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Leap year bad luck for Filipina nanny’s case vs Sharon Stone

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CHICAGO (FAXX/jGLi)  --  The Filipina nanny, who lost her job because of her Filipino accent, her Filipino food and her Christian religion, might have also lost count of the calendar when she appeared to have procrastinated in filing late by one day last year – a leap year -- cases of harassment, failure to prevent harassment, retaliation for wrongful termination and for violation of Unfair Competition Law against her employer, Hollywood actress Sharon Stone.

 

Solomon E. Gresen, the lawyer of Erlinda T. Elemen, however, did not cite any reason for requesting the unconditional dismissal of the cases against the Basic Instinct star last June 18, 42 days before the case goes to a jury trial on July 30.

Terms of settlement were not disclosed but Superior Court Judge Mary H. Strobel of Los Angeles, California “did not waive court fees and cost for a party in this case.”

According to court notice, if a party whose court fees and costs were initially waived has recovered or will recover $10,000 or more in value by way of settlement, compromise, arbitration award mediation settlement, or other means, the court has a statutory lien on that recovery. The court may refuse to dismiss the case until the lien is satisfied.

Ms. Elemen filed a five-count complaint for harassment, failure to prevent harassment, retaliation, wrongful termination and violation of the Unfair Competition Law against the 55-year-old actress, seeking “for civil penalty not exceeding $10,000 for each violation and for such other and further relief as the court may deem just and proper.”

In one of the claims, defendant Stone’s lawyer, Daniel R. Gutenplan, argued since Ms. Elemen is not seeking injunctive relief or restitution not available in UCL (California’s Unfair Competition Law) plaintiff, “plaintiffs may not (even) receive damages or attorney’s fees.”

Elemen started working as nanny for the three children of Ms. Stone since October 2006. In September 2008, she was promoted as head nanny. Her job included caring for Stone’s three children and traveling with the children for extended periods and staying in the residence of Stone in Beverly Hills, Los Angeles.

On or about August 2010, according to the complaint, Stone has repeatedly subjected Elemen to “numerous derogatory comments and slurs related to her Filipino ethnicity and heritage.” Comments included Elemen’s Filipino accent telling her not to talk to Stone’s children so they would not “talk like you” and comments about Filipino food and “equated being Filipino with being stupid.” Stone also was dismissive of Elemen’s deeply held religious beliefs and criticized her for frequently attending church and on one occasion forbade her from reading the bible inside Stone’s residence.

 

STONE WANTED OVERTIME PAY BACK 

Matters came to a head when Stone learned on January 18, 2011 that Elemen was paid overtime when traveling with her children and was also paid overtime on other occasions such as holidays throughout her tenure as the head nanny.

When Stone confronted Elemen about the overtime pay, Elemen told Stone that she received the overtime pay in accordance with California Law from Stone’s accounting and/or payroll employees or agents.

Stone, however, accused Elemen of “stealing” and committing “illegal” acts when Stone demanded a return of the overtime pay.

In response, Stone cut Elemen’s hours and pay and assigned assistant nanny the additional time. Stone also repeatedly berated Elemen in front of her staff, guests and others for a period of three weeks for receiving overtime pay and refusing to return it.

When Elemen complained to Stone that the reduction in pay and the return of her overtime pay were unfair since they were merely in compliance with state and federal laws, Stone terminated her from her job on Feb. 8, 2011 without any reason.

Elemen filed a complaint against Stone before California’s Department of Fair Employment & Housing, which issued a “Notice of Case Closure” on May 23, 2011, giving Elemen a right-to-sue notice against Stone. Elemen was given one year “from the date of this letter” to bring civil action against her employer. Among the cases she filed against Stone with DFEH were for termination, harassment, impermissible non-job-related inquiry, denial of accommodation, failure to prevent discrimination or retaliation, retaliation, discrimination and denial of family or medical leave because of religion, race/color, national/origin/ancestry, retaliation for engaging in protected activity or requesting a protected leave or accommodation.

Elemen was also given a right to sue before the U.S. Equal Employment Opportunity Commission “within 30 days of receipt of this case closure or within 300 days of the alleged discriminatory act, whichever is earlier.”

But Elemen’s lawyers filed a case before the Superior Court of Los Angeles against Stone on May 23, 2012, a Wednesday, for harassment, failure to prevent harassment, retaliation, wrongful termination in violation of public policy and violation of Unfair Competition Law.

Stone’s lawyers argued that Elemen waited 367 days, instead of 366 days, within which to file her complaint and is therefore time-barred and must be dismissed. They said February 2012 had 29 days.

For their part, Elemen’s lawyers cited the Code of Civil Procedure, which says, “The time in which any act provided by law is to be done is computed by excluding the first day, and including the last, unless the last day is a holiday, and then it is excluded.”

Judge Strobel could no longer make a ruling on this statutory question after the case was dismissed before it went to trial. ( This email address is being protected from spambots. You need JavaScript enabled to view it. )

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