Articles Posted in Retaliation

It is well established that a retaliation claim may be brought by an employee who has complained of or opposed conduct that the employee reasonably believes to be discriminatory, even when a court later determines the conduct was not actually prohibited by FEHA. Strong policy considerations support this rule. Employees often are legally unsophisticated and will not be in a position to make an informed judgment as to whether a particular practice or conduct by their employer or a manager actually violates the anti-discrimination laws. A rule that permits an employer to retaliate against an employee with impunity whenever the employee’s reasonable belief turns out to be incorrect would significantly deter employees from opposing conduct they believe to be discriminatory.

Moreover, a mistake of either fact or law may establish an employee’s good faith but mistaken belief that he or she is opposing conduct prohibited by FEHA.

To have a claim for retaliation, an employee does not necessarily have to be terminated. Creation of tolerance of hostile work environment for an employee in retaliation for the employee’s complaining about prohibited conduct is an adverse employment action within the meaning of California Gov. Code section 12940(h). Moreover, an employer’s alleged retaliatory responses may be considered collectively to determine whether the employee was subjected to an adverse employment action under the same section. However, mere ostracism in the workplace is insufficient to establish an adverse employment decision. Brooks v City of San Mateo (9th Cir. 2000) 229 F.3d 917, 929.

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.
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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.

I get at least a few calls a week where an employee complains to me about being treated unfairly at workplace. these complaints range from being given more challenging and time consuming tasks than co-workers to being yelled at by the manager to being micromanaged and written up for every little thing.

My answer is the same every time: it is not against the law to do any of the above or to be otherwise unfair to an employee unless the reason for a different treatment is discriminatory or retaliatory. In other words, if there is evidence that the reason for favoritism is because an employee is a member of protected class (due to a disability, age, sexual orientation, familial status, etc.) or due to engaging in a protected class (filing a workers compensation claim, complaining about health and safety issues at workplace, filing a sexual harassment complaint, union activities, etc.) then the aggrieved employee might have a legal claim which can be brought in court.

Otherwise, if it is a matter of inter-office conflict which is not based on any discriminatory criteria, that employee will likely not benefit from having an attorney, and he/she should seriously consider looking for another job, if there is no one in the office who is willing and able to help. This is because the California courts have mentioned many times in the past that their job is not to enforce civility rules at workplace but to only remedy legal violations, such as discrimination, harassment, and retaliation.

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.

Under CFRA (California Family Rights Act), an employer is generally required to grant an eligible employee’s request to take up to a total of 12 workweeks in any 12-month period for family care and medical leave. CFRA or FMLA leave may be taken because of an employee’s own serious health condition that makes the employee unable to perform the functions of the position of that employee. A “serious health condition” means “an illness, injury, impairment, or physical or mental condition” that involves either “inpatient care in a hospital, hospice, or residential health care facility” or “continuing treatment or continuing supervision by a health care provider.” (Gov. Code, § 12945.2(c)(8).)

Thus, for instance, such a common illness as diabetes qualifies as a “serious health condition” within the meaning of CFRA, because the definition includes any illness that involves “continuing treatment or continuing supervision by a health care provider” or a chronic serious health condition which requires periodic visits for treatment to a healthcare provider, which continues over an extended period of time and which may cause episodic rather than a continuing period of incapacity, such as asthma, diabetes, and epilepsy.

In Dudley v. Dept. of Transportation, 90 Cal.App.4th 255 (2001), the court made it clear that it is unlawful to fire or otherwise retaliate (demote, suspend, discipline, etc..) against an employee for exercising his right to FMLA / CFRA leave. Further, the court held, the fact that an employee exhausted his leave rights before being terminated does not necessary change the fact that the termination was considered workplace retaliation and thus unlawful.

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.

nurses-retaliation-california.jpgIn 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.

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.