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Light v. Dep't of Parks & Recreation - 14 Cal. App. 5th 75, 221 Cal. Rptr. 3d 668 (2017)

Rule:

In order to meet the retaliation standard under the California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.), an employer‘s adverse treatment must materially affect the terms, conditions, or privileges of employment. The determination of whether a particular action or course of conduct rises to the level of actionable conduct should take into account the unique circumstances of the affected employee as well as the workplace context of the claim. Such a determination is not, by its nature, susceptible to a mathematically precise test. Minor or relatively trivial adverse actions or conduct by employers or fellow employees that, from an objective perspective, are reasonably likely to do no more than anger or upset an employee cannot properly be viewed as materially affecting the terms, conditions, or privileges of employment and are not actionable, but adverse treatment that is reasonably likely to impair a reasonable employee's job performance or prospects for advancement or promotion falls within the reach of the antidiscrimination provisions of Gov. Code, § 12940, subds. (a)(h). FEHA not only protects against ultimate employment actions such as termination or demotion, but also the entire spectrum of employment actions that are reasonably likely to adversely and materially affect an employee's job performance or opportunity for advancement.

Unlawful discrimination and retaliation in violation of the Fair Employment and Housing Act, Gov. Code, § 12900 et seq., falls outside the compensation bargain, and therefore claims of intentional infliction of emotional distress based on such discrimination and retaliation are not subject to workers' compensation exclusivity. 

Facts:

For purposes of a retaliation claim under Gov. Code, § 12940, an employee (Light) raised an issue as to whether she suffered an adverse employment action because she alleged that after she refused to tell a supervisor what she discussed with an investigator regarding a co-worker's discrimination complaint, the supervisor isolated her, moved her to a different office, verbally and physically attacked her, and told her she would no longer work for the employer when her assignment was over. The trial court granted defendants' motion for summary judgment.

Issue:

Did the plaintiff establish a prima facie case for retaliation under FEHA and intentional infliction of emotional distress?

Answer:

Yes

Conclusion:

The court reversed on Light's retaliation claim. When a plaintiff alleges a series of actions that comprise a course of conduct, the court need not examine each individually. Instead, the court considers the totality of the circumstances to determine whether the plaintiff has suffered an adverse employment action. There is no requirement that an employer's retaliatory acts constitute one swift blow, rather than a series of subtle, yet damaging, injuries. Enforcing a requirement that each act separately constitute an adverse employment action would subvert the purpose and intent of the statute. Viewing the evidence in the manner most favorable to Light, the court concluded that she raised a triable issue of material fact, i.e., a reasonable trier of fact could conclude Light suffered an adverse employment action by the employer following her participation in the investigation of her co-worker's discrimination complaint. After Light was interviewed by investigators, and refused to tell her supervisor what they had discussed, the supervisor isolated Light, moved her to a different office, verbally, and to some extent physically, attacked her during the February 23 confrontation, and told her she would no longer work at the department when her current out-of-class assignment was over. Taken together, this evidence could lead a reasonable trier of fact to conclude that Light's employment had been materially and adversely affected. Indeed, in the end, Light's employment was effectively suspended because the department did not schedule any hours for her. Even setting aside the other actions, the reduction of Light's hours alone could constitute a material and adverse employment action by the department.

The court reversed as to the claim for intentional infliction of emotional distress against Light’s supervisor, Seals. The court found that a reasonable trier of fact could find that Seals ostracized Light in the workplace, encouraged Light to lie to investigators, pursued Light at home and in the office to determine whether Light did so, and verbally and physically attacked Light after Light disobeyed. The trier of fact could conclude this conduct was extreme and outrageous (especially in light of Seals's supervisory position), taken for purposes of retaliation prohibited by FEHA, and intended to cause Light emotional distress.

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