Thursday, May 24, 2012

Ignoring a DFEH Complaint -- Not a Good Idea

Earlier today the Department of Fair Employment ("DFEH") issued a press release and emailed thousands of recipients of its Case Alert service about its victory against Fresno's RJL Group, dba Coit Carpet & Draperies and its president, Raymond Lopez.  The DFEH issued an Accusation, and the case was tried before the Fair Employment and Housing Commission ("FEHC").  The FEHC awarded the Complainant, Nora Rose, $35,000.  Another $10,000 was awarded to the DFEH. 

This case provides an excellent case study on what NOT to do when faced with a DFEH complaint. 

Rose worked as a receptionist at the dry cleaner patronized by Lopez.  He offered her the position of office manager with his company. 

The problem has already started.  Since when is a receptionist at a dry cleaner competent to perform the duties of an office manager?  I'm thinking Lopez wasn't thinking with his head at the time.  It reminds me of the lyrics to the Dierks Bentley song, "I know what I was feeling, but what was I thinking?" 

Rose wasn't thinking straight either.  Why would she take a job she obviously knew was beyond her level of competence?  Probably because she was feeling pretty good about this instant improvement in her life. 

Within weeks Rose is promoted from Office Manager to learning how to clean carpets with Lopez.  Really???  Then Lopez loans Rose $8,000 to purchase a car.  Ok, now we all know what Lopez is feeling and thinking. 

After loaning the money to Rose, Lopez tries to kiss her, and asks her on dates.  She rejects his advances.  Thus, the sexual slurs start.  Lopez makes comments about Rose's body features (by the way, Rose is nine inches taller than Lopez), clothing, and other crude comments. 

Rose filed her complaint alleging Lopez sexually harassed.  The DFEH started its investigation.  Lopez makes another less-than-smart move.  He ignores the DFEH.  He does not respond to the complaint.  He does not provide information requested.  He does not respond to the court's order to provide the information requested by the DFEH. 

This is not the way to respond to a DFEH complaint.  The DFEH investigators are professional and competent.  Treat them with respect and you will receive the same professional courtesies.  Moreover, the investigators won't just go away if you ignore them.  They escalate the investigation to the next step. 

So why did Lopez ignore the DFEH?  I suspect it had something to do with money.  During the process, the corporation was suspended.  Usually, that means taxes weren't paid.  And the lawyer, who acted as the agent for service of process, resigned.  I suspect that means he was not getting paid. 

It also appears that substance abuse may have been a factor in the case.  Several references are made to Mr. Lopez drinking. 

The DFEH eventually filed an Accusation with the FEHC.  An Accusation is an administrative complaint.  The matter is then heard by an Administrative Law Judge ("ALJ").  Mr. Lopez does not appear.  Nor is he represented. 

The ALJ issues an decision against Lopez.  She awarded Rose $35,000 for emotional distress damages.  However, the ALJ did not award Rose any back pay because the DFEH did not establish that Lopez fired Rose for resisting his advances.  Ouch!  That wasn't part of the DFEH press release. 

I imagine that with the fact presented, had the case been pursued as a civil lawsuit, the outcome would have been worse for Lopez.  A civil lawyer probably would have provided sufficient evidence that the firing was a result of Rose resisting advances.  And the attorney would have filed a motion for fees after winning the case as well.  The fees would have been substantial.  They always are. 

Now, in either case, collection may be difficult.  The corporation has been suspended.  But who knows whether Lopez has money that can be tapped to pay a judgment. 

My advice to any client who receives a DFEH Complaint -- take it seriously.  Call your lawyer.  Let him/her handle it for you.  Respond appropriately to the Complaint and any requests made of you.  However, vigorously defend your position using all appropriate legal arguments and relevant facts. 

Don't end up a DFEH press release. 

The full FEHC Decision can be viewed at  

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