RETALIATION INTRODUCTION. In order to minimize exposure to damages for retaliation claim litigation, employers need to:

RETALIATION INTRODUCTION In order to minimize exposure to damages for retaliation claim litigation, employers need to: Know what constitutes a protected activity. Exercise caution with employees who engage in a protected activity. Know what constitutes an adverse action by itself, cumulatively, and/or on a continuing basis. Document the non-retaliatory reasons for an adverse action. Know how to anticipate and handle the most common types of claims. Train supervisors and managers on how to avoid retaliation claims. ESTABLISHING A RETALIATION CLAIM The Prima Facie Case In order to sustain a claim of retaliation, employees must show that: (1) they engaged in a protected activity; (2) they were subject to an adverse employment action; and (3) there is a causal link between their protected activity and the employer s adverse employment action. Basis For Retaliation Claims: The Protected Activity Retaliation claims can be based on a wide variety of activities protected under both state and federal law. The protected activity could be opposing an employment practice prohibited by state or federal statute, rule or regulation; such activities include refusing to take part in a prohibited act, engaging in public protests and writing letters to officials who lack any responsibility to act on the charges. EEOC v. Crown Zellerbach Corp. (9th Cir. 1983) 720 F.2d 1008. The protected activity could also be filing a charge, testifying, or assisting or participating in an investigation, proceeding or hearing of the employee s own claim of unlawful conduct or the claim of another employee under a statute or regulation that prohibits retaliation for such conduct. In addition, an employer s own policies can be the basis for retaliation claims. Examples Of Protected Activities 1

There are numerous categories of protected activities from which a claim of retaliation can arise. Some of the most common laws protecting employee activities that have become the basis for retaliation claims include, but are not limited to: The Fair Employment and Housing Act, specifically Government Code sections 12940(h) and (i), prohibits retaliation, which occurs when an employer takes an action that has a material and negative effect upon an employee because the employee exercised his/her legitimate rights, including opposing any practices forbidden under FEHA, such as sexual harassment and discrimination, or for filing a complaint, testifying, or assisting in any proceeding under FEHA. Title VII of the Civil Rights Act of 1964 expressly prohibits retaliation against employees who oppose unlawful employment discrimination or who make a charge, testify, assist or participate in an investigation, hearing or proceeding under the Act. A third party also has standing to sue under Title VII based on association with an employee who engaged in a protected activity. The Age Discrimination in Employment Act prohibits retaliation against employees who oppose practices in violation of the Act, or who make a charge, testify, assist, or participate in any manner in an investigation, proceeding, or litigation. The Americans with Disabilities Act prohibits retaliation against an employee who opposes discriminatory employment practices, files a charge of discrimination, or testifies or participates in any way in an investigation, proceeding, or litigation under the Act. The Family and Medical Leave Act, the California Family Rights Act and California Pregnancy Disability Leave laws protect employees from retaliation for making requests for or taking leave. Title XI protects whistleblowers, regardless of their gender, who complain of discriminatory acts in violation of Title IX from retaliation. See Jackson v. Birmingham Board of Education (2005) 544 U.S. 167. The Uniformed Services and Reemployment Rights Act protects veterans from retaliation after leave is taken to serve in the military. The Immigration Reform and Control Act prohibits employers from retaliating against employees for opposing any immigration-related employment practice in violation of the Act, as well as retaliating against employees who file a charge or complaint, testify, assist or participate in any manner in an investigation, proceeding or hearing under the Act. Labor Code section 1102.5 protects employees from retaliation for disclosing information to a government or law enforcement agency, where the employee 2

reasonably believes that the information is regarding a violation of a state or federal statute, rule or regulation, or for refusing to participate in an activity that would violate a state or federal statute, rule or regulation. The Fair Labor Standards Act protects employees from retaliation for opposing what they believe to be unlawful wage and hour practices, which include filing a complaint with the U.S. Department of Labor and making an internal complaint to their employer. Labor Code section 98.6 prohibits employers from retaliating against employees for filing or threatening to file a complaint with the Labor Commissioner, or for exercising any other rights under the Labor Code. In addition, the California Department of Industrial Relations provides a list of numerous Labor Code sections which prohibit retaliation against employees for certain protected activities that may be enforced by the Labor Commissioner and may become the basis of a retaliation claim: http://www.dir.ca.gov/dlse/howtofilelinkcodesections.htm. Government Code section 53296 et seq. protects public employees from retaliation for submitting a compliant alleging an improper activity by his/her public agency employer including, but not limited to, an allegation of gross mismanagement, a significant waste of funds, an abuse of authority, or a specific danger to public health or safety. Labor Code sections 1101 and 1102 protect employees from retaliation by their employer for engaging in political activity. Further, Labor Code section 96(k) protects employees from retaliation for engaging in lawful off-duty conduct. The First Amendment and the California Constitution protect employees engaging in free speech or other activities from retaliation. Generally, public employers are prohibited from retaliating against employees for engaging in speech regarding matters of public concern. See Sowards v. Loudon County (6th Cir. 2000) 203 F.3d 426. The Educational Employment Relations Act ( EERA ) and the Higher Education Employer-Employee Relations Act ( HEERA ) prohibit school districts, colleges and universities from threatening to impose reprisals on employees, discriminating or threatening to discriminate against employees, or otherwise to interfere with, restrain, or coerce employees because of their exercise of rights guaranteed under EERA or HEERA. These retaliation claims would be brought before the PERB as unfair practice charges. See Sunnyvale Unified School District v. Jacobs (2009) 171 Cal.App.4th 168. Many collective bargaining agreements also contain additional language regarding prohibited retaliatory conduct. 3

The Myers-Milias-Brown Act ( MMBA ), the Dills Act, the Los Angeles County Metropolitan Transportation Authority Transit Employer-Employee Relations Act ( TEERA ), the Trial Court Act and the Court Interpreter Act protect various public employees from retaliation for exercising their rights related to collective bargaining guaranteed under the Acts. Any violations constitute an unfair practice that should be brought before the PERB. Many collective bargaining agreements also contain additional language regarding prohibited retaliatory conduct. The Peace Officers Procedural Bill of Rights Act (Government Code 3300 et seq.) and the Firefighters Procedural Bill of Rights Act (Government Code 3250 et seq.) protect peace officers and firefighters from punitive action or denial of promotion for using the grievance procedures and exercising their rights under the Acts. Labor Code section 132a protects employees who participate in workers compensation proceedings from retaliation. Retaliation Claims Survive Even Where Underlying Complaint Lacks Merit It is important to note that employees must reasonably believe that the action they opposed was unlawful, but even if the action is later found to have been a lawful action by a court, the employer s liability for employees claims for retaliation may remain. Clark County School District v. Breeden (2001) 532 U.S. 268; Yanowitz v. L oreal USA, Inc. (2005) 36 Cal.4th 1028; Ohton v. Board of Trustees of the California State University (2010) 180 Cal.App.4th 1402. 4

Adverse Actions Once an employee has established that he/she has engaged in a protected activity, the employee must demonstrate that he/she was subjected to an adverse employment action. In Yanowitz, the California Supreme Court adopted a liberal construction of what actions will be considered adverse employment actions in regard to retaliation cases under FEHA. The Yanowitz court held that any adverse action that materially affects the terms and conditions of employment is sufficient to support a claim for retaliation. Yanowitz at 1043. See also, Akers v. County of San Diego (2002) 95 Cal.App.4th 1441, 1454-1457. In Burlington Northern & Santa Fe Railway Company v. White (2006) 548 U.S. 53, the United States Supreme Court expanded the interpretation of what constitutes an adverse action sufficient to support a claim of retaliation under Title VII, explaining: The anti-retaliation provision protects an individual not from all retaliation, but from retaliation that produces an injury or harm...a plaintiff must show that a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination. We speak of material adversity because we believe it is important to separate significant from trivial harms. Title VII, we have said, does not set forth a general civility code for the American workplace. Burlington at 67, 68. In addition, because all the statutes listed above as potential basis for protected activity are aimed at protecting employees from retaliatory acts for engaging in protected activity, courts generally will construe what constitutes an adverse action broadly to maximize the protections afforded to employees. Examples Of Adverse Actions Adverse actions that may support a claim of retaliation include, but are not limited to: Termination. Denial of a promotion. Denial of a pay raise. Reduction in pay. Selection for layoff. Change in work schedule to a less desirable shift and/or days off. Denial of time off requests that were previously approved or of a type that was regularly approved in the past. Transfer to a more difficult or less desirable position. Change in job duties. 5

Relocation, including a change in office locations on the same property. Demotion. Denial of or reduction in job benefits and/or perquisites. Negative performance evaluations. Restrictive directives. Verbal or written warnings. Suspension. Extension of probationary period. Other disciplinary action. Severe and pervasive harassment by supervisors or by coworkers. Employer s solicitation of negative comments from coworkers. Exclusion from meetings, trainings, seminars or other activities to which the employee used to be included in and/or should be included. Conduct Insufficient To Constitute The Required Adverse Action In A Retaliation Claim However, not all negative employment actions and/or decisions have provided a legal basis for a claim of retaliation, as employers still retain their legitimate interests in managing their businesses, and courts are instructed to refrain from interfering with ordinary management decisions. The court in Yanowitz concluded: Thus, [m]inor or relatively trivial adverse actions or conduct by employers or fellow employees that, from an objective perspective, are reasonably likely to do no more than anger or upset an employee cannot properly be viewed as materially affecting the terms, conditions, or privileges of employment and are not actionable.... Yanowitz, 36 Cal.4th at 1054. In Pinero v. Specialty Restaurants Corp. (2005) 130 Cal.App.4th 635, a decision that is favorable to employers, the employee claimed that his supervisors began nitpicking at his performance after they learned that he had filed a complaint of discrimination against a former employer who was in a position to influence Pinero s current employer s business. In that case, the court dismissed Pinero s attempt to lump together several insignificant acts to make them seem material in the aggregate to support his claim of retaliation and stated: Before his promotion, Pinero was a model employee who apparently had never been criticized by his employer. While it is understandable Pinero was angered, displeased or even insulted by the criticisms he received when he took over [a restaurant], such displeasure is simply not actionable. The trial court correctly concluded, as a matter of law, that the nitpicking about which Pinero complained was at most a minimal inconvenience, not material, not substantial. No basis exists on which to conclude Pinero was subjected to adverse employment action by [his employer]. Pinero at 646. 6

FEHA does not grant an employee license to litigate his displeasure or trivial grievances with an employer s work-related criticisms. Pinero at 642. In finding that Pinero had not proved a case of retaliation, the Pinero court also considered that Pinero was never threatened with termination. His job title, duties, and responsibilities were not changed. He suffered no loss in compensation, including salary and benefits, nor was he subjected to discipline. Instead, Pinero merely claimed that his performance was unfairly scrutinized and criticized. The court refused to find that sufficient adverse action to support his claim. Such criticism simply is insufficient. [A] mere oral or written criticism of an employee... does not meet the definition of an adverse employment action under [the] FEHA. (Akers, 95 Cal.App.4th at 1457.) A statutory claim for retaliation may be predicated on an unfavorable evaluation only where the employer wrongfully uses the negative evaluation to substantially and materially change the terms and conditions of employment.... Pinero at 646. Similar to Yanowitz, the Pinero court held that to be actionable, the asserted adverse action must involve more than ordinary business decisions and criticisms because: [w]ork places are rarely idyllic retreats, and the mere fact that an employee is displeased by an employer s act or omission does not elevate that act or omission to the level of a materially adverse employment action. In short, neither the materiality nor the deterrence test grants an employee license to litigate his displeasure or trivial grievances with an employer s work-related criticisms. Pinero at 642. (See also, Akers, supra, 95 Cal.App.4th at 1455, a change in employment that is merely contrary to an employee s interests or not to the employee s liking is insufficient to constitute retaliation.) In Brooks v. City of San Mateo Police Department (9th Cir. 2000) 229 F.3d 917, 929, the court determined that because an employer cannot force employees to socialize with one another, ostracism suffered at the hands of coworkers cannot constitute adverse employment action. In Manatt v. Bank of America (9th. Cir. 2003) 339 F.3d 792, 803, the court held that the adverse action complained of by the employee could not support a claim for retaliation where the conduct complained of consisted only of a supervisor staring at the employee in an angry manner and allowing coworkers to be mean to the employee. In essence, the court held that giving the cold shoulder was not enough to establish an adverse action had occurred in a retaliation case. 7

Adverse Action By The Totality Of Circumstances Courts, however, have found that multiple separate retaliatory acts may combine to constitute an adverse employment action even if the individual acts alone might not constitute an adverse action. In Yanowitz, the court stated, There is no requirement that an employer s retaliatory acts constitute one swift blow, rather than a series of subtle, yet damaging injuries. In determining whether an action by the employer will support actionable retaliation, courts will consider the totality of the circumstances. [T]he determination of whether a particular action or course of conduct rises to the level of actionable conduct should take into account the unique circumstances of the affected employee as well as the workplace context of the claim. Yanowitz at 1052. Likewise, the court in Burlington stated: Causal Nexus Context matters. The real social impact of workplace behavior often depends on a constellation of surrounding circumstances, expectations, and relationships which are not fully captured by a simple recitation of the words used or the physical acts performed....hence, a legal standard that speaks in general terms rather than specific prohibited actions is preferable, for an act that would be immaterial in some situations is material in others. Burlington at 69. In order to sustain a claim of retaliation, the employee must also prove that the employer engaged in retaliatory conduct because the employee participated in a protected activity. The causal link may be established by an inference derived from circumstantial evidence, such as the employer s knowledge that the employee engaged in protected activities and proximity in time between the protected action and allegedly retaliatory employment decision. Morgan v. Regents of University of Cal. (2000) 88 Cal.App.4th 52, 69. The proximity in time between when the employee engaged in the protected activity and when the adverse action was taken creates an inference that a causal nexus exists between the two actions, and therefore will satisfy the employee s prima facie burden of establishing a causal nexus. Morgan at 69; Yartzoff v. Thomas (9th Cir. 1987) 809 F.2d 1371, 1376. While neither the state or federal courts have set a strict limit as to how much time may elapse between the protected activity and the adverse action in order to infer a causal nexus, the Ninth Circuit has held that where nine months had passed between the protected activity and the adverse action, no causal nexus inference was created. Manatt, supra, 339 F.3d at 802. However, where over three years passed between the protected activity and the adverse action, a California Court of Appeal still found a causal nexus where a consistent pattern of conduct consistent with retaliatory intent continued during the three years between the protected activity and the adverse action. Wysinger v. Automobile Club of Southern California (2007) 157 Cal.App.4th 413. 8

In addition to temporal proximity, it must also be demonstrated that employers have knowledge of the protected activity in order to show that a causal link exists between the protected activity and the adverse action taken thereafter. Morgan, supra, 88 Cal.App.4th at 70; Hernandez v. Spacelabs Medical Inc. (9th Cir. 2003) 343 F.3d 1107, 1114-1115. Even where the person who made the decision to impose the adverse action upon the employee did not have knowledge of the employee s involvement in protected activity, knowledge will still be found if the decision maker was acting on information provided by a supervisor, or other individual, who had knowledge of the protected activity. Reeves v. Safeway Stores, Inc. (2003) 121 Cal.App.4th 95, 100. Burden Of Proof If the employee is successful in proving his/her prima facie case, the burden of proof shifts to the employer to articulate a legitimate, non-retaliatory explanation for the adverse employment action. Texas Dept. of Community Affairs v. Burdine (1981) 450 U.S. 248, 252-253; Addy v. Bliss & Glennon (1996) 44 Cal.App.4th 205, 215. Most employers will put forth the employee s poor work performance as the non-retaliatory reason for the adverse employment action. The employer does not have to prove that its proffered business reason for the adverse action is legitimate. Instead, the employer merely has to articulate some non-retaliatory reason for the action for the burden to shift back to the employee, as Employers must be given wide latitude to make independent, good-faith personnel decisions without the threat of a jury second-guessing their business judgments. Gonzalez v. Metpath, Inc. (1989) 214 Cal.App.3d 422, 442. Once the employer has articulated a legitimate non-retaliatory explanation for the adverse action, the presumption of retaliation is rebutted and the burden shifts back to the employee to prove intentional retaliation. McDonnel Douglas Corp. v. Green (U.S. 1973) 411 U.S. 792, 802-804; Yanowitz, supra, 36 Cal.4th at 1042. The employee must prove, by specific and substantial evidence that the employer s stated reasons for taking adverse action are merely a pretext for retaliation. St. Mary s Honor Center v. Hicks (U.S. 1993) 509 U.S. 502, 507-508. To do this, the employee must point to evidence which raises a rational inference that intentional retaliation occurred. The evidence offered by the employee must be such that it could reasonably be concluded that the employer s articulated business reasons for taking action were implausible, inconsistent, or baseless and, therefore, support a reasonable inference that the stated reasons were pretext. Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997. 9

Damages OTHER ISSUES Damages that may be awarded to employees who successfully prove they were retaliated against for engaging in a protected activity include, but are not limited to, economic damages such as back pay and lost wages, reinstatement to employment and/or their prior position held, as well as non-economic damages such as emotional distress, humiliation and anxiety. Title VII and the ADA allow the recovery of punitive damages, and the ADEA and FLSA allow the recovery of liquidated damages. Individual Liability Although the California Supreme Court determined that individuals could not be personally liable for retaliation claims under FEHA, this in no way affects their employers liability for retaliatory acts. Jones v. Lodge at Torrey Pines Partnership (2008) 42 Cal.4th 1158. Employers should emphasize to employees that while they may not be held personally liable for retaliatory acts they take part in, employees may still face discipline from their employer up to and including termination should they partake in retaliation. The Ninth Circuit has also rejected individual liability under Title VII. Greenlaw v. Garrett (9th Cir.1995) 59 F.3d 994, 1001. The ADA, on the other hand, does provide for individual liability. Ostrach v. Regents of the University of California (E.D. Cal.1997) 957 F. Supp. 196, 200-201. 10

RECENT RETALIATION CASES SUPERVISORS DISCRIMINATORY ANIMUS TOWARDS EMPLOYEE MAY FORM BASIS FOR EMPLOYER LIABILITY EVEN WHEN THOSE SUPERVISORS DO NOT MAKE THE TERMINATION DECISION ( CAT S PAW DOCTRINE ) Plaintiff Staub was a member of the U.S. Army Reserve while employed with Defendant Proctor Hospital. His duties for the Army included attending drills one weekend a month, and full-time training for two to three weeks per year. Two of his supervisors, Mulally and Korenchuk, were hostile towards Plaintiff s military obligations because others had to cover his shifts while he was on military duty. Mulally issued Plaintiff a disciplinary warning for violating a company rule requiring him to stay in his work area. Plaintiff was then directed to report to either Mulally or Korenchuk when he had no patients. Korenchuk informed Buck, the vice president of human resources, that Plaintiff violated this directive. Buck relied on this accusation, and after reviewing Plaintiff s personnel file, terminated Plaintiff. Plaintiff then sued, claiming his discharge was motivated by hostility toward his military obligations in violation of the Uniformed Services Employment and Reemployment Rights Act of 1994 ( USERRA ). He alleged that Mulally and Korenchuk were the hostile ones, not Buck, but that their actions influenced Buck s decision to terminate him. A jury found for Plaintiff. The Seventh Circuit Court of Appeals reversed, finding that this was a cat s paw case, which can only succeed if the supervisors exercised such singular influence over Buck, the decision maker, that the decision to terminate was the product of blind reliance. The Seventh Circuit found that Buck was not sufficiently influenced by Mulally and Korenchuk and that there was no USERRA violation. The U.S. Supreme Court reversed, holding that if a supervisor performs an act motivated by antimilitary animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable under USERRA. Both Mulally and Korenchuk were acting within the scope of their employment when they took the actions that allegedly caused Buck to fire Plaintiff, and those actions were motivated by hostility toward Plaintiff s military obligations. The Supreme Court remanded, instructing the Seventh Circuit decide whether the jury instruction was harmless error or whether there should be a new trial. Staub v. Proctor Hospital (2011) 131 S.Ct. 1186. A PUBLIC EMPLOYEE S RIGHT TO PETITION FOR REDRESS UNDER THE FIRST AMENDMENT IS LIMITED TO MATTERS OF PUBLIC CONCERN A police chief filed a union grievance after being terminated and was reinstated. He then began receiving directives from his employer as how to perform his duties. He filed a second grievance and an arbitrator ruled that some of the directives had to be withdrawn or modified. The police chief then filed an action under 42 U.S.C. 1983 contending that the directives were in retaliation for his filing and winning his first grievance for reinstatement. He prevailed in the trial court. 11

The Third Circuit of Appeals then held on appeal that a public employee who petitioned the government by filing a formal grievance was protected under the Petition Clause of the First Amendment. The Supreme Court reversed, holding that, just as with the Speech Clause, the Petition Clause of the First Amendment required that the public employee who petitioned for redress of grievances must do so on a matter of public (not personal) concern. The Court found that the police chief s first grievance was not protected because it was of only personal and not public concern. The principle of Connick v. Myers (1983) 461 U.S. 138 now applies to both the Speech Clause and the Petition Clause of the First Amendment. Borough of Duryea v. Guarnieri (2011) 131 S.Ct. 2488 THIRD PARTY HAS STANDING TO SUE UNDER ANTI-RETALIATION PROVISION OF TITLE VII BASED SOLELY ON ASSOCIATION WITH EMPLOYEE WHO ENGAGED IN PROTECTED ACTIVITY Miriam Regalado, an employee of North American Stainless (NAS), filed a charge alleging sex discrimination with the EEOC against NAS. NAS then fired Eric Thompson, Regalado s fiancé. Thompson sued NAS claiming that he was fired in order to retaliate against Regalado. The Supreme Court of the United States reviewed (1) whether NAS s firing of Thompson constituted unlawful retaliation; and (2) if it did, whether Thompson could state a claim based on Title VII. The Court construed Title VII s anti-retaliation provision broadly, finding that it prohibits any employer action that might have dissuaded a reasonable worker from making or supporting a charge of discrimination. Because a reasonable worker might be dissuaded from engaging in a protected activity if she knew her fiancé would be fired, NAS s firing of Thompson violated Title VII. In dicta, the Court declined to identify a fixed class of relationships for which thirdparty reprisals are unlawful. Rather, whether a third-party employee is afforded protection will be decided on the particular circumstances of each case. The Court also concluded that Thompson had standing to sue under Title VII. Title VII provides that an action may be brought by the person claiming to be aggrieved. This requires something more narrow than Article III standing, which consists of injury in fact caused by the defendant and remediable by the court. However, the person aggrieved is not restricted to the employee who actually engaged in the protected activity (here, filing a charge of discrimination with the EEOC). Rather, suit can be brought by any employee whose interests fall within the zone of interests sought to be protected by Title VII. NAS s termination of Thompson was the unlawful act by which NAS punished Regalado. Thompson was therefore within the zone of interests sought to be protected, so he was an aggrieved person with standing to sue. Thompson v. North American Stainless, LP (2011) 131 S.Ct. 863. 12

THE FAIR LABOR STANDARDS ACT PROHIBITS RETALIATION AGAINST EMPLOYEE WHO MAKE ORAL COMPLAINTS ABOUT WAGE AND HOUR VIOLATIONS Plaintiff Kevin Kasten was employed as a plant worker by Defendant Saint-Gobain Performance Plastics Corporation. Plaintiff alleged that he was discharged by Defendant Saint-Gobain because he orally complained about the time clocks, which he and other employees used to clock in and out of work each day. Specifically, Plaintiff complained that the time clocks were located between the area where the employees put on their protective equipment and the area where employees carried out their assigned tasks, and that location prevented employees from receiving credit for the time it took for them to don and doff their clothes. Plaintiff alleged he repeatedly called, what he believed was an unlawful location for the time clocks, to the Defendant s attention, and Plaintiff was eventually disciplined and later terminated. Plaintiff brought an anti-retaliation suit against Defendant under the Fair Labor Standards Act, Section 213(a)(3), which forbids employers from terminating any employee because such employee has filed any complaint. The District Court and Seventh Circuit granted summary judgment in favor of the Defendant because they interpreted Section 213(a)(3) did not protect oral complaints, therefore Plaintiff was not protected from retaliation related to his oral complaints regarding the location of the time clocks. The United States Supreme Court vacated the summary judgment. In accordance with prior Department of Labor and EEOC opinions, the court held that the phrase filed any complaint encompasses oral complaints, as well as written complaints, so long as the oral complaint is sufficiently clear and detailed enough for a reasonable employer to understand it. The court based its decision on functional considerations, which indicated that Congress intended the antiretaliation provision to cover oral as well as written complaints. Further, the court reasoned that limiting the scope of the provision could possibly prevent the use of hotlines, interviews, and other oral methods of receiving complaints. Accordingly, the court interpreted Section 213(a)(3) to protect employees who make oral complaints of FLSA violations. Therefore, summary judgment was reversed and the case was remanded to determine whether Plaintiff satisfied the notice requirement. Kasten v. Saint-Gobain Performance Plastics Corporation (2011) 131 S.Ct. 1325. PUBLIC EMPLOYEE NOT ENTITLED TO QUALIFIED IMMUNITY IN LAWSUIT FOR COERCING AN INDEPENDENT CONTRACTOR TO TERMINATE AN EMPLOYEE IN VIOLATION OF HIS FIRST AMENDMENT RIGHTS FOR TESTIFYING AS AN EXPERT WITNESS Plaintiff was a domestic violence counselor for Sound Mental Health (Sound), a private employer providing treatment to criminal defendants. It was considered an independent contractor to the municipal court. Plaintiff was subpoenaed to testify as an expert witness on behalf of a criminal defendant in another provider s treatment program on the issue of whether the provider unfairly terminated the defendant s treatment. The manager of probation services 13

(Wilson) was not happy with the testimony and contacted the Plaintiff s supervisor about this and two weeks later Plaintiff was terminated. Sound advised the Plaintiff that the probation unit had lost trust in the integrity of its program and therefore, they had terminated him. Plaintiff then filed a lawsuit against Sound and Wilson under 42 U.S.C. section 1983 claiming that his termination violated his First Amendment right to Free Speech. The trial court granted the supervisor s motion for summary judgment finding he was entitled to qualified immunity. The Ninth Circuit, however, determined that the public employee test applied to the Plaintiff because of the nature of the relationship between the municipal court and Sound, and the nature of the services Sound provided. Plaintiff s role in providing the services was such that Plaintiff s relationship with the municipal court was analogous to that of an employer and employee. The court found that the Plaintiff spoke on a matter of public concern regarding the treatment of a criminal defendant. He did not speak as part of his official duties because he was subpoenaed to testify in a case in which he did not have any personal or professional involvement. The facts seemed to show that the Plaintiff was terminated because of Wilson s comments to his supervisor about the subpoenaed testimony. There was a lack of evidence that the speech caused disruption to the workplace or interfered with working relationships, or that Wilson had an adequate justification to pressure Sound to terminate Plaintiff. The court found that there were triable issues of fact as to whether Sound would have terminated the Plaintiff for other reasons, unrelated to his speech. Moreover, the court found that applicable case law would have alerted a reasonable person in Wilson s position that it would be unlawful to retaliate against an employee for having testified in a criminal proceeding pursuant to a subpoena. Therefore, the Plaintiff s First Amendment rights were clearly established at the time of his termination and Wilson, the public employee, was not entitled to qualified immunity. Clairmont v. Sound Mental Health (9th Cir. 2011) 632 F.3d 1091. EMPLOYER VIOLATED EMPLOYEE S FIRST AMENDMENT RIGHTS BY DEMOTING HER BASED ON MERE SPECULATION THAT SHE WOULD BE DISRUPTIVE OR DISLOYAL Plaintiff Nichols worked for Defendant Washoe County School District for nine years. During the last six years, she was the administrative assistant to Defendant s General Counsel, Blanck. Blanck alleged that Defendant s Superintendent misused Defendant s funds and he was suspended as General Counsel. Thereafter, Dancer, the head of Human Resources, transferred Plaintiff to a temporary position with the Human Resources department. Dancer informed Plaintiff that she would be reinstated as administrative assistant to the General Counsel regardless of whether Blanck was terminated. The next day, Plaintiff attended Defendant s Board of Trustees meeting where Blanck s employment was discussed. Although she did not speak to Blanck, she sat next to him. During the meeting, the Board announced that Blanck was terminated. The following day, Dancer informed Plaintiff she could not return to the General Counsel s office because her attendance at the meeting created an impression of disloyalty to Defendant. Her options were to take early retirement or continue her work at the Human Resources department where her salary would be frozen and she elected to retire early. 14

Plaintiff sued under Section 1983, claiming she had been demoted in retaliation for exercising her First Amendment rights. Defendant prevailed in the District Court and the Ninth Circuit Court of Appeals reversed. At issue was whether Plaintiff s conduct was protected by the First Amendment. In the context of public employment, courts evaluate First Amendment retaliation claims through a balancing test. The employee s interest, as a citizen, in commenting upon matters of public concern is weighed against the employer s interest in promoting the efficiency of its public services. An employer will prevail if the employee s conduct impairs discipline by supervisors or harmony among co-workers, has a detrimental impact on close working relationships for which personal loyalty and confidence are necessary, or impedes the performance of the [employee s] duties or interferes with the regular operation of the enterprise. The employer need not establish that the employee s conduct actually caused a disruption in the workplace; reasonable predictions of disruption are sufficient. However, an employer cannot prevail based on mere speculation that an employee s conduct will cause disruption. The court found there was no evidence to suggest that Plaintiff s association with Blanck actually disrupted Defendant s operations. There was no evidence that their association interfered with Plaintiff s job performance or negatively affected her relationships with Dancer or her co-workers. Moreover, Defendant did not produce evidence to establish that its predictions of disruption or disloyalty were anything but speculation. As a matter of law, Defendant failed to produce adequate evidence to establish that its interests in workplace efficiency outweighed Plaintiff s First Amendment interest in associating with Blanck. The Ninth Circuit reversed the grant of summary judgment and remanded to the District Court for further proceedings. Nichols v. Dancer (9th Cir. 2011) 657 F.3d 929. EMPLOYEE FAILED TO EXHAUST HER ADMINISTRATIVE REMEDIES BY APPEALING THE CIVIL SERVICE BOARD S DECISION AND THEREFORE COULD NOT PROCEED WITH HER RETALIATION CLAIM Plaintiff Terri McCada was employed by Defendant City of Fresno as a code enforcement specialist. In 2008, a co-worker made a harassment complaint against Plaintiff. As a result, Plaintiff was suspended and transferred to the Department of Public Utilities in the Community Sanitation Division. Plaintiff alleged that her transfer was in retaliation for assisting in an EEOC investigation arising from another employee s claim of racial and gender discrimination. Plaintiff appealed her suspension and transfer to the Civil Service Board. At the 3-day hearing before the Board, Plaintiff was represented by counsel and had the opportunity to subpoena witnesses and present evidence. At the hearing, Plaintiff argued that she was continuously retaliated against for being a witness to her co-worker s complaint of racial discrimination. The Board issued written findings and an order upholding the suspension and transfer. Plaintiff did not seek a writ of mandate to challenge the Board s decision and instead filed a complaint against Defendant for retaliation in violation of the FEHA. Defendant moved for summary judgment on Plaintiff s claim of retaliation. Defendant contended that Plaintiff failed to exhaust her administrative remedies of seeking a writ of 15

mandate to overturn the Board s decision, which barred Plaintiff from pursuing a FEHA claim for retaliation. Defendant further contended that Plaintiff was collaterally estopped from bringing a retaliation claim. The District Court agreed with Defendant s contentions. The court explained that California law requires employees to challenge an agency s administrative decision in order to avoid the decision s preclusive effect in subsequent actions. The court confirmed that the binding effect of administrative judicial proceedings applies to FEHA claims. Plaintiff raised the issue of her alleged retaliatory suspension and transfer at the hearing before the Board and she failed to challenge the Board s decision through a writ of mandate. Therefore, the decision of the Board became final and binding as to her claim for retaliation. In addition, Plaintiff further claimed that her new supervisor also committed acts of retaliation against her. However, Plaintiff presented no evidence that her new supervisor had knowledge that she participated in the protected activity of assisting in the investigation of her coworker s racial discrimination complaint to the EEOC. Further, Plaintiff presented no evidence that she exhausted her administrative remedies, as to the claim of retaliation against her new supervisor, especially in light of the fact that these acts were not addressed in her hearing before the Board. Therefore, summary judgment was entered in favor of Defendant. Wilson, et al. v. City of Fresno (N.D.Cal. 2011) 2011 U.S. Dist. LEXIS 32965. EMPLOYEE S SEXUAL HARASSMENT CLAIM FAILS BUT EMPLOYEE MAY PROCEED WITH RETALIATION CLAIM BASED ON RETALIATORY HARASSMENT BY COWORKERS Plaintiff Patrick Kelley was an apprentice ironworker employed by Defendant Conco Companies. Plaintiff complained that he was subjected to a barrage of sexually demeaning comments and gestures by his male supervisor. Plaintiff further alleged that he was subjected to continued harassment and physical threats by coworkers in retaliation after he complained about his supervisor. Defendant changed Plaintiff s worksite to separate him from his harassers, but Plaintiff was later suspended by his union rendering him ineligible for employment. After his suspension, he was not rehired by Defendant. Plaintiff filed suit for sexual harassment, retaliation, termination in violation of public policy, and other claims. The trial court granted Defendant s motion for summary judgment on all claims and Plaintiff appealed. The Court of Appeal affirmed in part and reversed in part. The court affirmed summary judgment for Defendant on the sexual harassment claim holding that Plaintiff failed to produce evidence that he suffered discrimination based on his sex. Specifically, there was no evidence that Plaintiff s coworkers were homosexual, that the harassment was motivated by sexual desire, or that the comments were due to Plaintiff s actual or perceived sexual orientation. While the court acknowledged that the comments directed at Plaintiff were graphic, vulgar, and sexually explicit, it held that these actions were not severe enough to constitute sexual harassment. Further, the court held that there was no sexual harassment based on a hostile work environment because there was only a single incident with his former supervisor which is insufficient to constitute hostile work environment sexual harassment pursuant to FEHA. 16

Although the court found that Defendant was not liable for sexual harassment, the court reversed summary judgment on Plaintiff s retaliation claim under FEHA. The court found that Plaintiff had presented evidence that he engaged in protected activity: reporting conduct which he in good faith believed constituted sexual harassment. Further, the court found that Plaintiff had presented evidence that he was subject to an adverse employment action, which in this case was harassing comments and some threats of violence by coworkers. The court held an employer may be held liable for coworker retaliatory conduct if the employer knew or should have known of coworker retaliatory conduct and either participated and encouraged the conduct, or failed to take reasonable actions to end the retaliatory conduct. Plaintiff also established a clear inference that he was subjected to retaliation by some of his coworkers as a result of his complaints against his supervisor because his coworkers would make express references to the complaints he made. Therefore, Plaintiff raised triable issues of fact as to whether coworkers engaged in retaliatory harassment, whether Defendant had knowledge of the improper conduct, and whether Defendant took appropriate response actions, and accordingly Plaintiff could proceed with his claim for retaliation. Kelley v. The Conco Companies (2011) 196 Cal.App.4th 191. EMPLOYEE NOT SEXUALLY HARASSED BY COWORKERS QUESTIONS ABOUT PREGNANCY, NEGATIVE COMMENTS ABOUT PREGNANCY DID NOT CONSTITUTE AN ADVERSE ACTION TO SUPPORT A RETALIATION CLAIM, AND EMPLOYEE S E-MAILS SENT FROM WORK NOT PROTECTED BY ATTORNEY- CLIENT PRIVILEGE Plaintiff Gina Holmes was hired by Defendant Petrovich Development as an executive assistant to the company owner. One month after being hired, Plaintiff told Defendant that she was pregnant and would be taking six weeks maternity leave, and later told Defendant she may take a maximum of four months maternity leave. Through a series of e-mails, Defendant expressed his concerns that Plaintiff had decided to extend her maternity leave, and Defendant subsequently forwarded the e-mails to other employees. Plaintiff learned that the e-mails had been forwarded and expressed her displeasure. Plaintiff eventually quit. While she was still working however, Plaintiff corresponded via e-mail with her attorney related to her claims of discrimination and retaliation against Defendant. Plaintiff sued Defendant for sexual harassment, retaliation, wrongful termination, and related claims. The trial court granted summary judgment for the Defendant and Plaintiff appealed. The Court of Appeal upheld the ruling of the trial court. Plaintiff claimed that she was sexually harassed by her coworkers, as they treated her differently and asked her questions about her pregnancy and maternity leave. The Court of Appeal denied Plaintiff s sexual harassment claim because the conduct complained of was not severe misconduct and there was no severe or pervasive pattern of harassment, as she testified that when she asked her coworkers to stop asking her about her pregnancy and maternity leave they did. Accordingly, the court held that Plaintiff was not subjected to a hostile work environment, as the 17

conduct complained of was not objectively offensive and stated that the Fair Employment and Housing Act is not a civility code. In addition, the court denied Plaintiffs retaliation claim because there was no evidence she had experienced an adverse employment action. Plaintiff argued that she was subjected to retaliation after disclosing her plans to take the maximum allowable maternity leave. She claimed Defendant retaliated against her by forwarding her personal information to other employees and by subjecting her to negative comments about her pregnancy. The court held that such actions were insufficient to establish an adverse employment action, as there was no substantial adverse change in the terms and conditions of the Plaintiff s employment and Plaintiff quit despite the Defendant s preference for her to stay. Plaintiff also claimed that the e-mails she sent to her attorney regarding possible legal action against Defendant were privileged, but the court rejected this claim. The court concluded that the e-mails did not constitute confidential communications because Plaintiff used the company computers to send the e-mails, and Plaintiff had been informed of the company policy prohibiting use of the computers for personal e-mails and was explicitly advised that employees would have no right to privacy with respect to information and e-mails on the computers. Accordingly, the court found that sending e-mails on the company computer was analogous to consulting her lawyer in her employer s conference room, which creates an expectation that her communications would be overheard. Therefore, the e-mails were not protected by the attorneyclient privilege. Holmes v. Petrovich Development Company (2011) 191 Cal.App.4th 1047. NO REINSTATEMENT FOR EMPLOYEE WHO TOOK 19 WEEKS OF MEDICAL LEAVE AND NO EVIDENCE OF RETALIATION WHEN EMPLOYEE TRANSFERRED BASED ON A REORGANIZATION Plaintiff Katrina Rogers was a long time employee of Defendant County of Los Angeles. Plaintiff suffered from work-related stress and was eligible for 12 weeks of medical leave under the CFRA. Plaintiff was out on medical leave for 19 weeks. While Plaintiff was on leave, a new executive officer was appointed. In an effort to streamline the organizations structure of the County, the executive officer made changes in the personnel office, which included the decision to transfer Plaintiff to another position. Upon her return to work, Plaintiff was transferred to a new department and a new position. Plaintiff filed suit against Defendant for interfering with Plaintiff s rights under the CFRA and retaliation based on her job transfer. A jury found in favor of Plaintiff and awarded her damages. Defendant appealed and the Court of Appeal reversed and remanded the case to the trial court to enter judgment in favor of Defendant. The Court of Appeal held that the County had not interfered with Plaintiff s right to take 12 weeks of leave under the CFRA. Plaintiff alleged that interference occurred when she was transferred to a new position, which she alleged was not comparable to the position she had prior to taking medical leave. The court reasoned that the CFRA reinstatement rights, which require 18

employers to return employees to the same or comparable position upon return from leave, only apply when an employee returns to work on or before the expiration of 12 weeks. Because Plaintiff returned to work after 19 weeks of leave, her reinstatement rights expired, and therefore, her interference claim failed as a matter of law. The Court of Appeal further held that Plaintiff s claim of retaliation failed because there was insufficient evidence that she suffered from an adverse employment action. Defendant presented evidence that Plaintiff was transferred to a new department and new position due to a reorganization by a new executive director, and Plaintiff offered no evidence in response to Defendant s legitimate, nondiscriminatory reason for transferring Plaintiff. In addition, the decision to transfer Plaintiff was made after she had been on leave for only one month, so at the time, Defendant did not know that she would be on an extended leave. Accordingly, Plaintiff failed to establish a causal connection between her taking a medical leave under the CFRA and Defendant s decision to transfer her. Rogers v. County of Los Angeles (2011) 198 Cal.App.4th 480. A GOOD FAITH DISCLOSURE TO SUPPORT A WHISTLEBLOWER COMPLAINT CAN BE BASED ON FALSE INFORMATION Plaintiff was employed by Defendant California State University ( CSU ) at San Diego State University Campus as a conditioning coach, who worked with the football team and other athletic teams. In 2003, in response to an athletic department audit, Plaintiff submitted a 103- page document alleging NCAA rule violations, including statements that he had heard about the head football coach being drunk while traveling with the team. Plaintiff filed an internal administrative complaint that he had been retaliated against for his report to the auditor in violation of the California Whistleblower Protection Act ( CWPA, applicable to state employees only). Plaintiff claimed he was removed from his position and had his hours in the weight room restricted to 6:00 a.m. to 2:00 p.m. in retaliation for his report to the auditor. Government Code section 8547, et seq. CSU hired an attorney to investigate Plaintiff s complaint. The attorney concluded Plaintiff was not removed from his position because he reported NCAA rule violations. However, some of the personal and program-related accusations raised by Plaintiff in his report to the auditor (but not those allegations related to the topic of the audit) were a factor in the decision to remove him. The attorney concluded his work hours restrictions constituted a re-assignment and job modification that negatively impacted his ability to work with other athletic teams. The attorney found the restrictions were unnecessary, demeaning and taken in response to Plaintiff s refusal to voluntarily leave the football program. The attorney also concluded Plaintiff s statements about the football coach were hearsay, fully refuted, and that the personal allegation against the football coach was not a protected disclosure. CSU sent Plaintiff a final determination letter regarding the investigation, which stated that Plaintiff s statement about the football coach was not a protected disclosure under the CWPA because it was not made in good faith. CSU determined that Plaintiff s allegations about the 19

football coach were part of a personal and vindictive agenda against the coach. Further, the letter stated that Plaintiff s removal from the football program was not retaliatory, however, the restriction of Plaintiff s work hours was retaliatory, and the restriction of Plaintiff s work hours was rescinded. Plaintiff sought a writ of mandate claiming that CSU s actions against him were arbitrary and capricious, lacking evidentiary support, or unlawful. On appeal, the court was asked to determine whether CSU applied the correct definition of good faith in regard to the conclusion that Plaintiff s allegations about the football coach were not made in good faith pursuant to the CWPA (Government Code section 8547.12). The Court of Appeal interpreted good faith according to the CWPA, which requires that whistleblowers submit their complaints with a sworn statement that the information contained in the complaint is true, or believed to be true, and that whistleblowers provide the investigator with honest information. Although the CWPA only applies to state employees, the Local Government Disclosure of Information Act ( LGDIA ; Government Code section 53296, et seq.), protects whistleblowers employed by local government agencies. The LGDIA contains provisions similar to the CWPA. The LGDIA requires employees to submit complaints under penalty of perjury and protects employees from retaliation so long as their complaint does not disclose information they know to be false or disclose information without regard for its truth or falsity. Accordingly, the court s interpretation of the CWPA protection of whistleblowers who make a complaint in good faith, although later determined to be false, is likely applicable to local agency employees submitting complaints made under the LGDIA. Because the investigating attorney concluded that Plaintiff was not knowingly dishonest, the court found that CSU s conclusion that Plaintiff had not reported the football coach s actions in good faith lead to an inference that CSU acted arbitrarily and capriciously. The court further stated that the investigating attorney s reasoning for finding that Plaintiff had not made his report in good faith, namely the fact that the statement about the football coach was proved false and was hearsay, was improper, as such reasoning would restrict whistleblowers to reporting only what they have themselves perceived. Accordingly, the court determined that CSU s erroneous interpretation of the good faith standard affected the analysis of Plaintiff s retaliation complaint based on his removal from the football team. In addition, the court concluded that CSU s determination letter to Plaintiff did not comply with law, as it failed to identify the retaliators or address any disciplinary action taken. Because retaliation in violation of the CWPA is a criminal offense, the court determined that the letter should have stated whether the matter was referred for criminal prosecution, and if not why it was not. Therefore, Plaintiff s petition for writ of mandate was granted, and CSU was required to comply with the CWPA. Ohton v. Board of Trustees of the California State University (2010) 180 Cal.App.4th 1402. 20