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Chivas USA sued by former employee — again

Aug 15, 2013, 11:30 AM EDT

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Former Chivas USA human resources and administrative manager Cynthia Craig filed the second lawsuit in four months against her former employer, Daily Breeze reported on Wednesday. She, like former academy coaches Daniel Calichman and Theothoros Chronopoulos, alleges discriminatory practices against non-Latinos at the club.

Most of Craig’s suit is nothing new, as she claims she was “harassed” by the team’s ownership because she could not speak Spanish. Unlike Calichman and Chronopoulos, she was not fired but elected to leave her job.

What the new lawsuit provides is a different perspective on the same phenomena. From her post in human resources, Craig was privy to discriminatory and unjustified termination practices, supposedly being told by owner Jorge Vergara to “just get it done” when he asked her to fire somebody.

One new wrinkle that Craig presents is the allegation that Chivas USA knowingly hired four Mexican coaches in January who had no legal permission to work in the United States. When Craig refused to put them on the company payroll, the owners paid them through their own channels. Those coaches eventually received work visas in April.

The final quote in Daily Breeze’s story sums up Chivas USA’s practices to this point, and with a former human resources employee now making serious allegations, Major League Soccer could be incentivized to act sooner rather than later with regard to the team’s ownership:

“Plaintiff complained to [club president José] David regarding the discriminatory termination and hiring process, and requested that David allow her to coordinate open recruitments,” the complaint states. “David refused, and continued to hire only employees from Mexico or persons who were recommended by Chivas Guadalajara.”

  1. takethelongview - Aug 15, 2013 at 4:58 PM

    Two observations on this issue, broken out into separate posts below:

    First, relating to “…she was not fired but elected to leave her job….”

    Second, on what may be inferred by the choice to file a lawsuit.

    • takethelongview - Aug 15, 2013 at 5:00 PM

      First, sooner or later someone will question whether this plaintiff has a claim at all if she quit instead of being fired. The answer: yes, she can still have a claim. Under California law, if the actions of the employer created a “hostile work environment,” prompting the employee to quit, the employer can still be held liable.* The plaintiff will have to prove to the fact-finder’s satisfaction (a judge, a jury, or a regulatory board, depending on the venue) that the conditions were objectively hostile, while the employer will need to show that conditions were hostile only in the subjectivity of the plaintiff and that other reasonable people would not find those conditions hostile. Here (as in the earlier lawsuit), it would seem that the case may well resolve around the issue of Spanish in the workplace and the ethnic background of employee. Potential trouble for Chivas: the alleged involvement of the club’s owner and president ratchets up the likelihood that their actions create a hostile environment because of the power inherent to those positions.**

      (*–If you interpret that statement to mean that it sounds like the law was written to favor workers over corporations; then I believe you have correctly pegged the legislature’s intention. The people of the State (speaking through their elected representatives) want corporations to behave themselves on issues of workplace fairness. Thus, the law recognizes that employers can occasionally make unwanted employees so miserable that they quit on their own; this law simply says such circumstances are tantamount to having been fired. “She quit!” will not be a viable defense in this case.)

      (**-Compare: you are being unproductive at work, reading ProSoccerTalk. Your co-worker walks by and says, “Get back to work!” Probably, you both have a laugh because you’re equal. But if “Get back to work!” gets uttered by your manager, it creates a more actual pressure, even urgency. If it comes from the president or owner of the company, that’s a whole other order of discomfort. “Get back to work!” is surely a legitimate request from your boss; however, if the utterance is discriminatory—“you look sexy, today!” (sexual harassment), “look more American!” (national origin discrimination), “butch it up” (sexual orientation discrimination), etc—then the presumption of hostility is almost a default when it comes from senior management as opposed to a co-worker. And remember, this plaintiff, is herself at management level.)

    • takethelongview - Aug 15, 2013 at 5:07 PM

      Second, and far more speculatively, the fact plaintiff files a lawsuit creates a strong inference that plaintiff’s lawyers believe they will win. That may sound nonsensically self-evident but consider this little feature of California law: a lawsuit isn’t the only way to win this type of case in California; there is an easier, cheaper, less risky alternative. A lawsuit is the more lucrative alternative (if you win), but why take that risk if the case’s outcome is truly unpredictable (as many are).

      In California, a workplace discrimination lawsuit cannot be filed in court unless plaintiff first files a complaint with the state Department of Fair Employment and Housing (DFEH). That complaint triggers an investigation by DFEH that could, if a neutral DFEH investigator finds the claim meritorious***, lead to a hearing before a state regulatory board. In other words, a plaintiff does not even need to hire a lawyer, because the State of California will investigate the claim for her. And, if DFEH’s investigator thinks the claim has merit, a separate department of DFEH (litigation, as opposed to investigation) will prosecute the case before the regulatory board. And unlike a lawyer, the State does not take a cut of the damages if the case is won. The catch: favorable outcomes before this board have monetary caps fixed by law.

      As the saying goes, however, “everyone is entitled to her day in court.” Thus, the California law only requires the plaintiff to file the complaint with DFEH. After a waiting period expires, any plaintiff may pull her complaint from DFEH jurisdiction and file a lawsuit in the regular courts. In fact, she may do so at any point during DFEH’s investigatory process.

      So why, if the State will both investigate and prosecute a claim, would anyone choose to pay a lawyer and take their chances with a jury? Two reasons. One, it’s possible to win higher damage awards. Higher risk accomapnies the uncertainty of court, but greater reward. Damages in a successful case here could be enough to pay both the plaintiff AND the winning lawyers. Two, the lawyers must be pretty sure the facts of the claim will put the law on their side. Lawyers in this type of case usually get paid only if they win. So, when the lawyers in a workplace discrimination case are encouraging a plaintiff to pull the case from DFEH and go the lawsuit, route, then the choice for court over regulatory board by itself conveys a much stronger expectation for victory than would be the case in another type of lawsuit.

      A final thought: Just as games must be contested, no matter how unequal the two teams appear on paper, the same is true of lawsuits. Going in, I like the chances of both this plaintiff and the earlier plaintiffs to prevail over Chivas USA. But “that’s why they play the game.” To see who’s gonna win.

      (***–Yes, the investigators really are neutral. They collect information from both parties, and turn over their findings to the litigation side. Most claims fizzle out because no actionable discrimination really occurred. The litigators only take cases to the regulatory board if they feel there is merit—and they don’t always win those cases before the board. But they usually win. Not because the system is stacked in favor of DFEH, but because DFEH weeds out the losers before they proceed so far. It’s the same logic that persuades a plaintiff’s lawyers to recommend pulling a case from the DFEH process and filing a lawsuit in court. )

    • cherry314 - Aug 15, 2013 at 6:42 PM

      Those were well written, thoughtful, and informative posts. What are they doing on the Internet?

      • takethelongview - Aug 15, 2013 at 7:36 PM

        Thank you, most kindly.

  2. hildezero - Aug 15, 2013 at 5:09 PM

    Chivas are the joke of the league. Plain and simple.

  3. drewvt6 - Aug 15, 2013 at 5:51 PM

    I enjoy beating this dead horse. I’m not sure how any organization could more blatantly break EOE laws.

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