Retaliation Claim Fails Since Employee Wasn’t Clearly Opposing Age Bias

By Joanne Deschenaux February 19, 2021
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An employer could not have been aware that a former employee's actions were intended to oppose age discrimination against another worker, so the employee's retaliation claim failed, a California appeals court ruled.

The plaintiff worked for the employer from 1988 until her termination in March 2011. In January 2011, management assigned her direct report a lower performance rank than what had been previously agreed upon. The plaintiff contacted the HR department to complain that the final ranking given to her direct report was unfair, but she was told it would not be changed.

The direct report was to be placed on a performance improvement plan (PIP), but the plaintiff refused to put him on the plan and refused to meet with HR about the matter.

The plaintiff received her own ranking on Feb. 23, 2011, which was the lowest she had received in her 23 years of employment. She was fired on March 10, 2011. She subsequently filed a lawsuit, claiming that her termination was retaliatory and violated California law. She alleged that she was fired because she complained about age bias against her direct report.   

The trial court dismissed her complaint before trial, and the plaintiff appealed.

FEHA Retaliation Claims

The plaintiff brought her retaliation claim under the California Fair Employment and Housing Act (FEHA), which makes it unlawful for an employer to fire or discipline an employee for opposing an unlawful practice under the act.

The appeals court first noted that the California Supreme Court has adopted a three-stage burden-shifting test that was established by the U.S. Supreme Court for discrimination claims. The test, which is known as the McDonnell Douglas test, applies to FEHA discrimination and retaliation claims.

Under the McDonnell Douglas test, the plaintiff has the burden to introduce facts from which a jury could infer that discrimination had occurred. This is known as a prima-facie case. To establish a prima-facie case of retaliation under FEHA, plaintiffs must show:

  • They engaged in activities protected by FEHA.
  • Their employers subsequently took adverse employment action against them.
  • There was a causal connection between the protected activity and the adverse employment action.

If the plaintiff meets that burden, a presumption of discrimination arises. The presumption shifts the burden to the employer to produce evidence showing it acted for a legitimate, nondiscriminatory reason.

The plaintiff can establish a causal link by showing that the employer knew that the employee engaged in protected activities and a close proximity in time between the protected action and the allegedly retaliatory employment decision.

At trial, the employer claimed that the case should be dismissed because the plaintiff could not establish a prima-facie case and even if she could, the employer met its burden to establish a legitimate nonretaliatory reason for terminating her employment.

The appeals court agreed and affirmed the trial court decision dismissing the case before trial.

The employer did not know that the plaintiff's conduct was based on a reasonable belief that the employer was discriminating against her direct report based on age, the appellate court said. Therefore, the plaintiff could not show a causal link between her allegedly protected activity and her termination. 

Before she was fired, the plaintiff did not inform her supervisor, HR or anyone at the company that she believed her direct report had been rated unfairly because of his age. She claimed that she refused to put the employee on a PIP or meet with HR because she opposed the alleged bias against her direct report. But, the court said, there was no evidence that anyone at the company knew or should have known these actions were an attempt to oppose what she believed was discriminatory conduct.

An employee is not required to use legal terms or buzzwords when opposing discrimination, the court noted. However, an employee must say or do something alerting the employer that she has a concern about discrimination. Complaints about personal grievances or vague or conclusory remarks are not enough to establish protected conduct, the court said.

The court went on to conclude that, even if the plaintiff had met her initial burden, the employer had shown that it had a legitimate reason for terminating her—her refusal to meet with or cooperate with HR concerning her direct report.   

Colborn v. Chevron U.S.A. Inc, Calif. Ct. App., No. A159040 (Jan. 29, 2021).

Professional Pointer: Although a plaintiff claiming retaliatory conduct is not required to show that he or she used legal terms or buzzwords when opposing discrimination, the plaintiff's words or actions must make clear that he or she was engaging in protected conduct and not just expressing some personal grievance about the workplace.

Joanne Deschenaux, J.D., is a freelance writer in Annapolis, Md. 

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