United States: Summary of Significant Retaliation Decisions

In Bergene v. Salt River Project, 272 F.3d 1136 (9^th Cir. 2001) the plaintiff appealed the grant of summary judgment in favor of her former employer, Salt River Project ("SRP"), on her claims of retaliation and sex discrimination in the denial of a promotion and constructive discharge on account of intolerable work enviornment. The district court ruled in favor of SRP on the retaliation and discrimination claims on the ground that SRP had offered a non discriminatory reason for denying plaintiff a promotion and plaintiff had failed to show it was pretextual. The court of appeal found that the record contained direct evidence of retaliation, including a threat by a supervisor that plaintiff would not be promoted if she held out for too much money in settling an earlier pregnancy discrimination claim. The records also contained substantial circumstantial evidence from which a jury could conclude that she was the target of repeated discriminatory treatment, including the denial of promotion

that was given instead to a male who qualified for the position only after SRP changed the job requirements. The court followed the case of Godwin v. Hunt Wesson, Inc., 150 F.3d 1217 (9^th Cir. 1998) which held that whereas circumstantial evidence of pretext must be specific and substantial, only a small amount of direct evidence is necessary in order to create a genuine issue of material fact as to pretext. Therefore, the court of appeal reversed and remanded holding that plaintiff had met her burden of establishing a triable issue of fact as to whether SRP's asserted nondiscriminatory justification for her adverse treatment was pretextual.

In Little v. Windermere Relocation, Inc., U.S. App. Lexis 28010 (9th Cir. 2001), plaintiff, while in the course of a business meal with a customer, was raped repeatedly by the customer. The employee had, up to that time, received only positive feedback from her supervisors and had the best transaction closure record of her department by a large margin. Within minutes of reporting the rape to a superior, her guaranteed monthly base salary was substantially reduced and she was soon terminated from her job. The district court granted summary judgment in favor of the employer on the employee's claims that she was retaliated against for reporting the rape and that she was subjected to a hostile work environment. The court of appeals reversed as to those claims. A single incident could be sufficiently severe or pervasive conduct to alter the conditions of employment and create an abusive working environment. The employee's evidence of her superior performance was sufficient to rebut the employer's asserted legitimate reason for restructuring her pay and terminating her. The court again followed Godwin v. Hunt Wesson, Inc. in finding that very little direct evidence of discriminatory motive is sufficient to establish pretext, but if circumstantial evidence is offered, such evidence has to be specific and substantial. Summary judgment was reversed as to the claims of hostile work environment and retaliation because genuine issues of material fact existed as to those claims.

In Winarto v. Toshiba, 274 F.3d 1276 (9^th Cir. 2001) A former employee was laid off from her job. She sued the employer and some of her managers and co-workers, raising claims of illegal retaliation, disability discrimination, and civil rights violations, among others, for behavior that included verbal and physical abuse. A jury returned a verdict in her favor; awarded her $93,000 in compensatory damages and found that the liable defendants had acted with oppression, fraud, or malice. It deadlocked as to the amount of punitive damages. After the verdicts were returned, the district court granted the employer's Fed. R. Civ. P. 50(a) motion for judgment as a matter of law, set aside all verdicts that favored the former employee and denied her motion for a new trial as moot. On appeal, based on the record, the court reversed and reinstated part of the jury's verdict for compensatory damages and reinstated the jury's finding that the employer acted with oppression, fraud, or malice, remanded for a new trial to determine whether the employer was liable for punitive damages and to decide on the amount of punitive damages due from the employer. The court again followed the direct versus circumstantial evidence rule regarding pretext from Godwin v. Hunt Wesson, Inc. The court found the record to be abounding with specific and substantial circumstantial evidence to support a retaliation claim. Having reinstated the jury's finding of retaliation, the court went on to hold that the District Court had erred in its interpretation of Reno v. Baird and found that individual supervisors may be held liable for retaliation under the FEHA.

In Akers v. County of San Diego 95 Cal.App.4th 1441 (2002) , a former deputy district attorney sued the County of San Diego claiming gender/pregnancy discrimination, violation of family leave act statutes, wrongful termination in violation of public policy and unlawful retaliation. In the facts of this case, plaintiff claimed she was forced out of the domestic violence unit because of her pregnancy and the fact she was a woman. Four months after complaining, the County issued a negative performance review and counseling memorandum accusing plaintiff of incompetence, dishonesty and insubordination. The jury found in plaintiff's favor on her retaliation claim. On appeal, the County contended insufficient evidence supported the jury's finding that plaintiff suffered an adverse employment action, and the trial court prejudicially erred in instructing on this element. In the published portion of this decision, the appellate court concluded: (1) an adverse employment action within the meaning of the FEHA retaliation claim required proof that the employer substantially and materially adversely affected the terms and conditions of the plaintiff's employment; and (2) plaintiff satisfied this test by showing the retaliation eliminated or reduced her promotional opportunities within the district attorney's office. Accordingly, the judgment was affirmed.