California Governor Signs Bill Making Request for Reasonable Accommodation Grounds for Retaliation Claim Under FEHA

The Courts of Appeal have held that an employee's requesting reasonable accommodation is not a "protected activity" for which a retaliation claim will lie under the Fair Employment and Housing Act. (See, for example, Rope v. Auto-Chlor, discussed here).  That is because protected activity was (previously) defined as "opposing" some unlawful practice, or participation in an investigation or proceeding involving FEHA-based claims.  A request for accommodation is not "opposing" an unlawful practice, so it did not fall within the previous definition.

Not to worry. The Legislature just added to the list of protected activities an employee's request for accommodation, whether or not it is granted.  So, when an employer denies reasonable accommodation, that was and is separately actionable. Now, the employee likely will assert a retaliation claim as well, claiming that the denial was in retaliation for the employee's making the request.  

May the employer lawfully deny an accommodation because it's not "reasonable" or because the employee is not a "qualified individual," but still be liable for retaliation? We'll see how the courts react.

The new law is AB 987, text here.

Court of Appeal: No Duty to Remove Essential Job Functions as Reasonable Accommodation and More...

The Court of Appeal in Nealy v. City of Santa Monica upheld summary judgment in a disability discrimination case.  The case involved an injured "solid waste equipment operator," which may mean garbage truck operator.  Nealy injured his right knee lifting a large bin, leading to several surgeries.

In a nutshell, the City allowed Nealy a long leave of absence. They met with him several times. His doctors placed many physical restrictions on him, precluding him from the heavy lifting required of the solid waste equipment operator.   Nealy asked for accommodations, including removing lifting requirements and allowing Nealy to work on one particular type of truck. The City took the position it was not required to remove essential job functions.  The City also looked into transfers. But  Nealy apparently was not qualified for the open, available jobs.

Nealy sued for disparate treatment, denial of reasonable accommodation, and failure to engage in the interactive process. He also sued for retaliation.  The Court of Appeal upheld summary judgment on several grounds.  The explanation of the law on each claim is clear and will help employers understand the legal issues. So, here goes:

Reasonable accommodation

The elements of a reasonable accommodation cause of action are (1) the employee suffered a disability, (2) the employee could perform the essential functions of the job with reasonable accommodation, and (3) the employer failed to reasonably accommodate the employee’s disability. (Wilson v. County of Orange (2009) 169 Cal.App.4th 1185, 1192; Nadaf-Rahrov, supra, at p. 977.)  * * *  The fact that one essential function may be up for debate does not preclude summary judgment if the employee cannot perform other essential functions even with accommodation.

In this case, there was copious evidence that Nealy could not perform one or more of the job's essential functions. The Court rejected his arguments about accommodations via removal of essential functions. 

FEHA does not obligate the employer to accommodate the employee by excusing him or her from the performance of essential functions. (Lui v. City and County of San Francisco (2012) 211 Cal.App.4th 962, 985.) There is no dispute heavy lifting was an essential function of the solid waste equipment operator—even for those who operated the automated side loader. 

The Court then turned to reassignment as a form of accommodation.  Here's the legal standard:

FEHA requires the employer to offer the employee “comparable” or “lower graded” vacant positions for which he or she is qualified. (Cal. Code Regs., tit. 2, § 11068, subd. (d)(1), (2).) FEHA does not require a reassignment, however, if there is no vacant position for which the employee is qualified. (Cuiellette v. City of Los Angeles (2011) 194 Cal.App.4th 757, 767.) Additionally, FEHA does not require the employer to promote the employee or create a new position for the employee to a greater extent than it would create a new position for any employee, regardless of disability. (Cal. Code Regs., tit. 2, § 11068, subd. (d)(4); Spitzer, supra, 80 Cal.App.4th at p. 1389.)  * * * 

In cases when courts have found a triable issue on reassignment, the employees have adduced evidence obtained through discovery that vacant positions for which they were qualified existed during the relevant period, but the employer failed to offer the positions to them. (Nadaf-Rahrov, supra, 166 Cal.App.4th at p. 968; Spitzer, supra, 80 Cal.App.4th at p. 1390.) Nealy has not adduced any such evidence here to dispute the City’s evidence that no other vacant positions for which he was qualified existed during the relevant period in 2010. Under FEHA, the City was thus relieved of its duty to reassign Nealy. (Spitzer, supra, 80 Cal.App.4th at p. 1389.)  * * * 

 In short, an employer can prevail on summary judgment on a claim of failure to reasonably accommodate by establishing through undisputed facts that “there simply was no vacant position within the employer’s organization for which the disabled employee was qualified and which the disabled employee was capable of performing with or without accommodation . . . .”

Disparate treatment

The Court also held that because Nealy was not a "qualified individual," he could not prevail on a disability discrimination claim.

The showing required is identical to that required for a cause of action for failure to reasonably accommodate. That is, a qualified individual is someone who is able to perform the essential functions of his or her job, with or without reasonable accommodation. (Id. at p. 262.) FEHA permitted the City to discharge Nealy if he was unable to perform the essential functions of his job even with reasonable accommodations. (Gov. Code, § 12940, subd. (a)(1) [“This part does not prohibit an employer from . . . discharging an employee with a physical or mental disability . . . where the employee, because of his or her physical or mental disability, is unable to perform his or her essential duties even with reasonable accommodations . . . .”]; Green v. State of California, supra, at p. 262.) 

Interactive Process

To prevail on a claim for failure to engage in the interactive process, the employee must identify a reasonable accommodation that would have been available at the time the interactive process occurred. (Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1018 (Scotch); Nadaf-Rahrov, supra, at p. 984.) “An employee cannot necessarily be expected to identify and request all possible accommodations during the interactive process itself because ‘“‘[e]mployees do not have at their disposal the extensive information concerning possible alternative positions or possible accommodations which employers have . . . .’”’” (Scotch, supra, at p. 1018.) But the employee should be able to identify specific, available reasonable accommodations through the litigation process, and particularly by the time the parties have conducted discovery and reached the summary judgment stage. (Id. at p. 1019.) * * * *

The only accommodations Nealy argues should have been available are (1) restructuring his old job so that he did not lift heavy objects or kneel; (2) assigning him to the automated side loader permanently; (3) reassigning him to another position; and (4) retraining. As we concluded above, the first two were not reasonable accommodations allowing him to perform the essential functions of the job, and the third was not reasonable because there were no vacant positions for which he was qualified. The fourth—retraining—does not assist Nealy. He provides absolutely no detail as to what type of retraining would have enabled him to perform the solid waste equipment operator job or some other vacant position. The bare assertion that the City should have provided retraining does not create a triable issue of fact. 

Retaliation

Nealy also lost on his retaliation claim.  The Court of Appeal made clear that he had not "engaged in a protected activity" merely by asking for a reasonable accommodation. The Court listed what counts as protected activity under the statute.

FEHA makes it unlawful for the employer to discharge or discriminate against an employee because he or she has “opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part.” (Gov. Code, § 12940, subd. (h).) Thus, protected activity takes the form of opposing any practices forbidden by FEHA or participating in any proceeding conducted by the DFEH or the State Fair Employment and Housing Council (FEHC). (Cal. Code Regs., tit. 2, §§ 11002, subds. (a), (b), 11021, subd. (a).) 

Opposing practices forbidden by FEHA includes seeking the advice of the DFEH or FEHC; assisting or advising any person in seeking the advice of the DFEH or FEHC; opposing employment practices the employee reasonably believes to exist and believes to be a violation of FEHA; participating in an activity perceived by the employer as opposition to discrimination; or contacting, communicating with, or participating in the proceeding of a local human rights or civil rights agency regarding employment discrimination.  * * * * 

 And then the Court emphasized:

Nealy does not identify any activity that qualifies as protected activity. He contends his protected activity was seeking the City’s assistance to return to work—that is, seeking reasonable accommodation—and initiating the interactive process. These acts alone do not amount to “oppos[ing] any practices forbidden under” FEHA or participating in DFEH or FEHC proceedings. (Gov. Code, § 12940, subd. (h); Rope, supra, 220 Cal.App.4th at p. 652.) If they did, this interpretation of protected activity “‘would significantly blur and perhaps obliterate the distinction between an action for failure to accommodate or engage in the interactive process and retaliation.’” (Rope, supra, at p. 653.) 

* * * *

This case is Nealy v. City of Santa Monica and the opinion is here.


 

U.S. Supreme Court: The Sarbanes-Oxley Act's Retaliation Protection

Extends to private companies' employees.

Remember Enron?  Me neither.  That was one stock I somehow failed to buy.  And it was before the iPad .Anyway, those of you who do remember know that Enron resulted in a big financial mess.  There were Enron employees who attempted to uncover the fraud the management was perpetrated. They suffered retaliation by Enron's management.  Allegedly. Employees of Enron's auditors and lawyers who tried to blow the whistle on corrupt Enron managers. But these employees experienced retaliation by their employers as well. (Allegedly).

So, after the Enron debacle, Congress passed the Sarbanes-Oxley Act which, in part, protects whistleblowers from retaliation for reporting fraud by public companies.

As it turns out, mutual funds are public companies and, therefore, covered by SOX. But they typically have no employees.  Mutual funds hire private companies to act as "investment advisers." The advisers have the employees. The funds just hold the stocks, bonds, etc.

So, Lawson worked for an "adviser" to a mutual fund, which was a privately held company.  She allegedly complained about certain mutual fund accounting practices she believed were illegal.
The question for the Supreme Court in Lawson v. FMR LLC was whether the SOX anti-retaliation provision applies only to the employees of the publicly traded company (the mutual fund itself).  Or, did the anti-retaliation protections also apply to employees of non-publcly traded companies who blow the whistle on public corporation fraud (Lawson's employer, the investment advisor).

The Supreme Court decided to extend protections to non-public companies.

The prohibited retaliatory measures enumerated in §1514A(a)—discharge, demotion, suspension, threats, harassment, or discrimination in the terms and conditions of employment—are commonly actions an employer takes against its own employees. Contractors are not ordinarily positioned to take adverse actions against employees of the public company with whom they contract. FMR’s interpretation of §1514A, therefore, would shrink to insignificance the provision’s ban on retaliation by contractors.The dissent embraces FMR’s “narrower” construction. See post, at 2, 3, 4, 7.

The dissent (Sotomayor, Kennedy, and Alito) opined that the whistleblower protections apply only to the employees of the public employer, not to employees of the private companies who may "contract" with the public company.

This is Lawson v. FMR LLC and the opinion is here.

Court of Appeal Addresses Motivation in Retaliation Cases and the Role of Investigations

Mendoza was a long-term nurse for Western Medical Center - Santa Ana.  His performance had been excellent.  Mendoza claimed his new boss was harassing him.  Erdmann, the boss, claimed that Mendoza was sexually inappropriate to him.  The employer investigated and determined that both employees engaged in misconduct.  The employer fired both of them.

Mendoza sued for wrongful termination, claiming the hospital employer fired him for complaining about Erdmann's conduct.  He reasoned that the hospital would not have learned about any complaints about Mendoza had he not complained about Erdmann. An expert testified the hospital's investigation was not as thorough as it could have been, although the expert conceded he did not know of any facts that a "better" investigation would have uncovered.

A jury found in favor of Mendoza and awarded about $238,000 in economic and non-economic damages.  But the jury was instructed that it could find retaliation if an unlawful motive was "a" motivating reason. The Court of Appeal reversed and ordered a new trial:

It is therefore clear that the court erred in its instruction of the jury. The court should have instructed the jury to determine whether Mendoza’s report of sexual harassment was a substantial motivating reason for Mendoza’s discharge. Following Harris and Alamo, we conclude this error was prejudicial. The jury’s verdict in favor of Mendoza was extremely close (a nine to three vote). No other instructions provided to the jury could have cured the erroneous instruction with regard to the contested element. Viewing the evidence “in the light most favorable” to defendants (Huffman v. Interstate Brands Corp. (2004) 121 Cal.App.4th 679, 692), there is a reasonable probability that the
instructional error prejudicially affected the verdict.

The hospital claimed there was insufficient evidence of retaliation to support any verdict and asked the appellate court to direct a judgment in its favor.  The court of appeal ordered a retrial.  Bolstered by case law and law review articles, the court offered its thoughts (not evidence, but a basis for a plaintiff's argument) on why the jury might have found a retaliatory motive, which is the interesting part of this opinion for employers and HR professionals:

Retaliation, if it occurred, was not motivated out of a desire to protect Erdmann or punish Mendoza for harming Erdmann as such. But the protection of a specific supervisor is not the only logical reason an employer would retaliate against an employee reporting sexual harassment.. . .  . Perhaps defendants were substantially motivated by a desire to rid themselves of an individual who had become problematic by reason of his reporting sexual harassment, without regard to the accuracy of his accusations. . . . There is sufficient evidence in the record for the jury to conclude that a substantial motivating reason for Mendoza’s firing was his report of sexual harassment. Defendants terminated an excellent, long term employee soon after he reported sexual harassment by a recent hire, Erdmann. . . . Accepting Mendoza’s testimony as true (as we must for this purpose), Mendoza was not complicit in sexual misconduct at the hospital. Instead, Erdmann harassed Mendoza while Erdmann was acting as Mendoza’s supervisor at the hospital. After being confronted by defendants, Erdmann confirmed part of Mendoza’s story (i.e., that improper activity occurred) but accused Mendoza of being the instigator
and willing participant. With nothing to go on besides their respective statements, defendants claim they chose to believe Erdmann’s characterization of the incidents rather than Mendoza’s complaint.

So far, so good. But then, perhaps without taking into consideration the standard of employment at will (as it is not mentioned in the opinion), the Court seemed to impose a very high standard on at-will employers who discharge at-will employees.   

Importantly, in combination with the foregoing facts, Mendoza’s expert witness testified that there were numerous shortcomings in the investigation conducted by defendants following Mendoza’s complaint. (See Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 278-283 [inadequate investigation is evidence of pretext].) The lack of a rigorous investigation by defendants is evidence suggesting that defendants did not value the discovery of the truth so much as a way to clean up the mess that was uncovered when Mendoza made his complaint. Defendants point to the expert’s
concession that additional facts would not necessarily have been discovered had the alleged flaws in the investigation been addressed. But the question for the jury was defendants’ subjective motivation in deciding to fire Mendoza, not whether defendants actually had all available material before them. Moreover, a more thorough investigation might have disclosed additional character and credibility evidence for defendants to consider before making their decision.

The Court then dropped a footnote to drive the point home re the importance of investigations in "he said-he said (or he said/she said) cases:

At oral argument, defense counsel asked (perhaps rhetorically) just what employers were expected to do when faced with a scenario in which two employees provide conflicting accounts of inappropriate conduct. Our answer is simple: employers should conduct a thorough investigation and make a good faith decision based on the results of the investigation. Here, the jury found this did not occur. Hopefully, this opinion will disabuse employers of the notion that liability (or a jury trial) can be avoided by simply firing every employee involved in the dispute.

To be sure, a thorough, competent investigation is a good preventive measure that can result in better decisions.  However, there is no legal duty to investigate before firing an employee at will. The sole issue here was whether the employer fired Mendoza for a lawful reason or not.  As the courts always say, the employer need not be "wise or correct" in making its decision.  And they also say: The court does not sit as a "super-personnel department" either. 

Perhaps if the employer seeks rehearing in this case (hint hint) , it will argue that the investigation duty the Court imposed applies only in the case of employment "for cause."  The proper standard for at-will employees is as follows:

"Where the employment contract itself allows the employer to terminate at will, its motive and lack of care in doing so are, in most cases at least, irrelevant." (Guz, supra, 24 Cal.4th 317, 351; cf. Cruey v. Gannett Co. (1998) 64 Cal.App.4th 356, 365 [76 Cal.Rptr.2d 670].) Since an employer does not require good cause to terminate an at-will employee, in the normal course of events an employer need not either articulate or substantiate its reasons, except to provide an advance refutation for any inference that the true reason was illegal. Unless at-will employers are to be held to a good-cause standard for termination, no inference of discrimination can reasonably be drawn from the mere lack of conclusive evidence of misconduct by the employee.
* * *
As to the investigation being flawed and biased, Employee complains that he was not informed of the charges against him by Employer or Mistry. But he cites no provision of his employment contract or employment law in general entitling an at-will employee to advance notice and a hearing before termination. His employment contract provided that he could be terminated without notice.

McGrory v. Applied Signal Technology, Inc., 212 Cal. App. 4th 1510 (2012).  (emphasis added)

This case is Mendoza v. Western Medical Center, Santa Ana, and the opinion is here.

Court of Appeal: Request for Accommodation Not Protected Activity Supporting FEHA Retaliation Claim and Much More

The Legislature passed a paid, organ donation leave provision a couple of years ago (Labor Code Sections 1508-13), which became effective January 1, 2011.  (The court calls it the Donation Protection Act or DPA) Upon hire in September 2010, Scott Rope told his new employer, Auto-Chlor System of Washington, Inc. that he would need time off in February 2011 to donate a kidney to his sister.   When he found out about the new paid leave law, he asked for a longer leave under the new statute.

But Auto-Chlor fired Rope on December 30, 2010, just two days before the effective date of the new law, for poor performance.  Rope sued on a variety of theories.

The court did not allow Rope to sue based on the Labor Code provision, as it did not apply to his employment.  Statutes do not operate retroactively unless the legislature specifies that they do.  This law did not so specify.   But that's not why I posted.

Retaliation for Requesting Accommodation

Although Rope's DPA lawsuit was cut short, he also claimed he suffered retaliation for requesting an accommodation under the Fair Employment and Housing Act.  Putting aside that the request was not for his own disability (he had none), the court addressed whether a retaliation claim will lie when the employee alleges retaliation based on requesting an accommodation under FEHA.  The court held it could not.  First the court defined what type of conduct FEHA retaliation claims may be based on:

Rope alleged he suffered retaliation for engaging in the FEHA ―protected activities of requesting leave for his sister‘s disability/medical condition....The question here is whether Rope‘s request for paid leave as an accommodation qualifies as a ―protected activity within the meaning of section 12940, subdivision (h). ...

Protected conduct under section 12940, subdivision (h) may take many forms. The statute ―makes it an unlawful employment practice [f]or any employer . . . to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part.(Yanowitz, supra, 36 Cal.4th at p. 1042.)  ...

FEHA‘s implementing regulations help clarify what constitutes protected activity. They state: ―(a)(1) Opposition to practices prohibited by [FEHA] includes, . . . : [¶] (A) Seeking the advice of the Department [Department of Fair Employment and Housing] or Commission [Fair Employment and Housing Commission], . . . ; [¶] (B) Assisting or advising any person in seeking the advice of the Department or Commission, . . . ; [¶] (C) Opposing employment practices which an individual reasonably believes to exist and believes to be a violation of the Act; [¶] (D) Participating in an activity which is perceived by the employer or other covered entity as opposition to discrimination, whether or not so intended by the individual expressing the opposition; or [¶] (E) Contacting, communicating with or participating in the proceeding of a local human rights or civil rights agency regarding employment discrimination on a basis enumerated in the Act. [¶] (2) Assistance with or participation in the proceedings of the Commission or Department includes, but is not limited to: [¶] (A) Contacting, communicating with or participating in the proceedings of the Department or Commission due to a good faith belief that the Act has been violated; or [¶] (B) Involvement as a potential witness which an employer or other covered entity perceives as participation in an activity of the Department or the Commission.‖ (Cal. Code Regs., tit. 2, § 7287.8, subd. (a).)

And here is the conclusion:

we find no support in the regulations or case law for the proposition that a mere request—or even repeated requests—for an accommodation, without more, constitutes a protected activity sufficient to support a claim for retaliation in violation of FEHA. On the contrary, case law and FEHA‘s implementing regulations are uniformly premised on the principle that the nature of activities protected by subdivision (h) demonstrate some degree of opposition to or protest of the employer‘s conduct or practices based on the employee‘s reasonable belief that the employer‘s action or practice is unlawful....)

So, no retaliation claims based on a requested accommodation. 

Discrimination Based on Association

Rope himself did not have a disability. But he claimed he was "associated" with his sister, who did. The Court addressed (maybe for the first time under FEHA) a claim of discrimination against an "association" with a person who has a disability.  The court relied on a federal case out of the Seventh Circuit, quoting from the opinion:

Three types of situation are, we believe, within the intended scope of the rarely litigated . . . association section. We‘ll call them "expense," "disability by association," and "distraction." They can be illustrated as follows: an employee is fired (or suffers some other adverse personnel action) because (1) (expense) his spouse has a disability that is costly to the employer because the spouse is covered by the company‘s health plan; (2a) (disability by association) the employee‘s homosexual companion is infected with HIV and the employer fears the employee may also have become infected, through sexual contact with the companion; (2b) (another example of disability by association) one of the employee‘s blood relatives has a disabling ailment that has a genetic component and the employee is likely to develop the disability as well (maybe the relative is an identical twin); (3) ('distraction‘) the employee is somewhat inattentive at work because his spouse or child has a disability that requires his attention, yet not so inattentive that to perform to his employer‘s satisfaction he would need an accommodation, perhaps by being allowed to work shorter hours.

After discussing these categories, the court found that Rope could proceed on his association claim, and the derivative common law claim for wrongful termination:

In our view, Rope has pleaded minimally sufficient facts to state a prima facie ―expense‖ association claim under FEHA The SAC alleges that: From October through December 2010, Rope informed his superiors at Auto-Chlor that he intended to donate a kidney to his sister and that he intended to take a leave of absence to make the organ donation in February 2011; in or about November 2010, Rope informed his superiors about the DPA and requested 30 days paid leave under the DPA, beginning in February 2011; after January 1, 2011, Rope‘s leave under the DPA would cause Auto-Chlor to incur certain expense; and Auto-Chlor terminated Rope‘s employment on the pretext of poor performance on December 30, 2010, two days before the DPA took effect. The reasonable inference is that Auto-Chlor acted preemptively to avoid an expense stemming from Rope‘s association with his physically disabled sister.

This case is Rope v. Auto-Chlor System of Washington, Inc. and the opinion is here.

Court of Appeal: Exhaust Administrative Remedies Before Filing Whistleblower Claims under Labor Code Section 1102.5

Everyone's suing for retaliation lately.  Labor Code Section 1102.5 provides an expansive vehicle for doing so.  You don't have to complain to the government; internal complaints are covered. And you don't have to be correct in your assessment that there's a legal violation; you merely have to have a reasonable / good faith belief in what you're saying.   Here's a new wrinkle that will affect these claims (if this decision remains on the books and is not depublished or taken up for review by the California Supreme Court.)

So, Aaron MacDonald worked for the California State Assembly.  He complained to supervisors that co-workers were smoking in violation of statutes regulating smoking in the workplace (or within 20 feet of the entrance to a public building).  Not sure where the employee was smoking.

Anyway, two weeks after complaining, MacDonald was fired. He sued, claiming retaliation under Section 1102.5 and Section 6310 of the Labor Code, both of which prohibit retaliation against employees who make complaints about workplace safety.

The Assembly demurred and won, claiming MacDonald did not exhaust administrative remedies by filing with the Labor Commissioner.  The employee appealed, arguing he did not have to exhaust.

So, per the Court of Appeal, Labor Code Section 98.7 says:

“Any person who believes that he or she has been discharged or otherwise discriminated against in violation of any law under the jurisdiction of the Labor Commissioner may file a complaint with the division within six months after the occurrence of the violation.”3 Section 98.7 outlines a process of investigation and decision by the Labor Commissioner. (Id., subds. (b)-(e).) Subdivision (f) of that section states: “The rights and remedies provided by this section do not preclude an employee from pursuing any other rights and remedies under any other law.” (Id., subd. (f).) Moreover, section 6312 provides: “Any employee who believes that he or she has been discharged or otherwise discriminated against by any person in violation of Section 6310 or 6311 may file a complaint with the Labor Commissioner pursuant to Section 98.7.”

Because Sections 1102.5 and 6310 are "laws under the jurisdiction of the Labor Commissioner," the Court of Appeal held that Section 98.7 was applicable.  The Court then held:

Although sections 1102.5 and 6310 are silent regarding administrative remedies, section 98.7, subdivision (a), provides in pertinent part: “Any person who believes that he or she has been discharged or otherwise discriminated against in violation of any law under the jurisdiction of the Labor Commissioner may file a complaint with the division within six months after the occurrence of the violation.”3 Section 98.7 outlines a process of investigation and decision by the Labor Commissioner. (Id., subds. (b)-(e).) Subdivision (f) of that section states: “The rights and remedies provided by this section do not preclude an employee from pursuing any other rights and remedies under any other law.” (Id., subd. (f).) Moreover, section 6312 provides: “Any employee who believes that he or she has been discharged or otherwise discriminated against by any person in violation of Section 6310 or 6311 may file a complaint with the Labor Commissioner pursuant to Section 98.7.”

The Court relied on Campbell v. Regents of University of California (2005) 35 Cal.4th 311, in which the California Supreme Court reaffirmed (albeit in another context) that when the Legislature provides an administrative remedy, an employee must exhaust it.

A few notes of caution:

1. This decision creates a split with Lloyd v. County of Los Angeles (2009) 172 Cal.App.4th 320.  There, the Court held a plaintiff was not required to exhaust.  The Court here disagreed with Lloyd. So, the California Supreme Court may get involved and nullify this decision pending review.
2. The statute of limitations for filing a charge with the Labor Commissioner is 6 months.  So, if this case stays on the books, it could kill a bunch of statutory causes of action.  
3. The Legislature may overrule this case, although that would be supremely ironic, given the Assembly (acting as an employer) won this case.    
4. This case does not affect common law claims for "wrongful termination in violation of public policy."  This was a public-sector case and no such claim was available to the plaintiff here. 

This decision is MacDonald v.  California and the opinion is here.

Court of Appeal: Statute of Limitations Bars Claims Based on Stale Administrative Charges

When an employee files a series of discrimination charges with the Department of Fair Employment and Housing, may she wait to sue until years later, even if she received "right to sue" letters long before she filed her lawsuit? No.

Esperanza Acuna was employed with San Diego Gas and Electric.  Over a course of several years, she claimed harassment and discrimination by a supervisor, and failure to accommodate  a work-related stress disability.   The court of appeal set out this timeline:

On March 16, 2006, Acuna filed her first DFEH complaint, alleging racial discrimination and harassment, and retaliation for having filed a worker's compensation claim. On March 27, 2006, the DFEH issued a right to sue notice on this first DFEH complaint.

On February 23, 2007, Acuna filed her second DFEH complaint, alleging disability discrimination (failure to accommodate her claimed disability). On February 19, 2008, the DFEH filed a right-to-sue notice on this second DFEH complaint.

On July 11, 2008, SDG&E terminated Acuna's employment.

On October 23, 2008, Acuna filed her third DFEH administrative complaint, alleging various wrongful acts, including her alleged retaliatory termination. On November 7, 2008, the DFEH issued a right-to-sue letter based on this third DFEH complaint.

On November 5, 2009, Acuna filed her lawsuit.

The Court of Appeal decided the statute of limitations barred any claims based on the first two DFEH complaints.  She had until March 2007 to file a lawsuit based on the first charge; she did not.  She had until February 19, 2009 to file the lawsuit based on the second "right to sue" notice.  But she did not file until November 5, 2009.

The Court rejected Acuna's attempt to argue that the "continuing violation" doctrine saved her claims based on the first two "right to sue" letters:

As discussed above, in California the continuing violations doctrine applies to toll section 12960's one-year period for filing a DFEH claim during the time the employee and employer are engaged in informal efforts to resolve the employer's claimed wrongful conduct. (Richards, supra, 26 Cal.4th at pp. 822-823.) The California Supreme Court held this tolling period ends when the employer's determination achieves a level of permanence, i.e., when a reasonable employee would understand that "further efforts to end the unlawful conduct will be in vain." (Id. at p. 823.)

Acuna's allegations establish that a reasonable person would have understood that SDG&E had denied her requests for accommodation no later than February 2007. According to Acuna's allegations, beginning in late 2005, SDG&E repeatedly declined to permit Acuna to return to her job and refused to permit her to work for a supervisor other than Valentine. In response to this conduct, Acuna retained counsel and filed a DFEH complaint. After SDG&E continued to refuse to accommodate her claimed disability, Acuna filed her second DFEH complaint in February 2007. In this complaint, Acuna specifically alleged that SDG&E was refusing to accommodate her disability. By retaining counsel and filing a DFEH complaint, Acuna manifested an understanding that further attempts at informal, rather than formal, resolution of the disability accommodation process would not be successful and were futile. Under these circumstances, the continuing violations doctrine is inapplicable.

The Court also held that the doctrine of "equitable tolling" did not save her stale claims either. 

The equitable tolling doctrine generally requires a showing that the plaintiff is seeking an alternate remedy in an established procedural context. (See McDonald, supra, 45 Cal.4th at p. 102-104; Schifando v. City of Los Angeles, supra, 31 Cal.4th at p. 1082.) Informal negotiations or discussions between an employer and employee do not toll a statute of limitations under the equitable tolling doctrine. (See 65 Butterfield v. Chicago Title Ins. Co. (1999) 70 Cal.App.4th 1047, 1063.) Acuna does not allege any facts showing she was pursuing an alternate remedy that excused her from timely filing her administrative claim and/or from filing her lawsuit.

Moreover, the equitable tolling doctrine is inapplicable once the employee is on notice that his or her rights had been violated and that her alternate remedies will be unsuccessful. (Richards, supra, 26 Cal.4th at p. 814.) As discussed above, Acuna acknowledged that by February 2007 she understood that SDG&E was refusing to accommodate her disability and was not interested in informally resolving her claims.

So, the Court held that Ms. Acuna can proceed on her timely claims for wrongful termination and her FEHA-based retaliation claim concerning her discharge.

The case is Acuna v. San Diego Gas & Elec. and the opinion is here.

U.S. Supreme Court: Retaliation Causation

University of Tex. Southwestern Med. Ctr. v. Nassar (opinion here) is the Supreme Court opinion setting forth the "causation" standards that apply to retaliation cases under Title VII of the Civil Rights Act of 1964.

Nassar was a doctor and professor at Univ. of Texas. He also worked at the University's medical center.  He  complained of harassment and discrimination by Dr. Levine. He tried to work only at the hospital to avoid Dr. Levine's harassment at the University. But the University blocked his effort, claiming that University policy required attending doctors also to be professors at the medical school.

So, Nassar sued for retaliation, claiming discrimination / constructive discharge, and retaliation in that the University blocked his hiring at the hospital.  After Nassar won a verdict, the Supreme Court accepted review to determine whether the retaliation claim was decided under the correct "causation" framework.

The Court decided that in Title VII cases, the causation standard is "but for," which means that the employer would not have taken negative action against the employee "but for" the employee's engaging in protected activity. Put another way, the harm would not have occurred if the employee had not complained.

Along the way, the Supreme Court majority explained the causation standard that applies to Title VII discrimination cases.  This is known as the "motivating factor" standard:

An employee who alleges status-based discrimination under Title VII need not show that the causal link between injury and wrong is so close that the injury would not have occurred but for the act. So-called but-for causation is not the test. It suffices instead to show that the motive to discriminate was one of the employer’s motives, even if the employer also had other, lawful motives that were causative in the employer’s decision. This principle is the result of an earlier case from this Court, Price Water­house v. Hopkins, 490 U. S. 228 (1989), and an ensuing statutory amendment by Congress that codified in part and abrogated in part the holding in Price Waterhouse, see §§2000e–2(m), 2000e–5(g)(2)(B). 

Why the separate standards, you ask?  Because in Title VII, the discrimination provisions are covered by a specific statute, and that statute was amended to include the motivating reason standard.    The anti-retaliation section is in another part of Title VII.  So, what the Court really decided was that the 1991 amendment to Title VII's causation provision did not apply to the retaliation piece. 

It remains to be seen whether this decision will influence California courts' interpretation of the causation standard. Earlier this year, the California Supreme Court examined causation standards in "mixed motive" cases (discussed here). We will see what the lower courts do with Nassar in the coming months. 

DGV

 

Court of Appeal Affirms Summary Judgment on Sexual Harassment Claim and More

The Court of Appeal's decision in McCoy v. Pacific Maritime Association covers a lot of ground.  The opinion contains analysis of a variety of issues important for pre-trial and trial lawyers alike.

Here are the main issues -

1. The plaintiff's allegations of hostile work environment harassment and intentional infliction of emotional distress were not severe / pervasive / extreme / outrageous enough to reach the jury.  The plaintiff's claim is summarized here:

Appellant testified that she was harassed and shunned throughout her training period. Her complaints centered around one vessel planner in particular, Anthony Spanjol. Appellant testified that Spanjol would disrespect her by talking down to her and by putting his feet up on her work space. On one occasion, he yelled at her in front of other employees and called her stupid. One of appellant‟s supervisors, Marc Izzo, witnessed this incident, but left the room rather than address it. Appellant testified that when she complained about the incident she was told that she should go home and that Spanjol‟s behavior was just a part of his personality. She also stated that Spanjol often made racially derogatory remarks and engaged in sexually offensive behavior. He would comment on the buttocks of other female employees once they left the room, using terms like "„nigger ass‟" and "„J-Lo ass.‟" On at least one occasion, Spanjol also made crude gestures toward a woman when the woman‟s back was turned. He also mocked these women in appellant‟s presence. During another incident, appellant asked Spanjol a question regarding the unloading of a ship, but he ignored her and "never spoke to [her] again." Appellant testified that shortly after this incident she decided she could no longer handle the work environment and quit her job entirely.

The court held that the harassment was not severe or pervasive enough to require a jury's consideration. The court also held that the allegations of co-worker harassment were not actionable because the plaintiff did not prove that her employer knew or should have known of the conduct directed toward her.

2.  The court held that the trial court properly excluded evidence of harassment of other women because the only claim tried was retaliation.

3.   "Me-too" evidence of retaliation against other women should have been admitted.

4.   The plaintiff claimed denial of promotion based on retaliation. The court held she was entitled to damages if she prevailed even if she did not prove constructive discharge. The amount of those damages would have to be limited to what she actually lost (the difference between her pay and the pay if she had been promoted).  I don't understand how she would be entitled to that differential after she quit if it's not a constructive discharge.  If you voluntarily quit, you no longer receive pay...  I know, there I go thinking again.

5.   The court held that PMA, an association that negotiated collective bargaining agreements, was not the plaintiff's employer, and therefore could not be held liable for retaliation or other FEHA based actions.

So, lots of reasons to cite this case.  It's long, but worth reading.  The opinion in McCoy v. Pacific Maritime Association is here.

DGV
 

Court of Appeal: Let Jury Decide Co-Worker Harassment Case

The Court of Appeal issued a "writ" of mandate, overturning a summary judgment order on a harassment claim.  Mustafa Rehmani worked for Ericsson in Silicon Valley.  He is Pakistani. Many of his co-workers are Indian. Rehmani claimed the Indian co-workers gave him a rough ride.  The court describes a series of incidents, over a few months, in which there were political jokes, terrorism jokes, and the like.  However, these jokes were pretty isolated, occurring about a month apart. 

The court decided that the allegations were enough to send the case to a jury and that the trial court should not have granted summary judgment.  The court also held that the company's management had sufficient notice of the conduct, and there was insufficient evidence of an adequate response to the conduct to justify summary resolution.

If you believe the plaintiff's version of events (which the court had to do), he told his manager repeatedly about his co-workers' anti-Pakistani / anti-Muslim jokes.  But she brushed them off.  So, a very thin case of national origin harassment will go to a jury, or a mediator.  A little management training (or better training) could have helped here.

The case is Rehmani v. Superior Court and the opinion is here.

U.S. Supreme Court on Ministerial Exception to Title VII

The U.S. Supreme Court decided for the first time that there is a "ministerial exception" to anti-discrimination laws such as the ADA. The lower courts for many years recognized that exception.

At issue was Hosanna-Tabor Evangelical Lutheran Church and School and its discharge of a former teacher, Cheryl Perich. Perich was classified as a "called" teacher, rather than a "lay" one. Called teachers have to satisfy certain requirements, cannot be removed except for cause and by a vote of the congregation, and hold the title “Minister of Religion, Commissioned.”

As a called teacher, Perich 

taught math, language arts, social stud- ies, science, gym, art, and music. She also taught a reli- gion class four days a week, led the students in prayer and devotional exercises each day, and attended a weekly school-wide chapel service. Perich led the chapel service herself about twice a year.

Perich developed symptoms of narcolepsy, which resulted in her inability to perform her job. She later was discharged, after she threatened to file a Charge. The EEOC took up her case and sued on her behalf.

The District Court dismissed the case; the Sixth Circuit reversed, holding that a retaliation claim under the ADA could proceed against the Church.
The unanimous Court, recognizing there is a ministerial exception, put it this way:

We agree that there is such a ministerial exception. The members of a religious group put their faith in the hands of their ministers. Requiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision. Such action interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs. By imposing an unwanted minister, the state infringes the Free Exercise Clause, which protects a religious group’s right to shape its own faith and mission through its appointments.

The Court did not set out a specific test, but noted that (1) the Church held Perich out to be a minister (2) the Church had a ceremony and the congregation was involved in her investiture (3) she had significant religious training as a prerequisite (4) she held herself out to be a minister and even took a special tax deduction applicable only to members of a ministry (5) her duties involved significant religious teaching activities.


Based on that, the Court decided that Perich met the standards of the ministerial exemption.  The Court was careful to note that the term "minister" was misleading because the exception applies to religions that do not include "ministers."  The Court also refused to address the "parade of horribles" the EEOC argued, such as that Church employers would be exempt from wage-hour or criminal violations towards "ministerial" employees.  


The case is Hosanna-Tabor Evangelical Lutheran Church and School v. Perich and the opinion is here.

Court of Appeal: No Reinstatement after 12 weeks of CFRA Leave

After taking 19 weeks of leave, the first 12 of which was covered under the California Family Rights Act, LA County reinstated Katrina Rogers, but then transferred her to a new job as a business decision. Rogers did not take the transfer well and sued under various causes of action, including the CFRA.  A jury awarded her damages and the county appealed.

The court first rejected Rogers' argument that the transfer amounted to "interference" with her rights under the CFRA:

Here, the following is undisputed—the County accorded Rogers the full 12 workweeks of leave to which she was entitled under the CFRA; Rogers did not return to work at the end of this period, but instead remained on leave for 19 weeks; and the decision to transfer her was made within the 12-week leave period, but never communicated to Rogers during her leave. Rogers nevertheless argues that she suffered interference with her CFRA rights because the transfer decision was made during her protected CFRA leave. But she cites no authority to support her position, which we therefore disregard. (Perez v. Grajales (2008) 169 Cal.App.4th 580, 591–592.) Based on the foregoing, we conclude that Rogers’s right to reinstatement expired when the 12-week protected CFRA leave expired. Her CFRA interference claim therefore fails as a matter of law, and should never have been submitted to the jury.

 
Then the court turned to Rogers' claim that the transfer was "retaliation" for her exercising her rights. The court could not find any evidence that the county took its action because Rogers took leave, other than the fact that she took it and the transfer occurred thereafter:

In short, Rogers “failed to establish the requisite causal connection between her protected actions in taking a CFRA medical leave” and the decision to transfer her to another position. (Neisendorf, supra, 143 Cal.App.4th at p. 519.) “The unchallenged finding that [the County] had a legitimate, nondiscriminatory reason to [transfer Rogers], which had nothing to do with her CFRA leave, bars [Rogers] from articulating a cognizable cause of action for the jury’s consideration based on [the County’s] alleged refusal to honor the CFRA’s right to reinstatement.” (Id. at p. 520.) The Neisendorf court cited to several federal courts interpreting the FMLA that endorse this principle. (See e.g. Throneberry v. McGehee Desha County Hosp. (8th Cir. 2005) 403 F.3d 972, 979 [“‘As long as an employer can show a lawful reason, i.e., a reason unrelated to an employee’s exercise of FMLA rights, for not restoring an employee on FMLA leave to her position, the employer will be justified to interfere with an employee’s FMLA leave rights’”].) Like the Neisendorf court, we conclude that because the County’s “legitimate, nondiscriminatory reason” for the decision to transfer Rogers eliminated any obligation the County might have had to reinstate her, Rogers “could not state a valid claim under the CFRA.” (Neisendorf, supra, at p. 520.)

The decision is important regarding CFRA/FMLA leave, but it does not address reasonable accommodation obligations under the ADA/Fair Employment and Housing Act.  So, employers still need to consider reinstatement following extended leave when an employee has a covered disability and takes more leave than allowed under CFRA / FMLA.

The case is Rogers v. County of LA and the opinion is here.

U.S. Supreme Court on FLSA Retaliation

The U.S. Supreme Court held that the Fair Labor Standards Act's anti-retaliation provision covers oral and written complaints, whether internal or to the government.  So, here's some invaluable and insightful advice: don't retaliate against employees who complain about alleged wage and hour violations. Try not to decide whether to retaliate based on if a complaint is oral or written, mmmkay?

In a nutshell, Kasten claimed he complained to management and other employees about the location of the time clocks at the St. Gobain factory. Because of the time clock's placement, he did not get paid for "donning and doffing" time.  The company allegedly fired Kasten for not keeping his time card correct. Kasten claimed it was retaliation for his complaints. The district court dismissed the case because Kasten had not "filed" a written complaint with the government and, therefore, was not covered by the anti-retaliation provision in the FLSA.  The Supreme Court took time out of its busy day to resolve a dispute among the lower circuit courts over whether a written complaint was required.

The case is Kasten v. St. Gobain Performance Plastics, Inc., and the opinion is here.

U.S. Supreme Court Recognizes Third-Party Retaliation Claims

Justice Scalia for a unanimous Supreme Court wrote that employees may claim retaliation when they are associated with someone ELSE who engaged in protected activity.  What?

Miriam Regalado was engaged to Eric Thompson. They both worked for North American Stainless.  So, Miriam filed a charge with the EEOC alleging sex discrimination. NAS fired Thompson three weeks later. 

Thompson then filed a retaliation charge. But Thompson did not actually engage in protected activity. Regalado was the one who filed with the EEOC. 

So, was it retaliation under Title VII to fire Thompson?  The Supreme Court said yes. Relying on the Court's expansive definition of retaliation set forth in Burlington N. & S. F. R. Co. v. White, 548 U. S. 53 (2006),the court said:

“the antiretaliation provision, unlike the substantive provision, is not limited to discriminatory actions that affect the terms and conditions of employment.” Id., at 64. Rather, Title VII’s antiretaliation provision prohibits any employer action that “well might havedissuaded a reasonable worker from making or supporting a charge of discrimination.” Id., at 68 (internal quotation marks omitted).

And of course, they found that firing a fiance "well might have dissuaded" the complainant from making or supporting a charge: NAS argued, where do you draw the line?  Trusted co-worker? Girlfriend? What third parties are close enough to the complainant.  The Court could not find any language in Title VII to support setting down a blanket rule.
 

We must also decline to identify a fixed class of relationships for which third-party reprisals are unlawful. We expect that firing a close family member will almost always meet the Burlington standard, and inflicting a milder reprisal on a mere acquaintance will almost never do so, but beyond that we are reluctant to generalize.

The court next decided that Thompson had standing to sue under Title VII because he was a "person aggrieved."  The Court knew it was opening a can of worms to let third parties sue. So, it limited Title VII standing to those covered by the "zone of interests" Title VII seeks to protect.  Thompson was an employee at the same company as his fiance, and, most importantly, according to the complaint, the company fired him for the purpose of hiring the fiance who filed the charge.
 
The case is Thompson v. North American Stainless Inc. and the opinion is here.
DGV

Court of Appeal: No Attorney-Client Privilege for Employee's Emails to Lawyer

Gina Holmes worked for Petrovich Development Co. LLC as assistant to the CEO, Paul Petrovich.  She was pregnant early in her employment and got into a discussion with her boss about the length of her leave and their respective feelings about her pregnancy. Although it appeared that they had cleared the air, Holmes simultaneously attempted to hire a lawyer, via email at work. Apparently, Holmes became upset that Petrovich forwarded her emails to others in the organization and quit, claiming constructive discharge, discrimination, harassment, etc.

The trial court summarily dismissed the harassment, discrimination and retaliation claims. The court of appeal affirmed - holding that the harassment evidence was limited to email correspondence that was neither severe nor pervasive.

The court of appeal also affirmed dismissal of the claim that Holmes was forced to resign. The court noted that when a plaintiff cannot establish a hostile work environment, a constructive discharge claim is a higher standard and must also fail.  Holmes' retaliation claim failed too, because of the lack of an adverse action.

That left claims for intentional infliction of emotional distress and invasion of privacy, which were tried to a jury. The jury found for the defendants. On appeal, Holmes claimed the trial court should not have allowed Petrovich to use the emails she sent to a lawyer seeking a referral, in which she explained her situation.  The trial court held that Holmes waived the privilege because she used company email, and there were clear policies explaining the company's right to monitor email.

The court of appeal agreed that Holmes waived the privilege Here is the money quote:

Although a communication between persons in an attorney-client relationship "does not lose its privileged character for the sole reason that it is communicated by electronic means or because persons involved in the delivery, facilitation, or storage of electronic communication may have access to the content of the communication" (§ 917, subd. (b)), this does not mean that an electronic communication is privileged (1) when the electronic means used belongs to the defendant; (2) the defendant has advised the plaintiff that communications using electronic means are not private, may be monitored, and may be used only for business purposes; and (3) the plaintiff is aware of and agrees to these conditions. A communication under these circumstances is not a “„confidential communication between client and lawyer‟” within the meaning of section 952 because it is not transmitted “by a means which, so far as the client is aware, discloses the information to no third persons other than those who are present to further the interest of the client in the consultation . . . .” (Ibid.)


When Holmes e-mailed her attorney, she did not use her home computer to which some unknown persons involved in the delivery, facilitation, or storage may have access. Had she done so, that would have been a privileged communication unless Holmes allowed others to have access to her e-mails and disclosed their content. Instead, she used defendants‟ computer, after being expressly advised this was a means that was not private and was accessible by Petrovich, the very person about whom Holmes contacted her lawyer and whom Holmes sued. This is akin to consulting her attorney in one of defendants‟ conference rooms, in a loud voice, with the door open, yet unreasonably expecting that the conversation overheard by Petrovich would be privileged.

Lawyers for employees obviously should take note and advise employees not to use monitored email systems. Employers should ensure their email policies are comprehensive and clear regarding employees' expectations of privacy.

The case is Holmes v. Petrovich Development Company LLC and the opinion is here.

Trial

Trial in employment cases is as rare as hen's teeth. Most cases settle. With the increasing prevalence of "EPLI" insurance, there is often little appetite for taking a case "all the way" and facing a jury. At least for us defense lawyers, going to trial is unusual.

Trial also is, to say the least, arduous. Sleep is something you get in between preparing for trial, conducting the trial, and preparing for the next day. No matter how much you prepare, there is much to do once the trial begins.

Once you're there, the odds are against you. Plaintiffs win as much as 60% of the time, depending on the type of claim and the court's location. That's another reason cases settle a lot. Let's not forget the time and money the employer has to spend, and victory defined only as a jury's conclusion that the defendant was right.

Don't let anyone tell you different. Winning is special. So, we're proud to let you know about two employment law trials that concluded this week with favorable outcomes.

First, Shaw Valenza alumnus Shane Anderies, now of Anderies and Gomes, won a verdict in style. His case, covered by the media (also rare), resulted not only in a defense verdict, but also a huge award on a cross-claim for defamation. Read about Moreno v. Ostly et al here.

Oh, yeah, and the Shaw Valenza trial team just received a verdict on behalf of our client Signature Properties in a retaliation case, tried in Sacramento Superior Court. The jury was out just 6 hours after a four week, fifteen trial-day, trial. No press coverage so far. The facts of our case were nowhere near as interesting as Shane's. (His involved a paralegal suing a lawyer for sexual harassment and his defamation cross-action). But winning was just as exciting for our client as us as it was for Shane and his.

Thanks to all of you who patiently waited for return calls during July. I will get back to you soon. I promise. I also will be posting on a number of new cases in the coming days. And congratulations again to Shane, Mr. Ostly, and of course Signature Properties.

DGV

9th Circuit: No Jury, Compensatory or Punitive Damages for ADA Retaliation

Alvarado sued his former employer, Cajun Operating Co., for retaliation because he complained to an internal hotline about discrimination based on disability, national origin, etc. Before trial, the court granted a motion in limine barring Alvarado's punitive damages, compensatory damage, and jury trial demand. The Ninth Circuit affirmed on appeal.

The analysis is interesting if you like statutory construction cases. I know what you're thinking: Zzz. If you just want the punchline - the Ninth Circuit joined the Seventh in holding that the Americans With Disabilities Act does not provide for compensatory or punitive damages in retaliation cases asserted under the ADA. As with pre-Civil Rights Act of 1991 cases, the only relief available is equitable, which removes the jury trial too. My bold prediction is that Congress will fix this issue in a few weeks or months.

The case is Alvarado v. Cajun Operating Co. and the decision is here.

U.S. Supreme Court: Retaliation Provisions Cover Investigation Witness

Vicky Crawford worked for the Metropolitan school district of Nashville and Davidson County, TN. The agency was conducing an investigation into a harassment complaint made against an employee, who happened to be the employee relations director.

The investigator from the human resources department asked Crawford whether she had experienced inappropriate behavior by the director. She disclosed she had witnessed certain conduct. The district later fired Crawford, allegedly for embezzlement. She sued for retaliation.

The issue before the Supreme Court was whether Crawford's participation in the investigation fell within Title VII's anti-retaliation protections. The court unanimously ruled that "opposition" includes providing information during an investigation. The lower courts and the employer argued that it would require something more affirmative - such as making a complaint.

The case is CRAWFORD v. METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, TENNESSEE and the opinion is here.

Court of Appeal Permits Claim of "Preemptive" Retaliation

Lisa Steele, a new employee of the California Youth Offender Parole Board, was a participant in a bikini contest (away from work). Her boss, Galindo, attended the contest. When they saw each other, Galindo kissed her on the cheek on a single occasion. No one was offended. Galindo otherwise treated Lisa professionally.

But another employee was in the process of complaining about Galindo's conduct at work. The powers than be apparently were worried that Steele would be a witness against Galindo, although she had not yet complained or participated in an investigation. So, according to the record, the higher-ups engaged in conduct forcing her to resign.

A jury found for Steele on a constructive discharge claim. But the YOPB appealed, arguing (among other things) that Steele had not engaged in protected activity, so she could not have suffered "retaliation."

The Court of Appeal, though, decided that Steele's status as a "potential" witness was enough to confer "protected activity" status. Steele's proof that the constructive discharge was related to management's fear that Steele would testify against Galindo was enough to prove Steele's retaliation claim. Preemptive retaliation for future possible protected activity ... Minority Report anyone?

So, what employee is not a "potential witness" in a workplace discrimination, harassment or retaliation claim? The lower courts will be left to sort that out, I guess. The opinion is Steele v. Youth Offender Probation Board and the opinion is here.

Court of Appeal: No Disability and No Retaliation

In 2000, the California Legislature amended the Fair Employment and Housing Act to ensure the definition of "disability" is broader than the definition in the Americans With Disabilities Act. Way broader. For example, under state law, the employee's "mitigating measures" (such as glasses to help the sight impaired) are not taken into account when evaluating if a person has a disability. Another major difference is that an impairment need only make life activities "difficult" to be "limiting." Under federal law, the impairment must be "substantially" limiting, which is much tougher to prove.

I don't know of any published opinion holding that someone failed to demonstrate a "disability" under the new state law version of the definition. Until now.
Arteaga was part of a crew on a Brink's armored car. He picked up money from ATMs. Money was missing, repeatedly. Brink's investigated and let Arteaga know. An investigation into theft could create a certain numbness, as well as stress. Predictably, therefore, after the investigation commenced, Arteaga began complaining of pain and numbness in his arms, fingers, shoulders and feet, and that he was experiencing "stress." No one had noticed any issues with Arteaga's performance related to the numbness, nor had he complained about it before, although he said he had been experiencing it for a couple of years.

Holding Arteaga did not have a disability, the court noted that his alleged impairment did not "limit" his ability to work, either compared with his pre-disabled condition or with others who perform the work. The opinion is full of interesting observations about relevant considerations: Arteaga did not disclose any impairments on medical forms; the company took him to a doctor on two occasions who released him back to work immediately; he had not complained of any issues until he was under investigation; pain alone does not automatically constitute a disability; no duty to accommodate when employee did not disclose disability; and others.

Arteaga also claimed retaliation because he filed a workers' compensation claim. The court held that the timing was not enough to raise a triable issue of fact because the company had been investigating Arteaga's performance before he filed the workers' compensation claim and then simply followed through with the termination decision.

Where the employee relies solely on temporal proximity in response to the employer’s evidence of a nonretaliatory reason for termination, he or she does not create a triable issue as to pretext, and summary judgment for the
employer is proper.

The case is Arteaga v. Brink's Incorporated. The opinion is here.

DGV