California employment case index

A state administrative law judge prevailed on a FEHA retaliation claim after she was suspended following gender-bias complaints. Affirming her judgment, the Court of Appeal confirmed that a retaliation plaintiff need prove only that retaliatory animus was “at least a substantial or motivating factor” in the adverse action — not its sole or but-for cause — and that a civil-service board's finding that some discipline was warranted does not, by itself, defeat the claim.

Summary judgment was improperly granted on the harassment and retaliation claims because triable issues of fact existed; the decision is notable for its strong criticism of the overuse and abuse of summary judgment in employment cases, for its treatment of the parties’ voluminous (and often meritless) evidentiary…

Reversing summary judgment, the Second District held that a lesbian mail-services employee raised triable issues on whether her FEHA administrative complaint was timely under the continuing-violation doctrine, even though her harasser stopped his explicit sexual-orientation slurs over a year before she filed. Applying Richards v. CH2M Hill, the court held the harasser's later, facially neutral work-sabotage campaign could be “similar in kind” to the slurs and that “permanence” turns on when the harassment stops, the employee resigns, or protest becomes futile — not on when the offensive words cease.

Miklosy v. Regents of University of CaliforniaThe Whistleblower Protection Act bars a damages action against the University once it timely decides an internal retaliation complaint; a Tameny tort does not lie against a public entity or against a supervisor; and workers’ compensation exclusivity bars the related emotional-distress claim.Miklosy v. Regents of University of California (2008) […]

Summary judgment was error. A plaintiff may defeat the motion by producing evidence from which a trier of fact could find the employer’s proffered reasons unworthy of credence, and the record here showed the dismissal decision may in fact have been made by Mamou’s own biased immediate supervisor, raising triable…

In Steele v. Youthful Offender Parole Bd. (2008) 162 Cal.App.4th 1241, the Third District affirmed a judgment and fee award for an employee, holding that FEHA's anti-retaliation provision reaches preemptive retaliation—adverse action taken against an employee the employer believes will become a complainant or witness in a discrimination proceeding—even before the employee has formally opposed any practice or filed any charge.

The same rule that governs discrimination governs retaliation: the employer, but not nonemployer individuals, may be held liable for retaliation under the FEHA (id. at p. 1160).

The Fourth District affirmed a whistleblower-retaliation verdict for an Office on Aging director fired after warning that a County reorganization was unlawful — holding the County waived its exhaustion defense by first raising it after trial — while reversing her sexual-harassment claim under the pre-§ 12923 "severe or pervasive" standard and affirming a remittitur-backed new trial order on damages.

The Fourth District held that while the timing of an adverse action can carry a FEHA retaliation plaintiff past the prima facie stage — even on an uncorroborated declaration — temporal proximity does not, standing alone, create a triable issue of pretext once the employer produces evidence of a legitimate reason, and it expressly rejected Gemini Aluminum's suggestion that employers must also prove their termination procedures were objectively fair.

Reversing summary judgment, the Court of Appeal held that an employee need not mention the CFRA to request protected medical leave — and that an employer that never gave notice of CFRA rights, rejected a chiropractor's certification out of hand, and refused to communicate with the employee's designated representatives could not defeat his interference, retaliation, disability discrimination, and wrongful termination claims as a matter of law.

In Taylor v. City of Los Angeles Dept. of Water & Power (2006) 144 Cal.App.4th 1216, the Second District reversed a dismissal on demurrer, holding that retaliation is a form of discrimination so that the employer's duty to take all reasonable steps to prevent discrimination under Government Code section 12940, subdivision (k), extends to retaliation—and that a supervisor may be held personally liable for retaliation under subdivision (h).

On retransfer from the Supreme Court in light of Yanowitz, the First District reversed a $75,000 retaliation verdict, holding that file memoranda, a letter of instruction, an investigation, an unimplemented 30-day suspension, and a lateral transfer to a comparable position did not — separately or collectively — materially affect the terms, conditions, or privileges of employment, and that the surgeon's beliefs about her employer's motives were not substantial evidence of pretext.

Title VII’s anti-retaliation provision is not limited to employer actions affecting the terms and conditions of employment or occurring at the workplace; it prohibits any employer action that a reasonable employee would have found materially adverse — that is, action that might well dissuade a reasonable worker from…

When a whistleblowing high-school principal was moved to a smaller, quieter school at identical pay, title, and job description, the Third District held that the Yanowitz “materiality” standard for an adverse employment action — built for FEHA retaliation — governs a Labor Code section 1102.5(b) whistleblower claim too, and that a same-pay transfer can still be materially adverse where it significantly diminishes the employee's responsibilities.

An employee engages in protected activity by opposing conduct she reasonably and in good faith believes is unlawful under the FEHA, even without using magic words or filing a formal complaint. For the adverse-action element, the FEHA reaches employer actions that materially and adversely affect the terms, conditions,…

California's leading “cat's paw” decision. A 29-year Safeway food clerk who complained that his female coworkers were being sexually harassed was fired after a trivial bathroom-door confrontation was escalated into “workplace violence” by a resentful store manager and a one-sided security investigation, then rubber-stamped by a district manager who had never heard of his complaints. The Court of Appeal reversed summary judgment, holding that a biased supervisor's animus is a but-for cause that imputes to the employer through the “cat's paw” it uses to carry out the firing.

An alleged harasser’s vow to “get revenge” on those who cooperated against her, plus suspiciously timed scrutiny of a star performer’s paperwork, was enough direct and circumstantial evidence of retaliatory motive to defeat summary judgment on a wrongful-termination claim.

Affirming a retaliation verdict for a former deputy district attorney, the Court of Appeal held that FEHA retaliation requires a substantial and material adverse effect on the terms and conditions of employment — a test satisfied where undeserved accusations of dishonesty and incompetence destroyed the prosecutor's promotability even without a firing, demotion, or lost pay.

The continuing-violation doctrine applies to FEHA claims: an employer’s related unlawful acts are treated as a single continuing violation — and the limitations period does not begin to run — so long as the conduct is sufficiently similar and frequent and has not yet acquired a degree of permanence that should put the…

A defendant moving for summary judgment bears the burden of showing that a cause of action has no merit — that one or more elements cannot be established or that there is a complete defense — by either conclusively negating an element or showing the plaintiff does not possess, and cannot reasonably obtain, evidence to…

The Supreme Court's per curiam reversal holds that no reasonable person could believe a single offhand exchange violated Title VII and that timing alone proves retaliatory causation only when the employer's knowledge and the adverse action are "very close" — the twin rules that now anchor nearly every FEHA retaliation summary judgment motion.

An African-American electronic technician laid off in a budget cut applied for dozens of university jobs, was hired for none, and sued under the FEHA for retaliation. Affirming summary judgment, the Court of Appeal held that a string of rejections by different managers in unrelated departments is a series of isolated decisions, not a “continuing violation” — and that retaliatory remarks by HR staff who took no part in the hiring cannot establish causation, because every actual decisionmaker disclaimed knowledge of the protected grievance.