Employee Who Was Reassigned After Complaining of Racial Harassment Entitled to Damages

Appellate court reinstates jury award of $200,000 for violation of California’s anti-bias law

By Joanne Deschenaux, J.D. May 22, 2017

​An Asian employee who was transferred to another position after she complained about racial harassment by a Spanish-speaking employee was entitled to an award of $200,000 in compensatory damages for retaliation in violation of California's Fair Employment and Housing Act (FEHA), the California Court of Appeal ruled.

After complaining to two supervisors and to a company hotline, the worker was reassigned to a job she had formerly held. Although the position change did not affect her job title or compensation, it was sufficient to constitute an "adverse employment action" and to form the basis of a finding of illegal retaliation, the court concluded.

Muyleng Bardon was born in Cambodia and came to the United States in 1981. In August 2006, Microvention Inc., which manufactures catheters and related medical technology used for treating cerebral aneurysms and preventing strokes, hired Bardon as a quality care technician to work in its Tustin facility.

Prior to her hire, Bardon had 29 years of experience working in quality control. She interviewed for the position in English.

Bardon started in the "clean room," inspecting finished goods. Three years after she was hired, she was moved to the receiving inspection area outside the clean room. Both jobs required her to create written records in English. During her time working for Microvention, Bardon attended three classes held in English and received a certificate of completion in each.

Bardon's performance reviews in 2007, 2008, 2009, 2010 and 2011 show that she received yearly merit increases and discretionary bonuses. There were never any complaints about her job duties or performance as a quality control inspector.

In 2011, Bardon complained to her supervisor that Spanish-speaking employees were mocking her—making fun of her English—and talking about her behind her back. She claimed that one particular employee, Margarita Guzman, treated Asian employees differently than she treated Spanish-speaking employees. While Guzman was not Bardon's supervisor, she was a lead person in quality control and so had some impact on Bardon's working conditions. Bardon later complained about Guzman to another supervisor, and, in August 2011, she made a complaint to Microvention's global hotline that Guzman was discriminating against Asian workers.

In September 2011, Bardon was asked to perform a test commonly conducted in the receiving inspection department, which required reasonably good English comprehension. Bardon failed to perform the test correctly. She claimed she had not received adequate training, but Guzman claimed Bardon's failure resulted from her subpar English skills. Guzman recommended to Bardon's supervisor that she be transferred back to the clean room where less reading was required. Bardon was told that the position change would not change her title or compensation.

In October 2011, Bardon requested a two-month medical leave of absence for "stress due to bullying and discriminatory conduct by co-workers, lead and manager." The company approved the medical leave of absence and later approved an extension for her leave. Bardon requested to return to work in March 2012, but Microvention did not have a position available for her and her leave had expired.

In 2013, Bardon sued Microvention for racial harassment and retaliation in violation of FEHA, among other claims.

[SHRM members-only toolkit: Preventing Unlawful Workplace Discrimination in California]

The case was tried by a jury, which ruled in Bardon's favor and awarded her $200,000 in compensatory damages. The trial court, however, entered a judgment notwithstanding the verdict, concluding that there was not enough evidence to support the jury's conclusion and ruling instead in favor of the company. Bardon appealed.

FEHA's Retaliation Protections

To prove retaliation under FEHA, an employee must show that:

  • He or she engaged in conduct protected by the anti-bias law.

  • The employer subjected the employee to an adverse employment action.

  • A causal link existed between the protected activity and the employer's action.

The employer may then defend by showing that it had a legitimate nonretaliatory reason for its adverse employment action.

There is no question, the court said, that Bardon engaged in protected activity when she made informal complaints to two supervisors and when she made a formal complaint to the global hotline. She believed she was treated differently by Spanish-speaking employees because she is of Asian descent.

The court further concluded that Bardon's transfer back to a job she had previously held, which resulted in decreased responsibilities, was an adverse employment action, even though Bardon suffered no loss in compensation.

The court also found a causal link between Bardon's complaints and her transfer based on the fact that she was transferred back to the clean room one month after her complaint to the global hotline.

The court noted that the jury had rejected the company's nondiscriminatory explanation for its conduct—that Bardon was moved back to the clean room because of her inability to adequately read and write English—and concluded that there was sufficient evidence to support this rejection. Bardon's language skills had not become an issue until after she made her complaints, the court noted.

The appellate court said that it did not need to decide whether Bardon had proved her racial harassment claim because she was entitled to the damages on her claim of retaliation alone. The court therefore reversed the trial court's order and reinstated the jury's verdict.

Bardon v. Microvention Inc., Calif. Ct. App., No. G052670 (May 9, 2017).

Professional Pointer: A worker is protected against retaliation if the employee reasonably and in good faith believed that what he or she was opposing constituted unlawful employer conduct such as harassment or discrimination. The employee need not prove that harassment or discrimination actually occurred. It is not uncommon for an employee to prevail on a retaliation claim even when the underlying harassment or discrimination claim fails. 

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


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