Thomas v. Department of Corrections

Facts

The Fair Employment and Housing Act (FEHA) makes the discriminatory and retaliatory employment practices it describes unlawful. (Gov. Code, § 12940; see Thomas v. Department of Corrections (2000) 77 Cal.App.4th 507, 512.) The Act’s declared purpose, which the court invoked in measuring the breadth of the protection at stake, is “to ‘protect and safeguard the right and opportunity of all persons to seek, obtain, and hold employment without discrimination or abridgment on account of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, or sexual orientation.’” (Thomas, supra, 77 Cal.App.4th at pp. 511–512, quoting Gov. Code, § 12920.) The case arose on the pleadings, so the relevant facts are the allegations of the operative complaint, taken as true for purposes of demurrer.

Carla A. Thomas, an African-American woman, began working for the California Department of Corrections as a corrections officer in March 1987. (Thomas, supra, 77 Cal.App.4th at pp. 508–509.) Beginning in 1989 she complained of racial and sexual discrimination, and she alleged that the Department retaliated against her for those reports in violation of the FEHA. (Id. at pp. 508–509.) Over the ensuing years she pursued a sequence of administrative charges. In May 1993 she filed a charge with the federal Equal Employment Opportunity Commission accusing the Department of retaliating for a September 1992 discrimination charge; the alleged retaliation “consisted of refusing to allow her a choice of posts or days off and falsely accusing her of refusing to obey orders and ‘locking down a unit.’” (Id. at p. 509.)

Thomas then filed successive charges with the state Fair Employment and Housing agency. A May 1996 charge alleged harassment by a correctional sergeant because of her sex and race and because she had filed an EEOC complaint. (Thomas, supra, 77 Cal.App.4th at p. 509.) An August 1997 charge alleged retaliation “consisting of the Department’s refusal to provide her medical aid when she became ill at work and its intimidation of coworkers whose depositions she wanted to take.” (Ibid.) After receiving right-to-sue letters, Thomas filed this action on November 20, 1997. (Ibid.) An April 1998 charge added a further allegation of retaliation “in the form of receiving orders to perform various duties from … supervisors who were not ‘her’ supervisors.” (Ibid.)

The operative pleading was the first amended complaint, filed in June 1998, which expanded the retaliation theory to encompass five categories of conduct: “(1) improper docking of pay despite a medical excuse, (2) undeserved negative performance evaluation, (3) unwarranted interference with her appointment to a supervisory committee of the Chino Valley Federal Credit Union, (4) a series of undeserved negative job evaluations which resulted in a punitive job change and negative reports in her personnel file, and (5) failure of the Department to deliver her a check on a timely basis for her shift differential and for overtime.” (Thomas, supra, 77 Cal.App.4th at p. 510.) These allegations — not whether discrimination in fact occurred — framed the legal question the published opinion would decide: whether such conduct, even if proven, amounts to an actionable adverse employment action.

Procedural history

The Department demurred to the first amended complaint on several grounds. It argued that two of the retaliatory acts — “improper docking of Thomas’s January 1994 check and an undeserved April 1996 negative evaluation” — had already been adjudicated in a prior federal lawsuit Thomas had filed. (Thomas, supra, 77 Cal.App.4th at p. 510.) It further argued “that the remaining retaliatory acts alleged by Thomas did not rise to the level of an adverse employment action, that they were too remote to satisfy a causal connection, and that Thomas did not exhaust her administrative remedies because the acts alleged in the civil complaint were not charged in her FEHA claims.” (Ibid.) The trial court (Hon. Peter H. Norell) sustained the demurrer without leave to amend and entered judgment for the Department. (Id. at p. 509.)

Thomas appealed, contending that her first amended complaint sufficiently alleged adverse employment actions taken in retaliation for her discrimination charges and that, in any event, the trial court erred in sustaining the demurrer without leave to amend. (Thomas, supra, 77 Cal.App.4th at p. 509.) The Court of Appeal, Fourth Appellate District, Division Two, affirmed. The court’s stated grounds for affirmance were “that Thomas failed to exhaust her administrative remedies and … that the proposed second amended complaint failed to state a cause of action.” (Ibid.) The opinion was filed January 10, 2000, and modified on rehearing-stage review January 11, 2000, “to read as printed.” (Id. at p. 512.)

A procedural feature shapes how this decision may be used. The opinion was “certified for publication with the exception of parts 3, 4, 5, 8, 9, and 10.” (Thomas, supra, 77 Cal.App.4th at p. 507.) Under the California Rules of Court, unpublished portions of an opinion may not be cited or relied upon. (See Cal. Rules of Court, rule 8.1115.) The citable, published portions of Thomas are parts 1 (Introduction), 2 (Facts), 6 (Adverse Employment Action), 7 (Employment Connection Required), and 11 (Disposition). The exhaustion holding that the court flagged as a ground for affirmance lives in unpublished parts and is therefore not citable; the durable, citable contribution of the case is the part 6 definition of adverse employment action and the part 7 employment-connection requirement discussed below. The panel was unanimous: Justice Gaut wrote, with Presiding Justice Ramirez and Justice Richli concurring. (Thomas, supra, 77 Cal.App.4th at pp. 508, 512.)

Issue

The published question was one of first impression in California: what conduct counts as an “adverse employment action” for purposes of a FEHA retaliation claim? The court confronted the gap directly, observing that “there appear to be no California decisions defining the scope of an adverse employment action,” so the Department “quite properly relies upon federal authority.” (Thomas, supra, 77 Cal.App.4th at p. 510.) The concrete sub-question was whether the pleaded acts — a delayed check, an early job change, a single missed overtime payment, allegedly excessive duty assignments, and interference with an outside credit-union committee post — “constitute[d] ‘adverse employment action’” at all. (Id. at pp. 510–511.) A related published question, addressed in part 7, was whether a retaliatory act directed at a position outside the employment relationship — here, an appointment at a federal credit union — can support a FEHA retaliation claim. (Id. at p. 512.)

Holding

Reasoning

A doctrinal vacuum, filled by federal law. The court began part 6 by acknowledging that California had not yet defined the term at the heart of every retaliation case. Because “there appear to be no California decisions defining the scope of an adverse employment action,” it was appropriate to “rel[y] upon federal authority” construing the analogous federal antidiscrimination statutes. (Thomas, supra, 77 Cal.App.4th at p. 510, citing Flait v. North American Watch Corp. (1992) 3 Cal.App.4th 467, 475–476.) The court canvassed the federal circuits and acknowledged that the “federal authority on the definition of adverse employment action varies from federal circuit to circuit.” (Ibid.) But it found a dominant consensus: “Most circuits agree that an adverse employment action requires ‘a materially adverse change in the terms of … employment.’” (Ibid., quoting Kocsis v. Multi-Care Management, Inc. (6th Cir. 1996) 97 F.3d 876, 885.)

An objective, case-by-case inquiry — not a hunt for trivial slights. The court adopted an objective standard rather than one keyed to the employee’s subjective reaction. The inquiry “requires a case-by-case determination based upon objective evidence.” (Thomas, supra, 77 Cal.App.4th at p. 510, citing Blackie v. State of Me. (1st Cir. 1996) 75 F.3d 716, 725.) Quoting the First Circuit, the court warned against a rule that would dignify ordinary workplace friction: “‘[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.’” (Id. at p. 511, quoting Blackie, supra, 75 F.3d at p. 725.) Were the rule otherwise — if “every minor change in working conditions or trivial action were a materially adverse action” — then “any ‘action that an irritable, chip-on-the-shoulder employee did not like would form the basis of a discrimination suit.’” (Ibid., quoting Williams v. Bristol-Myers Squibb Co. (7th Cir. 1996) 85 F.3d 270, 274.) That formulation became the rhetorical anchor of an entire generation of California adverse-action law.

Rejecting an unduly narrow definition. Although the court refused to count trivial slights, it equally rejected the cramped view that adverse action is confined to firings, demotions, and refusals to hire or promote. The Department had “suggest[ed] that adverse employment action is limited to actions like discharge, demotion, and refusal to hire or promote,” but the court declined to draw the line so tightly. (Thomas, supra, 77 Cal.App.4th at p. 511.) Quoting the Seventh Circuit, it recognized that “‘adverse job action is not limited solely to loss or reduction of pay or monetary benefits[;] [i]t can encompass other forms of adversity as well,’” such as “‘moving an employee’s office to an undesirable location, transferring an employee to an isolated corner of the workplace, and requiring an employee to relocate her personal files while forbidding her to use the firm’s stationary and support services.’” (Ibid., quoting Collins v. State of Ill. (7th Cir. 1987) 830 F.2d 692, 703.) The court thus positioned the materiality standard as a middle path: broader than a closed list of formal job actions, narrower than any change an employee dislikes.

The operative test: detrimental and substantial. Settling on the prevailing standard, the court held that an actionable change “‘be more disruptive than a mere inconvenience or an alteration of job responsibilities,’” and that “‘[a] materially adverse change might be indicated by a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices that might be unique to a particular situation.’” (Thomas, supra, 77 Cal.App.4th at p. 511, quoting Crady v. Liberty Nat. Bank and Trust Co. (7th Cir. 1993) 993 F.2d 132, 136.) The court then distilled the rule into the single phrase the case is remembered for: “The employment action must be both detrimental and substantial.” (Ibid., citing Bernheim v. Litt (2d Cir. 1996) 79 F.3d 318, 327 (conc. opn. of Jacobs, J.).) The dual requirement — detriment and substantiality — supplies the conjunctive test that later courts and CACI No. 2509 would carry forward.

Applying the standard to the pleadings. The court then measured Thomas’s allegations against the test. Its framework was functional: “We must analyze Thomas’s complaints of adverse employment actions to determine if they result in a material change in the terms of her employment, impair her employment in some cognizable manner, or show some other employment injury.” (Thomas, supra, 77 Cal.App.4th at p. 511.) Significantly, the court conducted that analysis under the most generous reading of the statute, expressly resolving any doubt about scope in the plaintiff’s favor: “Even if we broadly interpret the definition of adverse employment action based upon the sweeping provisions of the California Fair Employment and Housing Act,” the complaint still fell short. (Id. at pp. 511–512.) The reason was the nature of the pleaded acts. “Most of the actions upon which she relie[d] were one time events, such as a delayed check, an early job change, and failure to receive one overtime check.” (Id. at p. 512.) Isolated, non-recurring administrative missteps did not change the terms of employment. As for the broader allegations, “such as the general assertion that Thomas was assigned more duties than other employees in the same unit,” they were “not accompanied by facts which evidence both a substantial and detrimental effect on her employment.” (Ibid.) Conclusory assertions of disparate burden, untethered to facts showing material harm, did not satisfy the standard at the pleading stage.

The employment-connection requirement (part 7). The court added a second, independent limit. A FEHA retaliation claim, it held, must rest on an adverse action within the employment relationship: “A claim of retaliation must be based upon an adverse employment action,” and Government Code section 12940 “makes the employment practices described in that section unlawful.” (Thomas, supra, 77 Cal.App.4th at p. 512.) The court noted that “[f]ederal law is similar.” (Ibid., citing Veprinsky v. Fluor Daniel, Inc. (7th Cir. 1996) 87 F.3d 881, 886.) On that footing it disposed of Thomas’s credit-union grievance: her allegation “that a department employee interfered with her appointment as chairperson of the supervisory committee for the Chino Valley Federal Credit Union was not an employment-related action and therefore Thomas is not entitled to pursue that claim under the FEHA.” (Ibid.) Interference with a position outside the employment relationship, however motivated, is not actionable as workplace retaliation.

Disposition. Having found no actionable adverse employment action and no cognizable employment connection for the credit-union claim — and resting as well on unpublished exhaustion and pleading grounds — the court affirmed. “The judgment is affirmed. Costs are awarded to respondent.” (Thomas, supra, 77 Cal.App.4th at p. 512.) The panel was unanimous, with no concurrence or dissent. (Ibid.)

Significance

Thomas matters because it was the headwater. It announced, on a blank California slate, the rule that an adverse employment action “must be both detrimental and substantial.” (Thomas, supra, 77 Cal.App.4th at p. 511.) That conjunctive materiality test — together with the borrowed warning that workplaces “‘are rarely idyllic retreats’” and that mere displeasure does not make conduct adverse (ibid.) — became the seedbed for a decade of California adverse-action doctrine. Its phrasing recurs across the post-2000 line of cases (including Akers v. County of San Diego (2002) 95 Cal.App.4th 1441, McRae v. Department of Corrections and Rehabilitation (2006) 142 Cal.App.4th 377, and Malais v. Los Angeles City Fire Dept. (2007) 150 Cal.App.4th 350) that polices the boundary between trivial workplace friction and materially adverse action.

The decision’s authority was later refined but not displaced. In Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, the California Supreme Court settled the standard for FEHA retaliation and adopted a materiality test of its own — adverse treatment that “materially affect[s] the terms, conditions, or privileges of employment” — while cautioning against both an over-narrow “ultimate employment action” rule and an over-broad one that would sweep in trivial slights. Thomas’s “detrimental and substantial” formulation survives as an early, frequently cited articulation of the same idea, and the materiality principle it imported now anchors CACI No. 2509’s definition of adverse employment action. A practitioner citing Thomas today should read it alongside, and through the lens of, Yanowitz’s totality-of-the-circumstances refinement.

The opinion’s reach is also bounded by its posture and its publication status. It arose on demurrer, so its holding is that the pleaded acts did not, as alleged, state material adverse action — a point about pleading sufficiency, not a categorical ruling that delayed checks or duty reassignments can never be adverse. And the court’s own flagged grounds for affirmance — failure to exhaust administrative remedies, and the inadequacy of the proposed second amended complaint — were decided in unpublished parts (3 through 5 and 8 through 10) and are not citable. (See Thomas, supra, 77 Cal.App.4th at p. 507 [partial-publication notice]; Cal. Rules of Court, rule 8.1115.) The durable, citable core is the part 6 definition and the part 7 employment-connection limit.

Key quotes

“Most circuits agree that an adverse employment action requires ‘a materially adverse change in the terms of … employment.’ … The employment action must be both detrimental and substantial.” (Thomas, supra, 77 Cal.App.4th at pp. 510–511.)

“Even if we broadly interpret the definition of adverse employment action based upon the sweeping provisions of the California Fair Employment and Housing Act … we do not find that Thomas’s complaint alleges the necessary material changes in the terms of her employment to cause employment injury. Most of the actions upon which she relies were one time events, such as a delayed check, an early job change, and failure to receive one overtime check.” (Id. at pp. 511–512.)

“Thomas’s complaint that a department employee interfered with her appointment as chairperson of the supervisory committee for the Chino Valley Federal Credit Union was not an employment-related action and therefore Thomas is not entitled to pursue that claim under the FEHA.” (Id. at p. 512.)

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Practice pointer

Open questions

First, a publication caveat governs how the case may be used. Thomas was “certified for publication with the exception of parts 3, 4, 5, 8, 9, and 10,” so its unpublished portions are not citable. (Thomas, supra, 77 Cal.App.4th at p. 507; Cal. Rules of Court, rule 8.1115.) That matters because two of the grounds the court named for affirmance — that “Thomas failed to exhaust her administrative remedies” and that “the proposed second amended complaint failed to state a cause of action” (id. at p. 509) — are developed only in the unpublished parts. The published, citable holdings are the part 6 definition of adverse employment action and the part 7 employment-connection requirement. Anyone relying on Thomas’s exhaustion analysis must look elsewhere; it cannot be cited from this opinion.

Second, because the decision turned on the inadequacy of the pleadings under the most generous reading of the statute (Thomas, supra, 77 Cal.App.4th at pp. 511–512), it leaves open how the same acts would fare on a developed record. The court did not hold that a delayed paycheck, an early job change, or a heavier duty load can never be adverse; it held that these acts, as pleaded, lacked facts showing “both a substantial and detrimental effect.” (Id. at p. 512.) Where do the line cases fall — the recurring, cumulative pattern of slights, or the reassignment that quietly narrows advancement? Thomas supplied the conjunctive test but not its application to the harder, totality-of-circumstances records that Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028 would later make central. The boundary between trivial and material — fixed by Thomas in the abstract — remains a fact-bound, case-by-case judgment, exactly as the opinion’s own “case-by-case determination based upon objective evidence” framing anticipated. (Thomas, supra, 77 Cal.App.4th at p. 510.)