The Court of Appeal issued a "writ" of mandate, overturning a summary judgment order on a harassment claim. Mustafa Rehmani worked for Ericsson in Silicon Valley. He is Pakistani. Many of his co-workers are Indian. Rehmani claimed the Indian co-workers gave him a rough ride. The court describes a series of incidents, over a few months, in which there were political jokes, terrorism jokes, and the like. However, these jokes were pretty isolated, occurring about a month apart.
The court decided that the allegations were enough to send the case to a jury and that the trial court should not have granted summary judgment. The court also held that the company's management had sufficient notice of the conduct, and there was insufficient evidence of an adequate response to the conduct to justify summary resolution.
If you believe the plaintiff's version of events (which the court had to do), he told his manager repeatedly about his co-workers' anti-Pakistani / anti-Muslim jokes. But she brushed them off. So, a very thin case of national origin harassment will go to a jury, or a mediator. A little management training (or better training) could have helped here.
The case is Rehmani v. Superior Court and the opinion is here.
Showing posts with label retaliation. Show all posts
Showing posts with label retaliation. Show all posts
U.S. Supreme Court on Ministerial Exception to Title VII
The U.S. Supreme Court decided for the first time that there is a "ministerial exception" to anti-discrimination laws such as the ADA. The lower courts for many years recognized that exception.
At issue was Hosanna-Tabor Evangelical Lutheran Church and School and its discharge of a former teacher, Cheryl Perich. Perich was classified as a "called" teacher, rather than a "lay" one. Called teachers have to satisfy certain requirements, cannot be removed except for cause and by a vote of the congregation, and hold the title “Minister of Religion, Commissioned.”
As a called teacher, Perich
The District Court dismissed the case; the Sixth Circuit reversed, holding that a retaliation claim under the ADA could proceed against the Church.
The unanimous Court, recognizing there is a ministerial exception, put it this way:
Based on that, the Court decided that Perich met the standards of the ministerial exemption. The Court was careful to note that the term "minister" was misleading because the exception applies to religions that do not include "ministers." The Court also refused to address the "parade of horribles" the EEOC argued, such as that Church employers would be exempt from wage-hour or criminal violations towards "ministerial" employees.
The case is Hosanna-Tabor Evangelical Lutheran Church and School v. Perich and the opinion is here.
At issue was Hosanna-Tabor Evangelical Lutheran Church and School and its discharge of a former teacher, Cheryl Perich. Perich was classified as a "called" teacher, rather than a "lay" one. Called teachers have to satisfy certain requirements, cannot be removed except for cause and by a vote of the congregation, and hold the title “Minister of Religion, Commissioned.”
As a called teacher, Perich
taught math, language arts, social stud- ies, science, gym, art, and music. She also taught a reli- gion class four days a week, led the students in prayer and devotional exercises each day, and attended a weekly school-wide chapel service. Perich led the chapel service herself about twice a year.Perich developed symptoms of narcolepsy, which resulted in her inability to perform her job. She later was discharged, after she threatened to file a Charge. The EEOC took up her case and sued on her behalf.
The District Court dismissed the case; the Sixth Circuit reversed, holding that a retaliation claim under the ADA could proceed against the Church.
The unanimous Court, recognizing there is a ministerial exception, put it this way:
We agree that there is such a ministerial exception. The members of a religious group put their faith in the hands of their ministers. Requiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision. Such action interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs. By imposing an unwanted minister, the state infringes the Free Exercise Clause, which protects a religious group’s right to shape its own faith and mission through its appointments.The Court did not set out a specific test, but noted that (1) the Church held Perich out to be a minister (2) the Church had a ceremony and the congregation was involved in her investiture (3) she had significant religious training as a prerequisite (4) she held herself out to be a minister and even took a special tax deduction applicable only to members of a ministry (5) her duties involved significant religious teaching activities.
Based on that, the Court decided that Perich met the standards of the ministerial exemption. The Court was careful to note that the term "minister" was misleading because the exception applies to religions that do not include "ministers." The Court also refused to address the "parade of horribles" the EEOC argued, such as that Church employers would be exempt from wage-hour or criminal violations towards "ministerial" employees.
The case is Hosanna-Tabor Evangelical Lutheran Church and School v. Perich and the opinion is here.
Court of Appeal: No Reinstatement after 12 weeks of CFRA Leave
After taking 19 weeks of leave, the first 12 of which was covered under the California Family Rights Act, LA County reinstated Katrina Rogers, but then transferred her to a new job as a business decision. Rogers did not take the transfer well and sued under various causes of action, including the CFRA. A jury awarded her damages and the county appealed.
The court first rejected Rogers' argument that the transfer amounted to "interference" with her rights under the CFRA:
Then the court turned to Rogers' claim that the transfer was "retaliation" for her exercising her rights. The court could not find any evidence that the county took its action because Rogers took leave, other than the fact that she took it and the transfer occurred thereafter:
The case is Rogers v. County of LA and the opinion is here.
The court first rejected Rogers' argument that the transfer amounted to "interference" with her rights under the CFRA:
Here, the following is undisputed—the County accorded Rogers the full 12 workweeks of leave to which she was entitled under the CFRA; Rogers did not return to work at the end of this period, but instead remained on leave for 19 weeks; and the decision to transfer her was made within the 12-week leave period, but never communicated to Rogers during her leave. Rogers nevertheless argues that she suffered interference with her CFRA rights because the transfer decision was made during her protected CFRA leave. But she cites no authority to support her position, which we therefore disregard. (Perez v. Grajales (2008) 169 Cal.App.4th 580, 591–592.) Based on the foregoing, we conclude that Rogers’s right to reinstatement expired when the 12-week protected CFRA leave expired. Her CFRA interference claim therefore fails as a matter of law, and should never have been submitted to the jury.
Then the court turned to Rogers' claim that the transfer was "retaliation" for her exercising her rights. The court could not find any evidence that the county took its action because Rogers took leave, other than the fact that she took it and the transfer occurred thereafter:
In short, Rogers “failed to establish the requisite causal connection between her protected actions in taking a CFRA medical leave” and the decision to transfer her to another position. (Neisendorf, supra, 143 Cal.App.4th at p. 519.) “The unchallenged finding that [the County] had a legitimate, nondiscriminatory reason to [transfer Rogers], which had nothing to do with her CFRA leave, bars [Rogers] from articulating a cognizable cause of action for the jury’s consideration based on [the County’s] alleged refusal to honor the CFRA’s right to reinstatement.” (Id. at p. 520.) The Neisendorf court cited to several federal courts interpreting the FMLA that endorse this principle. (See e.g. Throneberry v. McGehee Desha County Hosp. (8th Cir. 2005) 403 F.3d 972, 979 [“‘As long as an employer can show a lawful reason, i.e., a reason unrelated to an employee’s exercise of FMLA rights, for not restoring an employee on FMLA leave to her position, the employer will be justified to interfere with an employee’s FMLA leave rights’”].) Like the Neisendorf court, we conclude that because the County’s “legitimate, nondiscriminatory reason” for the decision to transfer Rogers eliminated any obligation the County might have had to reinstate her, Rogers “could not state a valid claim under the CFRA.” (Neisendorf, supra, at p. 520.)The decision is important regarding CFRA/FMLA leave, but it does not address reasonable accommodation obligations under the ADA/Fair Employment and Housing Act. So, employers still need to consider reinstatement following extended leave when an employee has a covered disability and takes more leave than allowed under CFRA / FMLA.
The case is Rogers v. County of LA and the opinion is here.
U.S. Supreme Court on FLSA Retaliation
The U.S. Supreme Court held that the Fair Labor Standards Act's anti-retaliation provision covers oral and written complaints, whether internal or to the government. So, here's some invaluable and insightful advice: don't retaliate against employees who complain about alleged wage and hour violations. Try not to decide whether to retaliate based on if a complaint is oral or written, mmmkay?
In a nutshell, Kasten claimed he complained to management and other employees about the location of the time clocks at the St. Gobain factory. Because of the time clock's placement, he did not get paid for "donning and doffing" time. The company allegedly fired Kasten for not keeping his time card correct. Kasten claimed it was retaliation for his complaints. The district court dismissed the case because Kasten had not "filed" a written complaint with the government and, therefore, was not covered by the anti-retaliation provision in the FLSA. The Supreme Court took time out of its busy day to resolve a dispute among the lower circuit courts over whether a written complaint was required.
The case is Kasten v. St. Gobain Performance Plastics, Inc., and the opinion is here.
In a nutshell, Kasten claimed he complained to management and other employees about the location of the time clocks at the St. Gobain factory. Because of the time clock's placement, he did not get paid for "donning and doffing" time. The company allegedly fired Kasten for not keeping his time card correct. Kasten claimed it was retaliation for his complaints. The district court dismissed the case because Kasten had not "filed" a written complaint with the government and, therefore, was not covered by the anti-retaliation provision in the FLSA. The Supreme Court took time out of its busy day to resolve a dispute among the lower circuit courts over whether a written complaint was required.
The case is Kasten v. St. Gobain Performance Plastics, Inc., and the opinion is here.
U.S. Supreme Court Recognizes Third-Party Retaliation Claims
Justice Scalia for a unanimous Supreme Court wrote that employees may claim retaliation when they are associated with someone ELSE who engaged in protected activity. What?
Miriam Regalado was engaged to Eric Thompson. They both worked for North American Stainless. So, Miriam filed a charge with the EEOC alleging sex discrimination. NAS fired Thompson three weeks later.
Thompson then filed a retaliation charge. But Thompson did not actually engage in protected activity. Regalado was the one who filed with the EEOC.
So, was it retaliation under Title VII to fire Thompson? The Supreme Court said yes. Relying on the Court's expansive definition of retaliation set forth in Burlington N. & S. F. R. Co. v. White, 548 U. S. 53 (2006),the court said:
The case is Thompson v. North American Stainless Inc. and the opinion is here.
DGV
Miriam Regalado was engaged to Eric Thompson. They both worked for North American Stainless. So, Miriam filed a charge with the EEOC alleging sex discrimination. NAS fired Thompson three weeks later.
Thompson then filed a retaliation charge. But Thompson did not actually engage in protected activity. Regalado was the one who filed with the EEOC.
So, was it retaliation under Title VII to fire Thompson? The Supreme Court said yes. Relying on the Court's expansive definition of retaliation set forth in Burlington N. & S. F. R. Co. v. White, 548 U. S. 53 (2006),the court said:
“the antiretaliation provision, unlike the substantive provision, is not limited to discriminatory actions that affect the terms and conditions of employment.” Id., at 64. Rather, Title VII’s antiretaliation provision prohibits any employer action that “well might havedissuaded a reasonable worker from making or supporting a charge of discrimination.” Id., at 68 (internal quotation marks omitted).And of course, they found that firing a fiance "well might have dissuaded" the complainant from making or supporting a charge: NAS argued, where do you draw the line? Trusted co-worker? Girlfriend? What third parties are close enough to the complainant. The Court could not find any language in Title VII to support setting down a blanket rule.
We must also decline to identify a fixed class of relationships for which third-party reprisals are unlawful. We expect that firing a close family member will almost always meet the Burlington standard, and inflicting a milder reprisal on a mere acquaintance will almost never do so, but beyond that we are reluctant to generalize.The court next decided that Thompson had standing to sue under Title VII because he was a "person aggrieved." The Court knew it was opening a can of worms to let third parties sue. So, it limited Title VII standing to those covered by the "zone of interests" Title VII seeks to protect. Thompson was an employee at the same company as his fiance, and, most importantly, according to the complaint, the company fired him for the purpose of hiring the fiance who filed the charge.
The case is Thompson v. North American Stainless Inc. and the opinion is here.
DGV
Court of Appeal: No Attorney-Client Privilege for Employee's Emails to Lawyer
Gina Holmes worked for Petrovich Development Co. LLC as assistant to the CEO, Paul Petrovich. She was pregnant early in her employment and got into a discussion with her boss about the length of her leave and their respective feelings about her pregnancy. Although it appeared that they had cleared the air, Holmes simultaneously attempted to hire a lawyer, via email at work. Apparently, Holmes became upset that Petrovich forwarded her emails to others in the organization and quit, claiming constructive discharge, discrimination, harassment, etc.
The trial court summarily dismissed the harassment, discrimination and retaliation claims. The court of appeal affirmed - holding that the harassment evidence was limited to email correspondence that was neither severe nor pervasive.
The court of appeal also affirmed dismissal of the claim that Holmes was forced to resign. The court noted that when a plaintiff cannot establish a hostile work environment, a constructive discharge claim is a higher standard and must also fail. Holmes' retaliation claim failed too, because of the lack of an adverse action.
That left claims for intentional infliction of emotional distress and invasion of privacy, which were tried to a jury. The jury found for the defendants. On appeal, Holmes claimed the trial court should not have allowed Petrovich to use the emails she sent to a lawyer seeking a referral, in which she explained her situation. The trial court held that Holmes waived the privilege because she used company email, and there were clear policies explaining the company's right to monitor email.
The court of appeal agreed that Holmes waived the privilege Here is the money quote:
Lawyers for employees obviously should take note and advise employees not to use monitored email systems. Employers should ensure their email policies are comprehensive and clear regarding employees' expectations of privacy.
The case is Holmes v. Petrovich Development Company LLC and the opinion is here.
The trial court summarily dismissed the harassment, discrimination and retaliation claims. The court of appeal affirmed - holding that the harassment evidence was limited to email correspondence that was neither severe nor pervasive.
The court of appeal also affirmed dismissal of the claim that Holmes was forced to resign. The court noted that when a plaintiff cannot establish a hostile work environment, a constructive discharge claim is a higher standard and must also fail. Holmes' retaliation claim failed too, because of the lack of an adverse action.
That left claims for intentional infliction of emotional distress and invasion of privacy, which were tried to a jury. The jury found for the defendants. On appeal, Holmes claimed the trial court should not have allowed Petrovich to use the emails she sent to a lawyer seeking a referral, in which she explained her situation. The trial court held that Holmes waived the privilege because she used company email, and there were clear policies explaining the company's right to monitor email.
The court of appeal agreed that Holmes waived the privilege Here is the money quote:
Although a communication between persons in an attorney-client relationship "does not lose its privileged character for the sole reason that it is communicated by electronic means or because persons involved in the delivery, facilitation, or storage of electronic communication may have access to the content of the communication" (§ 917, subd. (b)), this does not mean that an electronic communication is privileged (1) when the electronic means used belongs to the defendant; (2) the defendant has advised the plaintiff that communications using electronic means are not private, may be monitored, and may be used only for business purposes; and (3) the plaintiff is aware of and agrees to these conditions. A communication under these circumstances is not a “„confidential communication between client and lawyer‟” within the meaning of section 952 because it is not transmitted “by a means which, so far as the client is aware, discloses the information to no third persons other than those who are present to further the interest of the client in the consultation . . . .” (Ibid.)
When Holmes e-mailed her attorney, she did not use her home computer to which some unknown persons involved in the delivery, facilitation, or storage may have access. Had she done so, that would have been a privileged communication unless Holmes allowed others to have access to her e-mails and disclosed their content. Instead, she used defendants‟ computer, after being expressly advised this was a means that was not private and was accessible by Petrovich, the very person about whom Holmes contacted her lawyer and whom Holmes sued. This is akin to consulting her attorney in one of defendants‟ conference rooms, in a loud voice, with the door open, yet unreasonably expecting that the conversation overheard by Petrovich would be privileged.
Lawyers for employees obviously should take note and advise employees not to use monitored email systems. Employers should ensure their email policies are comprehensive and clear regarding employees' expectations of privacy.
The case is Holmes v. Petrovich Development Company LLC and the opinion is here.
Trial
Trial in employment cases is as rare as hen's teeth. Most cases settle. With the increasing prevalence of "EPLI" insurance, there is often little appetite for taking a case "all the way" and facing a jury. At least for us defense lawyers, going to trial is unusual.
Trial also is, to say the least, arduous. Sleep is something you get in between preparing for trial, conducting the trial, and preparing for the next day. No matter how much you prepare, there is much to do once the trial begins.
Once you're there, the odds are against you. Plaintiffs win as much as 60% of the time, depending on the type of claim and the court's location. That's another reason cases settle a lot. Let's not forget the time and money the employer has to spend, and victory defined only as a jury's conclusion that the defendant was right.
Don't let anyone tell you different. Winning is special. So, we're proud to let you know about two employment law trials that concluded this week with favorable outcomes.
First, Shaw Valenza alumnus Shane Anderies, now of Anderies and Gomes, won a verdict in style. His case, covered by the media (also rare), resulted not only in a defense verdict, but also a huge award on a cross-claim for defamation. Read about Moreno v. Ostly et al here.
Oh, yeah, and the Shaw Valenza trial team just received a verdict on behalf of our client Signature Properties in a retaliation case, tried in Sacramento Superior Court. The jury was out just 6 hours after a four week, fifteen trial-day, trial. No press coverage so far. The facts of our case were nowhere near as interesting as Shane's. (His involved a paralegal suing a lawyer for sexual harassment and his defamation cross-action). But winning was just as exciting for our client as us as it was for Shane and his.
Thanks to all of you who patiently waited for return calls during July. I will get back to you soon. I promise. I also will be posting on a number of new cases in the coming days. And congratulations again to Shane, Mr. Ostly, and of course Signature Properties.
DGV
Trial also is, to say the least, arduous. Sleep is something you get in between preparing for trial, conducting the trial, and preparing for the next day. No matter how much you prepare, there is much to do once the trial begins.
Once you're there, the odds are against you. Plaintiffs win as much as 60% of the time, depending on the type of claim and the court's location. That's another reason cases settle a lot. Let's not forget the time and money the employer has to spend, and victory defined only as a jury's conclusion that the defendant was right.
Don't let anyone tell you different. Winning is special. So, we're proud to let you know about two employment law trials that concluded this week with favorable outcomes.
First, Shaw Valenza alumnus Shane Anderies, now of Anderies and Gomes, won a verdict in style. His case, covered by the media (also rare), resulted not only in a defense verdict, but also a huge award on a cross-claim for defamation. Read about Moreno v. Ostly et al here.
Oh, yeah, and the Shaw Valenza trial team just received a verdict on behalf of our client Signature Properties in a retaliation case, tried in Sacramento Superior Court. The jury was out just 6 hours after a four week, fifteen trial-day, trial. No press coverage so far. The facts of our case were nowhere near as interesting as Shane's. (His involved a paralegal suing a lawyer for sexual harassment and his defamation cross-action). But winning was just as exciting for our client as us as it was for Shane and his.
Thanks to all of you who patiently waited for return calls during July. I will get back to you soon. I promise. I also will be posting on a number of new cases in the coming days. And congratulations again to Shane, Mr. Ostly, and of course Signature Properties.
DGV
9th Circuit: No Jury, Compensatory or Punitive Damages for ADA Retaliation
Alvarado sued his former employer, Cajun Operating Co., for retaliation because he complained to an internal hotline about discrimination based on disability, national origin, etc. Before trial, the court granted a motion in limine barring Alvarado's punitive damages, compensatory damage, and jury trial demand. The Ninth Circuit affirmed on appeal.
The analysis is interesting if you like statutory construction cases. I know what you're thinking: Zzz. If you just want the punchline - the Ninth Circuit joined the Seventh in holding that the Americans With Disabilities Act does not provide for compensatory or punitive damages in retaliation cases asserted under the ADA. As with pre-Civil Rights Act of 1991 cases, the only relief available is equitable, which removes the jury trial too. My bold prediction is that Congress will fix this issue in a few weeks or months.
The case is Alvarado v. Cajun Operating Co. and the decision is here.
The analysis is interesting if you like statutory construction cases. I know what you're thinking: Zzz. If you just want the punchline - the Ninth Circuit joined the Seventh in holding that the Americans With Disabilities Act does not provide for compensatory or punitive damages in retaliation cases asserted under the ADA. As with pre-Civil Rights Act of 1991 cases, the only relief available is equitable, which removes the jury trial too. My bold prediction is that Congress will fix this issue in a few weeks or months.
The case is Alvarado v. Cajun Operating Co. and the decision is here.
U.S. Supreme Court: Retaliation Provisions Cover Investigation Witness
Vicky Crawford worked for the Metropolitan school district of Nashville and Davidson County, TN. The agency was conducing an investigation into a harassment complaint made against an employee, who happened to be the employee relations director.
The investigator from the human resources department asked Crawford whether she had experienced inappropriate behavior by the director. She disclosed she had witnessed certain conduct. The district later fired Crawford, allegedly for embezzlement. She sued for retaliation.
The issue before the Supreme Court was whether Crawford's participation in the investigation fell within Title VII's anti-retaliation protections. The court unanimously ruled that "opposition" includes providing information during an investigation. The lower courts and the employer argued that it would require something more affirmative - such as making a complaint.
The case is CRAWFORD v. METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, TENNESSEE and the opinion is here.
The investigator from the human resources department asked Crawford whether she had experienced inappropriate behavior by the director. She disclosed she had witnessed certain conduct. The district later fired Crawford, allegedly for embezzlement. She sued for retaliation.
The issue before the Supreme Court was whether Crawford's participation in the investigation fell within Title VII's anti-retaliation protections. The court unanimously ruled that "opposition" includes providing information during an investigation. The lower courts and the employer argued that it would require something more affirmative - such as making a complaint.
The case is CRAWFORD v. METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, TENNESSEE and the opinion is here.
Court of Appeal Permits Claim of "Preemptive" Retaliation
Lisa Steele, a new employee of the California Youth Offender Parole Board, was a participant in a bikini contest (away from work). Her boss, Galindo, attended the contest. When they saw each other, Galindo kissed her on the cheek on a single occasion. No one was offended. Galindo otherwise treated Lisa professionally.
But another employee was in the process of complaining about Galindo's conduct at work. The powers than be apparently were worried that Steele would be a witness against Galindo, although she had not yet complained or participated in an investigation. So, according to the record, the higher-ups engaged in conduct forcing her to resign.
A jury found for Steele on a constructive discharge claim. But the YOPB appealed, arguing (among other things) that Steele had not engaged in protected activity, so she could not have suffered "retaliation."
The Court of Appeal, though, decided that Steele's status as a "potential" witness was enough to confer "protected activity" status. Steele's proof that the constructive discharge was related to management's fear that Steele would testify against Galindo was enough to prove Steele's retaliation claim. Preemptive retaliation for future possible protected activity ... Minority Report anyone?
So, what employee is not a "potential witness" in a workplace discrimination, harassment or retaliation claim? The lower courts will be left to sort that out, I guess. The opinion is Steele v. Youth Offender Probation Board and the opinion is here.
But another employee was in the process of complaining about Galindo's conduct at work. The powers than be apparently were worried that Steele would be a witness against Galindo, although she had not yet complained or participated in an investigation. So, according to the record, the higher-ups engaged in conduct forcing her to resign.
A jury found for Steele on a constructive discharge claim. But the YOPB appealed, arguing (among other things) that Steele had not engaged in protected activity, so she could not have suffered "retaliation."
The Court of Appeal, though, decided that Steele's status as a "potential" witness was enough to confer "protected activity" status. Steele's proof that the constructive discharge was related to management's fear that Steele would testify against Galindo was enough to prove Steele's retaliation claim. Preemptive retaliation for future possible protected activity ... Minority Report anyone?
So, what employee is not a "potential witness" in a workplace discrimination, harassment or retaliation claim? The lower courts will be left to sort that out, I guess. The opinion is Steele v. Youth Offender Probation Board and the opinion is here.
Court of Appeal: No Disability and No Retaliation
In 2000, the California Legislature amended the Fair Employment and Housing Act to ensure the definition of "disability" is broader than the definition in the Americans With Disabilities Act. Way broader. For example, under state law, the employee's "mitigating measures" (such as glasses to help the sight impaired) are not taken into account when evaluating if a person has a disability. Another major difference is that an impairment need only make life activities "difficult" to be "limiting." Under federal law, the impairment must be "substantially" limiting, which is much tougher to prove.
I don't know of any published opinion holding that someone failed to demonstrate a "disability" under the new state law version of the definition. Until now.
Arteaga was part of a crew on a Brink's armored car. He picked up money from ATMs. Money was missing, repeatedly. Brink's investigated and let Arteaga know. An investigation into theft could create a certain numbness, as well as stress. Predictably, therefore, after the investigation commenced, Arteaga began complaining of pain and numbness in his arms, fingers, shoulders and feet, and that he was experiencing "stress." No one had noticed any issues with Arteaga's performance related to the numbness, nor had he complained about it before, although he said he had been experiencing it for a couple of years.
Holding Arteaga did not have a disability, the court noted that his alleged impairment did not "limit" his ability to work, either compared with his pre-disabled condition or with others who perform the work. The opinion is full of interesting observations about relevant considerations: Arteaga did not disclose any impairments on medical forms; the company took him to a doctor on two occasions who released him back to work immediately; he had not complained of any issues until he was under investigation; pain alone does not automatically constitute a disability; no duty to accommodate when employee did not disclose disability; and others.
Arteaga also claimed retaliation because he filed a workers' compensation claim. The court held that the timing was not enough to raise a triable issue of fact because the company had been investigating Arteaga's performance before he filed the workers' compensation claim and then simply followed through with the termination decision.
The case is Arteaga v. Brink's Incorporated. The opinion is here.
DGV
I don't know of any published opinion holding that someone failed to demonstrate a "disability" under the new state law version of the definition. Until now.
Arteaga was part of a crew on a Brink's armored car. He picked up money from ATMs. Money was missing, repeatedly. Brink's investigated and let Arteaga know. An investigation into theft could create a certain numbness, as well as stress. Predictably, therefore, after the investigation commenced, Arteaga began complaining of pain and numbness in his arms, fingers, shoulders and feet, and that he was experiencing "stress." No one had noticed any issues with Arteaga's performance related to the numbness, nor had he complained about it before, although he said he had been experiencing it for a couple of years.
Holding Arteaga did not have a disability, the court noted that his alleged impairment did not "limit" his ability to work, either compared with his pre-disabled condition or with others who perform the work. The opinion is full of interesting observations about relevant considerations: Arteaga did not disclose any impairments on medical forms; the company took him to a doctor on two occasions who released him back to work immediately; he had not complained of any issues until he was under investigation; pain alone does not automatically constitute a disability; no duty to accommodate when employee did not disclose disability; and others.
Arteaga also claimed retaliation because he filed a workers' compensation claim. The court held that the timing was not enough to raise a triable issue of fact because the company had been investigating Arteaga's performance before he filed the workers' compensation claim and then simply followed through with the termination decision.
Where the employee relies solely on temporal proximity in response to the employer’s evidence of a nonretaliatory reason for termination, he or she does not create a triable issue as to pretext, and summary judgment for the
employer is proper.
The case is Arteaga v. Brink's Incorporated. The opinion is here.
DGV
U.S. Supreme Court Issues Two Retaliation Decisions
The U.S. Supreme Court is wrapping up its Term. Yesterday, the Court issued two significant decisions regarding retaliation.
In CBOCS West, Inc. v. Humphries, the Court ruled 7-2, that employees may sue for retaliation under 42 U.S.C. section 1981. Section 1981 is a post-Civil War anti-race-discrimination statute that does not require employees to pursue administrative remedies through the Equal Employment Opportunity Commission. However, it substantially overlaps with Title VII of the Civil Rights Act. California employees have the Fair Employment and Housing Act. The main benefit of section 1981 is its longer statute of limitations and the lack of an exhaustion requirement. Justices Thomas and Scalia dissented, noting that section 1981 is an anti-discrimination statute that protects people from conduct based on "who they are" rather than "what they do" (engage in protected activity). The opinion is here.
In Gomez-Perez v. Potter, the court, this time 6-3, held that the section of the Age Discrimination in Employment Act's protecting federal government workers authorizes retaliation claims against the federal government. The opinion is here. Chief Justice Roberts and Justices Scalia and Thomas dissented.
In CBOCS West, Inc. v. Humphries, the Court ruled 7-2, that employees may sue for retaliation under 42 U.S.C. section 1981. Section 1981 is a post-Civil War anti-race-discrimination statute that does not require employees to pursue administrative remedies through the Equal Employment Opportunity Commission. However, it substantially overlaps with Title VII of the Civil Rights Act. California employees have the Fair Employment and Housing Act. The main benefit of section 1981 is its longer statute of limitations and the lack of an exhaustion requirement. Justices Thomas and Scalia dissented, noting that section 1981 is an anti-discrimination statute that protects people from conduct based on "who they are" rather than "what they do" (engage in protected activity). The opinion is here.
In Gomez-Perez v. Potter, the court, this time 6-3, held that the section of the Age Discrimination in Employment Act's protecting federal government workers authorizes retaliation claims against the federal government. The opinion is here. Chief Justice Roberts and Justices Scalia and Thomas dissented.
California Supreme Court: No Individual Liability for Retaliation Under FEHA
Years ago, lower courts held that individual managers may be held liable for "retaliation," i.e, taking negative action against an employee for his or her engaging in protected activity. At the same time, the courts decided individual managers could not be held liable for "discrimination," i.e., taking adverse action based on an employee's membership in protected groups. Back in 1998, the California Supreme Court ruled in Reno v. Baird that supervisors could not be held liable for discriminatory decisions amounting to "personnel actions."
The difference in the courts' treatment of these two types of actions apparently was based on differences in language between the statute barring "discrimination" and the section prohibiting "retaliation." However, a primary policy underlying Reno - permitting managers to manage without fear of personal liability - was inconsistent with holding managers personally liable for retaliation. That is, a manager's "retaliatory" decision is based on an unlawful motivation, just as a "discriminatory" decision.
The California Supreme Court finally reviewed the issue of individual liability for managers based on allegations of retaliation in violation of FEHA. In Jones v. Lodge at Torrey Pines, the Court decided that Reno's rationale controlled the question and that individuals could not be held personally liable. The opinion is here.
The Legislature has never overturned Reno. When the Supreme Court held in Carrisales v. Dept. of Corrections that individual non-supervisors could not be held personally liable for harassment, the Legislature moved quickly and specifically passed a law imposing such liability.
Perhaps the Legislature will seek to do so again. However, as the Court pointed out, a manager facing personal liability for normal personnel actions (demotion, termination, failure to promote, compensation, discipline, etc.) will face a conflict of interest every time he or she faces the issue of whether to take adverse action against an employee. With harassment, on the other hand, a manager may avoid liability simply by refraining from engaging in conduct that may amount to "harassment." Hopefully, the Legislature will consider that issue carefully before seeking to overturn Reno or Jones.
The difference in the courts' treatment of these two types of actions apparently was based on differences in language between the statute barring "discrimination" and the section prohibiting "retaliation." However, a primary policy underlying Reno - permitting managers to manage without fear of personal liability - was inconsistent with holding managers personally liable for retaliation. That is, a manager's "retaliatory" decision is based on an unlawful motivation, just as a "discriminatory" decision.
The California Supreme Court finally reviewed the issue of individual liability for managers based on allegations of retaliation in violation of FEHA. In Jones v. Lodge at Torrey Pines, the Court decided that Reno's rationale controlled the question and that individuals could not be held personally liable. The opinion is here.
The Legislature has never overturned Reno. When the Supreme Court held in Carrisales v. Dept. of Corrections that individual non-supervisors could not be held personally liable for harassment, the Legislature moved quickly and specifically passed a law imposing such liability.
Perhaps the Legislature will seek to do so again. However, as the Court pointed out, a manager facing personal liability for normal personnel actions (demotion, termination, failure to promote, compensation, discipline, etc.) will face a conflict of interest every time he or she faces the issue of whether to take adverse action against an employee. With harassment, on the other hand, a manager may avoid liability simply by refraining from engaging in conduct that may amount to "harassment." Hopefully, the Legislature will consider that issue carefully before seeking to overturn Reno or Jones.
9th Circuit Sets Low Bar on Employer Liability for Employees' Conduct
Poland was with the Customs Service in Denver. Hillberry was his supervisor. Hillberry demonstrated some anti-age animus towards Poland. Poland at some point filed a charge of discrimination. Later, Hillberry requested an administrative review of Poland's management of subordinates. The reviewers found that Poland engaged in unprofessional conduct as a manager. As a result, Poland was demoted to a non-supervisory job and transferred to Vienna Virginia.
Poland accepted the transfer, but retired 3 years before the mandatory retirement age.
Poland sued for, among other things, retaliation and constructive discharge. He said that the administrative review was retaliation for his age discrimination claim. The trial court awarded damages for constructive discharge and retaliation.
The Ninth Circuit reversed on the constructive discharge claim. 2/3 of the judges said that Poland did not establish his working conditions were intolerable merely because he was demoted and transferred. Among other things, the court noted that Poland worked 5 months in Virginia, contradicting his argument the transfer created intolerable conditions.
The really significant part of the case, though, is the Ninth Circuit's stance on liability for actions taken by innocent superiors on the basis of lower level employees' complaints. Hillberry did instigate the investigation into Poland's conduct, true. But the court did not rely on that alone and said that Hillberry's referral alone would not have been enough. Rather, the court focused on the fact that the investigators had access to Hillberry's notes, that Hillberry gave the list of witnesses to the investigators, and that the panel relied on performance reviews that had increased in frequency after Poland filed his first discrimination complaint.
In upholding Poland's claim, the court announced the rule for holding employers liable for negative, non-discriminatory actions taken on the basis of an employee's complaint that is tainted by bias:
The court added that if the investigation is "entirely independent" of the subordinate's influence, the animus of the retaliating employee is not imputed to the employer.
So, if an employee engages in protected activity by complaining against a manager, that manager cannot be the impetus for negative treatment against the complaining employee, unless an "entirely independent" investigation finds the negative treatment is justified. Otherwise, the odds of a retaliation finding are very high.
The case is Poland v. Chertoff. Opinion is here.
Poland accepted the transfer, but retired 3 years before the mandatory retirement age.
Poland sued for, among other things, retaliation and constructive discharge. He said that the administrative review was retaliation for his age discrimination claim. The trial court awarded damages for constructive discharge and retaliation.
The Ninth Circuit reversed on the constructive discharge claim. 2/3 of the judges said that Poland did not establish his working conditions were intolerable merely because he was demoted and transferred. Among other things, the court noted that Poland worked 5 months in Virginia, contradicting his argument the transfer created intolerable conditions.
The really significant part of the case, though, is the Ninth Circuit's stance on liability for actions taken by innocent superiors on the basis of lower level employees' complaints. Hillberry did instigate the investigation into Poland's conduct, true. But the court did not rely on that alone and said that Hillberry's referral alone would not have been enough. Rather, the court focused on the fact that the investigators had access to Hillberry's notes, that Hillberry gave the list of witnesses to the investigators, and that the panel relied on performance reviews that had increased in frequency after Poland filed his first discrimination complaint.
In upholding Poland's claim, the court announced the rule for holding employers liable for negative, non-discriminatory actions taken on the basis of an employee's complaint that is tainted by bias:
We hold that if a subordinate, in response to a plaintiff’s protected activity, sets in motion a proceeding by an independent decisionmaker that leads to an adverse employment action, the subordinate’s bias is imputed to the employer if the plaintiff can prove that the allegedly independent adverse employment decision was not actually independent because the biased subordinate influenced or was involved in the decision or decisionmaking process.
The court added that if the investigation is "entirely independent" of the subordinate's influence, the animus of the retaliating employee is not imputed to the employer.
So, if an employee engages in protected activity by complaining against a manager, that manager cannot be the impetus for negative treatment against the complaining employee, unless an "entirely independent" investigation finds the negative treatment is justified. Otherwise, the odds of a retaliation finding are very high.
The case is Poland v. Chertoff. Opinion is here.
Court of Appeal Upholds Termination for Personal Work on Company Time
Loggins v. Kaiser Permanente upholds summary judgment against an employee's claim of race discrimination and retaliation. Loggins was fired because over 80% of her hard drive contained personal documents. She was accused of devoting too much work time to personal business. (Bloggers and Internet junkies, beware). The case is important because it holds (1) timing of adverse action alone is not sufficient to prove pretext when alleging retaliation (2) the standard for retaliation claims under the Fair Employment and Housing Act is the same as under common law (wrongful termination) and (3) the employer's legitimate business reason simply must be "legitimate" -- non-discriminatory -- and is not held to any additional scrutiny for "fairness" or accuracy.
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