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George v. California Unemployment Insurance Appeals Board

December 9, 2009

CYNTHIA FRANCENE GEORGE, PLAINTIFF AND RESPONDENT,
v.
CALIFORNIA UNEMPLOYMENT INSURANCE APPEALS BOARD, DEFENDANT AND APPELLANT.



APPEAL from a judgment of the Superior Court of Fresno County. Adolfo M. Corona, Judge. (Super. Ct. No. 05 CECG 02205).

The opinion of the court was delivered by: Wiseman, Acting P.J.

CERTIFIED FOR PARTIAL PUBLICATION*fn1

OPINION

The California Unemployment Insurance Appeals Board (Agency) appeals from a judgment entered against it after a jury found that it had unlawfully retaliated against its employee, Cynthia Francene George. The Agency suspended George, who was employed as an administrative law judge, on three occasions subsequent to her filing a charge with the Department of Fair Employment and Housing alleging that travel assignments were made discriminatorily in the Fresno office.

We hold that the doctrine of res judicata does not preclude a state employee from pursuing both internal administrative civil service remedies and those available under the Fair Employment and Housing Act. The doctrine of collateral estoppel may act to preclude a retaliation claim if issues decided in the administrative action eliminate a necessary element of the employee's case. In this case, however, the administrative agency's findings do not eliminate a necessary element of George's retaliation action. We also conclude there was sufficient evidence to support the jury's verdict. The judgment is affirmed.

In the unpublished portion of this opinion, we also reject on procedural grounds the Agency's challenge to the economic damages awarded by the jury.

Procedural and Factual Summaries

Appellant, Cynthia Francene George, was employed by the Agency in Fresno as an administrative law judge (ALJ). ALJ's assigned to the Agency's Fresno office are required to travel to outlying areas throughout the San Joaquin Valley to conduct hearings in unemployment insurance appeals. At some point, George began to think that travel assignments were not being equally distributed amongst the ALJ's. She began looking into the method used to make assignments. The calendaring supervisor told George that two male ALJ's were given preference in travel assignments.

George did a statistical analysis of which ALJ's were given what assignments. Although her numbers did not show a clear gender bias, they did indicate that travel was not evenly distributed among the ALJ's. George prepared a memo documenting her research, which she distributed to her colleagues. She discussed her concerns with then- presiding ALJ Ross and told him that she believed male ALJ's were receiving preferences in travel assignments, although she did not use the word "discrimination."

George also discussed her concerns with her co-workers, including ALJ Betsy Temple. Temple told George she was concerned that if George pursued her complaints, it would lead to the head office in Sacramento interfering with how travel was assigned in Fresno. Temple believed the Fresno office was unique and that the best way to handle travel there was to be flexible so that individual employee needs and preferences could be accommodated. For example, George did not like to drive in the fog and therefore she was not asked to conduct hearings in Mendota during the winter. Temple told George that she would be "sorry" if she pursued her complaint.

Meetings with the ALJ's were scheduled to discuss George's concerns. George, after listening to the preferences expressed by the other ALJ's and the individual accommodations that had been made, concluded that the individual preferences given the male ALJ's had created an unfair system of travel assignments.

On November 6, 2001, George filed a complaint with the Department of Fair Employment and Housing (DFEH), alleging that she had been subjected to "differential treatment, [and] assigned less favorable overnight travel" in violation of the California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12940, subd. (h)). According to George, within a month of when she filed her charge, the Agency modified the travel assignment procedure to a standardized rotation, eliminating her concerns of gender bias. The Agency also eliminated all the accommodations previously made for individual ALJ preferences.

In March 2002, Temple was promoted to presiding ALJ. George testified that her relationship with Temple was different from the one she had with the prior presiding ALJ. Temple did not discuss things with George, but only communicated by e-mail.

On July 24, 2002, George was late for work because she had a medical issue on her way to work. Later that day, Temple gave George a formal written disciplinary warning for being late. As the result of a number of other alleged incidents of misconduct, in October 2002, Temple suspended George for a two-week period without pay (first suspension, SPB case No. 02-4017). In November 2003, George was again suspended by Temple for three weeks without pay for a number of separate allegations of misconduct (second suspension, SPB case No. 03-1058). George appealed both these suspensions to the State Personnel Board (Board), alleging that the discipline was inappropriate and unwarranted. Although the actual appeal is not in the record, all parties agree George challenged the suspensions by arguing that either the alleged acts of misconduct did not occur or that they did not warrant discipline. She did not argue that the discipline was retaliatory.

On March 9, 2004, after a full evidentiary hearing, the Board found that the first suspension was not supported, but concluded the second suspension was just and proper. The allegations of the first suspension were (1) that George had failed to inform Temple in a timely manner that George was scheduled for jury duty; (2) that, although George was required to report to jury duty only one day out of five, she did not advise anyone in the Fresno office that she was available for work the other days; (3) that she falsified her time report claiming that she had worked after being dismissed from jury duty; and (4) that George was late for hearings on July 24 and October 2, 2002. The Board concluded there was no evidence that George was late on October 2, or that she was asked why she was late on July 24, or that her failure to provide an explanation was cause for discipline. The Board also decided that George had not falsified her time report. The Board found that, although George "could have taken more initiative in keeping her office informed of her whereabouts during her week of scheduled jury service, her failure to do so does not warrant formal discipline...." As a result, George's first suspension was revoked and all benefits and pay were restored.

The second suspension was based on allegations (1) that George refused without justification to conduct an assigned hearing on December 23; (2) that George became angry and abusive to the office receptionist because of a delay in getting a phone message; (3) that George disobeyed an order from Temple not to talk about business-related issues with the staff directly; and (4) that George loudly and openly mocked Temple's directive in front of office staff. The Board found that George had harassed the clerical staff, improperly refused to handle the December 23 hearing, and had acted inappropriately when she loudly mocked and disobeyed Temple's directive. The second suspension was reduced from three weeks to two weeks, with corresponding pay and benefit adjustments. George challenged the Board's decision in superior court. Her petition for writ of mandate was denied.

On July 23, 2003, George filed a second charge with DFEH, claiming that she was being retaliated against by the Agency for objecting to the travel scheduling. She believed her two previous suspensions were motivated by retaliatory animus. Due to the atmosphere in the office and her dealings with Temple, George also felt that she soon would be facing a third suspension or worse.

In August 2003, George was suspended a third time for two weeks for (1) being inexcusably absent from work on May 14, 2003; (2) for failing to begin a hearing on time on July 9, 2003; and (3) for failing to respond timely to an e-mail from Temple asking why the hearing began late (third suspension, SPB case No. 03-2494). On June 8, 2004, the Board upheld the third suspension, sustaining one of the three allegations of misconduct, but reducing it to a one-week suspension. The Board found that, in refusing to come to work on May 14, George "placed her personal feelings and suspicions over her judicial duties," which constituted inexcusable neglect of her job responsibilities. The Board found that the other two ...


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