Parks & Recreation – Real Life Age Discrimination in SF? Not so fast…

This is a case in which the First Appellate Court of Appeal upheld a trial court’s summary judgment of an age discrimination, harassment and retaliation case. In, of all places, San Francisco! Not Bakersfield. Not Fresno. Not Texas. But San Francisco! I always heard that judges in San Francisco never grant summary judgment on employment discrimination cases, but then I always heard that Donald Trump had no chance of winning the election. So this simply proves that what one always hears is not always fact. And that’s one more reason appellate courts issue published opinions so smart lawyers like me and you can read them and learn and not rely on the conventional wisdom and what we hear.

So let’s look at this case brought by former employee David Dinslage against the San Francisco Recreation and Parks Department. Dinslage was caught up in a “large-scale restructuring of the Department’s programs” which means he lost his job in a lay-off.

Dinslage’s case was dismissed by the trial court which concluded that Dinslage’s dismissal was the result of the Department’s restructuring, which we all know to mean the Department’s legitimate, nondiscriminatory termination defense worked.

Dinslage worked for the Department since 1972. (Don’t see that much anymore!) Apparently Dinslage had a good career at the Department starting out as an assistant recreation director and ending up as “inclusion coordinator.” Disnlage had been working for years on programs directed to the disabled.

Everything was going swimmingly until a new superintendent of citywide services arrived on the scene. One of the superintendent’s duties was to reorganize and restructure the recreation services, and (we’ve all seen this story before) Dinslage, with his three decades-plus of service, didn’t like the changes proposed by the new superintendent.

Dinslage refused to go along to get along and his alleged insubordination was documented by his supervisors in his performance evaluations.

While all this was going on, a financial crisis hit the city. And so Dinslage was laid-off. Dinslage was given the opportunity to apply for other city jobs, and he did. And he scored an interview. But Dinslage took advantage of the interview opportunity to grouse about the whole restructuring thing. And guess what? Disnlage was not hired and he retired.

But Dinslage wasn’t finished and he sued the City and County of San Francisco.

This opinion focused on Dinslage’s retaliation claim which was based on Dinslage’s opposition to the restructuring. Dinslage claimed that he was engaging in “protected activity” under FEHA.

But the appellate court agreed with the trial court: Dinslage’s opposition to the restructuring wasn’t protected activity under FEHA because he wasn’t opposing practices forbidden by FEHA, he was opposing the restructuring, which had nothing to do with FEHA.

So there you have it.

Dinslage v. City and County of San Francisco
2016 Cal. App. LEXIS 970 (November 9, 2016).

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DFEH Notice of Proposed Rulemaking: Housing and Sexual Harassment

Here’s DFEH’s Notice of Proposed Rulemaking.

Here you can download the Initial Statement of Reasons and the text of the Proposed Regulations.

TITLE 2.  DEPARTMENT OF FAIR EMPLOYMENT AND HOUSING

HOUSING REGULATIONS REGARDING HARASSMENT; LIABILITY FOR HARASSMENT; RETALIATION; AND SELECT DISABILITY SECTIONS, INCLUDING ASSISTIVE ANIMALS

NOTICE OF PROPOSED RULEMAKING

The Fair Employment and Housing Council of the Department of Fair Employment and Housing (hereafter “Council”) proposes to add sections 11098.1-11098.6 and 11098.23-11098.30 to Title 2 of the California Code of Regulations after considering all comments, objections, and recommendations regarding the proposed action.

PUBLIC HEARING

The Council will hold a public hearing at 10:00 a.m. on January 10, 2017, at the following location:

Ronald Reagan State Building
300 S. Spring Street, Auditorium
Los Angeles, CA 90013

The hearing room is wheelchair accessible.  At the hearing, any person may present statements or arguments orally or in writing relevant to the proposed action described in the Informative Digest.  The Council requests, but does not require, that persons who make oral comments at the hearing also submit a written copy of their testimony at the hearing.

WRITTEN COMMENT PERIOD

Any interested person, or his or her authorized representative, may submit written comments relevant to the proposed regulatory action to the Council.  The written comment period closes at 5:00 p.m. on January 10, 2017.  The Council will consider only comments received by that time.  Written comments can be mailed to:

Fair Employment and Housing Council
c/o Brian Sperber, Legislative & Regulatory Counsel
Department of Fair Employment and Housing
320 West 4th Street, 10th Floor
Los Angeles, CA 90013
Telephone: 213-337-4495

Comments may also be submitted by e-mail to FEHCouncil@dfeh.ca.gov.

AUTHORITY AND REFERENCE

Government Code section 12935(a) authorizes the Council to adopt these proposed regulations.  The proposed regulations implement, interpret, and make specific section 12900 et seq. of the Government Code.

INFORMATIVE DIGEST/ POLICY STATEMENT OVERVIEW

This rulemaking action clarifies, makes specific, and supplements existing state statutes and case law interpreting the Fair Employment and Housing Act (FEHA) set forth in Government Code section 12900 et seq.  As it relates to housing, the FEHA prohibits harassment and discrimination because of the race, color, religion, sex, gender, gender identity, gender expression, sexual orientation, marital status, national origin, ancestry, familial status, source of income, disability, or genetic information of any person.

In compliance with the Administrative Procedure Act, the Council proposes to adopt these rules as duly noticed, vetted, and authorized regulations.  This action has the specific benefit of creating a more comprehensive set of rules to ensure that housing providers, owners, and tenants better understand their rights and duties, in turn reducing litigation costs and the burden on courts.  Ultimately, the proposed action furthers the mission of the DFEH by protecting Californians from discrimination, harassment, and retaliation in the housing context.

The proposed amendments most notably clarify and/or articulate the following: (1) definitions; (2) the two main types of liability for discriminatory housing practices – direct and vicarious; (3) the two main types of harassment – Quid Pro Quo and Hostile Environment; (4) what constitutes retaliation; (5) housing providers’ duty to reasonably accommodate a person with a disability; (6) assistive animals as a reasonable accommodation; (7) the defense of undue hardship; (8) the interactive process; and (9) proof of disability.

The Council has determined that the proposed amendments are not inconsistent or incompatible with existing regulations.  After conducting a review for any regulations that would relate to or affect this area, the Council has concluded that these are the only regulations that concern fair housing and the Fair Employment and Housing Act.

DISCLOSURES REGARDING THE PROPOSED ACTION

The Council has made the following initial determinations:

Mandate on local agencies and school districts: None.

Cost or savings to any state agency: No additional costs or savings beyond those imposed by existing law.

Cost to any local agency or school district, which must be reimbursed in accordance with Government Code sections 17500 through 17630: None.

Other non-discretionary cost or savings imposed on local agencies: No additional costs or savings beyond those imposed by existing law.

Cost or savings in federal funding to the state: None.

Cost impacts on a representative private person or businesses: No additional costs or savings beyond those imposed by existing law.  Therefore, the agency is not aware of any cost impacts that a representative private person or business would necessarily incur in reasonable compliance with the proposed action.

Results of the economic impact assessment/analysis: The Council anticipates that the adoption of the regulations will not impact the creation or elimination of jobs or housing within the state; the creation of new businesses or housing or the elimination of existing businesses or housing within the state; or the expansion of businesses or housing currently doing business within the state.  To the contrary, adoption of the proposed amendments is anticipated to benefit California businesses, workers, housing providers, owners, tenants, and the state’s judiciary by clarifying and streamlining the operation of the law, making it easier for housing providers, owners, and tenants to understand their rights and obligations, and reducing litigation costs.

Statewide adverse economic impact directly affecting businesses and individuals:

The Council has made an initial determination that the proposed action will not have a significant statewide adverse economic impact directly affecting businesses, including the ability of California businesses to compete with businesses in other states.

Significant effect on housing costs: None.

Small Business Determination: The Council anticipates that the regulations will not create additional costs or savings beyond those imposed by existing regulations.  Similarly, the Council has determined that there is no impact on small businesses as a result of this proposed action because these regulations primarily serve to clarify existing law.

Business Report: The Council has determined that the proposed regulations do not require a report to be made.

CONSIDERATION OF ALTERNATIVES

In accordance with Government Code section 11346.5, subdivision (a)(13), the Council must determine that no reasonable alternative it considered or that has otherwise been identified and brought to the Council’s attention would be more effective in carrying out the purpose for which this action is proposed, or would be as effective and less burdensome to affected private persons than the proposed action, or would be more cost-effective to affected private persons and equally effective in implementing the statutory policy or other provision of law.

The Council has thus far not become aware of a better alternative and invites interested persons to present statements or arguments with respect to alternatives to the proposed regulations at the scheduled hearing or during the written comment period.

CONTACT PERSONS

Inquiries concerning the proposed administrative action may be directed to:

Brian Sperber, Legislative & Regulatory Counsel
Department of Fair Employment and Housing
320 West 4th Street, 10th Floor
Los Angeles, CA 90013
Telephone: (213) 337-4495

E-mail: brian.sperber@dfeh.ca.gov

The backup contact person for these inquiries is:

Holly Thomas, Deputy Director of Executive Programs
Department of Fair Employment and Housing
320 West 4th Street, 10th Floor
Los Angeles, CA 90013
Telephone: (213) 439-6799

E-mail: holly.thomas@dfeh.ca.gov

Please direct requests for copies of the proposed text (express terms) of the regulations, the Initial Statement of Reasons, the modified text of the regulations, if any, or other information upon which the rulemaking is based, should other sources be used in the future, to Brian Sperber at the above address.

AVAILABILITY OF STATEMENT OF REASONS, TEXT OF PROPOSED REGULATIONS, AND RULEMAKING FILE

The Council will have the entire rulemaking file available for inspection and copying throughout the rulemaking process at its office at the above address.  As of the date this notice is published in the Notice Register, the rulemaking file consists of this notice, the proposed text of the regulations, and the Initial Statement of Reasons.  Copies may be obtained by contacting Brian Sperber at the address or phone number listed above.

AVAILABILITY OF CHANGED OR MODIFIED TEXT

After holding the hearing and considering all timely and relevant comments received, the Council may adopt the proposed regulations substantially as described in this notice.  If the Council makes modifications that are sufficiently related to the originally proposed text, it will make the modified text (with the changes clearly indicated) available to the public for at least 15 days before the Council adopts the regulations as revised.  Please send requests for copies of any modified regulations to the attention of Brian Sperber at the address indicated above.  The Council will accept written comments on the modified regulations for at least 15 days after the date on which they are made available.

AVAILABILITY OF THE FINAL STATEMENT OF REASONS

Upon its completion, copies of the Final Statement of Reasons will be available on the Council’s Web page: http://www.dfeh.ca.gov/FEHCouncil.htm.

Copies also may be obtained by contacting Brian Sperber at the above address.

AVAILABILITY OF DOCUMENTS ON THE INTERNET

Copies of the Notice of Proposed Action, the Initial Statement of Reasons, the text of the regulations, and any modified texts and the Final Statement of Reasons can be accessed through the Council’s Web page at http://www.dfeh.ca.gov/FEHCouncil.htm.

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Ninth Circuit Revives Yolo County Sexual Harassment Claim

A FEHA sexual harassment claim filed against Yolo County Sheriff Ed Prieto was revived by the Ninth Circuit in an unpublished decision after the federal district court granted defendant’s motion for summary judgment.

Lessons from the Ninth Circuit:

  • There is no rule that hugs and kisses on the cheek are not outside the realm of common workplace behavior.
  • Rules are not created from non-binding district court decisions, especially if the decisions are old – such as 14 years old or 20 years old.
  • Old rules likely do not reflect changing contemporary standards of socially acceptable conduct in the workplace.
  • The legal standard for sexual harassment cases is “severe or pervasive” not “severe and pervasive.” (My editorial comment: A lot of defense attorneys still don’t understand that.)
  • There is no mathematically precise test to determine if a workplace is hostile, such as a few hugs a few times a year does not equal sexual harassment.

I’m always happy, well at least I’m almost always happy, when an appeals court reverses a summary judgment in a sexual harassment case because there are usually fact issues and juries should determine what constitutes sexual harassment. The court’s statement that old rules do not reflect changing contemporary standards of socially acceptable conduct in the workplace pretty much sums that up.

I’m gonna remember that line the next time I’m confronted with an MSJ on a sexual harassment case.

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Silicon Valley Discrimination Complaints

Well here’s an interesting article from Tech.Mic listing complaints filed against “tech giants” in the last 22 months. The article concludes that “discrimination is still an issue in the tech industry.”

Even though must of the tech big-wigs claim to be progressives supporting Hillary Clinton.

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Fair Employment and Housing Council – New Changes in Term Lengths

California Governor Jerry Brown just signed a new bill changing the length of the terms of those appointed to the Fair Employment and Housing Council—temporarily. The bill, AB 2780, affects appointments to the Council made on or after January 1, 2017.

The Council is composed of 7 members who serve four-year terms. This new law keeps the terms of 4 members to four years, but the other three members’ terms are changed to two-year terms.

But then it gets more complicated. The new law provides that the new appointments replacing each member initially appointed under the new law upon the completion of their terms will serve a term of four-years.

Which is the way it is now. (Blank stare on my face.)

So what was the purpose of this bill? Well, according to the Assembly Floor Analysis, the purpose of the bill is to stagger the terms of the Council members in order to provide institutional continuity. Which makes sense to me.

Gee, I never thought anything coming from Sacramento would make sense to me, but this one does.

Kudos to Assemblymember Chris Holden (D-Pasadena) for this common-sense legislation.

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Online DFEH Right-to-Sue Requests – Digital Signatures

Today Governor Jerry Brown signed AB 2296 regarding digital signatures. From the Legislative Counsel’s Digest:

Existing law, the Uniform Electronic Transactions Act, provides that a record or signature may not be denied legal effect or enforceability solely because it is in electronic form and defines an electronic signature for purposes of the act. Existing provisions of the Government Code authorize the use of a digital signature in any written communication with a public entity, and specifies that in those communications, the use of a digital signature has the same force and effect as the use of a manual signature if it complies with specified requirements.

This bill would express the intent of the Legislature to clarify that a digital signature may be used to satisfy the requirements of an electronic signature under the Uniform Electronic Transactions Act. The bill would, for purposes of the Uniform Electronic Transactions Act, provide that an electronic signature includes a digital signature under the above described provisions of the Government Code and that a digital signature under those provisions is a type of an electronic signature as set forth in the Uniform Electronic Transaction Act. The bill would also revise the above-described provisions of the Government Code by specifying that if a public entity elects to use a digital signature, that meets specified requirements, the digital signature has the same force and effect of a manual signature in any communication with the public entity.

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Another Reminder that FEHA Defendants Can be Awarded Attorney’s Fees

Here’s another reminder that a plaintiff in a FEHA case may be ordered to pay defendant’s attorney’s fees if the court finds that “…plaintiff’s action was frivolous, unreasonable or without foundation, even though not brought in subjective bad faith.”

There’s still a myth out there that plaintiffs are never liable for defendants’ attorney’s fees, but that’s all it is—a myth.

So sue carefully.

Gonzalez v. The Los Angeles Lakers, Inc., et al.(unpublished)
California Court of Appeals, Second District, Division Four
August 10, 2016

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Off Topic: In Defense of Dean Strang and Jerome Buting

I recently saw this article on Lawnewz.com which discusses an interview in which Steven Avery, of Making a Murderer fame, dissed his two trial attorneys, Dean Strang and Jerome Buting, claiming that but for their ineffective assistance of counsel, he wouldn’t be sitting in prison.

That’s the biggest bunch of crap I’ve heard since President Obama told us that if we liked our health care plan, we could keep it.

I have not dog in this fight, but as I wrote previously, Making a Murder was a fantastic and engrossing documentary which I think highlighted Strang’s and Buting’s fine work in defense of Steven Avery. After watching the documentary, I wasn’t convinced one way or another about Avery’s guilt. I just thought I would have liked to have watched the unedited video of the whole trial before making a decision, because who knows what was left on the cutting room floor?

But Steven Avery just convinced me of his guilt with his recent comments about Strand and Buting. Not very often does a criminal defendant get the high level of defense Avery got. If anyone should know this, Avery should, considering what happened to him when he was first wrongfully convicted while receiving ineffective assistance of counsel.

Just look at Avery’s recent letter in which Avery claims, among other things, that Strang and Buting didn’t investigate his case and were just simply protecting the State! At least I think that’s what Avery said. Here’s an excerpt of exactly what he wrote:

10. Dean and Jerry didn’t do no investigation on this case, if they did I would not be in prison, They would have the Suspect if they did there job!!

11. Dean and Jerry all they were doing is predict the state and there lawfirm,

12. Lawyers should be responsible for they wrong doing!!!

13. Lawyers sould loose there license when they dont investigate they case to proof there Client’s and they Violating the Ethics, the State sould take there license for good.

Good grief.

I agree with Steven Avery that criminal defense lawyers that fail to do their jobs should lose their bar cards. It’s all too common and in the criminal justice world, the ramifications for a client or potentially life-threatening.

But for Avery to criticize two attorneys who obviously worked their tails off in his defense just convinces me that Avery has a screw loose and is probably guilty of the murder. What’s amazing and what Avery fails to understand is that the fact that reasonable people are arguing over Avery’s innocence in the case speaks volumes on how effective Strang and Buting were.

Of course, it’s easy for me to say this because I have not ever been wrongfully convicted of a crime as a result of ineffective assistance of counsel, then years later being freed, only to find myself in prison again. But hopefully one day Avery will realize he was the beneficiary of the diligence and persistence of his two fine trial attorneys. And I bet his current attorney, Kathleen Zellner, will benefit from their hard work in her current defense of Avery.

I think what really bothers me about Avery’s comments is the “cry wolf” issue. Not every inmate in prison is there because if incompetent counsel. But a lot of inmates think that, regardless of their true innocence or guilt.

Here’s a couple of cases from Nevada about a real claim of ineffective assistance of counsel at trial and on appeal, if you want to know how bad it can get. Read these and weep.

Gibbs v. LeGrand, 767 F. 3d 879 (2014)

Rudin v. Myles, 766 F. 3d 1161 (2014)

Rudin v. Myles, 781 F. 3d 1043 (2015) (supersedes Rudin, 766 F. 3d 1161)

Here’s a recent video of Strang and Buting delivering an address to the National College for DUI Defense:

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Off Topic: Judge Kozinski on Lengthy Briefs

I regularly read the California Appellate Report blawg authored by Professor Shaun Martin of the University of San Diego Law School. I read his blawg because it’s entertaining and it’s much more pleasant than scouring through the courts’ websites looking for interesting cases.

In a recent post, Prof. Martin discussed a “neat little dissent” by my favorite Ninth Circuit judge, Judge Kozinski. In that case, Judge Kozinski was worked-up over having to deal with another long brief. I love Prof. Martin’s take on Kozinski’s hortatory.

Briefs are often longer than they need to be and that’s because it’s more difficult to write a concise and persuasive brief than to write a brief just throwing in a lot of case law without really thinking about what is really relevant and necessary to the argument.

About 20 years ago I had a case before the Nevada Supreme Court. And I think the Supreme Court rule limited briefs to 35 pages. My brief was less than 10 pages, but my opponent’s brief was exactly 35 pages and it was all italicized and boldfaced! The whole brief!

I wonder what Judge Kozinski would say about that.

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FEHA and Equitable Tolling

A California plaintiff files a racial discrimination complaint with the EEOC alleging racial discrimination against his employer. The EEOC then files a copy of the complaint with the DFEH under their work-sharing agreement. DFEH issues an immediate right-to-sue letter which gives plaintiff the right to file a lawsuit in state court within one year. EEOC investigates the claim and a couple of years later issues a letter of determination stating there is reasonable cause to believe plaintiff suffered from racial discrimination. Then, a few months later, EEOC sends out its own right-to-sue letter after the case doesn’t settle. Ninety-seven days later, plaintiff sues his employer in California Superior Court.

Did plaintiff miss the FEHA statute of limitations? No. Even though plaintiff missed the federal 90-day limitations period after receipt of the EEOC right-to-sue letter, that was irrelevant. What is relevant, is plaintiff’s limitations period under FEHA was tolled during the time in which EEOC was investigating his claim. So the statute did not start running on plaintiff’s FEHA claims until the EEOC issued its determination letter.

This is called “equitable tolling.” Having just dealt with equitable tolling in a nightmare federal habeas corpus case, I know all about it!

(The justifications for equitable tolling in the FEHA context and the federal AEDPA law are essentially  the same, in case you’re wondering.)

Anyway, this is a relatively common fact pattern and I am not surprised at the court’s decision in applying equitable tolling.

But what did surprise me was how the case got to the Court of Appeal. And I won’t go through all of the sordid details here, but it involves demurrers, a petition for writ of mandate,  an alternative writ of mandate, new orders, hearings, motions for consideration, well…it is simply crazy and a waste of time. I think the Court of Appeal finally got it right, but procedurally it was a nightmare which could have been avoided.

Mitchell v. State Dept. of Public Health
Court of Appeal of California, Second Appellate District
July 27, 2016

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