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JUDICIAL UPDATES Employee Allowed to Proceed with Retaliation Lawsuit The scope of liability for retaliation in California continues to expand. The Court of Appeal has found that the facts pled by a former employee satisfied both the California and federal tests for whether he was subjected to an adverse employment action for purposes of his retaliation claim. In addition, the court ruled that the Fair Employment & Housing Act (“FEHA”) imposes liability on an employer for failure to prevent retaliation, even though such liability is not explicitly set forth in the statute. (Taylor v. City of Los Angeles Dept. of Water and Power, California Court of Appeal case number B187299, November 20, 2006.) The employee, Eric Taylor, had been an electrical engineer with the Los Angeles Department of Water and Power for 18 years. He had been promoted to the position of supervising lead engineer by his direct supervisor, Bruce Hamer. Hamer had recommended that Taylor take a series of DWP courses to obtain a supervision certificate that would increase his chances of becoming a full engineer with a potential salary increase of $25,000, plus other benefits. Among the employees that Taylor supervised was 13-year employee Donald Coleman. Hamer terminated Coleman for cause. Coleman immediately filed complaints with the employer’s EEO division, claiming that he was wrongfully terminated because of his race, African-American. Coleman identified Taylor as a supporting and material witness, specified certain information to which Taylor would testify, and subpoenaed Taylor to appear at his termination hearing. Over the ensuing six months, Taylor opposed Coleman’s termination by providing information to the EEO department, participating in several interviews, and testifying in support of Coleman at the hearing. (The employer ultimately reinstated Coleman with full back pay ten months later.) Shortly after Coleman had identified Taylor as a supporting witness, Hamer began a series of allegedly retaliatory actions against Taylor. These included designating another employee as supervising lead engineer; threatening to eliminate Taylor’s 4/10 work schedule and implying that he had misreported time work; stripping Taylor of his supervisory responsibilities; telling one of Taylor’s former subordinates that Taylor would be disciplined; denying Taylor a promotional opportunity that instead went to another employee with fewer qualifications and no supervisory experience; ordering Taylor to instruct this promoted employee; excluding Taylor from meetings and other information sources and thus impacting Taylor’s ability to service a particular client; preventing Taylor from attending all classes in the supervisory training series; telling other managers that Taylor was a “troublemaker”; and assigning Taylor duties that were outside of his job description. Taylor sued the Department and Hamer for retaliation and for failing to take necessary remedial action to prevent retaliation. The trial court dismissed the case after sustaining the defendants’ demurrer. However, the Court of Appeal reversed that decision, claiming that Taylor had pled sufficient facts to be able to proceed with the lawsuit and attempt to prove his claims. In California, the standard for determining whether an adverse employment action can support a retaliation claim is the “materiality” test, which requires an adverse action to materially affect terms and conditions of employment. The California Supreme Court has held that, in making this inquiry, it is appropriate to consider the totality of the circumstances. In the Taylor case, the Court of Appeal examined the totality of the circumstances that were alleged in the complaint. It found that Taylor had sufficiently pled facts showing a continuous course of conduct by Hamer that allegedly culminated in Taylor’s low rank on the civil service list for full engineer, a position that he was seemingly being groomed to take over before he began assisting Coleman with the Coleman’s race discrimination claim. (The court then went on to discuss how the pleaded facts demonstrated that the federal test for retaliation, the “deterrence” test, was also satisfied.) The Court of Appeal also held that Taylor could proceed with his claim that the employer’s failure to prevent retaliation violated FEHA. Government Code section 12940(k) stats that it is unlawful for an employer to fail to take all reasonable steps necessary to prevent discrimination. California law interpreting FEHA supports the conclusion that retaliation is a form of discrimination. The Court of Appeal stated that the Legislature must have intended to extend a comparable degree of protection both to employees who are subject to the types of basic forms of discrimination prohibited by FEHA (e.g., race or sex) and to employees who are discriminated against in retaliation for opposing such discrimination.
NEXT: Clarification of Deadlines for Various Wage & Hour Claims
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