteous treatment; the problem was with the NOAA’s description of the basis for that charge. The NOAA advised that the discourteous treatment charge was premised on an underlying neglect of duty; CDCR claimed Rodgers angrily confronted his subordinates for reporting a Despite upholding only the refusal to perform the beginning-ofdiscourteous confrontation allegation, shift inspection. But that is not what the hearing officer concluded the full- the hearing officer found. Instead, proposed salary reduction of -10% for the hearing officer found that, the next two years was an appropriate having properly discharged his duty penalty. The State Personnel Board to perform the restraint inspection, (SPB) upheld the hearing officer’s Rodgers angrily confronted his findings, Rodgers timely challenged subordinates because they’d wrongly the decision in superior court. The accused him of shirking his duty. superior court denied Rodgers’ challenge and Rodgers appealed. The Court reiterated that it was not condoning Rodgers’ behavior or The Court of Appeal agreed with saying it was not punishable. The Rodgers that the SPB decision hearing officer did find that Rodger’s violated his procedural due process decision to confront his subordinates right to notice of the basis for the with anger and profanity was disciplinary penalty. The Court unprofessional, discourteous, and found that Rodgers was not notified violated CDCR’s policy on treating that he was to be disciplined with other employees with respect. But a 10% reduction in salary for two the issue before the Court was not • www.lcwlegal.com •

November 2022

process whether Rodgers committed any misconduct, it was whether he was on notice that his alleged actions could subject him to the proposed penalty. To answer that question, due process requires the Court to compare the facts alleged, to those found true after an evidentiary hearing. In the NOAA version, Rodgers engaged in grave misconduct, contributing to a culture of silence that fosters corruption. The hearing officer rejected that theory, however, and found Rodgers simply failed to keep his temper in check and treat his subordinates with respect when confronting them over a misunderstanding. Given the significant difference between the two kinds of misconduct, the Court concluded Rodgers lacked notice that his actions could subject him to the imposed penalty. The Court reversed the judgment and directed the trial court to order the SPB to set aside its decision sustaining the disciplinary action. Rodgers v. State Personnel Board (Department of Corrections), 83 Cal. App.5th 1 (2022). NOTE: This case underscores the need to prepare a Skelly notice with great care. The public agency must not only accurately state the basis for each charge, but be able to prove the basis for each charge. In addition, if the proposed penalty would be appropriate based on any one of several charges, then the Skelly notice must specifically say so.

discrimination

Court Denied Employer’s Request To Change Venue In FEHA Case From The Employee’s Home Office To The Company’s Office. In October 2018, Eleanor Malloy was hired by the parent company Comprehensive Print Group as an administrative assistant. During her first 18 months at the company, her supervisor, Spencer, made offensive and denigrating comments to her based on her gender and expressed an inappropriate interest in her personal life. On March 17, 2020, the COVID-19 pandemic was underway. Malloy and other employees of the company began working remotely. That fall, Malloy became pregnant, and gave birth to her son the following March, 2021. In April 2021, Malloy’s supervisor requested her to work in person two-to-three times a week starting in May, 2021. Malloy replied she could not work in person for at least one month due to childcare needs. The company terminated Mallory for not returning to in-person work. Mallory filed a complaint for pregnancy and gender discrimination, sex- and gender- based harassment, interference with protected pregnancy leave, retaliation, and wrongful termination, among other claims. She filed her claim in Los Angeles County, where she lived. On November 9, 2021, the company moved for a change of venue to Orange County, where Malloy’s employer-provided office was located. The company argued all the unlawful conduct alleged occurred in Orange County, all records were kept there, and Malloy’s employment was based there. Malloy opposed, arguing that Los Angeles County was the proper venue for her pregnancy discrimination interference and retaliation causes of action because she was working from home or otherwise at home on protected pregnancy leave when the unlawful conduct occurred. The superior court agreed with the company, and granted the change of venue to Orange County. Malloy petitioned for a writ of mandate with the California Court of Appeal to challenge the venue change.

The Court of Appeal sided with Malloy. First, the Court noted that the Fair Employment and Housing Act (FEHA) authorizes an aggrieved party to file a FEHA action in the county in which the alleged unlawful employment practice was committed or in which the employee would have worked but for the unlawful practices. Second, the Court noted a California Supreme Court precedent that supported Mallory’s position. The Court noted that the Legislature’s decision to afford a wide choice of venue in FEHA cases “maximizes the ability of persons aggrieved by employment discrimination to seek relief from the courts….” Based on these facts, the Court found venue in Los Angeles County to be proper. Malloy v. Superior Court (Comprehensive Print Group), 2022 WL 4298371.

WCAB’s Denial Of Discrimination Claim Does Not Stop FEHA Discrimination Claim. In 2013, Gurdip Kaur, an employee at Foster Poultry Farms LLC, slipped at work while wearing company-issued rubber boots and broke her wrist. After surgery, Kaur returned to work and, despite her work restrictions, Foster Farms forced her to perform her normal job duties. Kaur struggled to perform her normal job duties, but Foster Poultry denied her requests for an accommodation. She was terminated in late 2013 but was then reinstated after contesting her termination. In 2016, Foster Poultry restructured and gave her a new job she could not perform one-handed, so she was terminated again. In 2016, Kaur filed a petition against Foster Poultry with the Workers’ Compensation Appeals Board (WCAB) alleging discrimination for filing her claim, in violation of Labor Code Section 132(a). Her claim was heard in an administrative hearing and was eventually denied. In 2017, before her workers’ compensation claim was decided, Kaur also sued Foster Poultry under the Fair Employment and Housing Act (FEHA). Kaur’s five FEHA claims were centered around discrimination due to race/nationality and disability.

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The trial court granted summary judgment for Foster Poultry due to its affirmative defense. Kaur appealed. The primary issue on appeal was whether the trial court properly decided that the WCAB’s denial of Kaurs’ 132(a) claims precluded her FEHA claims. The California Court of Appeal held that Kaur’s FEHA claims were not precluded. For an issue to be precluded, the issue must be identical to that decided in a former proceeding. The issue must also have been actually litigated and necessarily decided in the former proceeding. In addition, the decision in the former proceeding must be final and on the merits. Finally, the party against whom preclusion is sought must be the same as, or in privity with, the party to the former proceeding. The Court of Appeal focused on the first prong of the above test; whether the issues were identical. In the WCAB claim, the issue was whether Kaur experienced discrimination on account of the industrial nature of her injury. On the other hand, Kaur’s FEHA claims were broader, and centered on whether she experienced

discrimination on account of her disability, and whether she was unlawfully discharged because of her disability. Moreover, Kaur’s other FEHA claims, such as her allegations that she was not provided a reasonable accommodation and was not engaged in a good faith interactive process, involved entirely different issues from the WCAB claim. The Court further found that, in deciding the WCAB issue, the administrative hearing judge ignored certain FEHA requirements because the issue was so distinct from FEHA and involved different considerations.

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When Kaur’s worker’s compensation claim was denied, Foster Poultry asserted an affirmative defense to Kaur’s lawsuit, arguing that all of Kaur’s disability related claims were barred by the legal doctrines of res judicata and collateral estoppel. Simply put, these doctrines generally preclude a person from re-litigating issues that were argued and decided in prior proceedings, even if the second lawsuit raises different causes of action. Together, these doctrines can be referred to as “issue preclusion.”

The Court of Appeal held that the denial of the WCAB claim did not preclude Kaur’s FEHA claims, and she could move forward with her lawsuit. A concurring opinion cautioned that this decision should be interpreted narrowly, and that the decision did not mean that factual findings by an administrative hearing judge on a WCAB claim can never result in issue preclusion on a FEHA claim. Rather, one must look carefully at the underlying issues and findings of fact. A claim decided in a WCAB setting may indeed prevent a FEHA claim if the issues and inquiries are similar enough. Kaur v. Foster Poultry Farms LLC, 2022 WL 4243090. Note: The underlying FEHA claims have not yet been decided in this case. However, agencies should always be cognizant of the many FEHA laws and regulations that require reasonable accommodation of both industrial and nonindustrial injuries.

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unemployment

Employee Gets Benefits After “Leaving” Her Job For Good Cause And Not Permanently Abandoning Her Job. The Unemployment Insurance Code provides individuals with unemployment benefits, except when they leave their most recent work voluntarily and without good cause. The California Employment Development Department (EDD) administers unemployment benefits. In late October 2019, Reena Johar took an approved leave of absence from her job as a sales representative with Success Water Systems to care for her terminally-ill grandmother. She was gone for about a week and a half. Johar would receive job assignments from her supervisor in the form of sale appointments, which required her to travel to a customer and demonstrate the product. Upon her return from her leave of absence, she received no sale appointments for many weeks and was told business was slow. During those weeks, she was also issued a “final paycheck” and was asked to return some of her equipment. However, she continued to receive commission checks and was not told to stop communicating with prospective customers. Eventually, in February 2019, Johar applied for unemployment benefits and listed the reason for her loss of employment as a “temporary layoff.” When EDD contacted Success Water Systems to request a written confirmation of this information, Johar’s supervisor checked the box for “voluntary quit.” This led EDD to investigate, and learn two competing accounts. Johar explained that she requested emergency family leave in October 2019, and that her supervisor advised that she could “return at any time she is able” to her job. Success Water Systems agreed that the leave of absence was approved, but stated that: the leave was not for an indefinite period; Johar failed to respond to repeated requests for a return date; and Johar was deemed absent without leave. The EDD ruled against Johar. The EDD held that Johar had indeed left on an approved leave of absence but then failed to preserve the employment relationship by communicating a date for her return.

Johar appealed this EDD decision to a full hearing before an administrative law judge. The administrative law judge decided against Johar again, stating not only that Johar’s absence was not approved, but that she also failed to preserve the employment relationship. Important in this conclusion was Success Water Systems’ assertion that their sales representatives must be licensed, and Johar had not rectified incomplete information in her licensing application. Johar then appealed this decision to the California Unemployment Insurance Appeals Board (CUIAB). Johar entered new evidence that showed that Success Water Systems had unilaterally altered Johar’s address in her licensing application which prevented Johar from learning that her application was incomplete. The CUIAB again sided with Success Water Systems, stating that Johar voluntarily quit her job. The CUIAB did not allow the new evidence into the proceeding because the evidence had not been reviewed by EDD, the opposing party. Johar appealed this outcome via a writ of administrative mandamus. The trial court denied her writ and dismissed her case. Johar made her last appeal to the California Court of Appeal. The Court of Appeal narrowed the relevant issue down to whether Johar was entitled to unemployment benefits, or had been disqualified under section 1256 of the Unemployment Insurance Code because she left her most recent work voluntarily and without good cause. This issue is decided by determining who was the moving party in the separation. If the employer moves to cause the separation, the leaving was involuntary. If the employee moves, the leaving was voluntary. The Court of Appeal held that Johar had left her work voluntarily. She left work of her own volition to care for her grandmother. However, the Court of Appeal also held that this was for good cause, because leaving work for circumstances relating to the health, care or welfare of an employee’s family has been held to be a good cause. Success Water Systems had no formal leave of absence policy. Because Johar had received approval from her supervisor for the leave of absence, Johar affirmatively left her work voluntarily but with good cause. However, even if an employee voluntarily leaves her work for good cause, if that same employee

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manifests an intention to abandon her job while gone, she can be said to have been the moving party in terminating the employment relationship. The test for manifesting an intent to abandon a job is whether the employee indicates “with the clearest terms of repudiation” that she will not be reporting to work. Here, Johar was silent in the face of certain communications, and at times indicated that she would respond to certain other communications “when the emergency ceases.” Johar was also never ordered to report to work, so she never had ignored any such order. Finally, the fact that Success Water Systems did not make its expectations clear about Johar’s return from leave, the Court of Appeal could not use those expectations to evaluate Johar’s intent to return. The Court of Appeal therefore found that Johar did not clearly repudiate her willingness to return to work. Because Johar had left her work voluntarily for good cause, she was not disqualified from receiving unemployment benefits under the Unemployment Insurance Code. Johar v. California Unemployment Ins. Appeals Bd.,2022 WL 4139848. Note: This case illustrates the importance for employers to have clear, pragmatic policies, especially in relation to leaves of absence. Expectations for employees who take leaves of absence must be communicated clearly.

new to the Firm!

Brent Richardson, an associate in our Fresno office, brings his vast expertise in municipal law, employment law, public safety, wage and hour, business contracts and facilities matters to aide LCW clients throughout the state. Brent is also a seasoned litigator who handles all facets of defense-side employment litigation, from pre-litigation through jury trial and appeal. Julia Franco, an associate in our Los Angeles office, provides representation and counsel to LCW clients in all aspects of employment law, including wage and hour law. Julia is also skilled with alternative dispute resolution, including experience at all levels of the mediation process, from material preparation to settlement.

James P. Bonnie, an associate in our Fresno office, uses his public agency experience to represent his clients in all employment and labor law aspects, including litigation, employee discipline, administrative hearings, and investigation.

Cindy Allen, an associate in our San Francisco office, has dedicated her career to providing top tier representation to public education agencies. Cindy specializes in special education, Title IX, and student discipline issues.

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Celebratory Highlights! Liebert Cassidy Whitmore is proud to announce that we have been ranked 11th in Law360’s 2022 Pulse Diversity Snapshot. LCW exceeded Law360’s Pulse benchmarks by 1.7 points with an 18.8% score for equity partners, 35.3% score for nonequity partners, and 29.2% score for associates. A total of 291 firms were evaluated in the 2022 edition of the Diversity Snapshot. The overall goal stands to increase diversity in the legal field, for the betterment of clients and firms alike.

Attorneys Megan Atkinson, Amy Brandt, and Alysha Stein-Manes have been named to the 2023 Best Lawyers: Ones to Watch in America list. Brandt and Stein-Manes were both recognized for their excellence in Litigation – Labor and Employment while Atkinson was recognized for her outstanding work in Labor and Employment Law – Management.

Partner Steven M. Berliner has been named to the 2023 edition of Best Lawyers for his professional excellence in private practice. Steve is the Chair of the firm’s Retirement, Benefits and Disability Practice Group and works to ensure that LCW stays on the cutting edge of the law related to these important areas. He has an extensive labor relations practice and unparalleled retirement law expertise. This recognition marks Berliner’s first year receiving this distinction.

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CalPERS Must Include Cash Outs For Accrued Holiday Leave Credits In Pension Calculations For State Members. Kenneth Hale and Robert Wolf were both firefighters with California’s Department of Forestry and Fire Protection (Cal Fire). For the last ten years of their careers, they served as executive officers for the union that represented firefighters and fire captains. In that position, they dealt with labor relations issues. Part of their duties involved taking calls and dealing with labor issues 24 hours a day, 7 days a week. In lieu of normal holidays, Cal Fire firefighters would receive a floating holiday with pay which would accrue on the day of the pre-existing holiday, and they could cash out some of those holidays in certain circumstances. The labor agreement required that executive officers – like Hale and Wolf – could also cash out or pay some portion of unused holidays each year. Upon Hale and Wolf ’s retirement, the union asked the California Public Employees’ Retirement System (CalPERS) to include the money Hale and Wolf earned from the required cashouts in their pension calculations. CalPERS refused, stating that such cashouts were not “compensation earnable” and were not to be included. Hale and Wolf took the matter to an administrative hearing, and an administrative law judge sided with CalPERS. Hale and

Wolf appealed to the trial court and lost. The Court of Appeal then took up the case. Under the Public Employees’ Retirement Law (PERL), CalPERS calculates an employee’s pension upon retirement with a formula that takes into account the employee’s age at retirement, number of years of service, and amount of final compensation. The items of pay that constitute “compensation” are crucial to compute retirement benefits. “Compensation” is defined as the employee’s payrate and special compensation. The payrate is generally the normal monthly rate of pay for the employee. Hale and Wolf were state members of CalPERS. For state members, special compensation specifically includes “compensation for performing normally required duties, such as holiday pay, bonuses (for duties performed on regular work shift),...” (emphasis added). Special compensation is limited to amounts received by similarly situated members of a group or class of employment. A group or class of employees is defined as “a number of employees considered together because they share similarities in job duties, work location, collective bargaining unit, or other logical work-related grouping. A single employee is not a group or class.”

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retirement holiday leave, and the payments were compensation for performing their normal duties, which required working on holidays, these payments met the definition of “special compensation.” As a result, the payments must be included in their pension calculations. CalPERS argued that because the cash-outs were not available to all members of the union, these payments could not be special compensation, as special compensation is limited to payments received by similarly situated members of a group. The Court of Appeal explained that these two retirees were a class of two, because they had such different duties from other firefighters in the Unit. Because Hale and Wolf were a class of two, and were similarly situated, they were able to receive special compensation in the form of holiday cash-outs. Hale v. California Pub. Employees’ Ret. Sys., 82 Cal.App.5th 764 (2022). Note: If it provides any solace to clients, the Court of Appeal noted in this case that it would not defer to CalPERS’ interpretation on a particular issue because the evidence showed that CalPERS failed to consistently evaluate that issue.

The Court of Appeal concluded that because Hale and Wolf received payments for cashing out their • www.lcwlegal.com •

negligence

Employer Was Not Liable For Harm After Supplying Alcohol To An Employee, Nor For An Employee’s Actions Outside Of The Scope Of Employment. In August 2015, Carmel Musgrove traveled to the Four Seasons Resort in Bora Bora, French Polynesia. She was among those whom producer Joel Silver had invited to accompany him in attending Jennifer Aniston’s wedding. Musgrove was Joel Silver’s executive assistant, but Musgrove was not required to attend this trip. Rather, she was invited to come along as a guest. If she accepted the invitation, she would receive her normal salary, have her expenses paid, and spend ten percent of her time coordinating recreational activities for the group. The group ate lunches and dinners together, which were prepared by Silver’s personal chef, Martin Herold. Musgrove attended one of those dinners, during which wine was available. Musgrove then went to Silver’s family bungalow to watch a movie with his children. While watching the movie, Musgrove agreed via text message to meet up with Herold. Over the next hour, Herold and Musgrove kissed and Musgrove drank more wine and ingested cocaine. After departing from her rendezvous with Herold, Musgrove climbed down the ladder of her private, overwater bungalow for a night swim, and drowned. Musgrove’s family sued Silver for wrongful death, claiming that he was responsible for their daughter’s death. In assessing whether Silver was directly or vicariously liable for Musgrove’s death, the Court of Appeal explained the test for direct liability, and the four tests for vicarious liability.

To show that Silver was directly liable, the family needed to establish that: 1) Silver placed Musgrove in peril and failed to protect her from that very same peril; or 2) Silver had a special relationship with Musgrove that otherwise obligated him to protect her. Musgrove’s family alleged that Silver placed Musgrove in danger and then failed to protect her by giving her with an excessive amount of alcohol, drugs, and then not preventing her from swimming in the lagoon at night. The evidence indicated that Silver did not supply Musgrove with drugs. The Court of Appeal also stated that at most, Silver merely allowed Musgrove to drink the wine served at meal. Because case law indicates that no social host who furnishes alcoholic beverages can be held liable for injury to that person, the Court of Appeal explained that these allegations did not establish direct liability. The Court of Appeal next examined whether Silver had a special relationship with Musgrove that obligated him to protect her, but concluded that he did not for three reasons. First, Silver did not employ Musgrove, Silver’s movie production company did. Second, the family sought to hold Silver liable for Silver’s own conduct in failing to protect her from the alcohol he furnished or subsidized, which as explained above, is not a viable theory of liability. Third, any special relationship between Musgrove and Silver would be limited to when Musgrove was at work. Musgrove was at her private bungalow and not involved in any work-related activities at the time of her death. As a result, Silver could not be held directly liable for Musgrove’s death. The Court of Appeal next sought to determine if Silver could be held vicariously liable instead. Generally, for an employer to be held vicariously liable for the actions of their employee, the person suing must show that the employee was both negligent and acting within the scope of employment. Here, the Musgroves alleged that Herold, as Silver’s personal chef, was Silver’s

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Herold had been Silver’s personal chef for over a decade, and would routinely travel with Silver and his family to prepare their meals. Silver paid Herold a salary and covered his expenses. Herold set his own hours and was simply expected to provide lunch and dinner.

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employee, and that he was acting in the scope of his employment when he negligently caused Musgrove’s death. For purposes of the opinion, the Court of Appeal assumed it to be true that Herold was negligent when he supplied Musgrove with alcohol and cocaine while knowing that she enjoyed swimming at night in the lagoon. Thus, the next matter to be determined was whether Herold acted within the scope of his employment.

from the conduct of the employer’s enterprise. Here, Herold’s actions were simply too attenuated from his employment as a personal chef to fairly assign liability for the Musgroves’ loss of their daughter to Silver. As a result, no liability for Musgrove’s death was assigned to Silver. Musgrove v. Silver, 82 Cal. App. 5th 694 (2022). Note: This tragic case illustrates the four principles of vicarious liability that can make employers liable for the conduct of their employees. Generally, an employer should advise employees that that personal recreational activities during conferences or work-related travel are voluntary and outside the scope of employment.

To determine whether an employee acted within the scope of their employment, California has articulated four tests. The first test asks if the employee’s conduct was required by, engendered by, or was an outgrowth of the employee’s job. Here, Herold’s conduct in meeting up with Musgrove was not at all related to his job as a personal chef for Silver. This test did not assign liability to Silver. The second test asks if the employee’s conduct was a reasonably foreseeable result of his employment. Here, Musgrove’s death by accidental drowning after consuming cocaine and alcohol was not at all foreseeable from Herold’s job of preparing meals for Silver. The third test asks whether the employee’s conduct: 1) conceivably benefited the employer; or 2) was a customary part of the employment relationship. Herold’s conduct, which resulted in the death of a beloved employee, did not benefit Silver. There was no evidence that Herold had supplied alcohol or cocaine to any of Silver’s employee’s before, so this was not a customary incident. Finally, the fourth public policy tests asks whether it is fair to shift responsibility for the losses to the employer because the employer benefitted from the injuryproducing activity, and such losses are sure to occur

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benefits corner By Stephanie J. Lowe

Lawsuits Address Discrimination In Employer-Sponsored Group Health Plans Based On Sexual Orientation And Gender Identity. A number of recent court decisions address whether the nondiscrimination provisions of Title VII, the Affordable Care Act (ACA) Section 1557, the Equal Protection Clause of the Fourteenth Amendment, and the Federal Equal Pay Act apply to health plan claims alleging discrimination based on sexual orientation and gender identity. In Doe v. Catholic Relief Services, a data analyst employee, John Doe, sued his employer Catholic Relief Services (CRS) when CRS terminated spousal health insurance benefits for Doe’s husband. CRS is a Catholic Church social services agency, which administers its employee benefits programs consistent with Catholic values. CRS hired Doe in June 2016 and Doe enrolled his husband through CRS’s spousal benefits enrollment system. CRS approved the enrollment but two months later, notified Doe that CRS had mistakenly approved the enrollment and CRS would be dropping coverage because CRS does not provide spousal health benefits to employees’ same-sex spouses. CRS eventually terminated Doe’s husband’s health insurance. One of Doe’s claims is that CRS’s actions violated the Federal Equal Pay Act (EPA). The EPA prohibits discrimination on the basis of sex by paying wages to employees at a rate less than the rate paid to employees of the opposite sex for equal work. Under the EPA, the level of pay takes into account the failure to provide equal health insurance benefits. The court assessed that CRS provides spousal benefits for the male spouses of female employees who performed equal work as Doe, a

male employee with a male spouse. After finding that CRS did not challenge Doe’s EPA claims (instead CRS focused on defending the Title VII claim), the court awarded Doe summary judgment on his EPA claim. Doe also brought a Title VII claim in his lawsuit. Title VII makes it an unlawful employment practice for an employer to discriminate against any individual with respect to his compensation, conditions, or privileges of employment because of the individual’s sex. In the lawsuit, there was no dispute that CRS terminated Doe’s husband’s health insurance because of Doe’s sex and because Doe was a man married to another man. CRS’s defense was that it was exempt from Title VII as a religious organization that was making a decision based on beliefs motivated by its religion. However, the court found that Title VII’s exemption allows religious entities to make employment decisions based on religion but not based on race, sex, or national origin. The court held that CRS was not exempt from Title VII and allowed Doe’s claim to move forward.

In two other lawsuits, Fain v. Crouch and Kadel v. Folwell, groups of covered individuals brought lawsuits against employer-provided health insurance plans challenging the exclusion of coverage for gender-conforming care. In Fain v. Crouch, the court granted summary judgment for the plaintiffs, finding that the West Virginia State Medicaid Program did not allow coverage for genderconforming surgical care as treatment for gender dysphoria but allowed similar surgical treatments for diagnoses unrelated to gender dysphoria. The court found the treatment was precluded based on one’s gender identity, which “invidiously discriminates” on the basis of sex and transgender status in violation of the Equal Protection Clause and Section 1557 of the ACA. This case has been appealed to the Fourth Circuit. In Kadel v. Folwell, the court found that the North Carolina State Health Plan for Teachers and State Employees’s categorical exclusion of coverage for

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treatments “leading to or in connection with sex changes or modifications” discriminated against transgender plan members on the basis of sex and transgender status. The court held that this health plan, which was offered to public employees, violated of the Equal Protection Clause. Public agencies should be aware of their health plan’s enrollment requirements and coverage exclusions. Should any enrollment or coverage exclusions raise concerns about having a discriminatory impact on a protected class of employees or their dependents, the agency should assess the risk. These three recent lawsuits demonstrate an increase in discrimination claims made against employer-sponsored health insurance plans based on sexual orientation, sex, gender, and gender identity. Additionally, the Biden administration has stated that prohibiting discrimination in health care based on sexual orientation and gender identity is a priority of the administration. (See Executive Order 14075, dated June 15, 2022.) Doe v. Catholic Relief Services, --- F.Supp.3d ---- (D. Md., Aug. 3, 2022), 2022 WL 3083439; Fain v. Crouch, --- F.Supp.3d ---(S.D.W. Va., Aug. 2, 2022), 2022 WL 3051015; Kadel v. Folwell, --- F.Supp.3d ---- (M.D.N.C., Aug. 10, 2022), 2022 WL 3226731.

Did You Know?

Whether you are looking to impress your colleagues or just want to learn more about the law, LCW has your back! Use and share these fun legal facts about various topics in labor and employment law.

• The Occupational Safety and Health Standards Board is currently considering adopting a permanent COVID-19 regulation which would replace the current Emergency Temporary Standard that guides employers’ COVID-19 Prevention Programs. • Governor Newsom has signed AB 152, which allows qualified employees to use any remaining California Supplemental Paid Sick Leave (Labor Code Section 248.6) through December 31, 2022. This benefit was originally set to expire on September 30, 2022. • SB 278 generally requires local agencies to pay CalPERS the full cost of any overpayments made to the retiree on the disallowed compensation and pay a 20% penalty of the amount calculated as a lump sum.

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The 411 On Consortiums:

Consortium Call Of The Month If you would like to receive more information about our Consortium services or would like to join, please contact Megan Leis at mleis@lcwlegal.com.

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LCW has four community college district consortiums across the State! Consortium members enjoy access to quality training throughout the year, discounts on other LCW products and events, and unlimited, complimentary telephone consultation with an LCW public education attorney on matters relating to employment and education law questions (including questions involving governance, business, facilities, and student matters!). We’ve outlined a recent consortium call and the provided answer below. Client confidentiality is paramount to us; we change and omit details in the ERC Call of the Month.

Question: We recently received an application for an open position from a person with United Kingdom citizenship. We have never hired from outside the U.S. before, nor have we sponsored a visa. Are we able to do so?

Answer: If the person already has a visa that allows them to work in the U.S., then the agency can hire the person consistent with the terms of the visa. However, if the person is looking for an employer to sponsor her visa, the agency would need to assist the person in obtaining the visa. Generally, an employersponsored visa falls within one of several different categories, each with its own individual requirements. If the agency choses to sponsor the visa, it is important to consult legal counsel to ensure compliance with all requirements. • www.lcwlegal.com •

Liebert Cassidy Whitmore