California Public Agency Labor and Employment Blog - Useful Information for Navigating Legal Challenges

The California Court of Appeal recently highlighted a fundamental flaw in the California Civil Jury Instructions (“CACI”) on a cause of action for retaliation in violation of the Fair Employment and Housing Act (“FEHA”).  The instruction is missing the element of retaliatory intent or animus.  This flaw has not been brought to the forefront previously because it would only be found in unusual circumstances such as those that were presented to the Court in Joaquin v. City of Los Angeles.  However, this also highlights the same fundamental flaw in another CACI instruction, particularly, disability discrimination. 

In Joaquin, a police officer was terminated following an evidentiary hearing by an independent review board which found that the officer made a knowing false accusation against his sergeant of sexual harassment. A superior court later ordered the officer reinstated finding that the review board’s decision was not supported by substantial evidence. 

The officer then filed a lawsuit alleging that the City terminated him in retaliation for making the complaint of sexual harassment, a violation of FEHA.  The jury was given the standard CACI No. 2505 instruction on retaliation which requires a verdict in favor of the plaintiff if: (1) the plaintiff made a complaint of harassment; (2) the plaintiff was subjected to an adverse employment action; (3) the complaint of harassment was a motivating reason for the adverse employment action; (4) plaintiff was harmed; and (5) the adverse employment action was a substantial factor in causing plaintiff’s harm.  

Because of this jury instruction, the City all but admitted the essential elements of the cause of action. As a result, the jury had no choice but to return a verdict in favor of the officer.  The City appealed and the Court of Appeal reversed, finding that the jury’s verdict was not supported by substantial evidence because there was no evidence that the City’s decision to terminate the  officer was intended to retaliate against him for making a complaint of harassment.  Rather, the independent board of review, after conducting an evidentiary hearing, had an honest, good faith belief that the officer lied about the allegations against his sergeant. This qualified as a legitimate, nonretaliatory reason for the officer’s termination, defeating the plaintiff’s cause of action. 

It was here the appellate court astutely noted that “retaliatory intent is an essential element of a cause of action for unlawful retaliation under FEHA.  However, the element is not identified in the CACI retaliation instruction.”    Thus, had the jury been asked whether the independent review board’s decision was motivated by the intent to retaliate against the officer for making a complaint of harassment, it most likely would have reached a contrary conclusion. 

While intent is an essential element of a cause of action for unlawful retaliation, it undoubtedly is also an essential element of a cause of action for discrimination.  In a thorough discussion of the relevance of discriminatory intent, one court stated, “[t]he defendant’s discriminatory mental state is crucial.”  For that reason, the CACI instruction on discrimination, particularly disability discrimination, is similarly flawed.  

Consider the following hypothetical:  Your employee is giving you reason to doubt her fitness for duty.  You send the employee for a fitness for duty exam. Your agency’s doctor finds the employee unable to perform the essential functions of the job because of a physical condition. After you exhaust the interactive process, you separate the employee because she is unable to perform the essential functions of the job with or without a reasonable accommodation and no other accommodation is feasible. Generally, under FEHA, if an employee has a physical or mental condition that limits a major life activity, including the ability to work in a single job for a single employer, the employee is considered to have a protected disability.  Thus, an employer in this hypothetical has seemingly terminated the employee because of the employee’s disability or because the employer perceived the employee as having a disability. 

The employee sues your agency for disability discrimination.  At trial, the employee pays for a doctor to opine that she is fit and can perform the essential functions of the job.  The jury is given the standard CACI instruction on disability discrimination: to establish a cause of action, plaintiff must prove: (1)  that the agency was an employer under FEHA; (2) that plaintiff was an employee of the agency; (3) that the employer knew or perceived  that the plaintiff had a “disability”; (4) that the plaintiff was able to perform the essential job duties with or without reasonable accommodation; (5) the employer discharged plaintiff; (6) that the plaintiff’s real or perceived “disability” was a motivating reason for the discharge; (7) that plaintiff was harmed; and (8) that the employer’s discharge was a substantial factor in causing plaintiff’s harm. 

Assuming the jury were to be more persuaded by the employee’s doctor-for-hire than your agency’s doctor, the jury will return a verdict against the agency regardless of the fact that your agency had an honest, good faith belief that the employee was unable to perform the essential functions of the job, an otherwise legitimate, nondiscriminatory reason for the discharge. 

However, as the court in Joaquin and numerous other courts in this state have noted, intent is an essential element of a cause of action for discrimination.  Moreover, if an employer’s adverse employment decision is based on reasons which, if true, preclude a finding of discrimination, the employer cannot be liable for discrimination, even if the employer’s honestly held belief is later shown to be wrong or unwise. While the objective soundness of an employer’s proffered reason supports their credibility, the ultimate issue is simply whether the employer acted with a motive to discriminate illegally.  That is why the CACI instruction on disability discrimination also presents a flaw in failing to include discriminatory intent as an element to the cause of action. 

The Joaquin decision came at no better time. The California Judicial Council recently issued an “Invitation to Comment” on new and revised CACI, including instructions on retaliation and disability discrimination.  Those wanting to comment on the new and revised jury instructions should submit their comments by March 2, 2012. 

This guest post was authored by David Urban

The United States Supreme Court just added another important chapter to its continuing interpretation of the First Amendment rights of public employees.  In Borough of Duryea v. Guarnieri, decided Monday, June 20, 2011, the Court held that public employees cannot assert retaliation claims based on the First Amendment right to petition unless their “petitioning” in question involves a matter of public concern.  What qualifies as “petitioning” can be a grievance, or even a lawsuit against the employer, but a constitutional retaliation claim will arise only if the claim involves something sufficiently important to the general public.

Petitioning under the First Amendment is distinct from free speech.  Free speech law in the workplace has had substantial attention from the Supreme Court, and with good reason given the fact that creative employees can argue that almost anything they say at work – from criticizing management to personal banter -- should be protected as “free speech.”  In a handful of decisions over the last several decades, however, the U.S. Supreme Court has clarified that the First Amendment free speech rights of employees are far from absolute.  These decisions, which include Pickering v. Board of Education, Connick v. Myers, and Garcetti v. Ceballos, hold that a public employee can only assert a First Amendment retaliation claim (1) if he or she spoke on a matter of public concern, (2) if he or she spoke effectively as a private citizen rather than as a public employee, i.e., if the speech was not a result of what were already the employee’s “official duties,” and (3) if on balance the government had no adequate justification for treating the employee as it did. 

Given these requirements, the plaintiff in Guarnieri, a Chief of Police, likely could not assert any free speech claim.  His lawyers, however, believed they could circumvent the requirements by utilizing a more obscure provision of the First Amendment – the right to petition.  The First Amendment provides that “Congress shall make no law . . . abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”  This last right, they argued, encompassed the right of a public employee to assert lawsuits or grievances on any topic against the employer.  They argued it was not subject to any “public concern” requirement.

The facts of Guarnieri show how versatile an instrument the right to petition could be as a substitute for the free speech right, and how easy it was under plaintiff’s counsel’s view to state a claim against an employer.   The plaintiff Charles Guarnieri was terminated by his borough from his Chief of Police position, but then filed a grievance, prevailed in arbitration, and was reinstated.  After his reinstatement, the borough council issued 11 directives to him in the performance of his duties, which included that he not work overtime without express permission, that he use his police car only for official business, and that he respect the smoke-free policy of the municipal building.  Guarnieri filed a second grievance, objecting to these directives.  He also filed a federal lawsuit arguing that his first grievance constituted a “petition” to the government protected under the First Amendment, and that the directives constituted the borough’s retaliation against him for exercising his right to file the grievance.  The borough later denied Guarnieri $338 in claimed overtime, and Guarnieri added a charge to his federal lawsuit that his second grievance and also the federal lawsuit itself constituted protected “petitions” under the First Amendment.  He argued that the denial of the $338 in overtime constituted another act of improper retaliation for exercise of his constitutional rights.  Guarnieri obtained a jury verdict awarding him compensatory and punitive damages.

The Supreme Court, in an opinion by Justice Kennedy, held that the same “public concern” requirement that applied to free speech claims under the First Amendment applied to right to petition claims.  It vacated the underlying judgment and remanded for further proceedings.  Justice Kennedy’s opinion describes that, in general, “a citizen who accepts public employment” has to “accept certain limitations on his or her freedom.”  “The public concern test was developed to protect . . . substantial government interests.  Adoption of a different rule for Petition Clause claims would provide a ready means for public employees to circumvent the test's protections.”

Justice Kennedy’s opinion provides some explanation of what “public concern” entails.  It appears unlikely the plaintiff can prove, on remand, that the test is satisfied.  “A petition filed with an employer using an internal grievance procedure in many cases will not seek to communicate to the public or to advance a political or social point of view beyond the employment context.”  The opinion explains that a petition which involves “nothing more than a complaint about a change in the employee's own duties” does not relate to a matter of public concern. 

The Guarnieri opinion provides several pages acknowledging the importance of the common law right to petition throughout history, beginning with the Magna Carta and including a reference to official petitions in the Declaration of Independence.  The emphasis of the historical discussion is, however, on how important the petition right is to participation by citizens in the process of government.  The opinion implies that it should not serve as an instrument by which public employees simply obtain special leverage over their employers.

Although Guarnieri will save public employers from having to defend against many types of potential right to petition claims, the fact remains that public employers still clearly may not penalize employees simply because they file grievances or lawsuits.  Most federal and state laws that authorize employee private rights of action contain anti-retaliation provisions that can impose severe penalties on employers.  Among other things, Guarnieri acted to limit the extent to which such cases will be considered substantial constitutional lawsuits as well.  

The Supreme Court’s recent ruling in Thompson v. North American Stainless has caused some commentators to sound the alarm warning employers of employee friendly courts and impending lawsuits as a result of the decision.  Hans Bader of the Washington Examiner wrote that the Thompson decision shows the Supreme Court is not pro-business.  Tim Gould of the website HRMorning.com warns that the decision will result in increased employer exposure to retaliation lawsuits.  However, for California employers, the ruling represents just another pro-employee decision which is part of doing business in California’s pro-employee environment.

In Thompson, Miriam Regalado and her fiancé Eric Thompson were employees of North American Stainless (NAS).  Regalado filed a charge alleging sex discrimination against NAS with the Equal Opportunity Commission (EEOC) which, in turn, notified NAS of the complaint in February 2003.  Within weeks of learning of the charge, NAS fired Thompson.  Following his termination, Thompson filed his own EEOC charge and sued NAS under Title VII of the Civil Rights Act of 1964 claiming the company fired him to retaliate against Regalado for filing her EEOC charge.  Both the District Court and the U.S. Court of Appeals affirmed the dismissal of Thompson’s Title VII claim on the ground that the law does not permit third party retaliation claims.  The Supreme Court reversed the Court of Appeals’ decision on the ground that NAS’s firing of Thompson was retaliatory and that he could sue NAS for violation of Title VII. 

The Court reasoned that the purpose of Title VII’s anti-retaliation provision is to prohibit any employer action that might dissuade a reasonable worker from making or supporting a discrimination charge.  Thus, the Court thought “it obvious” that a reasonable worker might be dissuaded from filing a complaint against her employer if she knew her fiancé would be fired.  Although the Court declined to identify “a fixed class of relationships” for which third party reprisals are unlawful, it indicated that a close family member who is fired will “almost always” be able to assert a claim under Title VII while a “mere acquaintance” will “almost never” be able to do so.  The Court also reasoned that Thompson was a “person aggrieved” for standing purposes because he fell within the “zone of interests” protected by Title VII.  Thompson was an employee of NAS, and the purpose of Title VII is to protect employees from their employers’ unlawful actions.  Finally, the Court found Thompson was not an accidental victim of retaliation.  Rather, NAS intentionally fired him in order to punish Regalado for filing her EEOC charge. 

While the Thompson decision is significant and will undoubtedly spawn more lawsuits nationwide, employment claims by third parties are not an entirely new concept in California.  Government Code section 12926(m), part of California’s Fair Labor and Employment Act (FEHA), already gives employees the ability to sue their employers over adverse actions taken against them because of their association with “another person” in a protected class (e.g. race, marital status, sex).  However, it remains to be seen whether this FEHA provision would provide a basis for a claim such as the one asserted by Thompson.  Thus, employers should make sure that the harassment training provided to employees, supervisors and managers includes a discussion which educates them on the possibility of third party employment claims.  Employers should also consider revising existing anti-harassment policies to explicitly prohibit discrimination, harassment and retaliation against an employee who associates with a person, including another co-worker, in a protected class.