Pregnant Sacramento Worker Files Claim For Retaliatory Action By Employer, Part 12 of 19

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this workplace harassment/sex discrimination case and its proceedings.)


First, the prima facie case is designed to be quite easy to meet. Hodgens v. General Dynamics Corp., (1st Cir. 1998) 144 F3d 151, 161 (under the McDonnell Douglas framework the prima facie burden is quite easy to meet). It is designed to be a de minimis burden. Texas Dept. of Community Affairs v. Burdine, (1981) 450 U.S. 248, 253-254.

To establish a prima facie case for retaliation under FEHA, a plaintiff must establish that: (1) she was engaged in a protected activity; (2) was thereafter subjected to an adverse employment action; and (3) there was a causal link between the two. Addy v. Bliss & Glennon, (1996) 44 Cal.App.4th 205, 217. In response, the employer must set forth a legitimate, non-retaliatory explanation for its conduct. Flait v. North Am. Watch Corp. (1992) 3 Cal.App.4th 467, 476. Then, the employee presents evidence to show that the reason is pretextual. Id.

Here, the prima facie case is met: 1) Plaintiff was engaged in protected conduct: Employers cannot retaliate against an employee for requesting accommodation or for complaining of pregnancy harassment. Cal Govt Code § 12940(h) & (m). Plaintiff requested accommodation in the form of a weight lifting restriction and in the form of a finite amount of time off as a medical leave[FN1]. Also, Plaintiff complained of pregnancy harassment multiple times; 2) Plaintiff was terminated; 3) Plaintiff can establish a casual link as set forth below.

The plaintiff may establish a causal link between protected conduct and an adverse employment action by showing temporal proximity or that they occurred closely in time. King v. Preferred Technical Group, 166 F.3d at 893. Here, the last accommodation request came on June 21, 2006 and the last two complaints of harassment came on June 21 and 22, 2006. There were not plans to fire Plaintiff prior to her last complaint of harassment in the meeting with Mr. Chan on June 22, 2006. The decision to fire Plaintiff was made on June 23, 2006. It was the final decision and nothing would change it.

The causal link is also shown by the false reasons for the termination. Howard v. BP Oil Co., 32 F.3d at 526-527; University of So. Calif, 222 Cal.App.3d at 1036. Here, the reason articulated is totally false. Plaintiff was never insubordinate, abusive or rude. Plaintiff never yelled or cursed. To the contrary she was professional at all times. Also, Plaintiff did provide the necessary paperwork for her leave and also called about when she could return to work.


Once a prima facie case of retaliation is established, the burden then shifts to the employer to offer a legitimate nondiscriminatory reason for the adverse employment action. Assuming Defendant did, Plaintiff still successfully opposes summary judgment if she shows evidence of pretext. University of So. Calif., 222 Cal.App.3d at 1036. Plaintiff can do so in this case as she has ample evidence of pretext as follows:

i. The timing of the termination supports pretext:

Pretext may be inferred from the timing of the discharge decision. Hanson v. Lucky Stores, Inc., (1999) 74 Cal. App. 4th 215, 224; Flait v. North American Watch Corp., (1992) 3 Cal. App. 4th 467, 476, 479). Here,as stated above, the decision to fire came 2 days after the final accommodation request and one day after the final complaint of harassment. (See Part 13 of 19.)

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

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