Akers v. County of San Diego

Facts

Laura Akers began working as a San Diego County deputy district attorney in 1985 and, from 1993, prosecuted domestic violence cases in the district attorney’s family protection division, where she “developed an excellent reputation.” (Akers v. County of San Diego (2002) 95 Cal.App.4th 1441, 1445 (Akers).) Paul J. Pfingst became the elected district attorney in January 1995 and appointed Luis Aragon as division chief two months later. (Ibid.) In December 1995 Akers’s husband — also a deputy district attorney — told Aragon that Akers was pregnant, due in May 1996; Akers, hearing transfer rumors, asked Aragon to assure her she could stay in the El Cajon branch to be close to her baby, and he answered “that this would not be a problem.” (Id. at pp. 1445–1446.) Two months later Aragon told Akers he was concerned about El Cajon morale, believed she was not doing her fair share of the unit’s misdemeanor work, and wanted to transfer her downtown. (Id. at p. 1446.) Akers went over his head to Gregory Thompson, the office’s second in command, who resolved the matter by transferring her to a branch assignment in El Cajon — out of family protection, with a standard one-year misdemeanor rotation, confirmed in writing April 1, 1996. (Ibid.) Akers delivered her baby May 2, 1996, took three months of maternity leave, returned July 24, 1996 to the misdemeanor unit, and after her August request for a downtown transfer was declined, was moved within the El Cajon misdemeanor team away from a supervisor with whom she had personality conflicts. (Id. at pp. 1446–1447.)

In October 1996, Akers’s attorney wrote District Attorney Pfingst claiming Akers had been “forced out of the El Cajon domestic violence unit because she was pregnant, because she is a woman regardless of her pregnancy, and because she did not ascribe to the political views of certain managers at the District Attorney’s office regarding who should be the district attorney.” (Akers, supra, 95 Cal.App.4th at p. 1447.) Within days Pfingst appointed his chief deputy, Keith Burt, and a branch chief, Joan Stein, to investigate — selecting Burt despite knowing that Akers’s husband was then investigating alleged misconduct in a gang unit Burt supervised, and despite Burt’s “substantial animosity” toward him. (Ibid.) Burt and Stein interviewed 12 colleagues and supervisors (but not the judges, detectives, or community organizations Akers urged them to consult). (Ibid.) The witness statements’ essence was that Akers was “an excellent domestic violence prosecutor, but she did not enjoy and did not follow through with the more mundane tasks expected of prosecutors in this division”; at trial Akers presented evidence Burt had omitted favorable information from some statements, “exaggerated and overly emphasized the negative comments,” and relied on years-old events. (Id. at pp. 1447–1448.)

The January 21, 1997 report to Pfingst — authored primarily by Burt — found no factual support for the discrimination claim and stated the interviews confirmed that Akers “adversely affected morale,” “did not do a fair share of work, spent time reading the newspaper, talking on the telephone about personal matters and did non-job-related things while work piled up,” and, while “talented,” was interested only in “big time cases and she actively avoids, even shirks responsibility for the more mundane matters that other deputy district attorneys do on a regular basis.” (Akers, supra, 95 Cal.App.4th at p. 1448.) Two days later Akers was summoned — to Pfingst’s office. After reviewing the witness statements for roughly ten minutes, she said she disagreed with them; according to Akers, Pfingst became “confrontational,” accused her of being “delusional,” and said, “You will not be going back to domestic violence cases ever.” (Pfingst denied the statements.) (Ibid.)

After the meeting, Pfingst ordered an “improvement needed” performance evaluation. (Akers, supra, 95 Cal.App.4th at p. 1448.) Her supervisor prepared a review covering June 1996 through January 1997 with an overall “improvement needed” grade and five “improvement needed” category grades — punctuality, application of effort, performance with minimum supervision, promptness in completing work, and volume of work produced — while conceding Akers was “intelligent, articulate and very capable when she wants to be.” Her internal appeal was largely unsuccessful. (Id. at p. 1449.) Pfingst also directed Burt to prepare a written counseling memorandum — the first, “preliminary” step of progressive discipline under County policy, not maintained in the personnel file. (Ibid.) The memorandum accused Akers, under bold headings, of “Inefficiency” (ignoring cases “of little interest to you”), “Incompetence” (issuance cases left “unattended for an unacceptable amount of time (approximately two to three months); in one instance the statute of limitations expired”), “Dishonesty” (poor punctuality; reading newspapers and personal telephone calls during work hours), and insufficient “Productivity,” and imposed eight compliance standards — from appearing in court when calendar deputies requested to working “8:00 a.m. to 5:00 p.m., … and tak[ing] a lunch break only from noon to 1:00 p.m.” (Id. at pp. 1449–1450.) It closed by warning that noncompliance “may result in disciplinary actions.” (Id. at p. 1450.)

Akers received both documents in February 1997 and was kept on the El Cajon misdemeanor team, where her new supervisor was told to file monthly reports and closely monitor her “comings and goings” — “although the evidence showed that other employees were not monitored and did not strictly adhere to office hours.” The supervisor’s monthly reports were “positive and full of praise.” (Akers, supra, 95 Cal.App.4th at pp. 1450–1451.) Over the following months Akers complied with every standard and “performed her job in an outstanding manner”; her next evaluation was overall “standard” with three “above standard” categories. (Id. at p. 1451.) But when she pursued an apparently open elder abuse position at her supervisor’s suggestion, she “was never transferred to that unit.” (Ibid.) Three months after rotating to the felony trial team, she requested a year’s leave of absence; at trial she explained that “I had made repeated attempts to go back to doing family protection work both in domestic violence and elder abuse, and that I was, that wasn’t going to happen,” that the counseling memorandum was “a black mark on my career,” and that “I know what the label of being a problem in the D.A.’s office would be. And I didn’t want to return.” She resigned in February 1999 and sued. (Ibid.)

Procedural history

Akers tried four causes of action: gender/pregnancy discrimination under the FEHA; pregnancy discrimination under the California Family Rights Act and the federal Family and Medical Leave Act; wrongful termination in violation of public policy; and retaliation in violation of the FEHA and Labor Code section 1102.5 — the last resting on the actions taken after her attorney’s October 1996 letter. (Akers, supra, 95 Cal.App.4th at p. 1452.) The jury found for the County on the first three causes of action but found for Akers on retaliation, specially finding she engaged in legally protected activity, the County subjected her to an adverse employment action, the protected activity was more likely than not a motivating factor, the County would not have taken the same actions absent the unlawful motive, and the actions caused damage; it awarded $250,000 in noneconomic damages (and no economic damages). (Ibid.) On the County’s new trial motion, the court found the jurors had expressly agreed to fold $100,000 of attorney fees into the award — jury misconduct — and conditionally granted a new trial unless Akers accepted a reduction to $150,000. She consented, and judgment was entered for $150,000 plus $249,345 in statutory attorney fees. (Id. at pp. 1452–1453.) The County appealed the sufficiency of the evidence of an adverse employment action and pretext and claimed instructional error; Akers cross-appealed the new trial ruling. The court resolved the adverse-action and instruction issues in the published portion, affirming; the pretext and cross-appeal discussions are unpublished. (Id. at pp. 1445, 1453–1454, 1460.)

Issue

What must a FEHA retaliation plaintiff show to establish an “adverse employment action” — is the element confined to “ultimate” employment decisions such as termination or demotion, or does it reach intermediate employer conduct, and if so, with what limiting principle? And did substantial evidence support the jury’s finding that a negative performance evaluation and counseling memorandum — the latter a “confidential” document never placed in her personnel file — worked such an action against a prosecutor whose promotion prospects turned on the “subjective evaluations” of the very officials who issued them? Finally, was the trial court’s refusal of the County’s instruction defining an adverse employment action prejudicial? (Akers, supra, 95 Cal.App.4th at pp. 1445, 1453–1454, 1457–1458.)

Holding

Reasoning

The statutory framework and burden-shifting. The court began with the text: under Government Code section 12940, subdivision (h), it is unlawful “[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,” and Labor Code section 1102.5, subdivision (b), similarly forbids retaliation for disclosures to a government agency. (Akers, supra, 95 Cal.App.4th at p. 1453.) The prima facie case requires protected activity, an adverse employment action, and a causal link — the formulation drawn from Flait v. North American Watch Corp. (1992) 3 Cal.App.4th 467, 476 — after which the employer must offer a legitimate, nonretaliatory reason; if it does, the presumption “drops out of the picture” and the employee must prove intentional retaliation, the sequence McDonnell Douglas supplies in this context. (Ibid.) The County conceded the October 1996 attorney letter was protected activity; the appeal turned on the second element. (Ibid.)

The definitional gap and the federal split. California authority defining an “adverse employment action” was “scant,” while “a plethora of federal courts” construing the analogous federal statute had “reached differing conclusions”: some confined the element to “an ultimate employment decision (hiring, firing, failure to promote, demotion),” others extended it to “intermediate decisions made in the employment context,” and courts in the latter camp disagreed about which intermediate decisions count. (Akers, supra, 95 Cal.App.4th at p. 1454.) The court took its orientation from Thomas v. Department of Corrections (2000) 77 Cal.App.4th 507, which had surveyed the federal cases and required “a detrimental and substantial effect” on employment, observing that most circuits require something “‘more disruptive than a mere inconvenience or an alteration of job responsibilities’” and that “‘[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.’” (Ibid.)

The rule: intermediate actions count, but only material ones. The court made two moves. First, it rejected the ultimate-decision limitation: “The legislative purpose underlying FEHA’s prohibition against retaliation is to prevent employers from deterring employees from asserting good faith discrimination complaints, and the use of intermediate retaliatory actions may certainly have this effect.” (Akers, supra, 95 Cal.App.4th at p. 1455.) Second, it embraced materiality as the limiting principle: “the retaliation must result in a substantial adverse change in the terms and conditions of the plaintiff’s employment. A change that is merely contrary to the employee’s interests or not to the employee’s liking is insufficient.” (Ibid.) The threshold “guards against both ‘judicial micromanagement of business practices,’ [citation] and frivolous suits over insignificant slights”; without it, “courts will be thrust into the role of personnel officers, becoming entangled in every conceivable form of employee job dissatisfaction.” (Ibid.) The Legislature, though concerned with chilling effects and though the FEHA is construed broadly, “could not have intended to provide employees a remedy for any possible slight resulting from the filing of a discrimination complaint.” (Ibid.) Balancing the “countervailing concerns” identified in Brooks v. City of San Mateo (9th Cir. 2000) 229 F.3d 917 — employers “paralyzed into inaction” by complaints that function as a “‘get out of jail free’ card,” against “the chilling effect on employee complaints resulting from an employer’s retaliatory actions” — the court announced the test: “we conclude an action constitutes actionable retaliation only if it had a substantial and material adverse effect on the terms and conditions of the plaintiff’s employment.” (Ibid.)

Sufficiency: destroyed promotability is a material adverse effect. Applying the test, the court catalogued what was undisputed: four months after the complaint, the County issued a negative performance review and counseling memorandum “accusing her of ‘incompetence,’ ‘dishonesty’ and ‘insubordination’”; “an accusation of dishonesty” against a prosecutor “can be a career ender”; a deputy district attorney’s honesty is essential to the job; all agreed Akers was a fine trial attorney; and promotion from her level (deputy district attorney III) to deputy district attorney IV “was highly competitive and largely controlled by the ‘subjective evaluations’ of superiors.” (Akers, supra, 95 Cal.App.4th at p. 1456.) Although “Akers did not prove a denial of a specific promotional opportunity,” the evidence showed she left the office because of the adverse actions and reputational damage, coupled with “evidence that Pfingst told Akers she would never again work in the domestic violence arena—an area in which she excelled—and top management refused to transfer her to the elder abuse unit.” (Ibid.) From all of this a jury could find the evaluation and memorandum “were undeserved and retaliatory,” that “key decision makers of the district attorney’s office intended to substantially and materially obstruct Akers’s prosecutorial career,” and that absent her complaint “her chances for advancement were excellent” — “[i]n short, the jury could conclude Akers was no longer ‘promotable’ because she complained.” (Ibid.) The governing principle: “Where an employer reacts to a discrimination complaint by eliminating a reasonable potential for promotion or materially delaying the promotion, there is a legally tenable basis for a jury to find the employer substantially and materially adversely affected the terms and conditions of the plaintiff’s employment.” (Ibid.)

“Confidentiality” is no answer when the decisionmakers know. The County argued the dishonesty and incompetence labels could not harm Akers because the counseling memorandum was “confidential” and never placed in her personnel file. The court’s response has aged well: “the critical point is that the decision makers in the district attorney’s office were aware of the serious accusations contained in the reports, and the jury could reasonably infer they would base future employment decisions on those accusations.” (Akers, supra, 95 Cal.App.4th at pp. 1456–1457.) The reports were in fact “subject[s] of conversation” among the deputies, monitoring instructions were disclosed to a lower-level supervisor, and Pfingst acknowledged Burt “had the full authority to share the results of the investigation” within the office. (Id. at p. 1457.)

Written criticism alone is not enough — its use is what matters. The court agreed with the County that “a mere oral or written criticism of an employee or a transfer into a comparable position does not meet the definition of an adverse employment action under FEHA,” expressly declining (in a footnote) to follow Ninth Circuit authority to the contrary. (Akers, supra, 95 Cal.App.4th at p. 1457 & fn. 4.) But the inquiry “requires a factual inquiry and depends on the employer’s other actions”: an unfavorable evaluation becomes actionable where the employer “subsequently uses the evaluation as a basis to detrimentally alter the terms or conditions of the recipient’s employment.” (Ibid.) On the totality of the circumstances — the dishonest/incompetent/insubordinate labels plus “the evidence that the top management demonstrated its willingness to use this information against Akers in significant employment decisions” — sufficient evidence supported the finding that the County’s retaliation “would preclude reasonable promotional opportunities.” (Ibid.)

Instructional error — real, but harmless. The County’s proposed instruction — requiring “a materially adverse change on the terms or conditions” of employment, judged “from the perspective of an objectively reasonable employee,” and “more disruptive than a mere inconvenience or a change in job responsibilities” — was, Akers conceded, a correct statement of law; the trial court refused it and instead gave a modified version of BAJI No. 12.10’s second paragraph, which recites the administrative regulation’s list of retaliatory acts. (Akers, supra, 95 Cal.App.4th at p. 1458.) That was error twice over. The regulatory list was never connected to the adverse-action element, and “verbatim quotations should not be used to instruct a jury if the wording, as applied, is confusing or seemingly inapplicable.” (Ibid.) “More important,” the instruction never told the jury the conduct must have “a substantial and material adverse effect,” leaving room to find liability on “a mere change in the conditions of employment (i.e., the denial of a transfer with the same pay and benefits, or the annoyance and embarrassment inherent in a negative performance review).” (Id. at p. 1459.) Because the lay meaning of “adverse” — anything “[c]ontrary to one’s interests” — is broader than the legal meaning, the court held trial courts should define the element: an adverse employment action means “only those actions that substantially and materially adversely affect the terms and conditions of the plaintiff’s employment.” (Ibid.) Reversal nonetheless required prejudice under Soule v. General Motors Corp. (1994) 8 Cal.4th 548, and there was none: Akers’s counsel told the jury in closing it must find the County “materially adversely chang[ed] the terms or conditions” of employment and tied the evidence to that standard, and nothing else in the record invited a verdict on less. “It is not reasonably probable the jury would have reached a different verdict on the retaliation claim if it had been properly instructed.” (Id. at pp. 1459–1460.)

Scope note. The court’s review of the sufficiency of the pretext evidence (part III of the County’s appeal) and of Akers’s cross-appeal from the conditional new trial order is unpublished and not citable. (Akers, supra, 95 Cal.App.4th at pp. 1445, fn. 1, 1460.)

Significance

Akers gave California its working definition of the adverse employment action in retaliation cases at a time when the state courts had produced only “scant” authority and the federal circuits were split three ways. Its synthesis — intermediate employer conduct counts, ultimate decisions are not required, but materiality is the gatekeeper — was substantially adopted by the Supreme Court in Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, which settled on a materiality standard for adverse actions under section 12940 and recognized that employer conduct impairing an employee’s prospects for advancement falls within the statute — the very promotability rationale on which Akers affirmed. Yanowitz likewise evaluated an alleged course of retaliatory conduct collectively rather than act by act, a totality approach Akers anticipated in weighing the evaluation, the counseling memorandum, the “never again” declaration, the monitoring, and the blocked transfer as a single campaign. (Akers, supra, 95 Cal.App.4th at pp. 1456–1457.)

Three features keep the opinion in briefs a generation later. First, the promotability holding: a plaintiff need not identify a specific promotion denied; eliminating or materially delaying “a reasonable potential for promotion” is itself a substantial and material adverse effect. (Akers, supra, 95 Cal.App.4th at p. 1456.) That principle gives content to retaliation claims built on reputational destruction inside hierarchical, evaluation-driven employers — prosecutors’ offices, law firms, civil service systems. Second, the use principle for criticism: negative reviews and warning memoranda are not actionable in themselves, but become so when management wields them against the employee’s terms and conditions of employment — a line that still frames summary judgment fights over write-ups. (Id. at p. 1457.) Third, the instructional guidance: the element must be defined for the jury in substantial-and-material terms (the substance of what became the pattern instruction’s definition), though Akers itself shows a plaintiff’s verdict can survive the omission where closing argument supplied the standard. (Id. at pp. 1458–1460.) Worth remembering, too, is the posture: unlike the summary judgment reversals that dominate this doctrinal line, Akers is a substantial evidence affirmance of a plaintiff’s verdict — deference ran in the employee’s favor, and the County bore the burden of showing prejudice from the instructional error. (Id. at pp. 1455–1456, 1459–1460.)

Key quotes

“[W]e conclude an action constitutes actionable retaliation only if it had a substantial and material adverse effect on the terms and conditions of the plaintiff’s employment.” (Akers, supra, 95 Cal.App.4th at p. 1455.)

“In short, the jury could conclude Akers was no longer ‘promotable’ because she complained. Where an employer reacts to a discrimination complaint by eliminating a reasonable potential for promotion or materially delaying the promotion, there is a legally tenable basis for a jury to find the employer substantially and materially adversely affected the terms and conditions of the plaintiff’s employment.” (Akers, supra, 95 Cal.App.4th at p. 1456.)

“[A]lthough written criticisms alone are inadequate to support a retaliation claim, where the employer wrongfully uses the negative evaluation to substantially and materially change the terms and conditions of employment, this conduct is actionable.” (Akers, supra, 95 Cal.App.4th at p. 1457.)

Read the full opinion (Justia) →

Practice pointer

Open questions

Akers defined the adverse-action element for FEHA retaliation claims; it did not decide whether the same substantial-and-material test governs discrimination claims under section 12940, subdivision (a) — the question the Supreme Court took up in Yanowitz, which harmonized the standards around materiality. Because the published analysis affirmed on promotability, the court had no occasion to fix the outer boundary of actionable intermediate conduct: it did not say how much circulation, or what quantum of decisionmaker awareness, a nominally confidential criticism needs before a jury may infer material harm — only that this record sufficed. (Akers, supra, 95 Cal.App.4th at pp. 1456–1457.) The opinion likewise reserved any holding on whether purely oral criticism, or an undistributed memorandum genuinely sealed from decisionmakers, could ever be actionable; its rule presupposes use. (Id. at p. 1457.) The court did not analyze Akers’s resignation as a constructive discharge — her verdict rested on the pre-resignation campaign, and the opinion draws no conclusions about when reputational injury forces a quit. Nor does the published portion address causation or pretext: part III of the County’s appeal, which reviewed the pretext finding, is unpublished, so Akers supplies no citable guidance on that step. (Id. at p. 1445, fn. 1.) Finally, the harmless-error holding is expressly record-bound — counsel’s closing argument cured the missing definition “[o]n this record” — leaving open when an undefined adverse-action element will require reversal. (Id. at p. 1460.)