A Bungled Case

by Joseph G. Lariosa

CHICAGO (FAXX/jGLi) – I don’t blame some of our kababayans (country mates) if they decide for themselves in handling discrimination cases against their employers instead of reaching out to some local community civil rights groups, like the ubiquitous American Civil Liberties Union or the Asian Pacific American Pacific Legal Center (APALC), before locking up on a lawyer that they would like to handle their cases.

I am, of course, referring to a recent case filed by a Filipina nanny, Erlinda T. Elemen, against Hollywood actress Sharon Stone, who terminated her services because of her “Filipino ethnicity and her heritage” when Elemen refused to return the overtime pay that she rightfully deserved based on federal and state labor codes.

I will not object, either, if Filipinos around the world would boycott the movies of the Basic Instinct star for being anti-Filipino.

The Department of Fair Employment & Housing (DFEH) of California issued a “Notice of Case Closure” on May 23, 2011 on the discrimination cases filed by Ms. Elemen against Ms. Stone before the DFEH after it determined that she could bring a legal action against Stone within one year “from the date of this letter.”

DFEH told Elemen that she also had an option to bring the case before the U.S. Equal Employment Opportunity Commission (EEOC), “within 30 days of receipt of this case closure or within 300 days of the alleged discriminatory act, whichever is earlier.”

For inexplicable reason, Elemen’s lawyer, Solomon E. Gresen, brought the case against Ms. Stone in court apparently one year after she was authorized to file the complaint. It is an effort that appeared to have backfired because it was filed a day late as 2012 was a leap year.

It is not clear if Elemen only contacted Gresen shortly before she filed the complaint or procrastinated in filing the case because Gresen never responded to my email messages for comment and neither Stone’s defense lawyer, Daniel R. Gutenplan.

EEOC, APALC, ACLU FILE CASE BEFORE FEDERAL COURTS

Elemen could have also filed the case before the EEOC, a federal law enforcement agency that enforces laws against workplace discrimination. It investigates discrimination complaints based on an individual’s race, color, national origin, religion, sex, age, disability, genetic information, and retaliation for reporting, participating in and/or opposing a discriminatory practice.

If the EEOC finds prima facie case filed by a complainant, the Commission, assisted by ACLU or APALC or a lawyer, usually files a case for harassment and discrimination against employers before any “Art. III” federal U.S. District Court anywhere in the United States.

Because this kind of case is a bit of a “specialty” of EEOC, the ACLU and APALC, I notice that based on the preponderance of press releases that I receive from these agencies, they seem to have successes in handling anti-bias cases.

Among the latest Filipino American cases filed by the EEOC and APALC was against the Delano Regional Medical Center (DRMC), an acute care hospital in California’s San Joaquin Valley in Bakersfield, California, which paid $975,000 for the settlement of harassment and discrimination cases filed by 70 Filipino American hospital workers, who were followed by its security guards and were being berated by their employers when they speak Tagalog or Ilocano even during their break time. An employee even sprayed air freshener on a Filipino’s lunch due to offender’s self-professed hatred for Filipino food.

Part of the settlement was the adoption by the hospital of a three-year consent decree “to develop strong protocol for handling harassment and discrimination and to adopt a language policy that complies with Title VII.”

Title VII articulates the national policy against national origin discrimination in the workplace, while also preserving an employer’s freedom of choice to make sound business decisions.

If Elemen’s case were not “unconditionally dismissed” by her lawyer, Gresen, and she happened to prove her case during a jury trial, Ms. Stone would have been told by the Superior Court of Los Angeles that discriminating against Elemen is wrong because preventing Elemen from talking with her children with Filipino accent so they would not “talk like you” and commenting about Filipino food and equating  “being Filipino with being stupid,” and criticizing her for frequently attending church and on one occasion forbidding her from reading the bible inside Stone’s residence were violations of Elemen’s Title VII and her First Amendment Right of her freedom of religion. Why did Ms. Stone wait for four years before singling Elemen out? It’s hard to guess.

LAWYER CALLS FIL AM CLIENT “GREEDY” FOR FILING ANTI-BIAS SUIT

Another discrimination case that I ran into recently was about a case Ronnie M. Estrada of San Jose, California, a stringer of Fil Am Extra Exchange, referred to me. It is about a case of a childless Filipino American divorcee, Soledad Camanag Yap, a 63-year-old native of Cavite City in the Philippines, and a resident of San Jose, California, who also won workers’ disability suit before California’s Workers’ Compensation Appeals Board Judge Adoralida Padilla filed against her employer, Mariner Post Acute Network, a skilled nursing facility convalescent hospital in Menlo Park, California. Judge Padilla’s  decision was affirmed by Judge Deidra E. Lowe.

Yap was fired from her job as an admissions director after she was injured in line of duty in 1999 in her workplace. Her injury caused her bowel and bladder dysfunctions that also prevented her from driving. Her firing is galling because if Ms. Yap were in the military and she were wounded in action, she would have been honored with a Purple Heart, not dishonorably discharged!

Aside from worker’s compensation case, her lawyer Attorney Brian Lawther of the Bocardo Law Firm in San Jose, California also filed discrimination case against her employer for firing her because of her injury that caused her permanent disability.

When Lawther retired from his law firm, her case was assigned to his law firm’s associate, Robert Thayer, who refused to “open the case of discrimination because I already won the first case and awarded 100% total permanent disability for the rest of my life,” telling her “don’t be greedy.”  Yap resents her characterization by Thayer because she has yet to receive full temporary disability, transportation and medication reimbursements.

Yap started receiving her weekly compensation of $490 for life only last March 17, 2013 although it is retroactive from Aug. 12, 2006 and continuing for life.

However, she has still to collect unpaid compensation amounting to $177,741.68  from May 24, 1999 up to May 26, 2006. She plans to file a mandamus to compel her employer’s insurance company, Chartis Insurance, formerly American International Group, to pay her additional “10% penalty plus interest for delaying payment” of her unpaid salary compensation based on the computation of Chartis’ adjuster Sheri Falke sent to previous defense lawyer, Richard James Berryhill, with a disputed retroactive $40,000 benefits suggested by current defense lawyer, Ilana Cohen.

Yap plans to pursue the discrimination case pro se (by herself) as a result of the refusal of Thayer to help her even after he received his attorney’s fees equal to 15% of her award in the workers’ compensation case.

Defense lawyer Ilana Cohen refused to make a statement when reached by this columnist. And so with Lawther and Thayer, who have also did not comment when sent snail-mail requests.(lariosa_jos@sbcglobal.net)

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