California employment case index

The Fourth District reversed summary judgment for the County, holding that a deputy district attorney's internal warnings that a murder prosecution lacked probable cause were protected disclosures under Labor Code section 1102.5 — no express citation of law required, job duties notwithstanding — and that months of testing for a suspected neurological disease raised a triable issue of FEHA disability.

In Ortiz v. Dameron Hospital Assn. (2019) 37 Cal.App.5th 568, the Third District reversed summary judgment for a hospital, holding a jury could find a national-origin and age hostile work environment where a supervisor repeatedly mocked older Filipino nurses’ accents, transferred the plaintiff to a unit she was untrained for, and falsely accused her of sleeping on the job. The supervisor’s animus was attributable to the employer under Government Code section 12926, subdivision (d).

A tenured professor sued CSU for retaliation and defamation after the university launched investigations and made statements about him. CSU moved to strike under the anti-SLAPP statute. The Court of Appeal held the retaliation claim did not “arise from” protected speech merely because protected activity sat in the background, and applied Baral v. Schnitt to parse the pleading into its component claims — striking only the discrete defamation allegations that were themselves based on protected statements.

In Caldera v. Department of Corrections & Rehabilitation (2018) 25 Cal.App.5th 31, a correctional officer who stutters proved that a supervisor mocked his speech impediment in front of others at least a dozen times over roughly two years, and a jury awarded $500,000 for FEHA disability harassment. The Court of Appeal affirmed the liability finding, reaffirming that harassment need only be severe OR pervasive — not both — and that because the conduct occurred on “more than one isolated occasion,” the plaintiff was not required to prove a physical assault or threat. On the employer's cross-appeal, the court reversed the trial court's order granting a new trial on damages, because the court failed to file the statement of reasons within the ten days Code of Civil Procedure section 657 requires, rendering the order a nullity.

In Meeks v. AutoZone, the Fourth District reversed defense verdicts in a FEHA sexual harassment case, holding that a cluster of evidentiary rulings cumulatively skewed a credibility contest against the plaintiff. The court drew a usable line under Evidence Code section 1106: a plaintiff’s sexually charged banter directed at the harasser is admissible under subdivision (b), but a privately posted photograph of her tattoo — never shared “with” the harasser — remains barred by subdivision (a). It also confirmed that a harasser puts his intent in issue, and opens the door to me-too evidence, simply by claiming he treated everyone the same.

In Whitehall v. County of San Bernardino (2017) 17 Cal.App.5th 352, a county social worker was placed on administrative leave days after telling the juvenile court that her superiors had directed her to submit misleading evidence; the County’s anti-SLAPP motion to strike her whistleblower suit was denied. Affirming, the Court of Appeal held the leave — unrequested, investigative, paired with a decision to terminate her, and removing her from her assigned case — was an adverse employment action under Yanowitz’s contextual materiality standard, so the claim was not a meritless SLAPP.

Reversing a judgment of dismissal entered after a demurrer was sustained without leave to amend, the Court of Appeal held that a hotel housekeeper stated viable FEHA claims for sexual harassment by a nonemployee (Gov. Code, § 12940, subd. (j)(1)) and for failure to prevent harassment (id., subd. (k)) where she alleged she was assaulted on the employer's premises by a drunk trespasser the employer knew or should have known was wandering the property and aggressively propositioning other housekeepers. Whether the employer's response was adequate is a question of fact unsuitable for resolution on demurrer.

An employee’s refusal to participate in conduct she reasonably believes is unlawful under the FEHA — including refusing to go along with retaliation against a coworker — can constitute protected activity, and threats or intimidation may qualify as a materially adverse employment action supporting a retaliation claim;…

In Bareno v. San Diego Community College District (2017) 7 Cal.App.5th 546, the Fourth District reversed summary judgment for the employer on a CFRA retaliation claim, holding that the 30-day advance-notice rule does not apply when the need for medical leave is unforeseeable — notice need only be given “as soon as practicable” — and that whether an employee sufficiently requested leave and supplied adequate certification is a question of fact. The employer’s decision to treat the employee’s medical absences as a “voluntary resignation,” coming virtually immediately after she sought leave, raised triable issues of retaliatory causation.

When a recreation-program manager was laid off after publicly opposing the City's cuts to disabled-community services, he sued for FEHA retaliation. The Court of Appeal affirmed summary judgment for the City, holding that generalized advocacy for the disabled public is not “protected activity” under Government Code section 12940, subdivision (h): the opposition clause reaches only opposition to conduct an employee reasonably believes is unlawful employment discrimination against an employee or applicant, not opposition to policy choices affecting the public at large.

A truck driver fired for refusing a shift that would have stopped him from administering his disabled son’s dialysis raised triable issues of associational disability discrimination and retaliation under FEHA — because association with a disabled person is itself a protected disability.

A long-serving employee laid off after her supervisor allegedly called her a “liability to the department” in light of her heart condition sued for perceived-disability discrimination, failure to accommodate, CFRA violations, and FEHA retaliation. The Court of Appeal reversed summary judgment on the disability-related claims — the supervisor's remark plus the employer's departure from its own seniority and recall policies raised triable issues of pretext — but affirmed on retaliation, holding that a pre-2016 accommodation request was not, by itself, “protected activity.”

A massage therapist won a FEHA verdict against her spa employer for failing to prevent customer sexual harassment and sex discrimination — even though the same jury found the harassing conduct was not severe or pervasive and that she suffered no adverse employment action. The Court of Appeal reversed, holding that a claim under Government Code section 12940, subdivision (k) is wholly derivative: it cannot stand without an underlying, actionable FEHA violation. Sharpening Trujillo, the court held it is the absence of actionable harassment — not the lack of any harassing conduct — that defeats the prevention claim, and directed entry of judgment for the employer.

Satyadi v. West Contra Costa Healthcare DistrictAn employee need not exhaust the Labor Commissioner’s administrative remedy before bringing a civil whistleblower-retaliation action; the 2013 enactment of Labor Code sections 244 and 98.7, subdivision (g), merely clarified existing law.Satyadi v. West Contra Costa Healthcare District (2014) 232 Cal.App.4th 1022Parallel citation: 182 Cal.Rptr.3d 21. Court of Appeal […]

A franchisor is not ordinarily the employer of its franchisee’s employees and is not vicariously liable for a franchisee-supervisor’s harassment unless the franchisor has retained or assumed general control over the relevant day-to-day aspects of the franchisee’s employment practices; a comprehensive operating system…

In Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, the Court of Appeal affirmed summary judgment for the University and reaffirmed the FEHA line between discrimination and harassment: a supervisor’s personnel-management decisions — who attends an employee’s meetings, how they are run, and accusations of dishonesty or poor performance — are not harassment under Reno v. Baird and Janken, even if discriminatory; the few stray remarks the plaintiff cited were neither offensive nor pervasive. The court also held after-acquired expert evidence of no adverse consequences did not raise a triable issue on pretext.

In Rosenfeld v. Abraham Joshua Heschel Day School, Inc. (2014) 226 Cal.App.4th 886, the Court of Appeal affirmed a defense verdict in an age-discrimination suit and held that an employer may put before the jury, on mitigation of damages, the employee’s failure to invoke the employer’s internal grievance procedure — extending the FEHA avoidable-consequences doctrine of State Dept. of Health Services v. Superior Court beyond the hostile-environment harassment context in which it arose.

A heterosexual male volunteer at a city water plant sued under FEHA for same-sex harassment by two supervisors. The First District reversed summary judgment for one supervisor — gifts, lunches, suggestive remarks, and pornographic images supported an inference of genuine sexual interest and pervasiveness — while affirming for the other. Finding sexual interest on the record, the court expressly declined to decide the effect of the new statute providing that harassing conduct “need not be motivated by sexual desire.”

A male oil-rig floorhand was relentlessly gay-baited, urinated on, and propositioned by his supervisors. The Court of Appeal held these sex-based attacks on his heterosexual identity were harassment because of sex under the FEHA — no proof of the harassers' sexual desire required — endorsing Singleton, rejecting Kelley, and holding that a special verdict rendered defective by a drafting typo is subject to harmless-error review.

A school-district maintenance supervisor, fired after a sustained pattern of insubordination, computer misuse, and retaliation against co-workers, claimed his discharge was really payback for whistleblowing about District construction projects. The Third District affirmed the denial of his mandamus petition, applying the Supreme Court's then-new decision in Harris v. City of Santa Monica to hold that an employer may invoke the same-decision showing without conceding mixed motives, and that untainted misconduct alone justified termination — making the protected-activity question unnecessary to decide.

In Rope v. Auto-Chlor System of Washington, Inc. (2013) 220 Cal.App.4th 635, the Second District held that FEHA forbids firing a nondisabled employee because of his association with a disabled relative, sustaining an expense-theory associational claim where the employer allegedly fired the plaintiff to avoid paying for organ-donation leave for his disabled sister. The court affirmed dismissal of the retaliation, Labor Code, PAGA, and direct-disability counts while reinstating the associational, failure-to-prevent, and public-policy claims.

Applying Harris v. City of Santa Monica to a pregnancy-leave retaliation verdict, the Court of Appeal held the old “a motivating reason” instructions were prejudicial error — and that an employer who never pleads the same-decision defense forfeits it. The judgment and fee award were reversed.

The Supreme Court held 5-4 that an employee is a “supervisor” for Title VII vicarious-liability purposes only if empowered to take tangible employment actions — hire, fire, demote, promote, transfer, or discipline. An employee who merely directs daily work is a co-worker, so the employer is liable only for negligence. The decision does not govern California’s FEHA, which defines “supervisor” more broadly and imposes strict liability for supervisor harassment.

After a vessel-planner trainee complained, a confidential settlement was leaked and coworker hostility followed; the jury found retaliation, but the trial court entered JNOV. The Court of Appeal reversed the JNOV, holding that actions for retaliation are “inherently fact-driven” and that the jury, not the court, decides whether the conduct materially altered the plaintiff's employment — while affirming the alternative new-trial order on grounds of attorney misconduct, surprise, and excessive damages.

A Recology supervisor who reported CRV weight-tag fraud to police and the company's board survived summary judgment: the Court of Appeal held Labor Code section 1102.5 protects reports of illegal conduct by fellow employees and third parties — not just the employer's own violations — and revived his False Claims Act and Tameny claims.

A manager fired after an internal investigation into a subordinate's harassment complaint sued for discrimination and retaliation. Affirming summary judgment for the employer, the Court of Appeal held that Government Code section 12940, subdivision (h) does not shield an employee from termination or discipline for lying or withholding information during the employer's internal investigation — such dishonesty and non-cooperation are unprotected and supply a legitimate, nondiscriminatory ground to terminate an at-will employee.

A physician-partner alleged she was stripped of her regional directorship after reporting that CEP officers had sexually harassed the partnership's employees. The trial court dismissed her claim because, as a partner, she was not an “employee.” The Court of Appeal reversed, holding that FEHA's retaliation provision protects “any person” who opposes forbidden practices — so a partner who opposes her partnership-employer's harassment of its employees is protected from retaliation, notwithstanding Jones v. Lodge at Torrey Pines.

A Muslim engineer born in Pakistan raised triable claims that his employer was liable for a hostile work environment created by Indian coworkers. Because the harassers were nonsupervisory, liability turned on negligence — whether the employer knew or should have known and failed to take corrective action. The Court of Appeal granted a writ reversing summary adjudication of the national-origin and religion harassment claims.

An LAPD officer who was disciplined after the Department concluded he had fabricated a sexual-harassment complaint won a jury verdict for retaliation. The Court of Appeal reversed, holding that an employer does not retaliate under FEHA when it disciplines an employee based on a genuine, good-faith determination that the harassment complaint was false — and that an independent, de novo adjudication of the charges insulates the resulting discipline from claims that animus tainted the underlying investigation.

The First District reversed a defense verdict for instructional error, holding a whistleblower's motive irrelevant and reasonable-belief reports of unlawful policies protected even where debatable — but its further rule that reporting “publicly known” information is not a disclosure was later rejected by the Supreme Court in Kolla's, and the article maps what survives.

Jaramillo v. County of Orange A peace officer’s warnings to his own boss about the boss’s illegal conduct are protected whistleblowing under Labor Code section 1102.5; blanket POBRA waivers are invalid; and after-acquired evidence of unrelated crimes does not retroactively defeat a wrongful-discharge backpay award. Jaramillo v. County of Orange (2011) 200 Cal.App.4th 811 Parallel […]

The Court of Appeal reversed a $356,000 CFRA judgment, holding that the right to reinstatement to the same or a comparable position expires at the end of the 12-week protected leave — so an employee who returned after 19 weeks had no interference claim — and that her retaliation claim failed for lack of evidence rebutting the County’s reorganization rationale.

After a Kern County jury returned a defense verdict, the Court of Appeal reversed, holding that “me-too” evidence of harassment of other women — even outside the plaintiff’s presence — is admissible under Evidence Code section 1101, subdivision (b), to prove discriminatory intent and motive, and that harassment “because of sex” requires bias against the plaintiff’s gender, not sexual desire.

An ironworker apprentice subjected to graphic same-sex verbal abuse complained, then faced a campaign of coworker hostility and lost work opportunities. The Court of Appeal affirmed summary judgment on the sexual-harassment claim (the conduct was not shown to be “because of sex”) but revived the retaliation claim, holding that an employer may be liable under FEHA when it knows or should know that coworkers are punishing an employee for protected complaints and fails to take reasonable steps to stop them.