Facts

ACCORDING TO THE PLAINTIFF: Defendant 1980 Vallejo Street HOA employed plaintiff Michael Reznitsky, 69, as the live-in resident manager for 13 years. Though a good worker, he was consistently deprived of minimum wages and overtime pays. He got his last raise in 1998. The plaintiff reported to an HOA board comprised of physicians, businessmen and investment bankers who reside in Pacific Heights luxury.

Among his multiple tasks, the plaintiff had to continuously wash the exterior windows of the 11-story, 10-unit condo building without safety equipment. He repeatedly complained the work was too dangerous. Afraid of losing his job and desirable housing, the plaintiff soldiered on.

In 2004, the plaintiff lodged a complaint with Cal-OSHA. After an on-site inspection, OHSA suspended the window cleaning and reported that the plaintiff was risking serious bodily injury or death washing windows without regulation safety equipment.

A day after receiving the OSHA report, the board president sent the plaintiff a snide letter expressing displeasure that he had gone to OSHA and recommending his wages be "adjusted to reflect your diminished job requirements." Two days later, the president circulated a diatribe to the board about the plaintiff's "laziness, deceitfulness, incompetence and insubordination" and that plaintiff needed to be replaced.

Within a year, the board fired the plaintiff. A former board member testified the HOA waited a year to fire the plaintiff to avoid the appearance of retaliation, though it actually did so because he had complained to OSHA.

After the termination, the plaintiff was diagnosed with major depression. He now lives in public housing.

ACCORDING TO THE DEFENDANT: The HOA employed plaintiff as resident manager in 1992. From that time until his termination in 2005, numerous complaints from the owners as to his availability, attitude and quality of work were lodged. He was paid above both state and San Francisco minimum wages for the entirety of his tenure. The plaintiff was responsible for turning in his overtime hours. The plaintiff turned in two requests for overtime, which were paid. Due to changes in ownership, and direct supervisors, little was done to document his work performance.

When he voiced concerns about his safety related to window washing, his supervisor offered to go with him to purchase appropriate safety equipment. Rather than avail himself of his employer's offer, he secretly complained to Cal-Osha in May of 2004, and received a cease and desist order meant for his employer, relative to the window washing. Rather than immediately present the Cal-Osha order to his employer, he withheld it for nine weeks, waiting until his employer sought an explanation as to why he was not doing his window washing chore. Upon receipt of the nine-week-old order, the window washing task was immediately deleted from his job description by the defendant.

In June of 2003, almost one year before the Cal-Osha incident, the HOA, concerned with possible legal consequences related to wrongful termination in a pro-employee, pro-tenant venue, sought legal counsel from an employment lawyer, on how best to terminate the plaintiff for his poor work performance. In the time from when the HOA sought and received advice from counsel, it was endeavoring to document the plaintiff's regressing work performance. As a result of Cal-Osha's cease and desist order for the window washing, and given the material nature of this task in relation to plaintiff's overall job duties, a decision was made to eliminate the resident manager position entirely.

The board did wait a year to eliminate the position due to ongoing concerns by the HOA as to the effect such an elimination would have on the overall property values, and to avoid the appearance of retaliation. The HOA was acutely aware of this appearance and felt it undertook its actions in good faith.

Result

Settlement, $800,000.

Other Information

According to defendant, the settlement reflects more the serious concern of an out of state insurer as to the personal predilection of a potential runaway San Francisco jury, coupled with an effort to avoid multiple litigation relative to an underlying coverage dispute, and litigation from individual owners within the HOA, as to their personal contribution should a verdict be rendered in plaintiff's favor, than the merits of the case. Given the attorney's fees provisions of the applicable whistle blower statute, the onus on employers for record keeping relative to overtime wages with attendant penalty provisions, the possibility of punitive damages and pain and suffering damages in the hands of a sympathetic jury, in addition to black boarded special damages, caused the insurer and insured to cap its exposure to plaintiff and work out their respective allocation differences as to their contribution to settlement.