Opinion
F059869
01-19-2012
TERRA LINDA FARMS, INC., et al., Plaintiffs and Appellants, v. CALIFORNIA FAIR EMPLOYMENT AND HOUSING COMMISSION et al., Defendants and Respondents; MARIBEL RIVAS et al., Real Parties in Interest and Respondents.
Campagne, Campagne & Lerner, Justin T. Campagne and Wiley R. Driskill for Plaintiffs and Appellants. Kamala D. Harris, Attorney General, Louis Verdugo, Jr., Assistant Attorney General, Angela Sierra and Anthony V. Seferian, Deputy Attorneys General, for Defendants and Respondents.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. 09CECG00483)
OPINION
APPEAL from a judgment of the Superior Court of Fresno County. Jeffrey Y. Hamilton, Jr., Judge.
Campagne, Campagne & Lerner, Justin T. Campagne and Wiley R. Driskill for Plaintiffs and Appellants.
Kamala D. Harris, Attorney General, Louis Verdugo, Jr., Assistant Attorney General, Angela Sierra and Anthony V. Seferian, Deputy Attorneys General, for Defendants and Respondents.
No appearance for Real Parties in Interest and Respondents.
Agricultural entities appeal a judgment denying their petition for administrative mandate challenging a decision by the California Fair Employment and Housing Commission (the Commission). The Commission had found the companies violated the Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.) by (1) retaliating against two women who worked in the companies' onion packing facility and complained about sexual harassment and (2) failing to take all reasonable steps necessary to prevent harassment and retaliation. The Commission awarded the women damages totaling $96,574.52 and imposed an administrative fine of $15,000.
All subsequent statutory references are to the Government Code unless stated otherwise.
We conclude that the Commission followed the applicable principles of law, and its findings of fact were supported by substantial evidence. Thus, the Commission did not abuse its discretion. The judgment will be affirmed.
FACTS
Terra Linda Farms, Inc., Terra Linda Farms, a general partnership, and Terra Linda Packing (collectively, Terra Linda), filed this administrative mandamus proceeding. These entities are part of a diversified family farming operation owned by Joseph Coelho, his two brothers and one sister. Terra Linda grows onions, tomatoes, cotton, grapes, almonds, and walnuts and owns an onion packing facility. Terra Linda's onion packing facility handles onions from other growers as well as its own.
Terra Linda's writ petition named the Commission and the California Department of Fair Employment and Housing (the Department) as defendants. The petition also named Maribel Rivas, Maria Santillan, and the Department as the real parties in interest. Rivas and Santillan were the complainants in the administrative proceeding before the Commission.
In 1995, Rivas and Santillan began working at Terra Linda's onion packing facility. During the 1995 onion season, they worked directly for Terra Linda and their paychecks came from Terra Linda.
In 1996, Terra Linda entered an oral contract with Green Valley Ag, Inc., a licensed farm labor contractor (Green Valley). Joe Edward Madrid is the owner and manager of Green Valley. Madrid and Coelho had known each other since the 1970's when they attended high school together at Riverdale.
From 1996 on, Green Valley provided Terra Linda with laborers to pick onions in the fields and to sort and bag the onions at Terra Linda's packing shed. In its role as labor contractor, Green Valley accepted applications from potential workers, collected the applicants' Form I-9's to verify their eligibility for employment, issued their paychecks and annual W-2's, and conducted workplace safety training. From the 1996 onion season through the 2005 season, Green Valley hired Rivas and Santillan and they worked at the Terra Linda packing facility.
Terra Linda compensated Green Valley for its services based on the wages Green Valley paid the workers plus a commission. Madrid described the compensation formula as "a fee on top of payroll." Madrid estimated that about 30 percent of Green Valley's revenue came from its contract with Terra Linda.
Maria Montalvo (also referred to as Amelia Montalvo) worked as a supervisor at Green Valley and reported to Madrid. Montalvo oversaw several packing sheds. At the time of the administrative hearing in 2008, Montalvo had worked for Green Valley for over 20 years and had been a supervisor for over 15 years. Montalvo made daily rounds to wherever Green Valley had crews in the fields or at packing facilities, but she did not necessarily visit each location every day. As a result, Montalvo was not at the Terra Linda facility for the full work day.
Green Valley organized its workers into crews with crew bosses. The crew bosses reported to Montalvo. During the 2005 onion season, Santillan and Graciela Esquivel were the two crew bosses in charge of approximately 70 workers at the Terra Linda packing facility.
Terra Linda owned the shed and machinery at its packing facility. Terra Linda's employees were involved in the operation of the facility. Alvaro Juarez, a Terra Linda employee, maintained the onion sorting machine, controlled its speed, and decided where the onions were going by size. Juarez issued orders to the truck drivers hauling onions from the fields regarding the speed at which they deposited their loads onto the sorting machine. Juarez issued orders to the Green Valley crew bosses about where to place crew members along the conveyor lines and when to move the workers to other areas. (5 AA 1299, #28)! The crew bosses relayed these directions to the sorters and baggers. Juarez also decided when the workers could take breaks and the time they were to report for work the following morning.
Juarez reported to Pete Dominguez, who was Terra Linda's ranch foreman. Dominguez reported directly to Coelho.
On June 28, 2005, while Rivas was bagging onions on a conveyor line, Juarez increased the speed of the machine and sent a load of onions down to Rivas. Rivas was unable to bag all of the onions and told Juarez, "'Stop it because onions [are] falling off.'" Juarez went to where Rivas was standing, grabbed her, and squeezed the skin on the right side of her waist. Rivas pushed him away. Juarez told Rivas, "'Behave. If not, I will fire you.'" He also added that he would take matters into his own hands so that she would no longer have a job.
Rivas told her crew boss, Santillan, about the incident and also informed Dominguez, Terra Linda's ranch foreman.
Subsequently, Rivas went to a domestic violence center and filed a request for a temporary restraining order against Juarez with the Fresno Superior Court. In her application, Rivas asserted that (1) she used to date Juarez in 1999, (2) she worked with Juarez at Terra Linda, (3) on June 28, 2005, Juarez grabbed the skin on her lower back and pulled and twisted it, and (4) after she pushed him away he yelled at her to behave if she wanted to work there. Rivas also described an incident in 1999 where Juarez had slapped her, followed her home, pointed a gun at her and told her that she was going to be sorry.
On July 11, 2005, the superior court signed the temporary restraining order, which required that Juarez not harass, threaten, or assault Rivas. The court set a hearing on the order to show cause for August 10, 2005.
On July 14, 2005, Rivas asked Santillan to give the temporary restraining order to Juarez. Despite her concerns about Juarez reacting violently and the possible jeopardy to her job, Santillan agreed. Later that day, Santillan gave the temporary restraining order to Juarez at the Terra Linda office. Juarez followed her out of the office and threw the papers back at her. Santillan picked up the papers and returned them to Rivas.
On July 18, 2005, Rivas and Santillan were summoned to a meeting at Terra Linda's offices. Coelho and Dominguez of Terra Linda and Madrid of Green Valley were present. Rivas gave the temporary restraining order papers to Dominguez. He and Coelho reviewed them and Dominguez said he would give the papers to Juarez.
Coelho then presented Rivas with a two-page document titled "SETTLEMENT AGREEMENT AND RELEASE." The agreement was written in English. It stated that its purpose was to provide for the complete settlement and full release of any and all (known and unknown) claims, liabilities and obligations (existing now or in the future) owed to Rivas by Terra Linda. The agreement also stated: "Rivas will not be required to speak to or otherwise interact with Alvaro Juarez in any capacity as part of her job duties. Further, Alvaro Juarez will not supervise Maribel Rivas' activities or have any authority over Maribel Rivas." (Underscoring omitted.) The agreement included a general release and waiver of Civil Code section 1542.
Rivas, who is unable to read English, could not read the document. Coelho told Rivas that if she signed the agreement it would protect her and she would have her job back. Rivas believed that if she signed the agreement she would be protected and that if she did not she would lose her job. Rivas and Coelho (acting for Terra Linda) signed the settlement agreement and release.
After Rivas and Coelho signed the settlement agreement, Juarez, Rivas and Santillan continued to work at the Terra Linda packing shed. Juarez began taunting and threatening them, saying that they were going to lose their jobs. In late July and August 2005, Juarez frequently stated in the workplace that he would make sure "'these fucking women'"—meaning Rivas and Santillan—would not have the jobs next year. Juarez told crew members that they did not have to bother spending time with either Santillan or Rivas because they were going to be fired. He also told crew members that Rivas was going to sue her coworkers.
One day, Juarez targeted Rivas by speeding up the onion sorting machine and sending a large volume of onions down the line directly at Rivas. The onions came so fast at Rivas that she was unable to bag them.
Juarez frequently undermined Santillan's authority by telling crew members they did not have to pay attention to her and could ignore her instructions. Santillan reported Juarez's undermining of her authority to Montalvo, who said she should talk to Dominguez. When Santillan complained to Dominguez that Juarez countermanded her instructions, Dominguez told her he would talk to Juarez. The situation, however, did not improve. Santillan had further problems with her crew, including an incident where a crew member swore at her and yelled at Santillan, "'Go ahead and stop me,'" while holding her work scissors in her hand. Santillan reported the incident to Montalvo and Coelho. Coelho was concerned that Santillan was losing control of her crew and told Madrid, "You need to address this." When Coelho was asked what he told Madrid, Coelho answered, "Handle it. Investigate it. Do the right thing, whatever it is. It's in your hands." Madrid investigated by speaking to crew members, but did not talk to Santillan. The crew members said they had not seen anything. Madrid concluded that Santillan had not been threatened with scissors.
Members of the crew shunned Rivas and Santillan, and the two women spent their break time together. One day, toward the end of the 2005 season, Coelho walked past and stared at them without speaking. Santillan characterized Coelho's behavior as unfriendly and unusual because she had previously had a good relationship with him.
On August 11, 2005, the Fresno Superior Court held a hearing on the order to show cause regarding the temporary restraining order that Rivas had obtained against Juarez. The superior court denied Rivas's application and terminated the temporary restraining order. On August 30, 2005, Rivas filed a complaint with the Department against Terra Linda, alleging that Juarez subjected her to a hostile work environment.
Both Rivas and Santillan worked at Terra Linda until the end of the onion season, September 10, 2005. At a barbeque on the last day of the season, Santillan spoke to Coelho and thanked him for giving her a job. Because she was afraid she would not be hired again, Santillan asked, "Mr. Coelho, are you still going to give me work next year?" Coelho replied, "It's too soon to know right now."
In May 2006, both Santillan and Rivas submitted applications to Green Valley for the 2006 onion season. In early June when the onion season was about to begin at Terra Linda, Santillan called Montalvo and asked if she could return to work. Montalvo told her "no," and when Santillan asked why, Montalvo responded, "[b]ecause they don't want you here anymore." After the onion season began, Santillan approached Dominguez and asked for her job back. Dominguez said he would talk to Coelho and later told Santillan that she should speak to Madrid at Green Valley. When Santillan spoke to Madrid, he told her that she was a temporary employee and that they could make any decision about her at any time. When Santillan asked why she was losing her job, Madrid responded, "'The rules, the orders.'"
Later in June, Green Valley offered Santillan a job at Telesis Onion and she started working there in quality control on June 12, 2006. Telesis Onion was about 15 minutes further away for Santillan to travel than Terra Linda. Santillan received the same hourly wage, but her overtime hours at Telesis Onion were less than her overtime at Terra Linda. In 2007, Telesis Onion hired Santillan directly and gave her a promotion.
Rivas was not offered any position by Green Valley for the 2006 onion season, either at Terra Linda or another packer. Furthermore, Rivas did not find other work during the summer of 2006. From September to early December 2006, Rivas worked at Paramount Farms, where she earned minimum wage and overtime. On December 6, 2006, Rivas fell and broke her arm. She was unable to work in 2007, but later worked sorting pistachios.
PROCEEDINGS
On June 26, 2006, Santillan filed a complaint with the Department, against Green Valley, using the one-page preprinted form complaint designated DFEH-300-01 (12/99). One of the headings in the complaint form stated: "NAMED IS THE EMPLOYER, PERSON ... OR LOCAL GOVERNMENT AGENCY WHO DISCRIMINATED AGAINST ME." Underneath this heading were lines for the name, address and phone number of the employer or person named by the complainant. Santillan's complaint named Green Valley. It also asserted that she had been denied recall to her position as a foreperson at Terra Linda farms in retaliation for being a witness in a sexual harassment complaint and for supporting the employee who was the victim of sexual harassment.
On the same day, Santillan filed another complaint with the Department, which named Terra Linda in the portion of the form designated for the employer or person who committed the discrimination. The factual particulars included in the complaint asserted:
"I was denied recall to my position as foreperson at Terra Linda Farms in retaliation for being a witness to a sexual harassment complaint and for supporting an employee who was a victim of sexual harassment. Terra Linda Farms subcontracts its Sorters and controls who they do not want working. The alleged harasser continues to be employed by Terra Linda Farms and is enjoying employment that I have been denied."
On June 29, 2006, Rivas filed two complaints with the Department. One complaint named Green Valley and alleged that Rivas had filed a complaint in August 2005 against her employer because she was sexually harassed by a coworker and, in retaliation for filing the complaint, she was denied recall to work. The other complaint named Terra Linda and also alleged Rivas was not recalled to work in retaliation for filing a complaint against Terra Linda for sexual harassment.
In February 2007, Rivas and Santillan agreed to settle their claims against Green Valley. The settlement agreements, which were prepared on Department letterhead, stated that Rivas and Santillan agreed to withdraw any charge or complaint of discrimination, "which are now pending on [their] behalf against [Green Valley], its officers, agents or employees." Rivas and Santillan also agreed not to institute any action "arising from or attributable to any alleged unlawful practice of [Green Valley], its officers, agents or employees arising from or attributable to the above-described complaint on the facts alleged in that complaint." Under the agreements, Green Valley paid Santillan $2,000 and paid Rivas $3,500.
On June 26 and 28, 2007, the Department issued an accusation against Terra Linda based on Santillan's and then Rivas's complaints and filed the accusations with the Commission. The accusations alleged that Terra Linda was an "employer" within the meaning of sections 12926, subdivision (d), and 12940, subdivision (h), and that Terra Linda refused to recall Rivas and Santillan to work in retaliation for (1) Rivas complaining about sexual harassment by Alvaro Juarez, (2) Santillan reporting the incident to Madrid at Green Valley, (3) Rivas obtaining a temporary restraining order against Juarez, and (4) Santillan delivering the temporary restraining order to Juarez. Based on these allegations, the accusations asserted that Terra Linda violated section 12940, subdivision (h) (retaliation) and section 12940, subdivision (k) by failing to take all reasonable steps necessary to prevent discrimination or harassment in the workplace.
In February 2008, the Department filed first amended accusations against Terra Linda containing essentially the same allegations.
In March 2008, a three-day evidentiary hearing was held before an administrative law judge and, in November 2008, the administrative law judge issued a proposed decision in favor of the complainants. In December 2008, the Commission adopted the administrative law judge's decision, under which the Commission (1) awarded Rivas $6,574.52 in lost back pay and $55,000 in emotional distress damages, (2) awarded Santillan $35,000 in emotional distress damages, and (3) imposed a $15,000 administrative fine against Terra Linda.
In February 2009, Terra Linda filed a petition for writ of administrative mandate that contained 17 causes of action.
In October 2009, the superior court heard oral argument on the petition. And, on December 29, 2009, filed its order and judgment on writ of mandate. The superior court's order and judgment upheld the Commission's decision except for the award of $6,574.52 in back pay to Rivas. The court determined that the $3,500 settlement that Rivas received from Green Valley should have been used to offset Rivas's award of back pay.
In February 2010, Terra Linda filed a notice of appeal.
DISCUSSION
I. Standard of Review
Judicial review of a decision or order rendered by a state agency, such as the Commission, in an administrative mandamus proceeding, is governed by Code of Civil Procedure section 1094.5, which provides that the reviewing court's "inquiry in such a case shall extend to the questions whether the [agency] has proceeded without, or in excess of, jurisdiction; whether there was a fair trial; and whether there was any prejudicial abuse of discretion. Abuse of discretion is established if the [agency] has not proceeded in the manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence." (Id., subd. (b); see County of Fresno v. Fair Employment & Housing Com. (1991) 226 Cal.App.3d 1541, 1548 [findings must be supported by substantial evidence in light of whole record].)
"On appeal, this court exercises the same function as the trial court and must decide if the [Commission's] findings were based on substantial evidence. Neither court may reweigh the evidence, and both courts must view the evidence in the light most favorable to the Commission's findings and indulge in all reasonable inferences in support thereof. [Citations.]
"This court's duty is to review the findings and actions of the Commission 'and not the findings of the trial court.' [Citation.] To that end, this court must review the entire record to determine whether the Commission's findings and decision are supported by substantial evidence. [Citations.]
"'We may not isolate only the evidence which supports the administrative finding and disregard other relevant evidence in the record. [Citations.] On the other hand, neither we nor the trial court may disregard or overturn the Commission's finding "'for the reason that it is considered that a contrary finding would have been equally or more reasonable.'" [Citations.]' [¶] ... [¶]
"Substantial evidence is defined as: '"relevant evidence that a reasonable mind might accept as adequate to support a conclusion, ..."' [citation] or evidence of '"'ponderable legal significance ... reasonable in nature, credible, and of solid value.'"' [Citation.]
"While the Commission's findings on questions of fact will be sustained if supported by substantial evidence on the record considered as a whole, yet, if the Commission committed any errors of law, the trial and appellate courts perform 'essentially the same function' and are not bound by the Commission's legal conclusions. [Citations.]" (Johnson Controls, Inc. v. Fair Employment & Housing Com. (1990) 218 Cal.App.3d 517, 531-532.)
In certain types of administrative mandamus cases, courts are authorized to exercise their independent judgment on the evidence. (Code Civ. Proc., § 1094.5, subd. (c).) Those cases include proceedings where the agency's decision affects a fundamental vested right. (Kazensky v. City of Merced (1998) 65 Cal.App.4th 44, 52 [city's discipline of an employee affected a fundamental vested right in employment and provision regarding independent exercise of judgment on the evidence applied].) This case involves no fundamental vested right, and no statute expressly authorized the superior court to exercise its independent judgment regarding the evidence. Therefore, the standard of review set forth in subdivision (c) of Code of Civil Procedure section 1094.5 is inapplicable in this appeal.
II. Bars to the Claims
A. Preemption of Jurisdiction by National Labor Relations Board
Terra Linda argues that the National Labor Relations Board has exclusive jurisdiction over the allegations made by Rivas and Santillan because those allegations constitute an unfair labor practice charge under section 8(a)(1) and (3) of the National Labor Relations Act (NLRA) (29 U.S.C. § 151 et seq.).
Defendants contend that the National Labor Relations Board does not have jurisdiction over any individual employed as an "agricultural laborer" and, in any event, Rivas and Santillan did not engage in "concerted activity" for purposes of the NLRA. Defendants also contend that the rights asserted by the Department in this case arose from the FEHA and the state has a substantial public policy interest in seeing those rights enforced.
The NLRA was enacted by Congress to protect "the right of employees to organize and bargain collectively" (29 U.S.C. § 151) and govern labor-management relations in the private sector. Section 7 of the NLRA states that employees have the right to self-organization, to form labor organizations, to bargain collectively, and "to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection." (29 U.S.C. § 157.) Section 8 of the NLRA makes it an "unfair labor practice" for an employer to interfere with, restrain or coerce employees in the exercise of their rights under section 7 of the NLRA, such as the right to engage in concerted activities for the purpose of mutual aid or protection. (29 U.S.C. § 158(a)(1).) Also, it is an unfair labor practice for an employer to engage in discrimination that encourages or discourages membership in any labor organization. (29 U.S.C. § 158(a)(3).) Claims brought under these provisions of the NLRA are within the primary jurisdiction of the National Labor Relations Board.
The type of federal preemption under the NLRA relevant to this case was discussed by the United States Supreme Court in San Diego Unions v. Garmon (1959) 359 U.S. 236, Sears, Roebuck & Co. v. Carpenters (1978) 436 U.S. 180 and Operating Engineers v. Jones (1983) 460 U.S. 669. The idea underlying the preemption doctrine is that requiring states to defer to the exclusive competence of the National Labor Relations Board will avoid the danger of state interference with national policy. (San Diego Unions, supra, at p. 245.)
The application of the federal preemption doctrine in a matter involving sexual harassment and claims of retaliatory discharge was addressed in Delahunty v. Cahoon (1992) 66 Wash.App. 829 . In that case, truck stop waitresses sued the owners for (1) sexual harassment by the restaurant manager and (2) retaliatory discharge when the owners refused to reinstate them after they walked out and picketed in protest after their reports of the manager's harassment were ignored. The jury awarded the waitresses damages on the sexual harassment claim and also on the retaliation claim. (Id. at p. 835 .) The appellate court affirmed the judgments. (Id. at p. 843 .)
The appellate court concluded that the waitresses' state law claims for retaliation in response to their walkout were not preempted by the NLRA. (Delahunty v. Cahoon, supra, 66 Wash.App. at p. 838 .) The court reasoned that the state was regulating practices of discrimination that violated its citizens' civil rights, and the state's antidiscrimination laws did not conflict with national policy governing unfair labor practices. (Ibid.) In addition, the court concluded that, if the discriminatory discharge practices potentially were subject to federal regulation under the NLRA, preemption of state jurisdiction was not required. The court based its conclusion on the ground that the state had a substantial interest in regulating discriminatory employment practices and the regulation involved (the state law authorizing the plaintiffs' retaliation claim) did not threaten undue interference with the federal regulatory scheme concerning unfair labor practices. (Delahunty v. Cahoon, supra, at pp. 838-839 .)
We will follow the reasoning of the court in Delahunty v. Cahoon, supra, 66 Wash.App. 829 and its application of the preemption principles set forth in San Diego Unions v. Garmon and Sears, Roebuck & Co. v. Carpenters to the retaliation claims presented in that case. Consequently, we conclude that the claims pursued by the Department against Terra Linda were not preempted by the NLRA.
B. Rivas's Release and Trial Court's Findings Regarding Validity
The trial court found that the July 18, 2005, settlement agreement and release signed by Rivas was not valid or enforceable. Terra Linda contends this finding was improper and violated its right to due process . Terra Linda asserts that the Department's counsel expressly stated at the hearing before the Commission that "I'm not trying to undo this agreement" and, therefore, Terra Linda did not develop the evidence on the matter. Terra Linda argues "it was patently unfair for the superior court to second-guess the evidence regarding the validity of the agreement after the D[epartment] conceded its validity and thus effectively waived any argument to the contrary." Also, Terra Linda contends the superior court's finding on the failure of consideration was error.
First, under the applicable standard of review, our "duty is to review the findings and actions of the Commission 'and not the findings of the trial court.' [Citation.]" (Johnson Controls, Inc. v. Fair Employment & Housing Com., supra, 218 Cal.App.3d at p. 531.) Consequently, Terra Linda's argument asserting the superior court committed an error is misdirected because it fails to present a ground for concluding the Commission committed reversible error.
Second, if we interpret Terra Linda's argument as contending that the Commission erred by not finding Terra Linda's liability to Rivas was barred by the release, the argument fails to identify how the Commission misapplied the law or made findings unsupported by the evidence. For example, the Commission held Terra Linda liable to Rivas under section 12940, subdivision (k) because Terra Linda failed to take all reasonable steps necessary to prevent harassment and retaliation that occurred after (1) Rivas signed the release and (2) notice was given to Terra Linda of Juarez's continuing abusive behavior. Terra Linda has not explained how Rivas could release Terra Linda from liability arising from conduct that occurred after the agreement was signed. (See Civ. Code, § 1668 [contract exempting anyone from responsibility for willful violations of law are against public policy]; Watkins v. Wachovia Corp. (2009) 172 Cal.App.4th 1576, 1587, fn. 12 [Civ. Code, § 1668 meant to prohibit contracts releasing liability for future torts].)
Similarly, Rivas's "protected activity" (i.e., one of the elements of her retaliation claim under § 12940, subd. (h)) included her filing with the Department a sexual harassment complaint against Terra Linda on August 30, 2005. This protected activity and the retaliation related to it occurred after the release and waiver was signed on July 18, 2005. Therefore, this protected activity can be used to establish Terra Linda's liability.
C. Scope of the Green Valley Settlement Agreements
In February 2007, Rivas and Santillan agreed to settle their claims against Green Valley. The settlement agreements, which were prepared on Department letterhead, provided that Rivas and Santillan agreed to withdraw any charges or complaints of discrimination, "which are now pending on [their] behalf against [Green Valley], its officers, agents or employees."
At each stage of these proceedings, Terra Linda has argued that it was released under the settlement agreements because it was Green Valley's agent. Neither the Commission nor the trial court was convinced by Terra Linda's argument regarding the proper scope of the release contained in the Green Valley settlement agreements.
On appeal, Terra Linda argues that the settlement agreements' references to Green Valley's agents are ambiguous and that ambiguity must be construed against the Department, which drafted the agreements. (See Estate of O'Donnell (1978) 80 Cal.App.3d 514, 519 [ambiguities in releases are construed against those who caused them to exist]; Civ. Code, § 1654 [uncertain language interpreted most strongly against the person who caused the uncertainty to exist].) Specifically, Terra Linda argues that if it was determined to have acted wrongfully or participated in the decision that formed the basis of the discriminatory action, it would be deemed liable as an "agent/employer." Terra Linda also argues that if it were liable as a joint employer, it would be deemed to be an "agent/employer." Because any liability determination would have been based on its status as an "agent/employer," Terra Linda concludes, it was released from that liability as Green Valley's agent pursuant to the settlement agreements.
First, we consider the meaning of the term "agent" as it was used in the settlement agreements. As a general rule, "[t]he words of a contract are to be understood in their ordinary and popular sense ...." (Civ. Code, § 1644.) Civil Code section 2295 defines an "agent" as "one who represents another, called the principal, in dealings with third persons." We conclude that this statutory definition reflects the ordinary meaning of the word "agent" and, therefore, this definition provides the meaning of the word "agent" as it was used in the settlement agreements. Terra Linda has provided no alternate definition for us to consider in this context. Consequently, defining the term "agent" is relatively simple. The uncertainty inherent in the term is not its definition, but in how the trier of fact will apply that definition to the evidence presented.
California law treats the existence and scope of an agency as a question of fact, unless the essential facts are not in conflict. (Garlock Sealing Technologies, LLC v. NAK Sealing Technologies Corp. (2007) 148 Cal.App.4th 937, 965.) When those facts are undisputed, the agency determination is made as a matter of law. (Ibid.)
In this case, the record contains conflicting evidence regarding the relationship between Green Valley and Terra Linda. Therefore, under the foregoing principles concerning agency, we conclude that the pertinent question is whether the Commission's finding that Terra Linda was not an agent of Green Valley is supported by substantial evidence. (Garlock Sealing Technologies, LLC v. NAK Sealing Technologies Corp., supra, 148 Cal.App.4th at p. 965.)
The testimony presented to the Commission established that Green Valley is a farm labor contractor that had an oral contract with Terra Linda to provide Terra Linda with labor for 1996 and each onion season after that. Under the contract, Terra Linda paid Green Valley an amount equal to the workers' wages plus a commission. Thus, under the parties' contractual relationship, it appears that Terra Linda was the principal and Green Valley was an independent contractor, agent or both. (See APSB Bancorp v. Thornton Grant (1994) 26 Cal.App.4th 926, 930 [independent contractor and agent are not mutually exclusive legal categories].)
Furthermore, Terra Linda has cited, and we have located, nothing in the appellate record that shows Terra Linda represented Green Valley in dealings with third persons.
Therefore, we conclude that the testimony regarding the contractual arrangement between Terra Linda and Green Valley constitutes substantial evidence in support of the finding that Terra Linda was not Green Valley's agent, but rather Terra Linda was the principal in the relationship between it and Green Valley.
The primary flaw in Terra Linda's "agent/employer" argument is that the settlement agreements released the "agents" of Green Valley, but did not release all employers of Rivas and Santillan or all principals of Green Valley. Because we have located and Terra Linda has provided no authority for the proposition that finding Terra Linda was a joint employer compels, as a matter of law, a finding that Terra Linda also was an agent of Green Valley, we conclude that Terra Linda's "agent/employer" argument lacks the legal foundation necessary to demonstrate reversible error. In sum, the Commission correctly determined the settlement agreements' reference to Green Valley and "its officers, agents or employees" did not release Terra Linda from liability.
The Commission's finding that Terra Linda was a joint employer of Santillan and Rivas is discussed in part III.A, post.
D. Statute of Limitations
Terra Linda contends that the accusation relating to Santillan was not issued by the Department within one year from the date of the Santillan complaint because the accusation was filed on June 26, 2007, which was one year and one day after Santillan's complaint was filed on June 26, 2006.
Terra Linda's argument involves both statutory and regulatory provisions. Section 12965, subdivision (a) contains the general rule that "an accusation shall be issued, if at all, within one year after the filing of a complaint." The application of this provision in this case requires us to determine the meaning of the phrase "within one year after" the stated event. The regulation interprets the statute as follows: "All accusations issued pursuant to ... section 12965, subdivision (a) ... shall be issued by the Department and filed with the Commission on or before the one-year anniversary date of the filing of the complaint." (Cal. Code Regs., tit. 2, § 7408, subd. (c).)
In SCT, U.S.A., Inc. v. Mitsui Manufacturers Bank (1984) 155 Cal.App.3d 1059, the court addressed the method of calculating time for statute of limitations purposes:
"In computing the statute of limitations periods in California, ... the day upon which the cause of action accrues is excluded and the anniversary date is included. (See Wixted v. Fletcher (1961) 192 Cal.App.2d 706, 709 [exclusion of the first day applies in computing time for the statute of limitations and also in a variety of other procedural contexts].) Thus in Wixted, plaintiff's tort claim for personal injury was not barred by a one-year limitation period where the injury occurred on February 5, 1959, and the suit was not filed until February 5, [1960], the anniversary date." (Id. at p. 1065; see Wixted v. Fletcher, supra, 192 Cal.App.2d at p. 707.)
Based on the way the statute of limitations period is interpreted and applied in California, we conclude that the regulation did not extend the limitation period by one day, but rather accurately reflects how the statutory language should be applied. Accordingly, we conclude that the accusation relating to Santillan was not barred by the statute of limitations.
E. Judicial Estoppel
Terra Linda contends that Rivas and Santillan filed two sets of complaints that are internally inconsistent because one set alleged that Green Valley was their employer and discriminated against them and the other set alleged that Terra Linda was really their employer who discriminated against them. Terra Linda argues that this tactic of alleging different stories is precluded by the doctrine of judicial estoppel and, as a result, their claims against Terra Linda are barred.
1. General principles
Judicial estoppel is an equitable doctrine that prevents a party from gaining an advantage in a legal proceeding by asserting one position, and then seeking a second advantage by taking an incompatible position. (MW Erectors, Inc. v. Niederhauser Ornamental & Metal Works Co., Inc. (2005) 36 Cal.4th 412, 422.) The gravamen of judicial estoppel is the intentional assertion of an inconsistent position that perverts the working of the judicial process. (Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 183.) The goals of the doctrine are to (1) maintain the integrity of the judicial system and (2) protect parties from an opponent's unfair strategies. (MW Erectors, Inc., supra, at p. 422.) Less formally, the doctrine protects against a litigant playing "fast and loose" with the courts. (Jackson, supra, at p. 181.) The doctrine most appropriately applies when:
"'"(1) the same party has taken two positions; (2) the positions were taken in judicial or quasi-judicial administrative proceedings; (3) the party was successful in asserting the first position (i.e., the tribunal adopted the position or accepted it as true); (4) the two positions are totally inconsistent; and (5) the first position was not taken as a result of ignorance, fraud, or mistake."'" (MW Erectors, Inc. v. Niederhauser Ornamental & Metal Works Co., Inc., supra, 36 Cal.4th at p. 422.)
Because of the doctrine's equitable nature, "its application, even where all necessary elements are present, is discretionary." (MW Erectors, Inc. v. Niederhauser Ornamental & Metal Works Co., Inc., supra, 36 Cal.4th at p. 422.)
Under the foregoing principles, Terra Linda can prevail on this issue only if it establishes (1) that all necessary elements of the doctrine were present and (2) there was an abuse of discretion in the failure to apply the doctrine.
2. Absence of totally inconsistent positions
On appeal, Terra Linda has presented no arguments or authority explaining why the joint employer theory of liability relied upon by the Commission to find Terra Linda was liable to Rivas and Santillan was inconsistent with the theory that Green Valley also was an employer. Given the lack of a compelling argument to the contrary, we too adopt the seemingly obvious conclusion that a worker who claims Company X was an employer and simultaneously claims Company Y was an employer has not taken two positions that are totally inconsistent. These two positions are compatible because Company X and Company Y might be joint employers. (See generally 29 Cal.Jur.3d (2003) Employer and Employee, § 3, p. 467 [California's law of agency recognizes possibility of dual employment—i.e., joint employment].)
Terra Linda's opening brief asserts that "[Santillan] settled the claim [against Green Valley] and obtained $2,000.00. Then Santillan changed her story to allege that it was Terra Linda who discriminated against her." This assertion mischaracterizes the record concerning the sequence of events. Santillan did not wait until after she settled with Green Valley and then alleged Terra Linda was her employer. She filed her complaints against the two employers on the same day, June 26, 2006. In fact, Santillan's complaint against Terra Linda was given a lower filing number.
The preprinted complaint forms filled out by Rivas and Santillan used the definite article "the" in the heading "NAMED IS THE EMPLOYER ... WHO DISCRIMINATED AGAINST ME," which is above the line where they set forth the name and address of either Green Valley or Terra Linda. The use of the definite article in the preprinted form can be read to imply that the complainants had only one employer. (See Pineda v. Bank of America, N.A. (2010) 50 Cal.4th 1389, 1396 [use of definite article refers to specific person, place or thing].) This interpretation is countered by Rivas's and Santillan's allegation that Terra Linda subcontracted its sorters and controlled whom it did not want working. The reference to subcontracting implies the existence of an intermediary between Terra Linda and the sorters and, therefore, suggests dual employers.
Our first step in determining whether the complaints contain totally inconsistent positions concerns identifying the standards used in construing the contents of the complaints. The FEHA is a remedial statute and contains a provision stating it shall be construed liberally for the accomplishment of its purposes. (§ 12993, subd. (a).) Thus, it does not appear that liberally construing complaints filed under the FEHA would frustrate the statute's purposes. In addition, the Legislature has directed that allegations in judicial pleadings "must be liberally construed, with a view to substantial justice between the parties." (Code Civ. Proc., § 452.) Consequently, we will apply the rule of liberal construction to the administrative complaints filed under the FEHA.
A liberal construction of the complaints leads us to conclude that the term "employer" was used in the complaints in a broad sense and, thus, it includes all types of employers, including the narrower categories of sole employers and joint employers. (Civ. Code, § 3536 [the "greater contains the less"].) Furthermore, when the complaints are considered together, the allegations that Terra Linda subcontracted its sorters strongly imply a joint employment relationship. Consequently, the references to both Green Valley and Terra Linda as employers are not inconsistent.
Because at least one of the elements of judicial estoppel was not present in this case, Terra Linda is unable to establish that the Commission abused its discretion in concluding that Rivas and Santillan were not barred from asserting that Terra Linda was one of their employers.
F. Failure of Accusation to Plead Terra Linda Was a Joint Employer
The Department's first amended accusations named Terra Linda as the respondent. They alleged that "[Terra Linda] is liable for retaliating against Ms. [Rivas/Santillan] by terminating her from her employment with [Terra Linda] because she protested workplace practices forbidden by the FEHA ...." The accusations also alleged "Terra Linda Farms is an 'employer' within the meaning of ... sections 12926, subdivision (d), and 12940, subdivision (h)."
Terra Linda contends that the Department was barred from asserting a joint employer theory against it because the first amended accusations did not allege Terra Linda was a joint employer.
Our Supreme Court addressed the sufficiency of the allegations contained in an accusation in Stearns v. Fair Employment Practice Com. (1971) 6 Cal.3d 205. In that case, a landlord challenged the Fair Employment Practice Commission's decision that he had discriminated against a prospective tenant based on race. The landlord contended there was a material variance between the accusation the commission issued against him and the decision it rendered. (Id. at p. 208.) The court addressed this contention on a number of grounds. First, it concluded the accusation alleged discriminatory rental practices. (Id. at p. 212.) Second, it stated:
"Even assuming that the accusation charged only a refusal to rent, and not discriminatory rental practices, we do not believe that any such variance between the accusation and proof justifies a reversal of the commission's order against Stearns. As applied to civil actions, Code of Civil Procedure section 469 provides that 'No variance between the allegation in a pleading and the proof is to be deemed material, unless it has actually misled the adverse party to his prejudice in maintaining his action or defense upon the merits.' [Citations.]" (Id. at pp. 212-213.)
Applying this standard, the court concluded that the record demonstrated the landlord had not been misled to his prejudice by the alleged variance. (Stearns v. Fair Employment Practice Com., supra, 6 Cal.3d at p. 213.)
Here, Terra Linda's appellate briefs make no attempt to show Terra Linda actually was misled by the accusations or that it was prejudiced by the allegation that it was an employer, instead of a joint employer. In contrast, the Commission addressed prejudice in footnote 11 of its decision and set forth specific findings that (1) the joint employer issue was fully litigated throughout the administrative hearing in this matter and (2) the parties also had the opportunity to address the issue in their closing briefs.
Because Terra Linda failed to address prejudice before the Commission or this court, we conclude that Terra Linda has not established reversible error under the standards set forth by our Supreme Court in Stearns v. Fair Employment Practice Com., supra, 6 Cal.3d 205.
III. Substantive Challenges to Violations
The Commission determined that Terra Linda was liable for damages and an administrative fine because Terra Linda violated subdivisions (h) and (k) of section 12940.
Subdivision (h) of section 12940 provides that it is an unlawful employment practice for any employer to discharge or discriminate against any person because the person has opposed any unlawful employment practice or has filed a complaint, testified, or assisted in any proceeding under the FEHA. This unlawful employment practice is commonly referred to as retaliation. (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.) A retaliation claim is established by proving (1) the employee engaged in protected activity, (2) the employer subjected the employee to an adverse employment action, and (3) the employer's actions were caused by the protected activity—that is, there was a causal link between the two. (Ibid.)
Subdivision (k) of section 12940 provides that it is an unlawful employment practice for an employer to fail "to take all reasonable steps necessary to prevent discrimination and harassment from occurring." The California Supreme Court regards this provision as creating a separate basis for liability, even though it refers to discrimination and harassment made unlawful by other provisions of the FEHA. (See State Dept. of Health Services v. Superior Court (2003) 31 Cal.4th 1026, 1040 [§ 12940, subd. (k) creates separate unlawful employment practice].)
On appeal, Terra Linda raises a number of challenges to the Commission's determination that it violated these provisions of the FEHA.
A. Joint Employer Theory
Terra Linda contends the Commission erred when it determined that Terra Linda was the joint employer of complainants. Terra Linda also contends that the Commission applied the wrong inquiry in reaching the joint employer determination and that the proper inquiry concerns whether two or more separate business entities co-determine the essential terms and conditions of employment.
Defendants respond that joint employer status under the FEHA is determined by examining the totality of the circumstances of the work relationship. In addition, they argue that substantial evidence supports the finding that Terra Linda was a joint employer.
In Vernon v. State of California (2004) 116 Cal.App.4th 114, a case involving the FEHA, the First District Court of Appeal quoted a federal case that said (1) there was no magic formula for determining whether an organization was a joint employer, (2) courts must analyze myriad facts surrounding the employment relationship, and (3) no single factor is decisive. (Vernon v. State of California, supra, at pp. 124-125.) After considering various tests, the First Appellate District stated it would not adhere to one particular test, but would examine the totality of the working relationship of the parties. (Id. at p. 125, fn. 7.) The court then stated:
"Factors to be taken into account in assessing the relationship of the parties include payment of salary or other employment benefits and Social Security taxes, the ownership of the equipment necessary to performance of the job, the location where the work is performed, the obligation of the defendant to train the employee, the authority of the defendant to hire, transfer, promote, discipline or discharge the employee, the authority to establish work schedules and assignments, the defendant's discretion to determine the amount of compensation earned by the employee, the skill required of the work performed and the extent to which it is done under the direction of a supervisor, whether the work is part of the defendant's regular business operations, the skill required in the particular occupation, the duration of the relationship of the parties, and the duration of the plaintiff's employment. [Citations.]" (Vernon v. State of California, supra, 116 Cal.App.4th at p. 125.)
The court stated that these factors could not be applied mechanically, but that the right to control the means and manner of the workers' performance was the most important factor. (Vernon v. State of California, supra, 116 Cal.App.4th at pp. 125-126; see 29 Cal.Jur.3d, supra, Employer and Employee, § 3, p. 467 ["the right to control, although not the only relevant element, is the most important element in determining a joint employment relationship"].)
We concur with the First Appellate District and conclude that whether an entity is a joint employer and therefore an employer for purposes of the FEHA is determined by an examination of the totality of the working relationship of the parties. In this case, the Commission applied the correct legal standard for determining whether joint employer status existed. The Commission stated that "California courts have looked at the totality of the circumstances, focusing on the degree of control exercised by the employer over the employees' terms and conditions of employment" and cited Vernon v. State and other decisions as support. Therefore, we reject Terra Linda's contention that the Commission conducted the wrong inquiry or applied the wrong test when it decided the joint employer issues.
We also conclude that the Commission resolved a question of fact when it determined Terra Linda was complainants' joint employer. Our review, therefore, is governed by the substantial evidence standard of review. (See Service Employees Internat. Union v. County of Los Angeles (1990) 225 Cal.App.3d 761, 773 [existence and exercise of right to control workers generally is question of fact].) Under the substantial evidence standard, we "must view the evidence in the light most favorable to the Commission's findings and indulge in all reasonable inferences in support thereof." (Johnson Controls, Inc. v. Fair Employment & Housing Com., supra, 218 Cal.App.3d at p. 531.)
Terra Linda attempts to show it was not a joint employer by citing the testimony of Madrid, the owner of Green Valley, for the fact that Terra Linda had no input into who was hired, which workers were assigned to its facility, or which workers were laid off.
The Commission, as the trier of fact in this matter, did not accept Madrid's testimony. Instead, it explicitly found that Terra Linda "had input into hiring and firing decisions concerning the crew." In making this finding, the Commission relied on Santillan's testimony that Juarez got Montalvo to hire people to work at Terra Linda and that he made repeated threats to fire complainants. Also, the Commission found Coelho told Rivas that if she signed the settlement agreement and release with Terra Linda she would have her job back. This statement by Coelho supports the inference that Terra Linda (the other party to the agreement) had the power to secure Rivas's job or have her employment terminated.
During redirect examination at the administrative hearing, Santillan was asked: "To your knowledge, did Alvaro Juarez get Amelia Montalvo to hire people to work at Terra Linda?" Santillan replied, "Yes." Counsel for Terra Linda did not address this topic during the recross-examination of Santillan and, thus, did not show that Santillan, in fact, lacked personal knowledge of Juarez's role in hiring decisions.
The record also contains evidence supporting the Commission's finding that Terra Linda, through its employee Juarez, controlled many aspects of the working conditions at the facility. For example, Madrid and Montalvo both testified that Juarez controlled the speed at which onions went by the workers. Juarez also told Santillan when to have the workers report for work in the mornings and where to put crew members along the conveyor lines. The fact that Juarez controlled the starting time and the speed of the conveyor lines supports Madrid's testimony that Juarez was the one who controlled the volume of onions handled on any particular day.
Also, the settlement agreement and release signed by Rivas and Coelho on July 18, 2005, stated that the parties, Terra Linda and Rivas, agreed that "Rivas w[ould] not be required to speak to or otherwise interact with Alvaro Juarez in any capacity as part of her job duties." (Underscoring omitted.) The fact this clause was included in an agreement to which Green Valley was not a party supports the inference that Terra Linda controlled what Rivas was required and not required to do "as part of her job duties."
The record also contains circumstantial evidence that supports the inference that Terra Linda ordered Madrid and Green Valley not to hire Santillan to work at Terra Linda for the 2006 onion season. For example, after the onion season started in 2006, Santillan asked Madrid why she was losing her job at Terra Linda and Madrid responded, "'The rules, the orders.'" Madrid's reference to "the orders" can be interpreted to mean it was not his decision, but he was acting on orders received from Coelho or someone else at Terra Linda.
The level of control by Terra Linda over the work of Santillan and Rivas is accompanied by other factors that weigh in favor of the finding that Terra Linda was a joint employer of complainants. For instance, the onion packing facility was located on Terra Linda's property and it owned the sorting machine necessary for Santillan and Rivas to perform their jobs. Terra Linda employed Rivas and Santillan directly during the 1995 onion season. From 1996 through 2005, Rivas and Santillan were hired by Green Valley and worked the onion season at the Terra Linda packing facility. Thus, Santillan and Rivas worked 11 straight seasons at the Terra Linda facility. These facts, when considered with the findings regarding control, adequately support the Commission's finding that Terra Linda was a joint employer.
Because Terra Linda has relied on testimony that was not believed by the Commission and has failed to discuss the control that Terra Linda exercised over the operations at the packing facility, we need not discuss the sufficiency of the evidence question in greater detail. Although the evidence presented contains conflicts (such as the conflicting testimony about input into Green Valley's hiring and firing) and is susceptible to conflicting inferences, these conflicts are irrelevant to our application of the substantial evidence test, which requires us to resolve all of the conflicts in favor of the Commission's findings. (Johnson Controls, Inc. v. Fair Employment & Housing Com., supra, 218 Cal.App.3d at p. 531.)
In summary, Terra Linda has failed to demonstrate the Commission's finding that Terra Linda was complainants' joint employer was not supported by substantial evidence.
B. Juarez's Role as Supervisor of Rivas and Santillan
1. Contentions of the parties
Terra Linda contends that (1) the Department had the burden of proving that Terra Linda had vested Juarez with authority over Rivas and Santillan and (2) it failed to carry that burden because "there was simply no evidence that [Terra Linda] had conferred any actual or ostensible authority on Juarez to supervise the Green Valley employees, including [Rivas and Santillan]."
Defendants respond that Terra Linda's focus on whether Juarez was a supervisor of Rivas and Santillan is a legally irrelevant inquiry because the Commission did not base its decision upon a finding that Terra Linda made Juarez a supervisor of complainants. Defendants argue that "Juarez's conduct was imputed to [Terra Linda] because Juarez was Terra Linda's agent."
In its reply brief, Terra Linda contends defendants' "argument is circular and simply ignores the law of agency. Essentially, [defendants are] arguing that the [Department] need not prove that Juarez was Terra Linda's agent because Juarez was Terra Linda's agent." Terra Linda follows this contention by asserting that the Department had the burden of establishing (1) the alleged agency authority Terra Linda vested in Juarez over the complainants and (2) that the alleged misconduct of Juarez was within the scope of the agency authority. Terra Linda also contends there must be evidence showing that the principal, Terra Linda, took some affirmative act vesting agency authority in Juarez.
2. Retaliation
FEHA retaliation claims are brought under section 12940, subdivision (h), which makes it an unlawful employment practice for "any employer ... or person to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under th[e FEHA]."
Here, the Commission found that "Terra Linda Farms retaliated against complainants as a result of their protected activities by subjecting them to Juarez' continuing retaliatory conduct and by not permitting them to be recalled to work in 2006." Based on these findings, the Commission concluded that Terra Linda violated subdivision (h) of section 12940.
In view of the Commission's explicit findings, Terra Linda's argument that it has no liability because Juarez was not complainants' supervisor makes sense only if (1) the FEHA does not hold employers liable for the retaliatory conduct of a coworker and (2) we ignore Terra Linda's retaliation in the form of the failure to recall, which involved Coelho.
As to the first point, we adopt the principle that "an employer may be held liable for coworkers' retaliatory conduct if the employer knew or should have known of the coworkers' retaliatory conduct and ... failed to take reasonable actions to end the retaliatory conduct." (Kelley v. The Conco Cos. (2011) 196 Cal.App.4th 191, 213.)
Under this principle, Terra Linda's argument that Juarez was not complainants' supervisor, even if true, does not establish that the Commission committed an error. The facts of this case establish that Juarez was an employee of Terra Linda working in the same facility as complainants. As a result of this fact and the determination that Terra Linda was a joint employer of complainants (see pt. III.A., ante), Juarez was, at a minimum, a coworker of complainants. Therefore, Terra Linda would be liable for Juarez's retaliatory conduct if the conditions stated in Kelley v. The Conco Cos. were satisfied. The Commission's explicit findings establish that those conditions existed in this case. It found that Terra Linda was "placed on notice of Juarez' continuing abusive and hostile conduct ...." It also found that Terra Linda failed to adequately investigate and resolve Juarez's conduct and failed to take all reasonable steps to provide a discrimination-free workplace. Because these findings satisfy the conditions stated in Kelley, we will uphold the Commission's determination that Terra Linda violated subdivision (h) of section 12940.
3. Failure to take all reasonable preventative steps
The Commission found that Terra Linda, as the complainants' employer, violated section 12940, subdivision (k) in that it failed "to take all reasonable steps necessary to prevent discrimination and harassment from occurring."
Terra Linda argues it has no liability because Juarez, the alleged harasser and an employee of Terra Linda, was not the complainants' supervisor. Terra Linda provides us with no authority for the proposition that an employer need not concern itself with preventing discrimination and harassment by a coworker. Nonetheless, we will address the question whether employers can be liable under subdivision (k) of section 12940 if they fail to take steps reasonably necessary to prevent discrimination and harassment by a coworker. We conclude the answer is "yes."
The relevant statutory language is the phrase "to prevent discrimination and harassment from occurring." (§ 12940, subd. (k).) First, we conclude that the reference to "discrimination and harassment" in subdivision (k) covers, at a minimum, discrimination and harassment that violates the FEHA.
This construction is compatible with the way our Supreme Court has discussed section 12940, subdivision (k) in Carter v. California Dept. of Veterans Affairs (2006) 38 Cal.4th 914. There, in dicta, the court referenced without disapproving lower court cases that "required a finding of actual discrimination or harassment under FEHA before a plaintiff may prevail under [a] section 12940, subdivision (k) [claim for failure to take all reasonable steps to prevent discrimination and harassment from occurring]. [Citation.]" (Id. at p. 925, fn. 4.) The court's statement concerning discrimination or harassment under FEHA indicates that the obligation to take all steps reasonably necessary to prevent discrimination and harassment is directed, at a minimum, toward any discrimination or harassment that violates the FEHA.
The facts of this case do not require us to consider whether a broader interpretation is appropriate.
Accordingly, we decide the question whether section 12940, subdivision (k) extends to discrimination and harassment by coworkers by determining whether such discrimination or harassment violates other provisions of the FEHA. If discrimination and harassment by coworkers violates the FEHA then, assuming the employer knows or reasonably should know of the discrimination or harassment, the employer is obligated to take steps to prevent it.
Earlier in this opinion, we followed Kelley v. The Conco Cos., supra, 196 Cal.App.4th 191 and concluded that subdivision (h) of section 12940 applies to retaliatory conduct by a coworker where the employer knew or should have known of the conduct. (Kelley, at p. 213; see also Carter v. California Dept. of Veterans Affairs, supra, 38 Cal.4th at p. 918 [even prior to amendment of § 12940, subd. in 2003,employers were liable where they knew or should have known of sexual harassment of employee by nonemployee and failed to take corrective action].) We also concluded, ante, that the abusive and hostile conduct of Juarez, even if he was only a coworker and not a supervisor, was sufficient under the facts of this case to constitute unlawful retaliation under the FEHA. Therefore, Terra Linda was required by section 12940, subdivision (k) to take the steps reasonably necessary to prevent that conduct by Juarez, and Terra Linda's argument that Juarez was not a supervisor is to no avail.
Statutes 2003, chapter 671, section 1.
C. Causation
Terra Linda argues there was no evidence of causation between any act or omission on its part and any adverse employment action against the complainants. Terra Linda contends that over one year elapsed from the alleged protected activity and the failure to recall Rivas and the reassignment of Santillan and, thus, there was no temporal proximity from which causation could be inferred. In addition, Terra Linda asserts it had no input into the decisions made by Green Valley.
First, in part III.A., ante, we addressed and rejected Terra Linda's argument that it did not have input into the employment decisions made by Green Valley. No further discussion of that point is needed here.
Second, Terra Linda's argument regarding the lack of temporal proximity seems to be based on a misunderstanding of the complainants' retaliation claims. The Commission found that "Terra Linda Farms retaliated against complainants as a result of their protected activities by subjecting them to Juarez' continuing retaliatory conduct and by not permitting them to be recalled to work in 2006." Thus, the retaliatory action is not limited to not recalling complainants to work at Terra Linda for the 2006 onion season. The retaliatory action upon which liability is based also occurred in the summer of 2005. Thus, Terra Linda's argument about the lack of temporal proximity does not establish a lack of causation between complainants' protected activity in the summer of 2005 and the retaliatory actions that occurred during the same summer.
D. Adverse Employment Action Involving Santillan
Terra Linda argues that Santillan was not subject to adverse employment action, which is a necessary element of a retaliation claim. (See Loggins v. Kaiser Permanente Internat. (2007) 151 Cal.App.4th 1102, 1109 [second element of retaliation claim is that employer subjected employee to adverse employment action].) Terra Linda asserts no adverse action was taken because Santillan received a job with Green Valley for the 2006 onion season, her wage rate was the same, the site of her 2006 job was only 15 minutes from the Terra Linda site, and Santillan preferred working there to working at Terra Linda.
Defendants respond that a number of factors justify the finding that Santillan was subject to adverse employment action. These factors include Santillan's loss of her forewoman position at Terra Linda, her lack of a comparable position at Telesis Onion, the additional 15 minutes added to her commute, and lower earnings due to the loss of overtime.
The term "adverse employment action" refers to changes in the terms and conditions of employment that are both substantial and detrimental. (Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 373.)
In this case, we conclude that Santillan's lower earnings, her loss of her status and responsibilities as a forewoman, and the longer commute are sufficient to show that she suffered a substantial and detrimental change to her conditions of employment. We recognize the United States Court of Appeals, Tenth Circuit has stated that an increase in commute time of approximately 25 minutes was not an adverse employment action for a teacher who retained the same salary and benefits and continued to teach at the elementary school level. (Sanchez v. Denver Public Schools (10th Cir. 1998) 164 F.3d 527, 532.) Here, Santillan's longer commute was accompanied by other adverse changes. Thus, Santillan's changed employment circumstances were not a "purely lateral transfer." (Ibid.; see Hoffman v. Rubin (8th Cir. 1999) 193 F.3d 959, 964 [transfer from St. Paul to Chicago not adverse employment action because rank, pay and other benefits were unaltered].)
IV. Damages
A. Emotional Distress of Santillan
Terra Linda contends that an award of $35,000 for emotional distress to Santillan is not justified because she was assigned to a better job that she preferred to her job at the Terra Linda facility. Terra Linda characterizes the acts to which Santillan was subjected as a simple reassignment and asserts (without citation to the record) that she did not miss one day of work. Terra Linda also contends that the exclusive remedy for emotional distress resulting from a job reassignment is provided by the workers' compensation statute and that the Commission improperly relied on hearsay evidence to support the award of emotional distress.
We reject the argument that Santillan's emotional distress was caused by her reassignment to the Telesis Onion facility. Under our reading of the Commission's decision, the emotional distress relates to the feelings Santillan experienced from late in the 2005 onion season until she began work at Telesis Onion on June 12, 2006. The damages awarded did not relate to emotional distress after Santillan began work at Telesis Onion. For instance Santillan's emotional distress was caused in part by Juarez's retaliatory conduct in August 2005 and the anxiety that conduct created regarding whether Santillan would be employed during the 2006 onion season. Therefore, we reject the position that this is a case of emotional distress resulting from a simple job reassignment or transfer.
The Commission found that after the 2005 onion season, Santillan was sad, nervous, and depressed with fear that she would lose her job at Terra Linda after working there for 11 years without missing a day. It also found that Santillan's work at Terra Linda accounted for more than 80 percent of her income and she depended on that income to support her family and help her children through college.
Because we reject this position, it follows we must reject Terra Linda's argument that emotional distress resulting from job transfers is barred by the exclusive remedy of the workers' compensation act. Santillan's emotional distress resulted from the retaliatory conduct of Terra Linda and its failure to take all reasonable steps necessary to prevent that conduct from occurring. (See Jones v. Los Angeles Community College Dist. (1988) 198 Cal.App.3d 794, 807 [exclusive remedy provisions of workers' compensation act do not bar recovery under FEHA for emotional injuries caused by employment discrimination].) Consequently, its recovery is not barred in this case.
Terra Linda argues that the Commission allowed Santillan to testify about out-of-court conversations that she had with her doctor and husband for the truth of the matter asserted, and it relied on this hearsay to support the award of emotional distress. Terra Linda supports this argument by citing paragraph No. 67 of the Commission decision, which states:
"Santillan became depressed at the prospect of losing her job at Terra Linda Farms. She consulted a medical doctor, Dr. Thurston, and was prescribed anti-anxiety medication. Her relationship with her husband suffered. She stopped dancing with her husband or going on family trips. She cried frequently."
Based on our examination of this paragraph, it does not appear that the Commission relied on Santillan's testimony regarding statements made by third persons for the truth of the matter contained in those statements. The events that are described in the paragraph are physical events, such as the doctor giving her a prescription, that Santillan experienced firsthand. Therefore, Terra Linda's argument has failed to identify evidentiary error, much less prejudicial error.
B. Emotional Distress of Rivas
Terra Linda contends that the award of $55,000 to Rivas for emotional distress is not justified—that (1) Rivas was not rehired by Green Valley for three months of seasonal agricultural work at minimum wage and (2) the Commission appears to have held Terra Linda liable for distress arising from events that occurred in the volatile relationship between Rivas and Juarez prior to the signing of the July 18, 2005, release.
First, we reject Terra Linda's implied argument that the amount awarded for the emotional distress suffered by Rivas is excessive because it is over eight times the $6,574.52 of pay she lost while not being employed during the 2006 onion season. Terra Linda has cited no authority for the proposition that the ratio between the lost pay and emotional distress damages can be used to establish that an award of the latter is excessive. Therefore, Terra Linda's reference to Rivas's loss of three months of seasonal agricultural work at minimum wage fails to establish an abuse of discretion on the ground that the Commission failed to proceed in a manner required by law. (Code Civ. Proc., § 1094.5, subd. (b).)
Second, we conclude that Terra Linda has failed to demonstrate the Commission actually relied on inappropriate evidence or awarded damages for emotional distress arising from events that predated the retaliation and failure to prevent the retaliation for which Terra Linda was held liable. A simple assertion about what the Commission appeared to do is insufficient to show, under the deferential abuse of discretion standard of review, that the Commission actually failed to proceed in the manner required by law. (See County of Fresno v. Fair Employment & Housing Com., supra, 226 Cal.App.3d at p. 1548 [abuse of discretion established if Commission failed to proceed in manner required by law].)
Third, we note that Terra Linda's challenges to the award of $55,000 to Rivas for emotional distress do not raise the other type of abuse of discretion—that is, findings not supported by substantial evidence. Nonetheless, if that ground had been raised, the evidence presented is sufficient to support the $55,000 award. The fact that the award is greater than the amount awarded to Santillan is consistent with the evidence because Rivas was a head of household concerned with supporting her children, and her anxiety continued through the 2006 onion season as a result of her failure to find employment after she was told by Green Valley that there was no work for her.
In summary, Terra Linda has not established that the Commission abused its discretion by awarding Rivas $55,000 for emotional distress.
C. Maximum Award Allowed by Regulations
Terra Linda contends that the $55,000 award to Rivas for emotional distress violates the maximum monetary recovery allowed by the regulations for a complainant's emotional distress. Terra Linda relies on California Code of Regulations, title 2, section 7411, which provides in part: "In an employment case brought pursuant to ... section 12965, the maximum monetary recovery per complainant for the emotional distress and administrative fines combined shall not exceed $50,000 against each respondent."
Defendants respond that the $50,000 limit referenced in the regulation no longer applies because the Legislature increased the limit from $50,000 to $150,000 effective January 1, 2000. (Stats. 1999, ch. 591, § 13.) As a result of the amendment, section 12970, subdivision (a)(3) currently provides:
"Actual damages awarded under this section for emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses shall not exceed, in combination with the amounts of any administrative fines imposed pursuant to subdivision (c), one hundred fifty thousand dollars ($150,000) per aggrieved person per respondent."
Terra Linda acknowledges this statutory provision provides for $150,000 in damages for emotional distress and administrative fines, but argues the higher cap comes into effect "if and when authorized by the Commission's Regulation." Because there is no regulation authorizing the higher cap, Terra Linda contends, the $50,000 limit is still operative.
Terra Linda has referenced, and we have located, no statutory language indicating that the $150,000 limit is conditioned upon the Commission amending its regulation to reflect the higher cap. Furthermore, rewriting the statute to contain such a condition is not necessary to implement the Legislature's intention. The Legislative Counsel's Digest addressing Assembly Bill No. 1670 (1999-2000 Reg. Sess.) references the previous statutory limit of $50,000 and states that "[t]his bill would increase this limitation to $150,000." (Legis. Counsel's Dig., Assem. Bill No. 1670 (1999-2000 Reg. Sess.) No. 7 Deering's Adv. Legis. Service, Summary Dig., p. 3295.) It makes no reference to the limitation being conditioned upon the adoption of an implementing regulation. Thus, we interpret the statute to mean the $150,000 limitation became effective when the legislation became effective. (See Gober v. Ralphs Grocery Co. (2006) 137 Cal.App.4th 204, 223 [stating in dicta that defendant could have been required to pay actual damages and administrative fines not exceeding $150,000].) Consistent with this view, the single California Supreme Court decision that references section 12970, subdivision (a)(3) and its $150,000 limitation gives no indication that the statutory limit would not be effective without a change in the regulation. (Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 719 ["administrative fine cannot exceed $150,000"].)
The fact that the regulation has not been updated to reflect the new amount set forth in the statute does not limit the Commission's authority to the $50,000 limit set forth in the regulation. California courts follow the principle that when a statute and regulation are in conflict, the statute controls. (E.g., In re C.B. (2010) 188 Cal.App.4th 1024, 1034 [when regulations conflict with statutes, the statutes control].)
Terra Linda also argues that because a copy of the regulation with the $50,000 limit was served with the packet that accompanied the accusations, due process requires that the $50,000 limit be applied to the amounts awarded in this case. Terra Linda has provided no authority to support its due process claim. For example, with respect to the notice aspect of procedural due process, Terra Linda has not demonstrated why enactment of the amendment did not put it on notice of the new limit. (See Anderson v. Superior Court (1995) 11 Cal.4th 1152, 1161 [county clerk and voters had actual or constructive notice of relevant statutory provision; all of us are presumed to know the law]; Arthur Andersen v. Superior Court (1998) 67 Cal.App.4th 1481, 1507 [legal effect of a statute cannot be avoided by pleading ignorance of the statute].)
In any event, when a litigant raises a point on appeal, but fails to support it with reasoned argument and citations to authority, an appellate court may treat the point as waived. (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785; see Atchley v. City of Fresno (1984) 151 Cal.App.3d 635, 647 [reviewing court need not discuss point merely asserted by appellant without argument or authority].)
D. Administrative Fine
The Commission imposed a $15,000 fine against Terra Linda, payable to the state's General Fund. The fine was based on the Commission's finding that the Department "clearly and convincingly established that [Terra Linda's] conduct in retaliating against complainants for asserting their rights was oppressive and malicious, in deliberate violation of complainants' rights to a discrimination-free workplace. (Civ. Code, § 3294; Gov. Code, § 12970, subd. (d).)"
On appeal, Terra Linda contends that the imposition of an administrative fine is not justified unless the standard for punitive damages under Civil Code section 3294, subdivision (a) has been satisfied. Terra Linda also contends there was no evidence that this standard was met and, therefore, the administrative fine should not have been assessed.
1. The Commission applied the correct standard
In this case, the Commission's decision referenced section 12970, subdivision (d), which governs the imposition of administrative fines. The decision stated that a fine may be imposed where the Commission "finds, by clear and convincing evidence, a respondent 'has been guilty of oppression, fraud, or malice, expressed or implied, as required by section 3294 of the Civil Code.' (Gov. Code, § 12940, subd. (d).)" The text of the decision clearly demonstrates the Commission was aware of both the standard of proof and the legal grounds that justified the imposition of an administrative fine. Therefore, we conclude the Commission did not abuse its discretion by applying the wrong legal standard.
2. Sufficient evidence supports the imposition of the fine
Our analysis of the sufficiency of the evidence to support the imposition of the $15,000 fine begins with identifying the appropriate standard of review. Even though the standard of proof applied by the Commission (in its role as trier of fact) was clear and convincing evidence, our standard of review is the substantial evidence test. (SASCO Electric v. Fair Employment & Housing Com. (2009) 176 Cal.App.4th 532, 545, fn. 7.)
Under the clear and convincing evidence standard, the Commission made the following findings of fact.
"... Terra Linda Farms failed to provide a discrimination-free environment to complainants. [Terra Linda] failed to address effectively Alvaro Juarez' retaliatory conduct toward complainants, including his taunting and threats that complainants would lose their jobs, continuing after [Terra Linda] was placed on notice of the conduct. [Terra Linda] not only failed to protect complainants' working environment, but ensured that neither complainant was rehired for the 2006 season, sending a chilling message that protesting discrimination and harassment were to be punished."
In addition, the Commission found that Terra Linda's retaliation "against complainants for asserting their rights was oppressive and malicious, in deliberate violation of complainants' rights to a discrimination-free workplace."
Terra Linda's opening brief asserts that "[t]here was simply no evidence, let alone clear and convincing evidence, of any act undertaken by Terra Linda against the Complainants, let alone a deliberate, egregious, or malicious one." In making this argument, Terra Linda has ignored the circumstantial evidence that supports the factual inference made by the Commission that Terra Linda "ensured that neither complainant was rehired for the 2006 season .... "
We need not recite in detail all of the evidence that supports the inference that Terra Linda intentionally ensured Rivas and Santillan were not hired to work at Terra Linda for the 2006 onion season, because Terra Linda has not addressed that evidence. (See Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246 [appellant's claim of insufficiency of evidence must include all significant facts and may not be one-sided summary]; Cal. Rules of Court, rule 8.204(a)(2)(C).) The supporting evidence includes Coelho's response to Santillan in September 2005 when she asked whether she would be coming back for the next season. Coelho responded, "It's too soon to know right now." It also includes Madrid's statement "'[t]he rules, the orders'" in response to Santillan's question why she was not being recalled to work at Terra Linda for the 2006 onion season. One inference from these statements is that Coelho and Terra Linda—the entity paying Green Valley—had the power to determine who did and did not come back to work at Terra Linda. When this power is considered with the fact that Santillan was not recalled, it supports the inference that Terra Linda decided not to recall Santillan. These inferences are reasonable and withstand scrutiny under the deferential substantial evidence standard of review. (Johnson Controls, Inc. v. Fair Employment & Housing Com., supra, 218 Cal.App.3d at p. 531 [appellate court "must view the evidence in the light most favorable to the Commission's findings and indulge in all reasonable inferences in support thereof"].)
Therefore, we conclude that the Commission's imposition of the administrative fine was not an abuse of discretion.
DISPOSITION
The judgment is affirmed. Defendants shall recover their costs on appeal.
DAWSON, J.
WE CONCUR:
WISEMAN, Acting P.J.
GOMES, J.