Fair Employment & Housing Com. v. Gemini

18 Cal.Rptr.3d 906

122 Cal.App.4th 1004

CALIFORNIA FAIR EMPLOYMENT AND HOUSING COMMISSION, Plaintiff and Appellant, v. GEMINI ALUMINUM CORPORATION, Defendant and Appellant.

No. B165771.

Court of Appeal, Second District, Division 4.

September 29, 2004.

Rehearing Denied October 19, 2004.

Review Denied December 22, 2004.^*

Bill Lockyer, Attorney General, Tom Greene, Chief Assistant Attorney General, Louis Verdugo, Jr., Senior Assistant Attorney General, Suzanne M. Ambrose and Timothy M. Muscat, Deputy Attorneys General, for Defendant and Appellant.

Littler & Mendelson, Barrett K. Green, Brandie N. Charles and Connie L. Michaels, Los Angeles, for Plaintiff and Appellant.

HASTINGS, Acting P.J.

BACKGROUND

In 1997, Lester Young filed a religious discrimination complaint with the Department of Fair Employment and Housing (the Department) against his former employer, Gemini Aluminum Corporation. The Department issued an accusation, and then a first amended accusation in January 2001.

Gemini contested the accusation, and the matter was heard by an administrative hearing officer in January and February 2001. The Commission reviewed the evidence, declined to adopt the hearing officer's decision, and issued its own decision on January 10, 2002.

The Commission found that Gemini had discriminated against Young by failing to accommodate his religious beliefs, that it had failed to prevent discrimination, and that it had retaliated against Young for protesting the discrimination, all in violation of Government Code section 12940.¹

Gemini filed a petition for writ of administrative mandate in the Los Angeles County Superior Court to overturn the decision of the Commission.² The Superior Court granted the petition and issued a writ directing the Commission to vacate its decision.

The Department appeals from the judgment, and Gemini appeals from the Superior Court's denial of its request for attorney fees. In a separate motion, Gemini moved to dismiss the Department's appeal, on the ground of untimeliness. We found the appeal timely and denied the motion.

We conclude the trial court erred and we reverse.

FACTS

We begin with a short summary of the evidence before the Commission, in the light most favorable to the Commission's findings, indulging in all reasonable inferences in support of those findings. (See Johnson Controls, Inc. v. Fair Employment & Housing Com. (1990) 218 Cal. App.3d 517, 530-532, 267 Cal.Rptr. 158.) We shall review the evidence and findings in greater depth in our discussion of the issues.

By mid-June 1997, Young had been employed by Gemini for approximately fifteen months. Young had been a Jehovah's Witness since May 1970, and had attended a Jehovah's Witness convention every year, with the exception of one or two, since then. Attending the three-day convention is considered a form of worship and religious study in his faith.

On June 16, 1997, Young requested time off for up to two days, Friday June 27 and Saturday June 28, 1997, if he was scheduled to work that Saturday.³ The request was made to Young's supervisor, Jack Kaufman, the person responsible for taking the request to management and who was also a member of the management committee which would grant or deny the request. In support of his request, Young told Kaufman that he (Young) was a Jehovah's witness and was scheduled to attend a religious convention beginning Friday, June 27, 1997. Young asked if Kaufman "would write out a notice to that effect and [Young] would sign it." Kaufman agreed to do so.

Kaufman did not have Young sign anything but Kaufman did submit a written request to Gemini's management committee the same day. In the request Kaufman failed to include that the reason Young wanted the time off was to attend the Jehovah's Witness convention. The committee denied the request for failure to include the reason. On June 25, 1997, Kaufman submitted another written request, this time stating that the reason given was to attend a religious convention. The committee again denied the request.

The following morning, June 26th, Kaufman told Young the committee had again denied the request. Young discussed his religion with Kaufman and why he needed the days off: "We talked a little bit about my religion and why [] I was taking the days off, and I told him that it was our responsibility to be there at these conventions because in the information that we're given at our Kingdom Halls that — that they encourage us to be there on the [ ] three days." He told Kaufman he would be going to the convention despite the denial of his request, and he did so. As a result, he missed work on Friday, June 27, 1997.

When Young returned to work on Monday, he was called into Kaufman's office and given notice of a 10-day suspension for failing to show up for work on Friday and Saturday. Young told Kaufman that he thought the suspension was unfair because he felt obligated to go to the convention for his religion, and he knew of other people who had received lesser suspensions for more absences. A few days later, on either July 2 or 3, Young telephoned Kaufman, asked for a copy of the written request Kaufman had submitted to the committee, and he told Kaufman that he was going to the "labor board." Kaufman reported this conversation to the committee, and a few days later, Young was fired.

DISCUSSION

We turn first to the Department's appeal, since Gemini's claim to attorney fees depends upon our affirming the judgment in its favor, which we shall reverse.⁴ The Department contends that the Superior Court erred in its determination that the Commission's findings were not supported by substantial evidence. As we shall explain, we agree.

1. Failure to Initiate Reasonable Accommodation Efforts

It is "an unlawful employment practice ... [f]or an employer, because of the religious creed . . . of any person, . . . to discriminate against the person in compensation or in terms, conditions, or privileges of employment." (§ 12940, subd. (a).)

Further, it is unlawful "[f]or an employer ... to discriminate against a person in compensation or in terms, conditions, or privileges of employment because of a conflict between the person's religious belief or observance and any employment requirement, unless the employer ... demonstrates that it has explored any available reasonable alternative means of accommodating the religious belief or observance, including the possibilities of excusing the person from those duties that conflict with his or her religious belief or observance or permitting those duties to be performed at another time or by another person, but is unable to reasonably accommodate the religious belief or observance without undue hardship on the conduct of the business of the employer or other entity covered by this part. Religious belief or observance, as used in [section 12940], includes, but is not limited to, observance of a Sabbath or other religious holy day or days, and reasonable time necessary for travel prior and subsequent to a religious observance." (§ 12940, subd. (l), italics added.)⁵

"Further description of the scope of the religious belief protection in the [Fair Employment and Housing Act, Gov.Code § 12900 et seq.; hereafter FEHA] is found in section 1296, subdivision (o), which states: `As used in this part in connection with unlawful practices, unless a different meaning clearly appears from the context: [¶] ... [¶] (o) "Religious creed," "religion," "religious observance," "religious belief," and "creed" include all aspects of religious belief, observance and practice.'" (Friedman v. Southern Cal. Permanente Medical Group (2002) 102 Cal.App.4th 39, 45, 125 Cal.Rptr.2d 663, italics added.)

There are three elements to a prima facie case under section 12940, subdivision (l): the employee sincerely held a religious belief; the employer was aware of that belief; and the belief conflicted with an employment requirement. (Friedman v. Southern Cal. Permanente Medical Group, supra, 102 Cal.App.4th at p. 45, 125 Cal.Rptr.2d 663.) Once the employee establishes a prima facie case with sufficient evidence of the three elements, the burden shifts to the employer to establish that "it initiated good faith efforts to accommodate or no accommodation was possible without producing undue hardship. [Citations.]" (Soldinger v. Northwest Airlines, Inc. (1996) 51 Cal.App.4th 345, 370, 58 Cal.Rptr.2d 747.)

The Commission found that all three elements had been established by the evidence. "On appeal, this court exercises the same function as the trial court and must decide if the agency'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.]" (Johnson Controls, Inc. v. Fair Employment & Housing Com., supra, 218 Cal. App.3d at p. 531, 267 Cal.Rptr. 158.) Our review of the record reveals substantial evidence that Young possessed a sincerely held religious belief as a Jehovah's Witness and that his attendance at the convention fell within the scope of the FEHA as a religious observance.

Young testified that he had been a Jehovah's Witness since May 1970, that he considered attending a Jehovah's Witness convention to be a form of worship and religious study, and that he had attended almost every year since 1970. He believed that it was his responsibility to attend.

Lori Wilson, Young's daughter, testified that she was also a practicing Jehovah's Witness, and had been attending conventions yearly with her family since 1983. There are several conventions each year, and adherents to the religion are expected to attend the convention assigned to his or her congregation by the Watchtower Bible and Tract Society. Since 1983, Young has attended with Wilson, her husband, and her children every year that they have belonged to the same congregation.

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