Bay Area Employment Lawyer Blog

The California Court of Appeal overturned a $2 million dollar award to a Los Angeles police officer who it was admitted was fired solely because he complained of sexual harassment. Sounds like a good case? Too good for this court panel, which turned logic on its head in finding that it was legal to fire Officer Joaquin in retaliation for his filing a sexual harassment complaint. The Court found that, even though the jury found the plaintiff to be fired because he filed this complaint, that it wasn't illegal because an internal panel (known as the Board of "Rights") found that his complaint was false.

In this case, Officer Joaquin filed an internal charge of sexual harassment. His statement as to what happened certainly contains evidence that would permit any jury to find that he was sexually harassed. He recited how a Sergeant sexually harassed him, asked him on a date, and after Officer Joaquin told him he was not interested, continued to pursue him by, inter alia, following him around and making inappropriate comments, such as "you look nice standing there." Joaquin v City of Los Angles (Jan. 23, 2012) 202 Cal.App.4th 1207.

As stated above, Joaquin filed an internal complaint of sexual harassment. The Sergeant filed an internal complaint against Joaquin, and it took off from there with an Internal Affairs investigation, and a finding by a panel somewhat inappropriately labeled the "Board of Rights" (which consisted of two management level officer, who very well may have been biased and certainly weren't outside neutrals, and one community member). The Board of Rights determined that Joaquin had fabricated his claims. Joaquin disagreed with the Board's finding and filed a writ of mandate. The Superior Court, which heard the writ, agreed with Joaquin and ordered him reinstated. After that, Joaquin filed this action in court alleging retaliation. The jury not only found in his favor, but really found in his favor, awarding him $2 million.

Enter the Court of Appeals...The California Court of Appeals opened its discussion of the facts of this case by noting that, "This case has a somewhat tortuous procedural history." It is absolutely true that the case has a tortured history, but, as indicated below, it is the Court of Appeals reasoning that most truly is tortuous.

This case obviously involves issues of credibility. Joaquin claims sexual harassment and retaliation; his Sergeant claims that Joaquin made these claims up to avoid disciplinary action. One of them is lying. The jury is supposed to decide, after hearing the evidence and seeing the witness, who is lying and who is telling the truth, right? The Court of Appeals admits: "Actions for unlawful discrimination and retaliation are inherently fact driven, and we recognize that it is the jury, and not the appellate court, that is charged with the obligation of determining the facts." Nonetheless, the Court of Appeals turned this statement of the law - and logic- on its head by managing to reverse the verdict, usurping the jury's power, and pronouncing its own fact finding that Joaquin's claims were fabricated, even though obviously the jury believed the opposite!

The Court of Appeals laid the fault at the feet of the standard jury instructions on retaliation. These jury instructions require that a jury find "...that Richard Joaquin's reporting that he had been sexually harassed was a motivating reason for the City of Los Angeles' decision to terminate Richard Joaquin's employment or deny Richard Joaquin promotion to the rank of sergeant." The Court declared that these jury instructions were inadequate and furthermore that there was not enough evidence that Joaquin's termination was retaliatory. The Court went through a tortured analysis of what it considered to be the retaliatory intend necessary to find for a plaintiff, and in doing so ignored much of the law which clearly establishes that an employer may be responsible for retaliation when the decision maker or the decision making is tainted by others who harbor a retaliatory intent. See, Reeves v. Safeway Stores (2004) 121 Cal.App.4th 95; Yanowitz v. L'Oreal (2005) 36 Cal.4th 1028. The Court of Appeals appears result driven; that is, driven to reverse this verdict.

The only solace that can be taken from the Court's overreaching and interference with the jury's determination is that, as said by the Court itself, this case was one involving "unique facts."

Jody LeWitter
March 6, 2012

Dr. Jadwin sued his employer, Kern County, in federal court, for placing him on administrative leave in retaliation for his complaints about patient care and other violations. This underlying federal case subsequently resulted in a verdict of over $500,000.00 to Dr. Jadwin.

Instead of heeding the warning of being particularly careful not to retaliate, or appear to retaliate, against an employee with a pending claim, the County of Kern threw caution to the wind and sued Dr. Jadwin in state court, claiming that the good doctor filed a false claim for $3125 in expenses. Fresno's claim against Dr. Jadwin was assigned to mandatory arbitration where Dr. Jadwin prevailed. After a variety of inappropriate maneuvering by the County, the State Court ruled that Fresno's claim was frivolous and brought to harass Dr. Jadwin.

The Court of Appeals, in County of Kern v Jadwin (July 5, 2011) --- C.A. 4th -- --, 2011 WL 2611819, affirmed the finding by the trial court that the case was frivolous and upheld the trial court's award of $50,000.00 in attorney's fees. The Court of Appeals agreed with the lower court that the facts "'paint a picture . . .' of a lawsuit filed and maintained for the purpose of harassing Jadwin."

This case drives home the lesson that an employer must tread lightly once an employee has filed a claim, and should ensure that the employee is treated the same as other employees. It is equally true that, once an employee makes or anticipates making a claim of any sort, he or she should understand that his/her actions may be put under the employer's microscope, and thus the employee should use every effort to comply with all company rules and regulations and perform work in an exemplary manner while under this microscope!

Jody LeWitter
July 25, 2011

Mr. Kasten was fired by Saint-Gobain because he complained that the company prevented its workers from being paid for the time they spent "donning and doffing" (putting on required protective gear). He claimed that the location of the company's time clocks caused this problem. Kasten v. Saint-Gobain Performance Plastic Corp., __ U.S. __ (March 22, 2011).

The Fair Labor Standards Act prohibits employers from discharging "any employee because such employee has filed any complaint" asserting a violation of the Act. 29 U.S.C. Section 215(a)(3). This case turned solely upon the Supreme Court's holding that the phrase "filed any complaint" includes the making of an oral complaint, here to Saint-Gobain's officials.

The Court held that the "purpose and context" of the anti-retaliation provision led it to this interpretation. It noted that very real problems could occur if the provision did not protect those who complained orally: it could prevent government agencies from using hotlines; it could discourage the use of informal workplace grievance procedures; and it could make it difficult for workers who are less educated to complain. This led the Court to adopt a broad interpretation of the statute.

It is a cause for celebration every time this Supreme Court, with its largely pro-business slant, votes for the rights and concerns of employees. This case does provide more protection for employees around the country who complain about wage and hour violations, although the Ninth Circuit had, already, interpreted FLSA this way, to include oral complaints and thus California employees were already protected when making oral complaints. Lambert v Ackerley, 180 F.3d 997 (9th Cir. 1999).

The Court did note that Saint-Gobain argued to the Supreme Court that FLSA's anti-retaliation provision only applied to complaints to the government, not to private employers. Holding that Saint-Gobain abandoned this argument, the Court may have unnecessarily muddied the waters around this issue, as complaints to the employer, private or otherwise, are just the types of complaints that have historically been protected. Over ten years ago, the Ninth Circuit, noting well established law, clearly ruled that complaints to the employer are protected. Lambert v Ackerley, 180 F.3d 997 (9th Cir. 1999). Indeed, if the "purpose and context" of FLSA's anti-retaliation provision covers oral complains, it should covers complaints to non-governmental organizations and complaints by an employee to his or her own employer. After all, it would be illogical for this Supreme Court to urge employees to go straight to the government to complain about FLSA violations and leave the employer/private business out of the loop.

Jody LeWitterApril 7, 2011

In an important case, Thompson v North American Stainless, 131 S.Ct. 863 (January 24, 2011), the US Supreme Court put an end to retaliation against an employee who takes protected activity by retaliating against someone "closely" associated with her. It did so in order to protect the spirit of Title VII's anti-retaliation provision.

In this case, Ms. Regalado, an employee of defendant North American Stainless, filed a charge of sex discrimination with the Equal Employment Opportunity Commission (EEOC). Three weeks later, the defendant fired her fiancé, plaintiff Thompson. Thompson alleges that his firing was in retaliation for his fiancé's filing of her charge of discrimination.

The US Supreme Court upheld Thompson's charge, indicating that, if true, his firing violated the anti-retaliation provisions of Title VII. Relying on the spirit of the anti-retaliation provision, the Court held that the provision was intended to protect against employment actions that "....might have dissuaded a reasonable worker from making or supporting a charge of discrimination", quoting Burlington N. & S. F.R. Co. v White, 548 US 53 (2006). The Court went on to indicate that not all third parties will be protected by this ruling, noting that a close family member will be treated differently than a mere acquaintance.

Although any act of retaliation should really be prohibited by the act, whether foisted upon a close family member or a more distant friend, for purposes of prohibiting employer retaliation, we have to see this case as a glass half full rather than half empty. This case is good news for employees who fear that standing up for their rights will expose not just themselves - but their loved ones - to retaliation. There are many employees who have family members working for the same employer, and thus should be relieved to know they are entitled to this protection.

Jody LeWitterMarch 3, 2011