California Civil Jury Instructions (CACI) (2017)

2620. CFRA Rights Retaliation - Essential Factual Elements

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2620.CFRA Rights Retaliation—Essential Factual Elements (Gov.
Code, § 12945.2(l))
[Name of plaintiff] claims that [name of defendant] retaliated against
[him/her] for [[requesting/taking] [family care/medical] leave/[other
protected activity]]. To establish this claim, [name of plaintiff] must prove
all of the following:
1. That [name of plaintiff] was eligible for [family care/medical]
leave;
2. That [name of plaintiff] [[requested/took] [family care/medical]
leave/[other protected activity]];
3. That [name of defendant] [discharged/[other adverse employment
action]] [name of plaintiff];
4. That [name of plaintiff]’s [[request for/taking of] [family care/
medical] leave/[other protected activity]] was a substantial
motivating reason for [discharging/[other adverse employment
action]] [him/her];
5. That [name of plaintiff] was harmed; and
6. That [name of defendant]’s retaliatory conduct was a substantial
factor in causing [name of plaintiff]’s harm.
New September 2003; Revised December 2012, June 2013
Directions for Use
Use this instruction in cases of alleged retaliation for an employee’s exercise of
rights granted by the California Family Rights Act (CFRA). (See Gov. Code,
§ 12945.2(l).) The instruction assumes that the defendant is plaintiff’s present or
former employer, and therefore it must be modified if the defendant is a
prospective employer or other person.
The statute reaches a broad range of adverse employment actions short of actual
discharge. (See Gov. Code, § 12945.2(l).) Element 3 may be modified to allege
constructive discharge or adverse acts other than actual discharge. See CACI No.
2509, “Adverse Employment Action” Explained, and CACI No. 2510,
“Constructive Discharge” Explained, for instructions under the Fair Employment
and Housing Act that may be adapted for use with this instruction.
Element 4 uses the term “substantial motivating reason” to express both intent and
causation between the employee’s exercise of a CFRA right and the adverse
employment action. “Substantial motivating reason” has been held to be the
appropriate standard under the discrimination prohibitions of the Fair Employment
and Housing Act to address the possibility of both discriminatory and
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nondiscriminatory motives. (See Harris v. City of Santa Monica (2013) 56 Cal.4th
203, 232 [152 Cal.Rptr.3d 392, 294 P.3d 49]; CACI No. 2507, “Substantial
Motivating Reason” Explained.) Whether this standard applies to CFRA retaliation
cases has not been addressed by the courts.
Sources and Authority
• Retaliation Prohibited. Government Code section 12945.2(l), (t).
• Retaliation Prohibited Under Fair Employment and Housing Act. Government
Code section 12940(h).
• “A plaintiff can establish a prima facie case of retaliation in violation of the
CFRA by showing the following: (1) the defendant was a covered employer; (2)
the plaintiff was eligible for CFRA leave; (3) the plaintiff exercised his or her
right to take a qualifying leave; and (4) the plaintiff suffered an adverse
employment action because he or she exercised the right to take CFRA leave.”
(Rogers v. County of Los Angeles (2011) 198 Cal.App.4th 480, 491 [130
Cal.Rptr.3d 350], original italics.)
Secondary Sources
8 Witkin, Summary of California Law (10th ed. 2005) Constitutional Law, §§ 943,
944
Chin et al., California Practice Guide: Employment Litigation, Ch. 12-B, Family
And Medical Leave Act (FMLA)/California Family Rights Act (CFRA), ¶¶ 12:1300,
12:1301 (The Rutter Group)
1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Other
Employee Rights Statutes, §§ 4.18–4.20
1 Wilcox, California Employment Law, Ch. 8, Leaves of Absence, § 8.32 (Matthew
Bender)
11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment
Discrimination, § 115.37[3][c] (Matthew Bender)
2621–2699. Reserved for Future Use
CACI No. 2620 CALIFORNIA FAMILY RIGHTS ACT
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