HomeMy WebLinkAbout04-17-2018 - Public Comment - Item 1 - StrobridgeGTATF nF CA ��,Su�sumer.Seotices.amQ-Aq '
DEPARTMENT OF FAIR EMPLOYMENT & HOu8m
2218 Kausen Drive, Suite 100 1 Elk Grove I CA 1 95758¢ Received
(800) 884-1684 1 TDD (800) 700-2320
http://www dfeh.ca.gov I email: contact.center@dfeh.ca.gov
March 8, 2018
Agent for Service for The City of San
Monica Irons
Human Resources
919 Palm Street
San Luis Obispo, CA 93401
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,nr ❑9RECT0R KEVIN KFS_H
Via Certified Mail
Luis Obispo — Water Treatment Plant
Respondent(s):
The City of San Luis Obispo - Water Treatment Plant
RECEIVED
APR 18 2018
Lo CITY ri r_
RE: Notice of Filing of Discrimination Complaint - Response Requested
DFEH Matter Number: 976232-324852
EEOC Number: 37A -2018-01498-C
Marden / The City of San Luis Obispo - Water Treatment Plant
To All Listed Respondent(s):
Enclosed is a copy of a complaint filed with the Department of Fair Employment and
Housing (DFEH). The enclosed complaint, in which you have been named a
Respondent or Co -Respondent, alleges unlawful discrimination pursuant to Government
Code section 12960.
The DFEH serves as an objective fact -finder and represents the state of California
rather than the complaining party. The purpose of our investigation is to determine the
merits of the complaint.
Government Code Section 12940, subdivision (f) or 12955 (f), prohibits any retaliatory
action against a person because he or she has filed a complaint, has opposed any
practices forbidden under the Fair Employment and Housing Act, or has assisted in any
proceeding before the DFEH.
California Government Code section 12946 requires that all employment records (or
union membership and referral records) be retained for a minimum of two (2) years.
When a discrimination complaint has been served, the records must be kept until the
DFEH closes its inquiry and until any resulting law suit or appeal has been terminated.
This complaint has also been filed with the U. S. Equal Employment Opportunity
Commission (EEOC). You need not reply to the EEOC unless that agency specifically
requests a response.
Notice of Filing of Dis, .1 ination Complaint - Response Requested
March 8, 2018
Page 2 of 6
You must submit a response to the questions below and on the attached
supplemental sheet within thirty (30) calendar days of the date of this letter.
1. State the legal name of your business and any other name(s) under which you
do or have done business in California.
2. State your business address. Please note that you are required to notify the
DFEH in writing of any change of address and the effective date of such change
while the complaint is under investigation and throughout any administrative
adjudication. (California Code of Regulations, title 2, sections 7403 and 7411).
3. State type of legal business entity (i.e., corporation, partnership, limited
partnership, sole proprietorship, etc.).
4. Does your company have a current contract(s) for the provisions of goods,
services or public works with the State of California or receive federal funds? If
so,, name the awarding agency.
Your response must be submitted by mail. In all mailed correspondence, please include
your DFEH number 976232-324852 and mail it to DFEH, 2218 Kausen Drive, Suite 100,
Elk Grove, CA 95758.
If you are interested in discussing a possible settlement of this complaint, please
contact me immediately. All settlement discussions are confidential, and not subject to
disclosure. Evidence or information, which has a bearing on determining the merits of
this complaint will not be considered part of a settlement discussion unless
confidentiality is acknowledged by the DFEH. You would not be required to provide the
information requested above while settlement discussions are underway.
Also, please be advised that the Department offers free mediation services. If you and
the complainant agree to mediate, the complaint will be assigned to a mediator, who will
contact you to schedule the mediation conference. All settlement discussions that
transpire during the mediation process are confidential and not subject to disclosure.
While a complaint is with the mediator, the obligation to submit a response is
temporarily suspended. If the matter does not settle at mediation, you will be required to
submit a response, and will be notified in writing of the new date the response is due. If
you are interested in formal mediation, immediately contact the assigned investigator so
that your response to this complaint temporarily suspended.
If you have any questions, please contact me.
Notice of Filing of D )imination Complaint - Response Reques7)
Markt, 8, 2018
Page 3 of 6
Sincerely,
Kenady Hunley
Staff Services Analyst
213-337-4511
Kenady.Hunley@dfeh.ca.gov
Enclosures
CERTIFIED MAIL: 70173040000041502189
Notice of Filing of Dis— ination Complaint - Response Requested
March 8, 2018
Page 4 of 6
SUPPLEMENTAL QUESTIONS
Complainant: Luke Marden
Respondent: The City of San Luis Obispo - Water Treatment Plant
File Date: February 26, 2018
1. Identify the person or persons designated to represent the company in this
matter. Provide telephone contact number, email address, and mailing address
for your representative (s).
2. Provide a statement of the employer's position with regard to the allegations
contained in the complaint (see complaint memo).
3. Provide copies of documents that support the employer's position regarding the
allegations contained in the complaint.
4. Provide copies of the Complainant's entire personnel file.
5. Provide copies of personnel files for Water Treatment Plant Operators over the
age of forty (40), for the last two (2) years.
6. Please provide a copy of Employee Handbook.
Placed on involuntary administrative leave / Termination
7. State the reason(s) Complainant was placed on involuntary administrative leave
from in/around January 2017 to September 6, 2017.
8. List the names of all person(s) involved in the decision to place Complainant on
administrative leave. State each person's job title, age and responsibility as it
relates to the decision to place Complainant on administrative leave.
9. Provide all documentation to support your reasons for the administrative leave
(i.e., counseling notices, written reprimands, attendance records, etc.).
10. Provide a copy of the policy which governed Complainant's administrative leave.
11. Provide a copy of any written notice(s) to Complainant regarding the
administrative leave. Explain how the policy was applied to the Complainant.
12. State the reasons) Complainant was terminated on/around September 6, 2017.
13. List the names of all person(s) involved in the decision to terminate
Complainant. State each person's job title, age and responsibility as it relates to
the decision to terminate Complainant.
14. Provide all documentation to support your reasons for the termination (i.e.,
counseling notices, written reprimands, attendance records, etc.).
15. Provide a copy of the policy which governed Complainant's termination.
16. Provide a copy of any written notice(s) to Complainant regarding the termination.
Explain how the policy was applied to the Complainant.
17. Describe your company's practices regarding discipline and dismissal of
employees in Complainant's classification and work unit, including a description of
the disciplinary steps required prior to involuntary administrative leave and
termination for cause. Provide copies of any written policies.
18. State how this policy was applied to Complainant.
Notice of Filing of C "Timination Complaint - Response Reques
March 8, 2018
Page 5 of 6
19. Provide a copy of the job description for Complainant. If no written description
exists describe the duties and responsibilities.
20. List all employees, including the Complainant, who were supervised by the same
direct and/or acting supervisor as Complainant during the past two (2)
years. Identify each person's age, job classification and provide the current home
address, telephone number and work number. Provide copies of any reprimands,
counseling notices and evaluations for each employee for the past two years. If
evaluations are not available, provide a statement with copies of substantiating
documentation, describing how well each person performed his/her duties.
21. Identify which of these employees were placed on involuntary administrative leave
for the same or equally serious reason as the Complainant. Provide supporting
documentation. For each employee placed on involuntary administrative leave,
state age and reason for placement on involuntary administrative leave
22. Explain how the policy governing involuntary administrative leave was applied to
these employees and provide supporting documentation.
23. List the names of all employees who were placed on involuntary administrative
leave by the same decision maker(s) who placed Complainant on involuntary
administrative leave, during the past two (2) years. For each, state age, job
classification, date of hire date and reason for involuntary administrative
leave. Include supporting documentation (i.e., administrative leave notice,
reprimands, attendance records, etc.).
24. Identify which of these employees were discharged for the same or equally
serious reason as the Complainant. Provide supporting documentation. For each
discharged employee, state age and reason for termination.
25. Explain how the policy governing termination was applied to these employees and
provide supporting documentation.
26. List the names of all employees who were discharged by the same decision
maker(s) who terminated Complainant during the past two (2) years. For each,
state age, job classification, date of hire date and reason for termination. Include
supporting documentation (i.e., termination notice, reprimands, attendance
records, etc.).
27. Provide the name, age, job classification, date of hire and salary of Complainant's
replacement.
28. Complainant asserts that Danny Chang (Water Treatment Plant Operator) (late -
40s) and Mike VanBellegham (Water Treatment Plant Operator) (50s) committed
the same or similar work infractions to those of the Complainant (i.e., involvement
in infrastructural incident while on rotating shift operator duty) but issued a written
reprimand, yet not placed on involuntary administrative leave nor terminated.
Please respond to these allegations and provide documentation which supports
your position.
29. List (by name) all employees who filed an internal or external complaint of
discrimination the past three (3) years and copy of each employee's complaint.
For each employee listed provide their starting and ending dates of employment.
If employee was terminated, state reasons for termination and date of termination.
Notice of Filing of Dis urination Complaint - Response Requested
March 8, 2018
Page 6 of 6
30. Provide a copy of all warnings, reprimands, counseling issued to the Complainant
and Danny Chang (Water Treatment Plant Operator) and Mike VanBellegham
(Water Treatment Plant Operator), for the past three (3) years.
31. Provide copies of the performance reviews for the Complainant and Danny Chang
(Water Treatment Plant Operator) and Mike VanBellegham (Water Treatment
Plant Operator), for the past two (2) years.
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COMPLAINT OF DISCRIMINATION UNDER THE PROVISIONS OF THE
'!� �Y CALIFORNIA FAIR EMPLOYMENT AND HOUSING ACT
DFEH NUMBER EEOC NUMBER
976232-324852 37A -2018-01498-C
COMPLAINANT ADDRESS PHONE
Luke Marden 716 Mission Street 8054417020
San Luis Obispo, California 93405
TYPE OF DISCRIMINATION AND LAW
Government Code 19240
NAMED IS THE EMPLOYER, PERSON, AGENCY, ORGANIZATION OR GOVERNMENT ENTTITY WHO DISCRIMINATED AGAINST ME
RESPONDENT(S) ADDRESS PHONE
The City of San Luis Obispo - Water 1900 Stenner Creek Road 805) 781-7270
Treatment Plant San Luis Obispo, CA 93405
NO. OF EMPLOYEES
- Allegation -
I ALLEGE THAT I EXPERIENCED
Discrimination
ON OR BEFORE
September 6, 2017
BECAUSE OF MY ACTUAL OR PERCEIVED
Age (40 and over)
AS A RESULT, I WAS SUBJECTED TO
Other
Other: Placed on involuntary administrative leave
PARTICULARS
I believe I was placed on involuntary administrative leave on the basis of my age (64, born year 1953). From on or
around January 5, 2017 to September 6, 2017, 1 was placed involuntary paid administrative leave due to my
involvement in an infrastructural pipe failure incident while on rotating duty as day shift operator. The reason given
by Dean Furukawa (Water Treatment Plant Supervisor) was that I had shown a lack of judgement regarding my
decision to attempt to relieve pressure from a water supply pipe. I believe the reason was given as a pretext for
age discrimination in that I am aware younger Water Treatment Plant Operators who have committed similar
infractions while on rotating shift operator duty, were issued written reprimands, yet not placed on involuntary
administrative leave.
FORM REV Pending
Page 1 of 2
V*►;q STATE OF
DFEH NUMBER
976232-324852
?L11A�9ualne�.Gaosumef=5rtoricesand Het�in&pa7:�cY — - _ — Em�tn�eRl
COMPLAINT OF DISCRIMINATION UNDER THE PROVISIONS OF THE
CALIFORNIA FAIR EMPLOYMENT AND HOUSING ACT
EEOC NUMBER
37A -2018-01498-C
- Allegation 2 -
I ALLEGE THAT I EXPERIENCED
Discrimination
ON OR BEFORE
September 6, 2017
BECAUSE OF MY ACTUAL OR PERCEIVED
Age (40 and over)
AS A RESULT, I WAS SUBJECTED TO
Terminated
PARTICULARS
I believe I was terminated on the basis of my age (64, bom year 1953). On or around September 6, 2017, 1 was
terminated by Carrie Mattingly (Utilities Director) for my involvement in an infrastructural pipe failure incident while
on rotating duty as day shift operator. The reason given was that I had demonstrated poor judgement and
insubordination regarding my decision to attempt to repair the pipe. I believe the reason was given as a pretext for
age discrimination in that I am aware younger Water Treatment Plant Operators who have committed similar
infractions while on rotating shift operator duty, were issued written reprimands, yet not terminated.
SIGNED UNDER PENALTY OF PERJURY
By submitting this complaint I am declaring under penalty of perjury under the laws of the State of California that
the foregoing is true and correct of my own knowledge, except as to matters stated on my information and belief,
and as to those matters I believe them to be true.
SIGNATURE OF COMPLAINANT OR COMPLAINANT'S LEGAL REPRESENTATIVE:
Luk d4s(Ii25,?R18)
DATE:
Feb 26, 2018
FORM REV Pending
Page 2 of 2
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Luke Marden
vs.
The City of San Luis Obispo - Water Treatment
Plant
PERSONFILING CHARGE
Luke Marden
THIS PERSON (CHECK ONE)
X Claims to be aggrieved
Is filing on behalf of other person(s)
DATE OF ALLEGED VIOLATION
E"rliew "'—"
May 15, 2016 - September 6, 2017
PLACE OF ALLEGED VIOLATION
California, County of San Luis Obispo
EEOC CHARGE NUMBER
37A -2018-01498-C
FEPA CHARGE NUMBER (if known)
976232-324852
NOTICE OF CHARGE OF DISCRIMINATION IN JURISDICTIONS WHERE AN FFP AGF.N(V WTT.T. TNTTTAT TV nuns- ce
(See EEOC "Rules and Regulations" for additional information)
YOU ARE HEREBY NOTIFIED THAT A CHARGE OF EMPLOYMENT DISCRIMINATION UNDER
0 Title VII of the Civil Rights Act of 1964
0 The Age Discrimination in Employment Act of 1967 (ADEA)
❑ The Americans with Disabilities Act of 1990 (ADA)
HAS BEEN RECEIVED BY
❑ The EEOC and sent for initial processing to
(FEP Agency)
jThe CALIFORNIA DEPARTMENTOFFAIR EMPL Y • T D 5IN and sent to the EEOC for dual filing purposes.
rule ECOC has jurisdiction (upon the expiration of any deferral requirement if this is a Title VII charge) to investigate this charge, EEOC may refrain from beginning an
investigation and await the issuance of the Agency's final findings and orders. These final findings and orders will be given weight by EEOC in making its own
determination as to whether or not reasonable cause exists to believe that the allegations made in the charge are true.
You are there€ore encouraged to cooperate fully with the Agency. A]I facts and evidence provided by you to the Agency in [Ile course of its proceedings will be considered
by the Commission when it reviews the Agency's final findings and orders. In many instances the Commission will lake no further action, thereby avoiding the necessity of
an investigation by both the Agency and the Commission. This Iikelihood is increased by your active cooperation with the Agency.
0 As a party to the charge, you may request that EEOC review the final decision and order of the above named Agency. For such a request to be honored, you must
notify the Commission in writing within 15 days of your receipt of the Agency's final decision and order. If the Agency terminates its proceedings without
issuing a final Finding and order, you will be contacted further by the Commission. Regardless of whether the Agency or the Commission processes the charge,
the Recordkeeping and Non -Retaliation provision of Title V[I and the ADEA as explained .on the reverse side of this form apply.
For further correspondence on this matter, please use the charge number(s) shown.
❑ An Equal Pay Act investigation (29 U.S.C. 209(d)) will be conducted by the Commission concurrently with the Agency's investigation of the charge.
0 Enclosure: Copy of the Charge
BASIS OF DISCRIMINATION:
❑ RACE ❑ COLOR ❑ SEX ❑ RELIGION ❑ NATIONAL ORIGIN D AGE
❑ DISABILITY ❑ RETALIATION
CIRCUMSTANCES OF ALLEGED VIOLATION:
See attached complaint.
DATE I TYPED NAMEMTLE OF AUTHORIZED EEOC OFFICIAL
8, 2018 I William R. Tamayo
131-A
❑ OTHER
SIGNATURE
1'
INFORMATION SHEET ON CHARGES OF DISCRIMINATION
EEOC RULES AND REGULATIONS
Section 1601.15 EEOC's Procedural Regulations provides that persons charged with employment discrimination, such as yourself,
may submit a statement of position or evidence with respect to the allegations contained in this charge.
The Commission's Recordkeeping and Reporting Requirements are set forth in Title 29, Code of Federal Regulations (CFR), Part
1602 (see particularly Section 1602.14 below) for the Title VII and the ADA; 29 CFR Part 1620 for the EPA; and 29 CFR Part
1627, for the AREA. These regulations generally require respondents to preserve payroll and personnel records relevant to a charge
of discrimination until disposition of the charge or litigation relating to the charge (for ADEA charges, this notice constitutes the
written request set out in Part 1627 for respondents to preserve records relevant to the charge -- the records to be retained are as
described in Section 1602.14, as cited below, and should be kept for the periods described in that section). Parts 1602, 1620 and
1627 also prescribe record retention periods -- generally, three years 'for basic payroll records and one year for personnel records.
Questions regarding retention periods and the types of records to be retained should be resolved by reference to the regulations.
Section 1602.14 Preservation of records made or kept ... Where a charge of discrimination has been filed, or an action brought by
the Commission or the Attorney General, against an employer under Title VII or the ADA, the employer shall preserve all personnel
records relevant to the charge or the action. The term "personnel records relevant to the charge," for example, would include
personnel or employment records relating to the aggrieved person and to all other aggrieved employees holding positions similar
to that held or sought by the aggrieved person and application forms or test papers completed by an unsuccessful applicant and by
all other candidates for the same position as that for which the aggrieved person applied and was rejected. The date of "final
disposition of the charge or the action" means the date of expiration of the statutory period within which the aggrieved person may
bring an action in a U.S. District Court, or where an action is brought against an employer either by the aggrieved person, the
Commission, or by the Attorney General, the date on which such litigation was terminated.
NOTICE OF NON -RETALIATION REQUIREMENT
Section 704(a) of Title VII, Section 4(d) of the ADEA, and Section 503(a) of the ADA provide that it shall be an unlawful
employment practice for an employer to discriminate against any of his/her employees or applicants for employment, for an
employment agency to discriminate against any individual, or for a labor organization to discriminate against any member thereof
or applicant for membership, because s/he has made a charge, testified, assisted, or participated in any manner in an investigation,
proceeding, or hearing under this title. The Equal Pay Act of 1963 contains similar provisions. Additionally, Section 503(b) of
the ADA prohibits coercion, intimidation, threats, or interference with any person because s/he has exercised or enjoyed, or aided
or encouraged others in their exercise of employment, or rights under the Act.
Persons filing charges of discrimination are advised of these Non -Retaliation Requirements and are instructed to notify EEOC if
any attempt at retaliation is made. Note that the Civil Rights Act of 1991 provides substantial additional monetary provisions to
remedy instances of retaliation or other discrimination, including for example, to remedy the emotional harm caused by on-the-job
harassment.
NOTICE REGARDING PRESENTATION BY ATTORNEYS
Although it is not necessary that you be represented by an attorney while we handle this charge, you have a right, and may wish to
retain an attorney to represent you. If you are represented by an attorney we request that you provide the Commission with your
attorney's name, address, and telephone number, and that you ask your attorney to write to the Commission confirming such
representation.
Reverse side of EEOC Form 131/131-A (Test 10/94)
Page 2 of 2