California Civil Jury Instructions (CACI) (2017)

2505. Retaliation (Gov. Code, § 12940(h))

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2505.Retaliation—Essential Factual Elements (Gov. Code,
§ 12940(h))
[Name of plaintiff] claims that [name of defendant] retaliated against
[him/her] for [describe activity protected by the FEHA]. To establish this
claim, [name of plaintiff] must prove all of the following:
1. That [name of plaintiff] [describe protected activity];
2. [That [name of defendant] [discharged/demoted/[specify other
adverse employment action]] [name of plaintiff];]
2. [or]
2. [That [name of defendant] subjected [name of plaintiff] to an
adverse employment action;]
2. [or]
2. [That [name of plaintiff] was constructively discharged;]
3. That [name of plaintiff]’s [describe protected activity] was a
substantial motivating reason for [name of defendant]’s [decision
to [discharge/demote/[specify other adverse employment action]]
[name of plaintiff]/conduct];
4. That [name of plaintiff] was harmed; and
5. That [name of defendant]’s decision to [discharge/demote/[specify
other adverse employment action]] [name of plaintiff] was a
substantial factor in causing [him/her] harm.
[[Name of plaintiff] does not have to prove [discrimination/harassment]
in order to be protected from retaliation. If [he/she] [reasonably
believed that [name of defendant]’s conduct was unlawful/requested a
[disability/religious] accommodation], [he/she] may prevail on a
retaliation claim even if [he/she] does not present, or prevail on, a
separate claim for [discrimination/harassment/[other]].]
New September 2003; Revised August 2007, April 2008, October 2008, April 2009,
June 2010, June 2012, December 2012, June 2013, June 2014, June 2016,
December 2016
Directions for Use
In elements 1 and 3, describe the protected activity in question. Government Code
section 12940(h) provides that it is unlawful to retaliate against a person “because
the person has opposed any practices forbidden under [Government Code sections
12900 through 12966] or because the person has filed a complaint, testified, or
assisted in any proceeding under [the FEHA].” It is also unlawful to retaliate or
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otherwise discriminate against a person for requesting an accommodation for
religious practice or disability, regardless of whether the request was granted. (Gov.
Code, § 12940(l)(4) [religious practice], (m)(2) [disability].)
Read the first option for element 2 if there is no dispute as to whether the
employer’s acts constituted an adverse employment action. Read the second option
and also give CACI No. 2509, “Adverse Employment Action” Explained, if
whether there was an adverse employment action is a question of fact for the jury.
For example, the case may involve a pattern of employer harassment consisting of
acts that might not individually be sufficient to constitute retaliation, but taken as a
whole establish prohibited conduct. (See Yanowitz v. L’Oreal USA, Inc. (2005) 36
Cal.4th 1028, 1052–1056 [32 Cal.Rptr.3d 436, 116 P.3d 1123].) Give both the first
and second options if the employee presents evidence supporting liability under
both a sufficient-single-act theory or a pattern-of-harassment theory. (See, e.g.,
Wysinger v. Automobile Club of Southern California (2007) 157 Cal.App.4th 413,
423–424 [69 Cal.Rptr.3d 1].) Also select “conduct” in element 3 if the second
option or both the first and second options are included for element 2.
Retaliation in violation of the FEHA may be established by constructive discharge;
that is, that the employer intentionally created or knowingly permitted working
conditions to exist that were so intolerable that a reasonable person in the
employee’s position would have had no reasonable alternative other than to resign.
(See Steele v. Youthful Offender Parole Bd. (2008) 162 Cal.App.4th 1241, 1253 [76
Cal.Rptr.3d 632].) If constructive discharge is alleged, give the third option for
element 2 and also give CACI No. 2510, “Constructive Discharge” Explained.
Also select “conduct” in element 3 if the third option is included for element 2.
Element 3 requires that the protected activity be a substantial motivating reason for
the retaliatory acts. (See Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 232
[152 Cal.Rptr.3d 392, 294 P.3d 49]; Alamo v. Practice Management Information
Corp. (2013) 219 Cal.App.4th 466, 479 [161 Cal.Rptr.3d 758]; see also CACI No.
2507, “Substantial Motivating Reason” Explained.)
Note that there are two causation elements. There must be a causal link between
the retaliatory animus and the adverse action (see element 3), and there must be a
causal link between the adverse action and damages (see element 5). (See Mamou
v. Trendwest Resorts, Inc. (2008) 165 Cal.App.4th 686, 713 [81 Cal.Rptr.3d 406].)
This instruction has been criticized in dictum because it is alleged that there is no
element requiring retaliatory intent. (See Joaquin v. City of Los Angeles (2012) 202
Cal.App.4th 1207, 1229–1231 [136 Cal.Rptr.3d 472].) The court urged the Judicial
Council to redraft the instruction and the corresponding special verdict form so as
to clearly state that retaliatory intent is a necessary element of a retaliation claim
under FEHA. The jury in the case was instructed per element 3 “that Richard
Joaquin’s reporting that he had been sexually harassed was a motivating reason for
the City of Los Angeles’ decision to terminate Richard Joaquin’s employment or
deny Richard Joaquin promotion to the rank of sergeant.” The committee believes
that the instruction as given is correct for the intent element in a retaliation case.
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(Cf. Wallace v. County of Stanislaus (2016) 245 Cal.App.4th 109, 127−132 [199
Cal.Rptr.3d 462] [for disability discrimination, “substantial motivating reason” is
only language required to express intent].) However, in cases such as Joaquin that
involve allegations of a prohibited motivating reason (based on a report of sexual
harassment) and a permitted motivating reason (based on a good faith belief that
the report was falsified), the instruction may need to be modified to make it clear
that plaintiff must prove that defendant acted based on the prohibited motivating
reason and not the permitted motivating reason.
Sources and Authority
• Retaliation Prohibited Under Fair Employment and Housing Act. Government
Code section 12940(h).
• Retaliation for Requesting Reasonable Accommodation for Religious Practice
and Disability Prohibited. Government Code section 12940(l)(4), (m)(2).
• “Person” Defined Under Fair Employment and Housing Act. Government Code
section 12925(d).
• Prohibited Retaliation. Title 2 California Code of Regulations section 11021.
• “[I]n order to establish a prima facie case of retaliation under the FEHA, a
plaintiff must show (1) he or she engaged in a ‘protected activity,’ (2) the
employer subjected the employee to an adverse employment action, and (3) a
causal link existed between the protected activity and the employer’s action.
Once an employee establishes a prima facie case, the employer is required to
offer a legitimate, nonretaliatory reason for the adverse employment action. If
the employer produces a legitimate reason for the adverse employment action,
the presumption of retaliation ‘ “ ‘drops out of the picture,’ ” ’ and the burden
shifts back to the employee to prove intentional retaliation.” (Yanowitz, supra,
36 Cal.4th at p. 1042, internal citations omitted.)
• “Actions for retaliation are ‘inherently fact-driven’; it is the jury, not the court,
that is charged with determining the facts.” (McCoy v. Pacific Maritime Assn.
(2013) 216 Cal.App.4th 283, 299 [156 Cal.Rptr.3d 851].)
• “It is well established that a plaintiff in a retaliation case need only prove that a
retaliatory animus was at least a substantial or motivating factor in the adverse
employment decision.” (George v. California Unemployment Ins. Appeals Bd.
(2009) 179 Cal.App.4th 1475, 1492 [102 Cal.Rptr.3d 431].)
• “Retaliation claims are inherently fact-specific, and the impact of an employer’s
action in a particular case must be evaluated in context. Accordingly, although
an adverse employment action must materially affect the terms, conditions, or
privileges of employment to be actionable, the determination of whether a
particular action or course of conduct rises to the level of actionable conduct
should take into account the unique circumstances of the affected employee as
well as the workplace context of the claim.” (Yanowitz, supra, 36 Cal.4th at p.
1052.)
• “Contrary to [defendant]’s assertion that it is improper to consider collectively
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the alleged retaliatory acts, there is no requirement that an employer’s
retaliatory acts constitute one swift blow, rather than a series of subtle, yet
damaging, injuries. Enforcing a requirement that each act separately constitute
an adverse employment action would subvert the purpose and intent of the
statute.” (Yanowitz, supra, 36 Cal.4th at pp. 1055–1056, internal citations
omitted.)
• “Clearly, section 12940, subdivision (h) encompasses a broad range of protected
activity. An employee need not use specific legal terms or buzzwords in
opposing discrimination. Nor is it necessary for an employee to file a formal
charge. The protected activity element may be established by evidence that the
plaintiff threatened to file a discrimination charge, by a showing that the
plaintiff mistakenly, but reasonably and sincerely believed he was opposing
discrimination, or by evidence an employer believed the plaintiff was a potential
witness in another employee’s FEHA action.” (Rope v. Auto-Chlor System of
Washington, Inc. (2013) 220 Cal.App.4th 635, 652 [163 Cal.Rptr.3d 392],
internal citations and footnote omitted.)
• “Moreover, [defendant]’s actions had a substantial and material impact on the
conditions of employment. The refusal to promote [plaintiff] is an adverse
employment action under FEHA. There was also a pattern of conduct, the
totality of which constitutes an adverse employment action. This includes
undeserved negative job reviews, reductions in his staff, ignoring his health
concerns and acts which caused him substantial psychological harm.” (Wysinger,
supra, 157 Cal.App.4th at p. 424, internal citations omitted.)
• “A long period between an employer’s adverse employment action and the
employee’s earlier protected activity may lead to the inference that the two
events are not causally connected. But if between these events the employer
engages in a pattern of conduct consistent with a retaliatory intent, there may be
a causal connection.” (Wysinger, supra, 157 Cal.App.4th at p. 421, internal
citation omitted.)
• “Both direct and circumstantial evidence can be used to show an employer’s
intent to retaliate. ‘Direct evidence of retaliation may consist of remarks made
by decisionmakers displaying a retaliatory motive.’ Circumstantial evidence
typically relates to such factors as the plaintiff’s job performance, the timing of
events, and how the plaintiff was treated in comparison to other workers.”
(Colarossi v. Coty US Inc. (2002) 97 Cal.App.4th 1142, 1153 [119 Cal.Rptr.2d
131], internal citations omitted.)
• “The retaliatory motive is ‘proved by showing that plaintiff engaged in
protected activities, that his employer was aware of the protected activities, and
that the adverse action followed within a relatively short time thereafter.’ ‘The
causal link may be established by an inference derived from circumstantial
evidence, “such as the employer’s knowledge that the [employee] engaged in
protected activities and the proximity in time between the protected action and
allegedly retaliatory employment decision.” ’ ” (Fisher v. San Pedro Peninsula
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Hospital (1989) 214 Cal.App.3d 590, 615 [262 Cal.Rptr. 842], internal citations
omitted.)
• “[A]n employer generally can be held liable for the retaliatory actions of its
supervisors.” (Wysinger, supra, 157 Cal.App.4th at p. 420.)
• “Plaintiff, although a partner, is a person whom section 12940, subdivision (h)
protects from retaliation for opposing the partnership-employer’s harassment
against those employees.” (Fitzsimons v. California Emergency Physicians
Medical Group (2012) 205 Cal.App.4th 1423, 1429 [141 Cal.Rptr.3d 265].)
• “[A]n employer may be found to have engaged in an adverse employment
action, and thus liable for retaliation under section 12940(h), ‘by permitting
. . . fellow employees to punish [him] for invoking [his] rights.’ We therefore
hold that an employer may be held liable for coworker retaliatory conduct if the
employer knew or should have known of coworker retaliatory conduct and
either participated and encouraged the conduct, or failed to take reasonable
actions to end the retaliatory conduct.” (Kelley v. The Conco Cos. (2011) 196
Cal.App.4th 191, 214 [126 Cal.Rptr.3d 651], internal citation omitted.)
• “[T]he employer is liable for retaliation under section 12940, subdivision (h),
but nonemployer individuals are not personally liable for their role in that
retaliation.” (Jones v. The Lodge at Torrey Pines Partnership (2008) 42 Cal.4th
1158, 1173 [72 Cal.Rptr.3d 624, 177 P.3d 232].)
• “[U]nder certain circumstances, a retaliation claim may be brought by an
employee who has complained of or opposed conduct, even when a court or
jury subsequently determines the conduct actually was not prohibited by the
FEHA. Indeed, this precept is well settled. An employee 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 sexual
harassment or sexual discrimination.” (Miller v. Department of Corr. (2005) 36
Cal.4th 446, 473–474 [30 Cal.Rptr.3d 797, 115 P.3d 77], internal citations
omitted.)
• “ ‘The legislative purpose underlying FEHA’s prohibition against retaliation is
to prevent employers from deterring employees from asserting good faith
discrimination complaints . . . .’ Employer retaliation against employees who
are believed to be prospective complainants or witnesses for complainants
undermines this legislative purpose just as effectively as retaliation after the
filing of a complaint. To limit FEHA in such a way would be to condone ‘an
absurd result’ that is contrary to legislative intent. We agree with the trial court
that FEHA protects employees against preemptive retaliation by the employer.”
(Steele, supra, 162 Cal.App.4th at p. 1255, internal citations omitted.)
• “ ‘The plaintiff’s burden is to prove, by competent evidence, that the employer’s
proffered justification is mere pretext; i.e., that the presumptively valid reason
for the employer’s action was in fact a coverup. . . . In responding to the
employer’s showing of a legitimate reason for the complained-of action, the
plaintiff cannot “ ‘simply show the employer’s decision was wrong, mistaken,
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or unwise. Rather, the employee ‘ “must demonstrate such weaknesses,
implausibilities, inconsistencies, incoherencies, or contradictions in the
employer’s proffered legitimate reasons for its action that a reasonable factfinder
could rationally find them “unworthy of credence,” . . . and hence infer “that
the employer did not act for the [asserted] non-discriminatory reasons.” ’ ” ’ ”
(Jumaane v. City of Los Angeles (2015) 241 Cal.App.4th 1390, 1409 [194
Cal.Rptr.3d 689].)
• “Government Code section 12940, subdivision (h), does not shield an employee
against termination or lesser discipline for either lying or withholding
information during an employer’s internal investigation of a discrimination
claim. In other words, public policy does not protect deceptive activity during
an internal investigation. Such conduct is a legitimate reason to terminate an
at-will employee.” (McGrory v. Applied Signal Technology, Inc. (2013) 212
Cal.App.4th 1510, 1528 [152 Cal.Rptr.3d 154], footnotes omitted.)
• “Although appellant does not argue she was constructively discharged, such a
claim is not necessary to find unlawful retaliation.” (McCoy, supra, 216
Cal.App.4th at p. 301.)
• “The phrase ‘because of’ [in Gov. Code, § 12940(a)] is ambiguous as to the
type or level of intent (i.e., motivation) and the connection between that
motivation and the decision to treat the disabled person differently. This
ambiguity is closely related to [defendant]’s argument that it is liable only if
motivated by discriminatory animus. [¶] The statutory ambiguity in the phrase
‘because of” was resolved by our Supreme Court about six months after the
first jury trial [in Harris, supra, 56 Cal.4th at p. 203].” (Wallace, supra, 245
Cal.App.4th at p. 127.)
Secondary Sources
8 Witkin, Summary of California Law (10th ed. 2005) Constitutional Law, §§ 922,
940, 941
Chin et al., California Practice Guide: Employment Litigation, Ch. 7-A, Title VII
And The California Fair Employment And Housing Act, ¶¶ 7:680–7:841 (The Rutter
Group)
1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Discrimination
Claims, §§ 2.83–2.88
2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under
Equal Employment Opportunity Laws, § 41.131 (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment
Discrimination, §§ 115.37, 115.94 (Matthew Bender)
California Civil Practice: Employment Litigation, §§ 2:74–2:75 (Thomson Reuters)
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