Filipino officer can’t show child care accommodations denied due to race or marital status

By Joy Waltemath

By Lorene D. Park, J.D.

Though a Filipino police sergeant at a state hospital claimed he was discriminatorily denied his requests for an alternate schedule to accommodate childcare needs, a federal court in California granted summary judgment against his Fair Employment and Housing Act (FEHA) claims because he failed to show a similarly situated Caucasian officer was granted a request for childcare or other personal needs. His claim based on marital status failed for similar reasons and his retaliation claims failed because he could not show a materially adverse employment action (Flaviano v. California Department of State Hospitals, NAPA, January 26, 2017, Alsup, W.).

The employee was hired as a sworn police officer at Napa State Hospital. He was later promoted to sergeant. Sergeants ensured compliance with mandates governing hospital operations; managed officers’ schedules; assigned and reviewed work; and recommended employment actions. They were primarily responsible for supervising hospital officers on one of three eight-hour shifts: first watch was 10:00 p.m. to 6:00 a.m.; second watch was 6:00 a.m. to 2:00 p.m.; and third watch was 2:00 p.m. to 10:00 p.m. As each shift ended and the next began, the sergeants assigned to the consecutive shifts held a “turnover” meeting at which the outgoing sergeant would brief the incoming sergeant about any noteworthy occurrences.

Alternate schedule denied. The employee was assigned to second watch, which was the shift his wife worked. He was then put on an alternate schedule from 7:00 a.m. to 3:00 p.m., allowing him to drop his daughter off at daycare before coming in. Two years later, he transferred to another department. At first his alternate schedule was accommodated, but a new supervisor and a new chief changed things. The chief said he was “lucky” he had “gotten away” with his schedule for so long and required him to return to a regular schedule to attend turnover meetings. On July 9, 2012, the employee submitted a memo with the subject “Hardship Consideration for Childcare,” formally requesting an alternate schedule. The chief and the supervising lieutenant denied the request. The chief explained that the schedule did not meet operational standards and she offered that he could move to third watch (2 to 10 p.m.) if he wanted.

Discrimination and retaliation complaints. After more back-and-forth, the employee filed a race discrimination complaint with the hospital EEO office. He claimed the chief denied his schedule request but allowed Caucasian sergeants accommodations. According to the employee, the chief subsequently refused to speak to him in the hall and stared him down “on a daily basis.” She also transferred him to third shift, which was after his wife’s shift. The couple did a “baby exchange” on hospital premises. The employee requested an extra five or 10 minutes at the start of the shift to facilitate this but the chief refused and the employee complained of retaliation.

In October, the employee and his wife took FMLA leave. He requested a three-day extension and the parties disputed whether the lieutenant agreed over the phone, but the employee was deemed AWOL. When he returned, he brought his daughter to work. The lieutenant allegedly became hostile and yelled, “I’m tired of getting caught in the middle of your childcare issues with the chief” and “you are the only one in this department with a problem.” The lieutenant also complained about the serial requests for FMLA leave from the employee and his wife, aggressively stating he was tired of the employee “trying to find different angles for childcare.” He was issued a counseling record that noted he had shown “exceedingly poor judgment” and that referred to his “childcare issues.” He filed a second retaliation complaint with the EEO office, which found no support for any of his allegations. He was terminated in May 2013 for unrelated reasons that are not at issue here.

No race, national origin discrimination. Granting summary judgment against the employee’s FEHA discrimination claims, the court explained that the employee lacked sufficient comparator evidence. While he and his wife submitted affidavits that they personally observed Caucasian officers working alternative schedules, they failed to provide evidence of the reasons for those accommodations. Also, they may have observed an officer pass supervision of a child to his partner in the parking lot, but they failed to show that the department gave permission to do so. There was simply no basis to conclude that other officers received accommodations “for childcare purposes.” The court also noted that the chief stated that “alternate work schedules are for the department need only and not for personal need.” The chief identified “bike patrol” and “educational purposes” as examples. Because the employee failed to support his claim of disparate treatment in accommodating childcare needs, his discrimination claims failed.

No marital status discrimination either. The court also rejected the employee’s claim that the chief’s and lieutenant’s angry remarks about his failure to make childcare arrangements constituted direct evidence of marital status discrimination. Again, he offered no evidence that his requested schedule change would have been granted for any personal need, regardless of marital status.

Retaliation claims fail too. As for the retaliation claim, which also failed, the court explained that a mandatory transfer is not an adverse employment action simply because it interferes with one’s family life. Moreover, there was no evidence the employee’s reassignment to third watch required him to perform a “baby exchange,” nor would such an inference be reasonable. Nor was the chief’s and lieutenant’s allegedly cold and harsh demeanor toward the employee a materially adverse employment action. As for the counseling record, the employee conceded that it was not appropriate to bring his child to work, so failed to show the record was undeserved. Because he failed to show an adverse action, he could not support his FEHA retaliation claim.

The employee’s FMLA retaliation and interference claims, which he based on the denial of a three-day extension to his leave, failed because he did not show that he ever perfected his request for leave by providing a proper physician’s certification.

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