retaliation claim in California

2024It 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 the FEHA.” (Yanowitz, supra, 36 Cal.4th at p. 1043 .) The “reasonableness of the employee’s belief ‘has both a subjective and an objective component.’” (Dinslage v. City and County of San Francisco (2016) 5 Cal.App.5th 368, 381 ; accord, Vines v. O’Reilly Auto Enterprises, LLC, supra, 74 Cal.App.5th at pp. 185-186) “To meet his burden on thi

2024It 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 the FEHA.” (Yanowitz, supra, 36 Cal.4th at p. 1043 .) The “reasonableness of the employee’s belief ‘has both a subjective and an objective component.’” (Dinslage v. City and County of San Francisco (2016) 5 Cal.App.5th 368, 381 ; accord, Vines v. O’Reilly Auto Enterprises, LLC, supra, 74 Cal.App.5th at pp. 185-186) “To meet his burden on thi

2024Code, § 1102.5, subd. (b).) To establish a claim for retaliation, “the plaintiff must show he or she engaged in [an activity protected by FEHA], the employer subjected the employee to an adverse employment action, and a causal link existed between the protected activity 19 and the employer’s action.” (McRae v. Department of Corrections & Rehabilitation (2006) 142 Cal.App.4th 377, 386 .) Our high court has explained that an adverse employment action for purposes of a retaliation claim need not be an “ultimate employment action[] such as termination or demotion,” but may also encompass “the enti

2020An unfavorable employee evaluation may be actionable where the employee proves the ‘employer subsequently uses the evaluation as a basis to detrimentally alter the terms or conditions of the recipient’s employment.’ [Citations.] Thus, although 17 written criticisms alone are inadequate to support a retaliation claim, where the employer wrongfully uses the negative evaluation to substantially and materially change the terms and conditions of employment, this conduct is actionable.” (Akers v. County of San Diego (2002) 95 Cal.App.4th 1441, 1457 .) “An adverse employment action refers not only to

2024The County Presented Sufficient Evidence to Negate a Causal Link The causal link element for a retaliation claim “ ‘ “may be established by an inference derived from circumstantial evidence, ‘such as the employer’s knowledge that the [employee] engaged in protected activities and the proximity in time between the protected action and allegedly retaliatory employment decision.’ ” ’ ” (Morgan, supra, 88 Cal.App.4th at p. 69 .) But “ ‘[e]ssential to a causal link is evidence that the employer was aware that the plaintiff had engaged in the protected activity.’ ” (Id. at p. 70.) Accordingly, the c

2020(Yanowitz, supra, 36 Cal.4th at p. 1042 ; see Serri, supra, 226 Cal.App.4th at p. 860 .) “If the employer produces substantial evidence of a legitimate, [nonretaliatory] reason for the adverse employment action, the presumption of 11 [retaliation] created by the prima facie case “‘simply drops out of the picture”’ [citation] and the burden shifts back to the employee to prove intentional [retaliation].” (Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 68 .) In light of the foregoing trial burdens, when an employer seeks summary judgment on a retaliation claim, the emplo

2026(See Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 355 [in order to establish prima facie case 8 of discrimination a plaintiff must generally show he “was performing competently in the position he held”]; Moore v. Regents of University of California (2016) 248 Cal.App.4th 216, 236 [“ ‘ “ ‘If the employer presents admissible evidence either that one or more of plaintiff’s prima facie elements is lacking, or that the adverse employment action was based on legitimate, nondiscriminatory factors, the employer will be entitled to summary judgment unless the plaintiff produces admissible evide

2022(Moore v. Regents of University of California (2016) 248 Cal.App.4th 216, 244 (Moore).) The standard for determining whether an employee suffered adverse employment action in a retaliation claim is the same as in a disability discrimination claim. ( Yanowitz, supra, 36 Cal.4th at pp. 1049-1051 [“we conclude that the term ‘otherwise discriminate’ in section 12940(h) should be interpreted to refer to and encompass the same forms of adverse employment activity that is actionable under section 12940(a)”]; Moore, supra, 248 Cal.App.4th at p. 244 .) The City concedes that Shoemaker was engaged in pr

2025“The common law legal dynamics of retaliation statutes require a prima facie showing of a causal 13 connection between an adverse action and the complaint that allegedly engendered the retaliation. [Citation.] Absent such a showing, the retaliation claim is unviable.” (Armin v. Riverside Community Hospital (2016) 5 Cal.App.5th 810, 829 .) This required causal link is broken where the employer demonstrates “that it would have taken the action in question for legitimate, independent reasons even had the plaintiff not engaged in protected activity.” (Lawson v. PPG Architectural Finishes, Inc. (20

2024Code, § 1102.5, subd. (b).) To establish a claim for retaliation, “the plaintiff must show he or she engaged in [an activity protected by FEHA], the employer subjected the employee to an adverse employment action, and a causal link existed between the protected activity 19 and the employer’s action.” (McRae v. Department of Corrections & Rehabilitation (2006) 142 Cal.App.4th 377, 386 .) Our high court has explained that an adverse employment action for purposes of a retaliation claim need not be an “ultimate employment action[] such as termination or demotion,” but may also encompass “the enti

2024It 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 the FEHA.” (Yanowitz, supra, 36 Cal.4th at p. 1043 .) The “reasonableness of the employee’s belief ‘has both a subjective and an objective component.’” (Dinslage v. City and County of San Francisco (2016) 5 Cal.App.5th 368, 381 ; accord, Vines v. O’Reilly Auto Enterprises, LLC, supra, 74 Cal.App.5th at pp. 185-186) “To meet his burden on thi

2024It 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 the FEHA.” (Yanowitz, supra, 36 Cal.4th at p. 1043 .) The “reasonableness of the employee’s belief ‘has both a subjective and an objective component.’” (Dinslage v. City and County of San Francisco (2016) 5 Cal.App.5th 368, 381 ; accord, Vines v. O’Reilly Auto Enterprises, LLC, supra, 74 Cal.App.5th at pp. 185-186) “To meet his burden on thi

2014(Joaquin v. City of Los Angeles, supra, 202 Cal.App.4th at pp. 1226-1228; Mamou v. Trendwest Resorts, Inc. (2008) 165 Cal.App.4th 686, 713, 715 .) Also, the conduct which the employee complains about need not actually be prohibited by this State’s antidiscrimination statutes: “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 the [Fair Employment and Housing Act]. [Citations.]” (Yanowitz v.

2014(Joaquin v. City of Los Angeles (2012) 202 Cal.App.4th 1207, 1226-1228 ; Mamou v. Trendwest Resorts, Inc. (2008) 165 Cal.App.4th 686, 713, 715 .) An employee may bring a retaliation claim for conduct he or she reasonably believes is subject to the Fair Employment and Housing Act protection.

2026(See Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 355 [in order to establish prima facie case 8 of discrimination a plaintiff must generally show he “was performing competently in the position he held”]; Moore v. Regents of University of California (2016) 248 Cal.App.4th 216, 236 [“ ‘ “ ‘If the employer presents admissible evidence either that one or more of plaintiff’s prima facie elements is lacking, or that the adverse employment action was based on legitimate, nondiscriminatory factors, the employer will be entitled to summary judgment unless the plaintiff produces admissible evide

2022This step is designed to eliminate at the outset the most patently meritless claims, as where the plaintiff is not a member of the protected class or was clearly unqualified, or where the job he [or she] sought was withdrawn and never filled.” (Guz, supra, 24 Cal.4th at p. 354 .) “Generally, the plaintiff must provide evidence that (1) he [or she] was a member of a protected class, (2) he [or she] was qualified for the position he [or she] sought or was performing competently in the position he [or she] held, (3) he [or she] suffered an adverse employment action, such as termination, demotion,

2015If, as the me-too evidence tended to show, [the employer] lacked this policy and practice when [the plaintiff] was not present and during times when she was not an employee, the jury could rationally infer that he also lacked them when she was an 12 employee and was present.” (Id. at p. 116; see also McCoy, supra, 216 Cal.App.4th at p. 297 [trial court erred in excluding evidence of employer’s alleged retaliatory acts against other employees because “evidence that a defendant intentionally retaliated against other employees for the same conduct engaged in by the plaintiff would be relevant” to

2015If, as the me-too evidence tended to show, [the employer] lacked this policy and practice when [the plaintiff] was not present and during times when she was not an employee, the jury could rationally infer that he also lacked them when she was an 12 employee and was present.” (Id. at p. 116; see also McCoy, supra, 216 Cal.App.4th at p. 297 [trial court erred in excluding evidence of employer’s alleged retaliatory acts against other employees because “evidence that a defendant intentionally retaliated against other employees for the same conduct engaged in by the plaintiff would be relevant” to

2022Although, as 5 We accordingly reject plaintiff’s assertion that the alleged hostile work environment created by Duhm’s conduct is itself an adverse employment action giving rise to a gender discrimination claim. 27 noted above, harassing conduct can constitute an adverse employment action for a retaliation claim (Kelley, supra, 196 Cal.App.4th at p. 212 ; Light, supra, 14 Cal.App.5th at p. 92 ), we have concluded as a matter of law that Duhm’s harassing conduct is not attributable to Vons.

2022Although, as 5 We accordingly reject plaintiff’s assertion that the alleged hostile work environment created by Duhm’s conduct is itself an adverse employment action giving rise to a gender discrimination claim. 27 noted above, harassing conduct can constitute an adverse employment action for a retaliation claim (Kelley, supra, 196 Cal.App.4th at p. 212 ; Light, supra, 14 Cal.App.5th at p. 92 ), we have concluded as a matter of law that Duhm’s harassing conduct is not attributable to Vons.

2024Code, § 1102.5, subd. (b).) To establish a claim for retaliation, “the plaintiff must show he or she engaged in [an activity protected by FEHA], the employer subjected the employee to an adverse employment action, and a causal link existed between the protected activity 19 and the employer’s action.” (McRae v. Department of Corrections & Rehabilitation (2006) 142 Cal.App.4th 377, 386 .) Our high court has explained that an adverse employment action for purposes of a retaliation claim need not be an “ultimate employment action[] such as termination or demotion,” but may also encompass “the enti

2015(Yanowitz, supra, 36 Cal.4th at p. 1042 .) In granting nonsuit on the retaliation claim, the trial court concluded, among other things, that Plaintiff failed to establish the requisite causal link. 15 For purposes of making a prima facie case of retaliation, “the causal link element may be established by an inference derived from circumstantial evidence.” (McRae v. Department of Corrections & Rehabilitation (2006) 142 Cal.App.4th 377, 388 (McRae).) Generally, a plaintiff can satisfy his or her initial burden “by producing evidence of nothing more than the employer’s knowledge that the employee

2022(Id. at pp. 371-372; see Fahlen v. Sutter Central Valley Hospitals (2014) 58 Cal.4th 655, 686 [characterizing a retaliation claim under Health & Saf.

2022(Id. at pp. 371-372; see Fahlen v. Sutter Central Valley Hospitals (2014) 58 Cal.4th 655, 686 [characterizing a retaliation claim under Health & Saf.

2025(See Kelley v. The Conco Companies (2011) 196 Cal.App.4th 191, 213 [“[A]n employer may be held liable for coworkers’ retaliatory conduct if the employer knew or should have known of the coworkers’ retaliatory conduct and either participated and encouraged the conduct, or failed to take reasonable actions to end the retaliatory conduct.”].) While Birschtein did not elaborate further on how Bonillia’s staring conduct constituted an adverse employment action, we note the context of the plaintiff’s retaliation claim is clearly distinguishable.

2022Although, as 5 We accordingly reject plaintiff’s assertion that the alleged hostile work environment created by Duhm’s conduct is itself an adverse employment action giving rise to a gender discrimination claim. 27 noted above, harassing conduct can constitute an adverse employment action for a retaliation claim (Kelley, supra, 196 Cal.App.4th at p. 212 ; Light, supra, 14 Cal.App.5th at p. 92 ), we have concluded as a matter of law that Duhm’s harassing conduct is not attributable to Vons.

2017(See, e.g., Joaquin, supra, 202 Cal.App.4th at pp. 1225-1226, 136 Cal.Rptr.3d 472 [permitting a retaliation claim based on a false complaint about a coworker would allow an employee to " 'immunize his unreasonable and malicious internal complaints simply by filing a discrimination complaint with a government agency' "], quoting Hatmaker v. Memorial Medical Center (7th Cir. 2010) 619 F.3d 741 , 745-746 ; Chen, supra, 96 Cal.App.4th at p. 948 , 116 Cal.Rptr.2d 786 ["the possibility of a retaliation claim creates the problem of conferring a de facto immunity on the complainant despite poor job pe

2017(See, e.g., Joaquin, supra, 202 Cal.App.4th at pp. 1225-1226, 136 Cal.Rptr.3d 472 [permitting a retaliation claim based on a false complaint about a coworker would allow an employee to " 'immunize his unreasonable and malicious internal complaints simply by filing a discrimination complaint with a government agency' "], quoting Hatmaker v. Memorial Medical Center (7th Cir. 2010) 619 F.3d 741 , 745-746 ; Chen, supra, 96 Cal.App.4th at p. 948 , 116 Cal.Rptr.2d 786 ["the possibility of a retaliation claim creates the problem of conferring a de facto immunity on the complainant despite poor job pe

2014(See Iwekaogwu v. City of Los Angeles (1999) 75 Cal.App.4th 803, 816 [if employer shows nonretaliatory reason for adverse action, plaintiff only succeeds by presenting evidence that employer’s reason was pretextual].) Therefore, the trial court did not abuse its discretion in finding the retaliation claim to be frivolous, unreasonable, or without foundation.

2004(See Iwekaogwu v. City of Los Angeles (1999) 75 Cal.App.4th 803, 814 [ 89 Cal.Rptr.2d 505 ].) Gemini contends that Young’s statement that he intended to go to the “labor board” could not give rise to a retaliation claim, because Young testified that he thought the “labor board” handled complaints about unemployment, and this shows, Gemini claims, only that it was aware that Young intended to file a wage claim or a claim for unemployment benefits. 9 The Commission expressly found that in spite of Young’s mistaking the name of the agency responsible for employment discrimination claims, the impo

2024Citing Baral, supra, 1 Cal.5th 376 , the District moved to strike the portion of the retaliation claim that is based on protected activity (i.e., publishing her government tort claim online).12 In Baral, our Supreme Court held that, with “a so-called ‘mixed cause of 11 Not to be confused with “protected activity” under the anti-SLAPP statute. 12 Despite the District’s contention at oral argument, the record does not support that it also moved to strike the portion of the retaliation claim based on Royer’s removal from chair positions. 26 action’ that combines allegations of [protected] activit

2024Citing Baral, supra, 1 Cal.5th 376 , the District moved to strike the portion of the retaliation claim that is based on protected activity (i.e., publishing her government tort claim online).12 In Baral, our Supreme Court held that, with “a so-called ‘mixed cause of 11 Not to be confused with “protected activity” under the anti-SLAPP statute. 12 Despite the District’s contention at oral argument, the record does not support that it also moved to strike the portion of the retaliation claim based on Royer’s removal from chair positions. 26 action’ that combines allegations of [protected] activit

2021The court found that the retaliation claim was not based on the alleged falsity of any of David’s statements, that his course of conduct allegedly showed a pattern of retaliatory activity against a former employee who had brought a FEHA claim, and that the ShockYa article was merely collateral to this course of conduct.7 STANDARD OF REVIEW “We review de novo the grant or denial of an anti-SLAPP motion.” (Park, supra, 2 Cal.5th at p. 1067 .) The appellate court therefore “‘engag[es] in the same two-step process to determine, as a matter of law, whether the defendant met its initial burden of sh

2019Arising From Protected Activity In determining whether the retaliation claim arises from protected acts, we must "consider the elements of the challenged claim and what actions by defendant supply those elements and consequently form the basis for liability." ( Park , supra , 2 Cal.5th at p. 1063, 217 Cal.Rptr.3d 130 , 393 P.3d 905 .) We must distinguish "between activities that form the basis for a claim and those that merely lead to the liability-creating activity or provide evidentiary support for the claim." ( Id . at p. 1064, 217 Cal.Rptr.3d 130 , 393 P.3d 905 .) *772 When relief is sough

2016This is not protected activity under the FEHA.' " ( Id. at p. 474, 30 Cal.Rptr.3d 797 , 115 P.3d 77 .) The Court of Appeal concluded the defendants were entitled to summary judgment on the plaintiffs' retaliation claim. ( Id. at p. 460, 30 Cal.Rptr.3d 797 , 115 P.3d 77 .) Our Supreme *692 Court reversed, holding that although the plaintiffs "may not have recited the specific words 'sexual discrimination' or 'sexual harassment,' the nature of their complaint certainly fell within the general purview of FEHA, especially when we recall that this case is before us on review of a grant of summary j

2016This is not protected activity under the FEHA.' " ( Id. at p. 474, 30 Cal.Rptr.3d 797 , 115 P.3d 77 .) The Court of Appeal concluded the defendants were entitled to summary judgment on the plaintiffs' retaliation claim. ( Id. at p. 460, 30 Cal.Rptr.3d 797 , 115 P.3d 77 .) Our Supreme *692 Court reversed, holding that although the plaintiffs "may not have recited the specific words 'sexual discrimination' or 'sexual harassment,' the nature of their complaint certainly fell within the general purview of FEHA, especially when we recall that this case is before us on review of a grant of summary j

2024Code, § 1102.5, subd. (b).) To establish a claim for retaliation, “the plaintiff must show he or she engaged in [an activity protected by FEHA], the employer subjected the employee to an adverse employment action, and a causal link existed between the protected activity 19 and the employer’s action.” (McRae v. Department of Corrections & Rehabilitation (2006) 142 Cal.App.4th 377, 386 .) Our high court has explained that an adverse employment action for purposes of a retaliation claim need not be an “ultimate employment action[] such as termination or demotion,” but may also encompass “the enti

2023However, the court in Wysinger also observed that “[w]here an employer retaliates by denying prospects for advancement or promotions to employees” the employer has engaged in an adverse employment action in violation of FEHA. ( Wysinger, supra, 157 Cal.App.4th at p.420, italics added.) Patten also involved a retaliation claim, this one based on a transfer from one middle school where the plaintiff had been the principal to another 16 middle school site where she also was the principal. ( Patten, supra, 134 Cal.App.4th at pp. 1381–1383.) In reversing a summary judgment for the school district,

2025“The common law legal dynamics of retaliation statutes require a prima facie showing of a causal 13 connection between an adverse action and the complaint that allegedly engendered the retaliation. [Citation.] Absent such a showing, the retaliation claim is unviable.” (Armin v. Riverside Community Hospital (2016) 5 Cal.App.5th 810, 829 .) This required causal link is broken where the employer demonstrates “that it would have taken the action in question for legitimate, independent reasons even had the plaintiff not engaged in protected activity.” (Lawson v. PPG Architectural Finishes, Inc. (20

2014“The [appellant] has not raised the issue of instructional error [based on CACI No. 2505], and in light of our conclusion that there is no substantial evidence of retaliatory intent, we need not decide whether the jury was correctly instructed [with that instruction].” (Id. at p. 1229.) As for Harris, supra, 56 Cal.4th 203 , which the Department raises for the first time in its reply, that case involved a racial discrimination claim under FEHA, not a retaliation claim, and it dealt with a different instruction—CACI No. 2500.

2016It 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 the FEHA. [Citations.]” (Yanowitz, supra, 36 Cal.4th at p. 1043 ; Miller v. Department of Corrections, supra, 36 Cal.4th at pp. 473-474; Flait v. North American Watch Corp., supra, 3 Cal.App.4th at p. 477 .) The good faith mistaken belief may be either of fact or of law, and employees are not required to “elaborate to their employer on the l

2005(See Moyo v. Gomez, supra, 40 F.3d at p. 985 [the employee’s good faith “reasonable mistake may be one of fact or law”]; Drinkwater v. Union Carbide Corp., supra, 904 F.2d at p. 866 [sanctioning a retaliation claim in light of the plaintiff’s reasonable belief concerning the law].) Particularly in view of the EEOC policy statement quoted at length ante, whether or not a jury or a court ultimately concludes defendants’ conduct constituted sexual harassment, employees such as plaintiffs reasonably could believe they are making a claim of sexual harassment in violation of the FEHA when they compl

2024A. Protected Activity 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 the FEHA.’ ” (Yanowitz, supra, 36 Cal.4th at p. 1043 .) “Opposing practices forbidden by FEHA includes . . . participating in an activity perceived by the employer as opposition to discrimination,” “whether or not so intended by the individual expressing the opposition.” (Nealy v. City of Santa Monica (2015) 234 Cal.App.4th 359, 380 ; Cal. Code

2021(See Nosal-Tabor v. Sharp Chula Vista Medical Center (2015) 239 Cal.App.4th 1224 , 1234−1235 [“ ‘[t]he elements of a claim for wrongful discharge in violation of public policy are (1) an employer-employee relationship, (2) the employer terminated the plaintiff ’s employment, (3) the termination was substantially motivated by a violation of public policy, and (4) the discharge caused the plaintiff harm’ ”].) The elements of a retaliation claim under the FEHA are “ ‘ “(1) [the plaintiff] engaged in a ‘protected activity,’ (2) the employer subjected the employee to an adverse employment action, a