Sheila Murphy was employed by the County of Sonoma on January 20, 2019. On that day she was hiking through tall grass while checking trail cameras. That evening she found a tick embedded on her right hip. She later developed a rash and became concerned that she might have contracted Lyme Disease, and so presented at Kaiser in Santa Rosa where her primary care physician prescribed antibiotics.

On March 19, 2019 she visited Kaiser Occupational Medicine department. At that time, it was the opinion of the Dr. Yee that it was unlikely that she had Lyme Disease. Nevertheless, it appears that an antibody test, referred to as the “ELISA” test by Dr. Leonard, was performed. The result of that test was negative.

There was a difference in opinion between the applicant’s initial treating doctors, affiliated with Kaiser, and the applicant’s subsequent treating doctor, Dr. Gitlin. The Kaiser doctors felt that applicant did not contract Lyme disease and Dr. Gitlin believed that she did, and diagnosed the disease by symptomology alone.

Applicant’s Kaiser physicians performed the ELISA test and applicant tested negative for Lyme disease. Notwithstanding these findings, the Western Blot test was requested by Dr. Gitlin and performed. The result of that testing, however, “also support[ed] the conclusion that applicant did not contract Lyme disease.” Applicant therefore tested negative on both counts.

Given this divide, the parties retained Dr. Leonard as the panel QME. Dr. Leonard reviewed literature concerning diagnosis of Lyme disease and found that there was a two-step process which consisted of an ELISA test, which, if positive for findings of Lyme disease, required completion of a second test, called the Western Blot test. “[W]ith a negative ELISA” it was understood that “further testing is not necessary.”

Based upon the above referenced test results, an evaluation of the applicant, and a review of the complete medical record, the QME found no injury AOE/COE. Within his reports and during his deposition, the QME explained the basis for his opinions and explained his reasoning for the findings. The QME ultimately issued a total of three reports.

August 9, 2022 Findings and Order by the WCJ found that applicant, while working as a park aide for defendant, “did not contract Lyme disease as a result of a tick bite on January 20, 2019.” The WCJ’s decision was based upon the findings of the panel Qualified Medical Evaluator (QME), Dr. Thomas Leonard.

Reconsideration was denied in the panel decision of Murphy v County of Sonoma/Regional Parks Division – ADJ13607768-1 (July 2024).

Applicant makes several arguments. First, applicant argues that Dr. Leonard does not have the requisite experience to be considered an expert on the diagnosis of Lyme Disease.

In response the WCJ in his Report said the “court disagrees. Although the doctor states that he has seen only 10 cases in his career, the undersigned has never seen a Lyme Disease case in 22 years of workers comp practice and on the bench.” “Ten cases seems like a significant number, enough to establish sufficient expertise for a Qualified Medical Evaluator.”

Finally, the applicant noted that “Dr. Leonard and the trial judge placed considerable weight on the two tests applicant took for Lyme disease, the ELISA and the Western Blot, both of which were negative for Lyme disease.”

To this the WCJ responded that the “reason for this considerable weight is that Lyme Disease is caused by bacteria, which, if it is present in the body, elicits an immune response. The presence of the bacteria causes human body to manufacture antibodies which are detectable in the blood. If the bacteria are present, antibodies will appear. If the antibodies do not appear, the bacteria is not present, and the individual does not have Lyme Disease.”

And he went on to say “the workers’ compensation system is ill equipped to address unusual, even ground breaking, medical situations. The workers’ compensation system deals with “reasonable medical probability” and evidence based peer reviewed medical consensus. In the present case, this means looking at the generally accepted methods of diagnosing Lyme Disease. In this case that compels a finding that the applicant does not have Lyme Disease.”

In denying the Petition for Reconsideration the WCAB panel said “Having reviewed the trial record we see no evidence which is inconsistent with the QME’s opinions, and we see no support for applicant’s argument that the QME reports are not substantial evidence. We also see no evidence of bias, speculation, or inexperience on the part of the QME, as asserted by applicant. We therefore agree with the WCJ that the reports from QME are substantial medical evidence.”

Twanda Bailey began working at the District Attorney’s Office in 2001 as a clerk in the records department. The office promoted her in 2011 to an investigative assistant position. Bailey worked alongside Saras Larkin, another investigative assistant. The two sat next to each other in the records room. Bailey is African-American. Larkin is Fijian/East Indian.

On January 22, 2015, while in the records room, Larkin told Bailey that she saw a mouse run under Bailey’s desk. Bailey was startled and jumped out of her chair. Larkin walked up to Bailey and quietly said, “You [N-words] is so scary.” Immediately following this incident, Bailey left her office and told three coworkers what Larkin had said. Bailey was crying and upset. Although Bailey was offended by Larkin’s use of the racial slur, she did not immediately complain to human resources because she feared harassment and retaliation.

This fear was based on Bailey’s understanding that other employees had been harassed and discriminated against following incidents with Larkin. Specifically, Bailey understood that Larkin was best friends with the office’s department personnel officer, Evette Taylor-Monachino, and that Larkin’s actions against other African-American women, Davonne Mark and Sydney Fisher, caused them to be reassigned or to separate from the District Attorney’s Office. In a declaration, Mark attested to the close friendship between Taylor-Monachino and Larkin. Mark had worked in the records room with Bailey and Larkin but stated that she was reassigned after Larkin made false accusations against her.

Nontheless, information about the event was relayed to Sheila Arcelona, the assistant chief of finance and administration. Arcelona and Taylor-Monachino met with Bailey on January 29. Bailey reiterated that Larkin had used an offensive racial slur and confirmed that this was the only time she had heard Larkin use such language. Arcelona informed Bailey that “management would address the issue” and that Bailey should report any inappropriate behavior directly to management.

Arcelona and Taylor-Monachino then met with Larkin, who “did not admit to making the alleged remark.” Arcelona counseled Larkin on the city’s “Harassment-Free Workplace Policy” and informed her that use of the alleged language was “unacceptable.”

Although Taylor-Monachino was the HR representative charged with reporting incidents of workplace harassment to the city’s Department of Human Resources (DHR), she did not file a formal complaint as city policy required. Bailey claimed that that Taylor-Monachino’s conduct towards her had changed after March 23. As a result, Bailey felt she needed to avoid walking past Taylor-Monachino’s office, which was next to the records room where Bailey worked.

On December 30, Bailey filed suit against the City for racial discrimination, racial harassment, retaliation, and failure to prevent discrimination in violation of FEHA. The City moved for summary judgment and the trial court granted that motion and concluded that no trier of fact could find severe or pervasive racial harassment based on being “called a ‘[N-word]’ by a co-worker on one occasion.” In an unpublished opinion, the Court of Appeal affirmed the trial court’s grant of summary judgment. (Bailey v. San Francisco District Attorney’s Office (Sept. 16, 2020, A153520) [nonpub. opn.], as mod. on denial of rehg. Oct. 6, 2020) The California Supreme Court granted review.

The California Supreme Court reversed the judgment of the Court of Appeal in the case of Bailey v. S.F. Dist. Attorney’s Office -S265223 (July 2024)

To prevail on a claim that a workplace is racially hostile under FEHA, an employee must show she was subjected to harassing conduct that was (1) unwelcome; (2) because of race; and (3) sufficiently severe or pervasive to alter the conditions of her employment and create an abusive work environment.. The parties did not dispute that Larkin’s conduct was unwelcome and because of race. The case therefore considered its severity and the City’s liability.

The standard for workplace harassment claims strikes a “middle path between making actionable any conduct that is merely offensive and requiring the conduct to cause a tangible psychological injury.” (Harris v. Forklift Systems, Inc. (1993) 510 U.S. 17, 21 (Harris).) The United States Supreme Court has held: “Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment – an environment that a reasonable person would find hostile or abusive – is beyond Title VII’s purview.”

The Court also noted that the “same standard applies to FEHA. (See Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 130 (plur. opn. of George, C. J.)  ; Miller v. Department of Corrections (2005) 36 Cal.4th 446, 462.)” Whether a work environment is reasonably perceived as hostile or abusive “is not, and by its nature cannot be, a mathematically precise test.” (Harris, supra, 510 U.S. at p. 22.) “The working environment must be evaluated in light of the totality of the circumstances.”

The City argued that “[a] single race-based comment by a coworker – even when involving a categorically offensive and impermissible term – over a fourteen year period” can be considered neither “pervasive” nor “severe.” Bailey responded that, under prevailing FEHA principles and standards, the Court of Appeal’s holding “that a co-worker’s, as opposed to a supervisor’s, one-time infliction of [a] slur is categorically non-actionable under FEHA . . . is neither compelled nor warranted.” The California Supreme Court agreed with Bailey that “that the Court of Appeal placed undue emphasis on the speaker’s status as a coworker.” Instead it said the “objective severity of harassment should be judged from the perspective of a reasonable person in the plaintiff’s position.”

“This standard allows that ‘an isolated incident of harassment, if extremely serious, can create a hostile work environment.‘ (Boyer-Liberto v. Fontainebleau Corp. (4th Cir. 2015) 786 F.3d 264, at p. 268, citing Faragher v. Boca Raton (1998) 524 U.S. 775 at p. 788; see U.S. Equal Employment Opportunity Commission, Section 15: Race & Color Discrimination (Apr. 19, 2006) 15-VII Equal Opportunity for Job Success, p. 15-37 (EEOC Compliance Manual) [‘a single, extremely serious incident of harassment may be sufficient to constitute a Title VII violation’]; ibid. [‘The more severe the harassment, the less pervasive it needs to be, and vice versa’].).”

The California Supreme Court when on to say in this Opinion “We join the chorus of other courts in acknowledging the odious and injurious nature of the N-word in particular, as well as other unambiguous racial epithets.” “Far from ‘a mere offensive utterance” (Harris, supra, 510 U.S. at p. 23), this slur may be intrinsically ‘humiliating’ depending on the totality of the circumstances (ibid.).”

“We therefore reverse the judgment of the Court of Appeal and remand the cause to that court for further proceedings consistent with this opinion.”

Founded in 1991, the Employment Policies Institute is a non-profit research organization dedicated to studying public policy issues surrounding employment growth. In particular, EPI focuses on issues that affect entry-level employment.

Last week, the Employment Policies Institute (EPI) released a new survey of nearly 200 restaurant owners who collectively employ tens of thousands of California employees at hundreds of locations. The first-of-its-kind survey asked about the impacts of a $20 minimum wage. Most have already resorted to price hikes, reducing employees’ hours, or laying off staff entirely. Responses show these consequences will continue to play out in the next year.

A majority say they will limit future expansion within California, instead looking outside the state. Key findings on Impact of $20 Minimum Wage:

– – A majority of restaurants say they have already raised menu prices (98%), reduced employee hours (89%), have limited employee shift pick-up or overtime opportunities (73%) and reduced staff or consolidated positions (70%) as a result of the minimum wage law.
– – A majority of restaurants say in the next year they will have to raise menu prices (93%), reduce employee hours (87%), reduce staff or consolidate positions (74%), and limit employee shift pick-up or overtime opportunities (71%).
– – Eighty-nine percent of owners say they are less likely to expand inside California (somewhat less likely, 16%; significantly less likely, 73%). A majority (74%) say there is an increase in the likelihood of shutting their restaurants down (somewhat increase, 38%; significantly increase, 36%).
– – A majority of respondents (67%) say the minimum wage law will cost their restaurant at least $100,000 per location every year. One in four say it will cost more than $200,000 per location every year.

The full survey conducted by CorCom, Inc. asked California limited-service restaurant operators for feedback on the impacts of the $20 minimum fast food industry wage on their business, and sentiments on future profitability of their businesses in the state.

The problem is emerging in states other than California.

In the fall of 2023, Chicago’s City Council passed a full tip credit elimination bill that will go into effect on July 1, 2024. The law will raise the city’s minimum wage for tipped restaurant employees from $9.48 per hour to $11.02 per hour on that date, and continue to increase annually until restaurant employers will be required to pay the full minimum wage (currently $15.80 per hour) – a 66% increase in a few years. Even before this policy went into effect, restaurants started bracing for effect.

A survey of Chicago restaurants found tip credit elimination would force them to raise menu prices potentially sacrificing customer foot traffic, introduce service fees, or lay off staff. Already, Chicagoans are reporting restaurants have begun adding automatic service charges ahead of the new increases beginning July 1. The latest federal employment data released June 25, 2024 finds:

– – Chicago full-service restaurant employment has lost 358 jobs in the last two months while Chicago’s total employment has been rising;
– – Since City Council passed a full tip credit elimination ordinance last fall, Chicago has experienced a net loss of hundreds of full-service restaurant jobs representing a -0.23% decline; and
– – Chicago’s full-service restaurant employment growth rates have stagnated.

And in Washington DC, Initiative 82, a ballot measure to eliminate the District’s tip credit by 2027, was passed by voters in November 2022, restaurants in D.C. began bracing for impact. An Employment Policies Institute survey of roughly 100 restaurants in the city found most were planning to raise prices, lay off employees, or reduce employees’ scheduled hours sometime before the full implementation of the law in 2027.

Roughly one year under the law, the job loss consequences operators warned about are already a reality. D.C. restaurants have experienced two wage hikes in the past year: up to $6 per hour on May 1, 2023 and up to $8 per hour on July 1, 2023. Restaurants are facing a third increase up to $10 per hour on July 1 – an 87% total increase under Initiative 82.

This May marked a full year under Initiative 82 in D.C. The best federal data available shows D.C.’s full- service restaurant employment has declined as a direct response to the implementation of Initiative 82, even after accounting for normal seasonal variation. Prior to Initiative 82, D.C.’s full-service restaurant industry was booming with added jobs. Initiative 82 has killed that momentum and is now seeing net job losses since the policy went into effect. The latest federal employment data released June 25, 2024 finds:

– – District of Columbia full-service restaurant employment has a net loss of 925 jobs since the beginning of Initiative 82 in May 2023. This is while District of Columbia’s total employment has been rising – D.C. total employment increased by nearly 1% over the same period since May 2023;
– – This represents a 3.1% percent net employment loss for the full-service restaurant industry since May 2023, when Initiative 82 was first implemented; and
– – Prior to Initiative 82, the last year-over-year loss this large in the full-service restaurant industry was in April 2002 (barring COVID effects in 2020).

A Ventura County physician who worked for two Pasadena hospices pleaded guilty to defrauding Medicare out of more than $3 million by billing the public health insurance program for medically unnecessary hospice services.

Dr. Victor Contreras, 68, of Santa Paula, pleaded guilty to one count of health care fraud. Contreras, who was on probation imposed by the California Medical Board while he was part of the scheme, provided fraudulent certifications for some of these patients, including patients he claimed to have examined, but never actually saw, according to the indictment.

According to his plea agreement, from July 2016 to February 2019, Contreras and co-defendant Juanita Antenor, 61, formerly of Pasadena, schemed to defraud Medicare by submitting nearly $4 million in false and fraudulent claims for hospice services submitted by two hospice companies: Arcadia Hospice Provider Inc., and Saint Mariam Hospice Inc. Antenor controlled both companies.

Medicare only covers hospice services for patients who are terminally ill, meaning that they have a life expectancy of six months or less if their illness ran its normal course.

Contreras falsely stated on claims forms that patients had terminal illnesses to make them eligible for hospice services covered by Medicare, typically adopting diagnoses provided to him by hospice employees whether or not they were true.

Contreras did so even though he was not the patients’ primary care physician and had not spoken to those primary care physicians about the patients’ conditions. Medicare paid on the claims supported by Contreras’ false evaluations and certifications and recertifications of patients.

In total, approximately $3,917,946 in fraudulently claims were submitted to Medicare, of which a total of approximately $3,289,889 was paid.

According to Medical Board of California records, Contreras is a licensed physician in California, but has been on probation with the Board since 2015 and is subject to limitations on his practice.

United States District Judge André Birotte Jr. scheduled an October 25 sentencing hearing, at which time Contreras will face a statutory maximum sentence of 10 years in federal prison.

Antenor remains at large. Co-defendant Callie Black, 65, of Lancaster, who allegedly recruited patients for the hospice companies in exchange for illegal kickbacks, has pleaded not guilty and is currently scheduled to go on trial on October 15.

An indictment contains allegations that a defendant has committed a crime. Every defendant is presumed to be innocent until and unless proven guilty in court.

The United States Department of Health and Human Services Office of Inspector General, the FBI, and the California Department of Justice investigated this matter.

Assistant United States Attorneys Kristen A. Williams of the Major Frauds Section and Aylin Kuzucan of the General Crimes Section are prosecuting this case.