Litigation & Case Law Update
| Publication year | 2017 |
| Author | By Christopher Whitman and Donna Mooney* |
By Christopher Whitman and Donna Mooney*
"Protected activity" for a retaliation claim under FEHA is conduct that opposes an employment practice affecting employees, as opposed to the general public.
Plaintiff David P. Dinslage worked for San Francisco's Recreation and Parks Department as an organizer of programs for the disabled. The Department laid off Dinslage and more than one hundred other employees as part of a restructuring that changed the focus from separate, segregated programs for the disabled to inclusive programming accessible to all. Dinslage publicly disagreed with the restructuring. And when he applied for a position, Dinslage expressed hostility and resentment toward the new program. The Department did not offer him a position with the new program.
Dinslage sued the Department alleging, inter alia, retaliation under California's Fair Employment and Housing Act ("FEHA"), which prohibits employers from retaliating against employees who oppose unlawful employment practices, including discrimination against persons with disabilities. Dinslage claimed that his position was eliminated because he opposed the program restructuring on the grounds that it discriminated against the disabled members of the public. The trial court granted the Department's summary judgment motion and held that Dinslage could not state a prima facie case of retaliation because he did not engage in "protected activity" as defined by FEHA. The court reasoned that for activity to be protected, the employee must complain about an unlawful employment practice that affects employees, but Dinslage only voiced a concern regarding members of the public.
The Court of Appeal for the First Appellate District affirmed. In doing so, the court also addressed the alternative manner of engaging in protected activity: opposing a practice that one reasonably believes is unlawful under FEHA, but that ultimately proves to be FEHA-compliant. The First Appellate District held that Dinslage did not have an objectively reasonable belief that the practice was unlawful because the facts and circumstances did not show a violation of FEHA under existing law. Without evidence that the Department's conduct was directed to employees, Dinslage could not have reasonably believed that his opposition to the restructuring was protected activity.
For public and private employers alike, this opinion clarifies the limited definition of protected activity under FEHA. It also emphasizes that FEHA is intended to govern the relations between employers and employees, and not employee rights that relate indirectly to employer impacts on members of the general public.
Bareno v. San Diego Community College District (2017) 7 Cal. App.5th 546 (4th App. Dist., Div. 1, filed Jan. 13, 2017)An employee's request for California Family Rights Act ("CFRA"') medical leave is evaluated under a "reasonableness" standard, and so must include consideration of all employee efforts to communicate the request and the employer's efforts to request additional information.
Plaintiff Leticia Bareno worked for the San Diego Community College District as an administrative assistant. On two separate occasions, the College disciplined Bareno with suspension due to excessive absences, incompetence, and inefficiency. On the day set for Bareno's return to work after the second suspension, February 25th, she called and emailed her supervisor, Lynn Ornelas, to state that she could not work because she needed to be hospitalized for sickness, depression, and stress. Ornelas requested a physician's note authorizing medical leave, and Bareno provided her with a physician's note stating that Bareno needed to be on medical leave through her next medical appointment on March 1st.
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On March 1st, Bareno emailed the College's vice president to state that she was still on medical leave. On the afternoon of March 1st, Bareno went to a UPS Store and used an email account from the store to send Ornelas a copy of an updated physician's note extending her medical leave through March 8th. Ornelas denied receiving a copy of the updated physician's note from Bareno. Neither the vice president nor Ornelas attempted to contact Bareno. On March 8th, a human resources employee sent a letter to Bareno's post office box stating that Bareno had voluntarily resigned because of unauthorized absences.
On March 9th, Bareno emailed Ornelas an updated physician's note extending her medical leave through March 15th. Although Ornelas forwarded Bareno's March 9th email to human resources, she was instructed not to respond to Bareno. On March 13th, Bareno again emailed Ornelas her physician's notes and a College form requesting a formal leave of absence. Ornelas forwarded this email to human resources. On March 18th, Bareno faxed Ornelas the form requesting a leave of absence and an updated physician's note extending her medical leave through March 19th. On March 18th, Bareno received the College's voluntary resignation notice when she checked her post office box. She immediately called human resources, but was told that...
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