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.     

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.  

The Disconnected Judges

What do federal judges sitting by lifetime appointment know about the hard realities of racism and retaliation in the trenches of the American workplace?  I deeply respect the judiciary.  Still, I note a problem:  while we have jurors of our peers in matters of fact, we have anything but our peers deciding matters of law.