CACI No. 2505. Retaliation - Essential Factual Elements (Gov. Code, § 12940(h))

Judicial Council of California Civil Jury Instructions (2020 edition)

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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/nonbinary pronoun] 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]]
3. [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/nonbinary pronoun] harm.
[[Name of plaintiff] does not have to prove [discrimination/harassment] in
order to be protected from retaliation. If [he/she/nonbinary pronoun]
[reasonably believed that [name of defendant]’s conduct was unlawful/
requested a [disability/religious] accommodation], [he/she/nonbinary
pronoun] may prevail on a retaliation claim even if [he/she/nonbinary
pronoun] 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
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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
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
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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. (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
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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
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.)
• “[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.)
• “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.)
• “ ‘Standing alone, an employee’s unarticulated belief that an employer is
engaging in discrimination will not suffice to establish protected conduct for the
purposes of establishing a prima facie case of retaliation, where there is no
evidence the employer knew that the employee’s opposition was based upon a
reasonable belief that the employer was engaging in discrimination.’
‘[C]omplaints about personal grievances or vague or conclusory remarks that
fail to put an employer on notice as to what conduct it should investigate will
not suffice to establish protected conduct.’ [¶] But employees need not explicitly
and directly inform their employer that they believe the employer’s conduct was
discriminatory or otherwise forbidden by FEHA.” (Castro-Ramirez v.
Dependable Highway Express, Inc. (2016) 2 Cal.App.5th 1028, 1046 [207
Cal.Rptr.3d 120], internal citation omitted.)
• “The relevant question . . . is not whether a formal accusation of discrimination
is made but whether the employee’s communications to the employer sufficiently
convey the employee’s reasonable concerns that the employer has acted or is
acting in an unlawful discriminatory manner.” (Husman v. Toyota Motor Credit
Corp. (2017) 12 Cal.App.5th 1168, 1193 [220 Cal.Rptr.3d 42].)
• “Notifying one’s employer of one’s medical status, even if such medical status
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constitutes a ‘disability’ under FEHA, does not fall within the protected activity
identified in subdivision (h) of section 12940 - i.e., it does not constitute
engaging in opposition to any practices forbidden under FEHA or the filing of a
complaint, testifying, or assisting in any proceeding under FEHA.” (Moore v.
Regents of University of California (2016) 248 Cal.App.4th 216, 247 [206
Cal.Rptr.3d 841].)
• “[Plaintiff]’s advocacy for the disabled community and opposition to elimination
of programs that might benefit that community do not fall within the definition
of protected activity. [Plaintiff] has not shown the [defendant]’s actions amounted
to discrimination against disabled citizens, but even if they could be so
construed, discrimination by an employer against members of the general public
is not a prohibited employment practice under the FEHA.” (Dinslage v. City and
County of San Francisco (2016) 5 Cal.App.5th 368, 383 [209 Cal.Rptr.3d 809],
original italics.)
• “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 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
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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, 213 [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].)
• “ ‘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, 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].)
• “The showing of pretext, while it may indicate retaliatory intent or animus, is
not the sole means of rebutting the employer’s evidence of nonretaliatory intent.
‘ “While ‘pretext’ is certainly a relevant issue in a case of this kind, making it a
central or necessary issue is not sound. The central issue is and should remain
whether the evidence as a whole supports a reasoned inference that the
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challenged action was the product of discriminatory or retaliatory animus. The
employer’s mere articulation of a legitimate reason for the action cannot answer
this question; it can only dispel the presumption of improper motive that would
otherwise entitle the employee to a judgment in his favor.” ’ ” (Light v.
Department of Parks & Recreation (2017) 14 Cal.App.5th 75, 94 [221
Cal.Rptr.3d 668], original italics.)
• “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.)
• “ ‘[W]hile discrimination may be carried out by means of speech, such as a
written notice of termination, and an illicit animus may be evidenced by speech,
neither circumstance transforms a discrimination suit to one arising from speech.
What gives rise to liability is not that the defendant spoke, but that the defendant
denied the plaintiff a benefit, or subjected the plaintiff to a burden, on account of
a discriminatory or retaliatory consideration.’ ” (Laker v. Board of Trustees of
California State University (2019) 32 Cal.App.5th 745, 772 [244 Cal.Rptr.3d
238].)
Secondary Sources
8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law, §§ 1028,
1052-1054
Chin et al., California Practice Guide: Employment Litigation, Ch. 7-A, Title VII
And The California Fair Employment And Housing Act, ¶¶ 7:121-7:205 (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
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Discrimination, §§ 115.37, 115.94 (Matthew Bender)
California Civil Practice: Employment Litigation, §§ 2:74-2:75 (Thomson Reuters)
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