Thursday, February 23, 2012

Retaliation Can Be Proven by Less than Job Loss: "Adverse Employment Action"

An employee alleging "termination in violation of public policy" [a whistleblower case] has the burden of proving that he sustained an injury sufficiently severe to merit damages.  The question articulated by the Calfornia and federal courts is whether the employee suffered "an adverse employment action." 

California Courts interpreting California anti-discrimination laws often look to federal court decisions interpreting federal anti-discrimination laws under “Title VII”.     A  U.S. Supreme Court case, Burlington Northern & Santa Fe Railway Co. v. White (Decided June 22, 2006) is positive for employees who claim they have been injured by employer retaliation because they protested discriminatory employer actions.

 In Burlington, plaintiff Sheila White was the only woman working in her department as a forklift operator at Burlington Northern & Santa Fe Railway Co. After White complained internally that her supervisor had remarked several times that women should not be working in such a department, Burlington removed White from her forklift duties and assigned her to perform laborer tasks. Burlington explained that the reassignment reflected co-worker’s complaints that a “more senior man” should have the “less arduous and cleaner job” of forklift operator.

 White then filed an EEOC complaint based on unlawful gender discrimination and retaliation. A few days after the filing of her complaint, Burlington suspended White without pay after an alleged disagreement with her supervisor, who claimed that White was insubordinate. White invoked internal grievance procedures.  Burlington concluded at the end of the grievance investigation that White had not been subordinate. Burlington therefore reinstated White and gave her back-pay for the 37 days she was suspended.
White then filed a claim in federal court alleging that Burlington’s corrective actions were insufficient.   She argued successfully that reinstatement and back-pay did not address the full measure of her losses, including her emotional injury. 

Burlington argued that White wasn’t harmed enough to justify a lawsuit.  The Supreme Court focused on just how much employment harm must occur for an employee to prove “adverse employment action”.   Requiring an employee to have extreme or obvious economic harm would operate to limit the number of cases that would succeed.  On the other hand, requiring little injury would operate to put employer’s on notice that retaliation, even if mild, could result in liability.  The test adopted by the U.S. Supreme Court was whether, from the viewpoint of a reasonable employee, the actions taken against the employee were sufficient to deter the employee (and others like her) from complaining about illegal discrimination.  The Court found that being without pay for 37 days would deter a reasonable employee from exercising her rights to complain internally of discrimination, even if she had access to a grievance procedure.

 The California Supreme Court in Yanowitz v. L’Oreal (2005) addressed much the same question as the U.S. Supreme Court in Burlington, but reached its decision some months before the federal court.  The Yanowitz Court held that an employee suing for retaliation under California’s anti-discrimination law must demonstrate that the employer's retaliation caused a "material affect" on the "terms, conditions, or privileges of employment".  The State Supreme Court explained that a “material affect” was one that 1) detracted the employee from her job performance, 2) discouraged her from remaining on the job, and 3) kept her from advancing in her career. 
 The two Courts, while using different standards of “deterrence” [Burlington] or “material affect” [Yanowitz] actually are quite close in how they define “adverse employment action”.   Therefore it is likely that California Courts will rely on the analysis of the Burlington Court to decide future State discrimination/retaliation cases.  Employee attorneys would be wise to cite the Burlington case as a source of guidance, if not precedent, on the question.     

Wednesday, February 22, 2012

Weapon of Choice: The CPRA Option

In a previous article, I covered a case holding that evidence of harassment by the defendant of other persons before the employment and harassment alleged by the current employee is nonetheless admissible.  This type of evidence is loosely described as "me too" evidence, and is offered to show a pattern of harassing behavior.  See Pantoja v. Anton (Aug. 9, 2011) 2011 DJDAR 11962.

The first hurdle for the employee rights attorney is obtaining the information during discovery.  Only then does the question of admissibility at trial arise. 

In the usual practice of employment law, the way to obtain employment records of a non-party employee is by a subpoena.  This procedure includes a notice to the third party employee that his personnel records are being sought.  A subpoena for employment records requires this prior notice to allow the third party employee to object to the subpoena.  A timely objection places the burden upon the party issuing the subpoena to show the court good cause for the production.

But these "prior notice" and "burden of showing cause" provisions are not part of the the California Public Records Act (CPRA) (Gov. Code, § 6250 et seq.)  Tactically, the Employee Rights Attorney may want to use the CPRA to get California government employee documents without the usual inevitable privacy objections by the defense attorney [or third party employee] in response to a subpoena.  

The information is often relevant to the issue of how the government agency has responded to other discrimination or harassment complaints, whether the individual employee accused of harassment has been accused previously, investigated previously, or found guilty previously.  The information may also reveal that the Government Agency has taken a lax approach to complaints that had substantial merit.  The Plaintiff's theory will be that the failure to take earlier corrective action allowed the perpetrator to harass others, including the current complainant.  

Prior harassment complaints against a government employee recently have bee held to be of substantial public interest requiring an agency to disclose its investigation report and letter of reprimand under the CPRA.   The policy behind the CPRA was deemed to have outweighed the employee's privacy interest in his records.  See Ari Marken vs Santa Monica-Malibu Unified School District, No. B231787 (Cal.App. Dist.2 01/24/2012).  In Marken, a parent sought the personnel records of a school District teacher accused some years earlier of sexually harassing a 13 year old female student.  The District, although not required, gave the teacher prior notice of intent to produce the records.  The teacher sought to prevent the disclosure, and was rebuffed by both the trial court and the Court of Appeal.  The Court noted that the government employer is required to comply with disclosure in compliance with short time limits of the CPRA.  

My overall reading of the CPRA is that it is designed to facilitate and favor disclosure of public records, including "private" personnel records if relevant to a discrimination or harassment issue.  It should be the employee attorney's weapon of choice in obtaining personnel records involving public employees.  Stipulations by counsel to redact or limit the scope of disclosure may advance the essential purpose of quickly obtaining an investigative report that will establish the employer's knowledge of the offending employee's continuing misconduct.  

Thursday, February 02, 2012

Bullies at Work: How to Respond.

The following article is republished from Dr. Michelle Callahan.   Visit her website,, or visit her on Facebook.

© 2011 Dr. Michelle Callahan


There's a new breed of female bullies cropping up in workplaces across the country. According to a nationwide poll by the Employment Law Alliance:

·         45 percent of American workers say they've experienced workplace abuse.

·         40 percent of workplace bullies are women, and women bullies pick on other women more than 70 percent of the time.

·         Female bullies want to undermine, berate and intimidate the weaker women in their midst.

·         Being a target of a bully not only affects your work life, but can also affect your health, possibly causing headaches, loss of appetite, high blood pressure, insomnia, clinical depression, panic attacks and even PTSD.

Clearly workplace bullying is not something to be taken lightly. So why do some women do it?

·         They enjoy feeling powerful, especially when the other person doesn't stand up for herself. Also, women are often less confrontational when attacked. They tend to turn their backs on bad behavior in a way men might not.

·         They are threatened by the potential success of others, so they want to stop you before you outshine them or reveal their shortcomings.

·         They have a perfectionist or nit-picky personality combined with superiority about their skills and abilities.

·         They are affected by stress and pressure to be high performing, with more work to do and fewer people to do it.

·         They have mental health problems or a personality disorder.

How do you know whether you're being bullied, or simply dealing with a difficult boss or co-worker?

·         The clearest sign is that bullying is something that happens again and again -- it's not just your boss having a bad day every once and a while.

·         The abuse can include yelling; intimidating or humiliating behavior, like angry criticism and personal insults; or sabotage, whether it's vicious gossip or taking credit for someone else's work.

·         Generally, though, women aren't openly abusive; in fact, there's evidence that their style of bullying is usually subtler than men's.

·         Women are better at reading emotions, so they're good at little digs that most men wouldn't even register: the quick glare, or turning away and talking to someone else.

Ten Tips For Dealing With Being Bullied At Work

1.       Don't get emotional. Bullies take pleasure in emotionally manipulating people. Stay calm and rational to diffuse the situation.

2.       Don't blame yourself. Acknowledge that this is not about you; it's about the bully. Don't lose your confidence, or think you are incapable or incompetent. They are usually beating you at a mind game, not based on your actual work performance.

3.       Do your best work. The bully's behavior will seem more justified if you aren't doing your best work, or if you do things like come to work late, take long lunches, turn in work late, etc.

4.       Build a support network. Instead of allowing the bully to make you retreat into your office, work on building your relationships with your coworkers so that you have support and the bully doesn't turn them against you as well (although she will try and may even be successful).

5.       Document everything. Keep a journal (on your personal computer or in writing, but never leave it in the office) of what happened when (and who witnessed it) so that if you need to escalate this problem to Human Resources, you have the information you need to make your case. Keep emails and notes.

6.       Seek help. If you think you're being bullied, it's time to start talking to others who can help you manage this situation. Try a mentor, advocate, seasoned/experienced friend, even a legal advocate who specializes in bullying and inappropriate or discriminatory behavior in the workplace. Tread lightly when approaching your human resources department. They work for the company, not you, so you have to be careful about what you share depending on how well liked and supported your bully is within the organization. HR doesn't have the luxury of keeping everything you say confidential so don't treat a meeting with them like a counseling session where you should share everything you think/feel or assume that they can or will fix the problem for you.

7.       Get counseling. It will help you deal with the stress, especially if the bullying is already affecting your physical and mental health. You have to take care of yourself.

8.       Stay healthy. Maintain a healthy and balanced lifestyle outside of work to help you cope with the madness at work. Work out, get a good night's sleep and eat a healthy diet.

9.       Educate yourself. Learn everything you can about bullying, your company's policies on inappropriate behavior and occupational law regarding this kind of experience. The more you know, the better your chances of successfully dealing with this situation.

10.   Don't expect to change the bully. Real behavior change is difficult and it takes time. You have no control over a bully's willingness to accept that they have a problem and to work on it. You can do your best to manage the situation, but it's really the company's responsibility to be observant and responsive to the needs of their workers and the general work environment. In the worst-case scenario you may need to leave your job or be prepared for a long hard fight with your bully and your employer.



 Let’s see:  Torts, First Year:  Fraud:  a false representation of material fact stated with knowledge of its falsity or reckless disregard of its truth, and reasonably relied upon by the recipient with resulting detriment and injury.  Now, how many law schools can do the basic issue spotting and analysis?   It seems 2012 will be the defining year for some law schools whether they pass their own tort exams. 

For example, the law schools may have to write a winning exam essay on this factual scenario:    A law school presents data to potential law school applicants stating that 85%-95% of is applicants who graduate are employed with median annual salaries of $160,000 within 9 months of graduation.  The truth is that the data is incomplete and misleading, and at best 40% of graduates are employed full time nationally within 9 months.  The student/graduates testify that they would not have applied or paid tuition but for his reliance on the data.   

New York class action attorney David Anzika said he will be suing 20 to 25 law schools every few months.  He obviously feels he has found the mother lode.  Will the defendants have the requisite legal talent to fight back?  Maybe they should call upon their own tort professors, who may have to shift from education to advocacy on behalf of their employers.  

There is a cultural perception that a law degree is the way to power and riches, and many college graduates chase that elusive carrot of big money instead of taking the time to know their true passions, talents and strengths.   When a student has dropped several hundred thousand dollars of tuition as well putting his family and social life on hold for several years, the hard cold reality of unemployment can definitely produce a bitter, vindictive graduate.

What Mr. Anzika has tapped into is a long accumulating disjuncture between the dream, the perception, and the reality of what a law degree really offers.  The irony may very well be that if students pursued a career in law only because they defaulted to an easy social/cultural definition of “significance,” they might very well be unhappy in their careers anyway, whatever their earnings. 

[Article derived from Daily Journal, online, 02-02-12:  “Four California Law Schools Sued Over Employment Data.”]