DFEH Supplemental Information. In April of 2008, I was ethically and legally compelled to report a series of workplace violations ranging from sexual harassment to accounting/financial violations to labor violations. A two month investigation was conducted by an outside, independent counsel (Cynthia Maxwell, Independent Employment Counsel, LLP 805-239-1620), and the majority of the findings were substantiated. Following this time period, I was then reprimanded for calling attention to the matter, demoted, and my email account and computer files were deleted and my electronic access privileges were permanently suspended. The investigation concluded at the beginning of June 2008, and from that point forward, I was consistently retaliated against because of whistle blowing actions. Between June of 2008 and October of 2008, I reapplied on five separate occasions for either the equivalent HR position or the subsequent promotion. Despite clearly possessing the necessary skills and training, and despite a history of flawless job performance reviews, I was consistently denied reinstatement to my previous position or subsequent promotion. As a note, I was explicitly threatened by the Store Team Leader Rod Migilliacio prior to initiating the investigation and clearly told that if I did not ignore the various violations, that the Whole Foods Market leadership group would make sure that I was never promoted. 1) July 15, 2008: Hingham, MA location (Interviewed for PBS – would have been promotion) 2) July 18, 2008 2008: Santa Monica, CA location (Interviewed for assistant PBS – lateral move) 3) July 2008: Newton, MA location (Interviewed for PBS – promotion, don’t have specific date, should be on record at the Newton store) 4) September 30, 2008: Venice, CA location (Interviewed for assistant PBS – lateral move) 5) October 1, 2008: West Los Angeles, CA location (Interviewed for assistant PBS – lateral move)
Concurrently, around September, my health began severely declining due to HIV complications, and I was forced to take a medical leave of absence to seek recovery. The strain of standing for roughly 8 hours a day, lifting heavy boxes, etc was compromising my health. Prior to the post-investigation demotion, my administrative duties were virtually non-physical involving data entry, data management, payroll operations, etc. Upon demotion, I was forced into a sales
floor position. Additionally, the stress related to the investigation and the retaliation took a tremendous toll on my immune system. At the conclusion of my medical leave, I sought to initiate a dialog with the Regional Human Resources Executive Coordinator, Robin Graf. Having spoken with my doctors, I informed Robin that I could not be reasonably expected to stand for 8 hours daily and lift heavy items given my compromised immune system (virtually all non-administrative positions in Whole Foods Market stipulate that one must be able to stand for 8 hours a shift, and lift up to 40 pounds unassisted, my doctors were in agreement that this was not possible on a regular basis (i.e daily/weekly). Given that Whole Foods Market is a grocery store, and the majority of the positions are manual labor, I specifically inquired about returning to my previous HR position or something similar. Robin was very hostile in the conversation and strongly informed me that I’d never get what it means to be a PBS, and she strongly stated such things as, “You are not an advocate. You are not a champion. You are not a watch dog." It was clear from this conversation and prior ones, that she was actively opposing my re-instatement to my previous position. Though Robin Graf agreed to initiate an ADA process to seek a dialog between herself and my doctors in order to determine accommodations, I was also being forced into a position where I would be responsible for an incredibly expensive health care premium (nearly $500 per month), in addition to mounting medical bills, while dependent upon a highly insufficient state disability income. Furthermore, it was clear from the very beginning that although I had directly asked for accommodations due to my medical condition, a good faith response was not present. I sought legal counsel, and after conferring with an employment lawyer at the HIV & AIDS Legal Services Alliance, I accepted the reality that I was being actively retaliated against because of the investigation, and it was unlikely that I would be granted the accommodations necessary without a long and costly legal struggle. I chose to resign March 3, 2009 as the mounting stress, medical difficulties, and general hardship precluded my ability to mount an employment discrimination lawsuit against Whole Foods Market. Again, I did specifically consult with a lawyer in this area, and I was advised that even with added pressure of medical documentation compelling a reinstatement to my former administrative position, such a process would be lengthy and difficult and given my declining health, I could not continue such an action at that exact time period. Of the sexual harassment claims brought up in the investigation, one in particular involving the Associate Store Team Leader (Jim Figueroa), was substantiated by the independent counsel, Cynthia Maxwell.
The incidents spanned a long time period (from approximately August of 2007 until March/April of 2008). The harassment was specifically directed at myself by Jim Figueroa, and the events occurred routinely in the Beverly Hills Whole Foods Market office area. The harassment consisted of comments regarding my body, e.g. “You have really nice legs, do you run?” or comments regarding dating/personal life. I reported the matter to Robin Graf as part of the general investigation in the Whole Foods Market Beverly Hills leadership group between April and June. These matters were substantiated by Cynithia Maxwell, but during the debriefing with Robin Graf, I was told that because I had made no formal complaint prior to April, the matter was essentially being dismissed. This concludes my supplemental information.
Daniel Kauwe