Navigating — continued from Page 60
are being sexually harassed in the work- place, even if he or she does not personal- ly witness that conduct.” (Ibid.) The fore- going passage confirms that so long as the plaintiff “knows” the incidents occurred, that knowledge can affect the plaintiff’s “perception of the hostility of the work environment.”
The evidence is nothing more than “stray remarks” In a very recent case, Reid v. Google,
Inc. (2010) 50 Cal.4th 512 [113 Cal.Rptr.3d 327], the Court repudiated the Federal “stray remarks” doctrine which permits courts to disregard discrim- inatory comments by co workers and non-decisionmakers, or comments unre- lated to the employment decision. Our Supreme Court recognized that stray remarks must be viewed in context of all of plaintiff’s evidence. It is impermissible on summary judgment for the courts to “weigh and assess the remarks in isolation, and to disregard the potentially damaging nature of discriminatory remarks simply because they are allegedly “stray remarks” made by nondecisionmakers or [made] by decisionmakers unrelated to the deci- sional process [citation].” (Id. at 540.)
There is no evidence of an adverse employment action
Seeking to defeat FEHA actions,
defense counsel invariably claim that plaintiff has failed to establish an adverse employment action. For example, in Holmes v. Petrovich Development Co. (2011) 191 Cal.App.4th 1047 [119 Cal.Rptr.3d 878], plaintiff claimed that she was sub- jected to negative comments and accusa- tions about her pregnancy, followed by Petrovich’s retaliatory conduct (forward- ing her sensitive personal information to others in the office, who had no reason to know about her prior miscarriages, etc.). The court found however, that Petrovich did not reduce her salary or benefits, or terminate her. The court further opined that “a reasonable person would have talked to Petrovich, expressed dismay at his actions, given him an opportunity to explain or apologize, and waited to see if conditions changed after the air had cleared. Instead, Holmes chose to quit despite Petrovich’s assurances that he wanted her to stay and that things would work out. Although the Holmes court cites cer- tain portions of the Supreme Court’s
decision in Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028 [116 P.3d 1123], it did not reference the part of Yanowitz where the Court noted: “It is not difficult to envision circumstances in which a subor- dinate employee may wish to avoid directly confronting a supervisor with a charge of discrimination and the employee engages in subtler or more indirect means in order to avoid furthering or engaging in discrim- inatory conduct.” (Id. at 1134.) In Yanowitz, the Court considered the
types of employment actions that are suffi- ciently adverse to the employee to sup- port a claim for retaliation. It explained that “an adverse employment action is not limited to “ultimate” employment acts, such as hiring, firing, demotion or failure to promote, but also includes the entire spectrum of employment actions that are reasonably likely to adversely and materi- ally affect an employee’s job performance or opportunity for career advancement.” (Id. at 1053-1054; see also Akers v. County of San Diego (2002) 95 Cal.App.4th 1441, 1454-1455 [116 Cal.Rptr.2d 602].) Defense counsel like to isolate each
adverse action (and each decision-maker involved therein), analyze it without regard to other related events, toss it out
62— The Advocate Magazine APRIL 2011
Page 1 |
Page 2 |
Page 3 |
Page 4 |
Page 5 |
Page 6 |
Page 7 |
Page 8 |
Page 9 |
Page 10 |
Page 11 |
Page 12 |
Page 13 |
Page 14 |
Page 15 |
Page 16 |
Page 17 |
Page 18 |
Page 19 |
Page 20 |
Page 21 |
Page 22 |
Page 23 |
Page 24 |
Page 25 |
Page 26 |
Page 27 |
Page 28 |
Page 29 |
Page 30 |
Page 31 |
Page 32 |
Page 33 |
Page 34 |
Page 35 |
Page 36 |
Page 37 |
Page 38 |
Page 39 |
Page 40 |
Page 41 |
Page 42 |
Page 43 |
Page 44 |
Page 45 |
Page 46 |
Page 47 |
Page 48 |
Page 49 |
Page 50 |
Page 51 |
Page 52 |
Page 53 |
Page 54 |
Page 55 |
Page 56 |
Page 57 |
Page 58 |
Page 59 |
Page 60 |
Page 61 |
Page 62 |
Page 63 |
Page 64 |
Page 65 |
Page 66 |
Page 67 |
Page 68 |
Page 69 |
Page 70 |
Page 71 |
Page 72 |
Page 73 |
Page 74 |
Page 75 |
Page 76 |
Page 77 |
Page 78 |
Page 79 |
Page 80 |
Page 81 |
Page 82 |
Page 83 |
Page 84 |
Page 85 |
Page 86 |
Page 87 |
Page 88 |
Page 89 |
Page 90 |
Page 91 |
Page 92 |
Page 93 |
Page 94 |
Page 95 |
Page 96 |
Page 97 |
Page 98 |
Page 99 |
Page 100 |
Page 101 |
Page 102 |
Page 103 |
Page 104 |
Page 105 |
Page 106 |
Page 107 |
Page 108 |
Page 109 |
Page 110 |
Page 111 |
Page 112