San Francisco Employment Law Firm Blog

One of the challenges of proving retaliation at workplace in cases where an employee was fired shortly after submitting a harassment/discrimination/safety violation complaint against his/her supervisor or co-workers is showing that the employer knew about the complaint before making the decision to terminate an employee. After all, if the employer can demonstrate that he had no knowledge of the complaint until after terminating or deciding to terminate the complaining employee, then there is no retaliation case, since there can be no retaliation claim for a protected activity that took place after the firing.

The Ninth Circuit Case Hernandez v Spacelabs Medical Inc., is very helpful to Plaintiffs on this point. In that case, the Plaintiff was terminated shortly after complaining about age discrimination. The official reason for his termination was a number of performance issues over the past 6 months, some of which were exaggerated and some of which were simply not true. Hernandez sued for retaliation. The employer, in filing a motion to dismiss the case prior to trial, argued that it had no knowledge of the complaint at the time of deciding to terminate Plaintiff or terminating Plaintiff. The Ninth Circuit, in reversing the motion to dismiss, made a very interesting and valuable observation to Plaintiffs in retaliation cases: "What-did-he-know-and-when-did-he-know-it questions are often difficult to answer, and for that reason are often inappropriate for resolution on motion to dismiss. It is frequently impossible for a plaintiff in Hernandez's position to discovery evidence contradicting someone's argument that he did not know something, and Hernandez has no such evidence...." - in other words, the court recognizes how easy it would be for the employers to deny any knowledge of protected activity prior to firing an employee. A supervisor or a human resources manager could easily say that he never saw or received the complaint or that he didn't look at it until after the firing. The Hernandez case is an additional obstacle for employers in retaliation cases.

Of course, it's much easier and more effective to ensure the employer's knowledge of the complaint by making sure that your complaint is being transmitted and received. Such simple, technical things as fax transmission confirmation sheet or sent e-mail go along way when establishing the employer's knowledge of the complaint in wrongful termination litigation.

Having been prosecuting discrimination and retaliation claims for a while now, I am naturally curious to get into the minds of those managers who retaliate or discriminate against employees who are disabled or who suffered an on-the-job injury (and filed a workers compensation claim).

Recently, during a conversation with an in-house counsel(!) of a relatively large company (over 500 employees), I got some insight into what drivers retaliation. The employer refused to provide reasonable accommodations to my client, who had a serious back injury and two subsequent back surgeries. Some of the comments of the company's lawyer astounded me, and included: "He has a history of filing workers compensation claims," and "he is been pushing it for a while now with asking for things." It is as if the attorney was admitting that they developed hostility or animosity toward my client because of his injury and resulting medical condition.

I firmly believe that the above mindset on the part of the managers at any workplace - the mindset of "I am tired of those injuries and requests for accommodations" is a breeding ground for discrimination and wrongful termination claims. Hopefully, when employers pay out large settlements, verdicts or administrative fines, imposed by EEOC of DFEH, they make the necessary changes to redress discriminatory mindset among managers through training or otherwise, even though that is of course also not always the case.

On March 22, 2011, the United States Supreme Court published an important opinion on retaliation law, holding that oral as well as written complaints about wage and labor law violations are protected activities as far as retaliatory discipline or firing go. In Kasten v. Saint-Gobain Performance Plastics Corp. the plaintiff complained that the location of the time clock prevented workers from receiving credit for putting on and taking off their work clothes. Specifically, plaintiff raised this concern with his shift supervisor and he also discussed the issue with one of the human resources managers. Naturally, the employer denied that that was the reason for plaintiff termination and argued that he was fired for not clocking in and out when he was taking breaks.

In this favorable to employees decision, the court makes an interesting observation that "filing" a complaint within the meaning of at least the FLSA (Federal Labor Standards Act) also mean "oral filing" or complaining verbally. The defendant argued that the employer should have a fair warning of a protected activity and therefore to be protected it has to be reduced to writing. The court agreed with the fair warning part, but rejected the notion that a complaint has to be in writing in order to be a "fair warning" to the employer. The court has articulated a fair warning standard that makes a lot of sense: "to fall within the score of the anti-retaliation provision, a complaint must be sufficiently clear and detailed for a reasonable employer to understand it, in light of both content and context, as an assertion of rights protected by the statute and a call for their protection. This standard can be met by oral complaints as well as by written ones."

Reversing the lower court's decision, the US Supreme Court, in Thompson v. North American Stainless LP, a third party retaliation claim proceed. In that case, both the Plaintiff and his fiance worked for the Defendant. Shortly after Plaintiff's fiancee filed sex discrimination charge with EEOC against the employer, Plaintiff was fired. The Court noted that Title VII's antiretaliation provision prohibits an employer from discriminating any of his employees for engaging in protected conduct, and further pointed out that it is obvious that a reasonable worker might be discouraged from engaging in a protected activity, such as complaining about discrimination or harassment, if she knew that her fiance would be fired.

The court declined to identify a fixed class of relationships for which third-party reprisals would be unlawful. The court stated however that firing a close family member will almost always meet the standard of a person who is in a "zone of interest" for purposes of establishing retaliation against a third party.

Besides other federal and California workplace anti-retaliation laws available to different groups of employees, nurses and other medical professionals working at hospital, clinics, and other healthcare facilities have additional law in California that protects them from retaliation. Under section 1278.5 of California Health and Safety Code, the employers may not prohibit against any employee who complains to an employer or a governmental agency about unsafe patient care or conditions.

Unfortunately, this kind of retaliation is not uncommon. The persons in charge who are afraid that the medical safety complaints are not only directed to them but they are also in part or in whole might be their responsibility will likely make it their first priority to terminate the complaining employee or otherwise shut him up.

In Mendiondo v. Centinela Hospital Medical Center, 521 F.3d 1097 (2008), the employee complained about compromised patient care, including unnecessary catheterizations, refusing to use the safest drug for heart attacks because of cost reasons, and using outdated cardiac equipment, among other things. Her manager informed her outright that she should either stop complaining or she will be fired. The ninth circuit allowed the case to proceed forward after it was found to be improperly dismissed by the district court.

Thus, healthcare employees who are fired for caring about their patients and about complying with their ethical obligations should know that the above statute protects them, and while it might not force the employer who unlawfully fired them, reinstate the victim of retaliation, it gives them a strong voice in court, especially if the fact that questionable practices took place is corroborated by other existing or former employees.

Retaliation against employees for exercising their rights or complaining about unlawful conduct of their employer is common. However, proving retaliation in California presents unique legal and factual challenges, as employers almost never simply admit that they retaliated against an employee.

One California court discusses and provides excellent guidance on proving retaliation in California Fair Employment & Housing Commission v. Gemini Aluminum Corp. 122 Cal.App.4th 1094 (2004). In that case, the court noted that to establish the necessary causal link between an employee's protected activity and the adverse employment action by the employer (such as termination, demotion, or transfer to a less desirable position/location) the employee needs to show that he/she engaged in a protected activity, that the employer was aware of that protected activity, and that the adverse action against that employee was taken shortly after the employee engaged in the subject protected activity.

The court emphasized two very important points with regard to retaliation. First, even informal complaints to management about discriminatory employment practices are considered sufficient opposition to trigger prohibition against retaliation. Secondly, the court noted that even threatening to file a discrimination complaint without actually filing it is a protected activity.

One of the challenging in proving the workplace retaliation claim against an employee is showing a nexus - a connection between the employee's protected activity and the adverse employment action taken by the employer against the same employee. The employer will almost always deny retaliation and will always argue that the employee was terminated for reasons that have nothing to do with his disability or his complaints about discrimination/harassment. It is therefore crucial that the claimant has a solid evidence to establish that he complained and that those complaints were actually received by the employer.

This means that if you feel that you are subjected to discrimination and/or harassment, you complain to your supervisor or to the HR department in writing, so that later - the employer cannot deny the very fact that you actually complained. Whether it's an e-mail, a handwritten note or a formal letter - written evidence of complaining about possibly unlawful conduct is much harder to refute than the "he said / she said" situations.

One of employers' favorite ways of retaliating against employees or creating a paper trail for terminating a worker who complains about harassment or discrimination or who demands to have the opportunity to exercise his disability rights at workplace, is by engaging in a campaign of issuing negative performance reviews. This strategy is "effective" for at least two reasons. First, a review of an employee's performance is an inherently subjective process, which makes it particularly challenging to prove that the review is tainted with pretext and discriminatory / retaliatory motive. After all, any manager or a supervisor can argue that he is entitled to his/her opinion and can find certain flaws in most employees' performance. Secondly, series of negative reviews, especially if these evaluations are not substantiated, are likely to cause the reviewed worker to start feeling unappreciated, frustrated, and as a result lose motivation to work well and start having real performance issues. Arguing later what came first - the bad reviews or the bad performance - is an uphill battle for most employees.

So, what are some of the ways to prove that the negative performance reviews are not "real?"
The first and the most crucial step of attacking the veracity if performance evaluations is by tracing the total history of a worker's performance. If, for instance, you have been working at a company for 10 years, complained about harassment six months ago, and your very first or one of the very first negative performance reviews was issued a month after your complaint, this is likely to be more than a coincidence. Another evidence of retaliation and discriminatory motive is a situation where several workers are engaging in the same misconduct, which is known to their manager, but only one of them is being disciplined and reprimanded.

A manager's inconsistent statements about what the exact performance issues are is yet another possible way to show that all of the "issues" mentioned are bogus and they are not the true reasons for poor performance evaluations or subsequent suspension, transfer, demotion, or employment termination. After all, we tend to remember the truth much better than the lies that people artificially make up in their mind and which do not have a logical connection to reality.

It is not uncommon for an employer to unlawfully retaliate against an employee not through a single, major act, such as suspension, demotion or termination of employment, but through series of less obvious acts that tend to negatively affect the victim employee's performance, motivation and cause him or her a significant amount of stress and other psychological problems, which also constitutes unlawful workplace retaliation.

The employer who is well aware of the liability imposed by law for unlawful retaliation at workplace realizes the danger of engaging in obvious retaliation such as terminating an employee. Thus, such an employer may try to punish an employee for opposing an unlawful conduct or exercising rights under Fair Employment and Housing Act or other statutory rights by interfering with that employee's job performance through series of intimidating, obstructive actions such as giving unreasonably large amount of work or imposing impossible deadlines, issuing false bad reviews after the employee engaged in a protected activity, spreading false rumors about the employee that tend to tarnish his reputation at workplace, and otherwise make the employee life at workplace harder and more stressful, trying force him out.

The courts recognize the above tactics used by the employers and analyze retaliation claims in "totality of circumstances" considering the actions taken by the employer against an employee collectively, rather than deciding whether each individual actions alone constitutes retaliation. Wideman v. Wal-Mart Stores, Inc. (11th Cir. 1998). A court should look at the context and totality of employer's conduct because "otherwise minor slights, relentlessly compounded may become sufficiently 'adverse' to warrant relief under the statute. Simas v. First Citizens Federal Credit Union (1st Cir. 1999).

California Labor Department statistics suggests that workplace retaliation claims are on the rise more than other employment related claims, such as discrimination and harassment and hostile work environment related lawsuits. This is not surprising as I believe that besides the common reasons for these violations, such as lack of knowledge of the law on the side of employers and managers, there is a deeper, fundamental cause of retaliation claims, rooted deeply in human nature. Most humans have a predisposition toward being at least somewhat vindictive. When someone intentionally hurts us, we have a natural desire to both defend ourselves and hurt the attacker back. Such dynamics are especially strong in an environment where people, besides dealing with each other, are faced with conscious or subconscious fear of losing their source of income and livelihood, such as workplace.

Thus, when an employee complains about the manager, whether it's a justifiable grievance or not, the supervisory employee will feel both angry and threatened. Unless the manager is well educated in the workplace retaliation laws and can consciously resist targeting the complainant or unless the company has adequate mechanisms that address retaliation and protect the employee who complains and/or "blows the whistle," some form of retaliation is almost certain to happen. That retaliation can be obvious and blunt, such as demoting, suspending or transferring an employee to a less desirable position or workplace, or it can be more subtle, such as creating a paper trail of made up bad performance reviews and picking on employee for every insignificant reason.

Regardless of the cause and the degree of retaliation, it almost never simply goes away. On the contrary, the employee who is being retaliated against will likely be subjected to a greater retaliation with time if he is not taking action, unless the issue is address with the human resources department or higher up in the company, or through legal representation.

Two critical aspects of proving (discriminatory) workplace retaliation for filing a workers compensation claim or engaging in other protected activity are: (1) proving causal relationship between the filing of the the workers compensation claim (or engaging in other protected activity) and the discriminatory actions by the employer; and (2) proving tat the employee was qualified and able to perform his or her job at the time when discrimination took place.

Careful investigation of the facts and circumstances of the employee's employment and wrongful termination is essential. Obviously, with respect to establishing the causal relationship, the closer in proximity of time the discriminatory conduct is to the employer's learning of the employee's filing a workers compensation claim, the more likely the causal link will seem to the judge, jury, or an arbitrator.

The first very important component of proving retaliation is in disproving a possible legitimate reason for termination, the most common of which is poor performance. Thus, in a case of alleged retaliation, like in most other discrimination claims, an attorney should seek evidence such as the employee's productivity and performance records, including all evaluations, commendations, promotions, raises, and any disciplinary measures.

The second component of demonstrating unlawful retaliation is the evidence specific to the workers' compensation system. Information to obtain of this type includes the number and disposition of all workers' compensation claims that have been filed against the employer, and information about the whereabouts and subsequent histories of employees who had filed claims.

The third piece of evidence essential to proving retaliation claim is the aggrieved employee's hospital and medical records, with special attention to the timing of visits to health care providers. The employer may have likely retaliated for an employee taking time off to see a doctor or get treatment, which in many cases is also considered an unlawful retaliation and disability discrimination.

It is also important to obtain documents evidencing the employer's position with respect to the underlying workers' compensation claim. i.e. Was your workers compensation claim contested by the employer? On what grounds? How vigorously? What was the outcome?

It is hard to overestimate the importance of documentary evidence in proving retaliation and disability discrimination claims in California. As in most individual discrimination claims, the testimony of the employee and employer generally ends up in flat contradiction regarding key elements of the claim. Proper documentation is likely to be crucial in corroborate the employee's testimony and disprove the testimony of the employer, casting doubt on the truthfulness of the employer's stated motives for discriminating and/or terminating your employment.

A qualifying employee (who worked for his employer for 1,250 hours or more during the past year for a company with 50 or more employees within a 75 mile radius) invokes his CFRA / FMLA rights when she asks for leave for her own serious health condition or that of a family member, and need not mention CFRA or FMLA by name in order to be entitled to leave. The employer may grant the leave without ever requesting medical certification. However, if the employer requires such certification, it should do so either at the time that the employee gives notice of her need for leave or within two business days thereafter, or - if the leave of the employee was unforeseeable - within two business days after the employee's leave starts. Cal. Gov. Code section 12945.2(j)(1), (k)(1).

Under CFRA, the certification is legally sufficient if it includes the dates on which the condition started, and the estimated time the employee will require the leave. Once an employee provides adequate certification of her serious health condition, the employer must grant the leave, unless it has "reason to doubt the validity of the certification." The employer may request an employee to undergo a second or third opinion of his condition if and only if the employer has a reason to doubt the validity of the original certification provided by the employee. Employers are required to obtain the opinion of a second and third doctor before denying leave or terminating an employee because of doubts about the validity of certification.

If you believe that you suffered an adverse employment action or were wrongfully terminated in retaliation for exercising your rights under FMLA / CFRA, contact San Francisco employment lawyer Arkady Itkin to discuss your rights.

California Family Rights Act (CFRA) is a part of FEHA (Fair Employment and Housing Act) and generally provides that it is unlawful for an employer to refuse an employee's request for up to 12 weeks of family care and medical leave in a year. An employer is also forbidden from discharging or discriminating against an employee who requests family leave or medical leave. Family care and medical leave includes leave because of an employee's own serious health condition that makes the employee unable to perform the functions of his position. "Serious health condition" means an illness, injury, impairment, or physical or mental condition that involves either of the following: (a) Inpatient care in a hospital, hospice, or residential care facility; (b) Continuing treatment or continuing supervision by health care provider.

To be eligible for CFRA leave, an employee must have more than 12 months of service with the employer and have at least 1,250.00 hours of service with the employer during the previous 12 months of employment. It is important to note that this condition must be satisfied not at the time the employee suffered an adverse employment action (termination, suspension, etc.), but whether the employee was eligible to take CFRA leave when she took the leave that resulted in adverse employment action.

It is also unlawful to retaliate against an employee for exercising his rights under CFRA. The Dudley v. Caltrans 90 Cal.App.4th 255 was the first court to outline the elements of proving CFRA retaliation, adopting FMLA retaliation analysis used by the federal courts. The court concluded that the elements of retaliation claim under CFRA are as follows: (1) the defendant was the employer covered by CFRA; (2) the plaintiff was an employee eligible to take CFRA leave; (3) the plaintiff exercise her right to take leave for a qualifying CFRA purpose, and (4) the plaintiff suffered an adverse employment action, such as termination, fine, demotion, or suspension because of her exercise of her right to CFRA leave.

California statutes prohibiting retaliation bar termination of (or other adverse employment action against) employees asserting their legally protected rights, exercising political affiliations, opposing unlawful discrimination at workplace, or seeking statutory redress (such as investigation of discrimination, harassment, etc.)

To show retaliation under California Fair Employment and Housing Act (FEHA), an employee must show that (1) he or she engaged in protected activity under FEHA; (2) he or she suffered an adverse employment action (such as demotion, transfer, suspension, termination or other action by the employer that materially affects the terms, conditions, or privileges of employment, and/or would tend to discourage a reasonable employee from complaining about the unlawful conduct at workplace); and (3) there is a causal connection between the protected activity and the adverse employment action.

FEHA specifically prohibits an employer from retaliating against employee for opposing any unlawful discriminatory practice prohibited by FEHA, and filing a complaint, testifying, or assisting in any proceeding under FEHA.

Note, that the great power of the anti-retaliation law is in that the employee only needs to show that he or she had a "reasonable belief" that the employer practice that the employee was opposing was unlawful. It doesn't matter that a court later determines later that the practice complained of, or opposed to, is actually not illegal, as the California Supreme Court held in Yanowitz v. L'Oreal USA, Inc. (2005) 36 C4th 1028, 1043.