California Civil Jury Instructions (CACI)

2620. CFRA Rights Retaliation - Essential Factual Elements

[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 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.

Directions for Use

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.

Sources and Authority

Government Code section 12945.2(l) provides: It shall be an unlawful employment practice for an employer to refuse to hire, or to discharge, fine, suspend, expel, or discriminate against, any individual because of any of the following:

(1) An individual's exercise of the right to family care and medical leave. . . .

(2) An individual's giving information or testimony as to his or her own family care and medical leave, or another erson's family care and medical leave, in any inquiry or proceeding related to rights guaranteed under this section.

Government Code section 12940(h) provides that it is an unlawful employment practice "[f]or any employer, labor organization, employment agency, or person to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under [Government Code sections 12900 through 12996] or because the person has filed a complaint, testified, or assisted in any proceeding under this part."

"Guided by . . . cases under the analogous federal statute, we conclude the elements of a cause of action for retaliation in violation of CFRA under the circumstances of this case are as follows: (1) the defendant was an employer covered by CFRA; (2) the plaintiff was an employee eligible to take CFRA leave; (3) the plaintiff exercised her right to take leave for a qualifying CFRA purpose; and (4) the plaintiff suffered an adverse employment action, such as termination, fine, or suspension, because of her exercise of her right to CFRA leave." (Dudley v. Department of Transportation (2001) 90 Cal.App.4th 255, 261 [108 Cal.Rptr.2d 739].)

Secondary Sources

8 Witkin, Summary of California Law (9th ed. 2002 supp.) Constitutional Law, §§ 763C, 763D, pp. 172-175

1 Wilcox, California Employment Law (1989) Leaves of Absence, § 8.32 (Matthew Bender)

1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed. 2000) Other Employee Rights Statutes, §§ 4.18-4.20, pp. 174-176

11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment Discrimination, § 115.37[3][c] (Matthew Bender)

(New September 2003)