• Preemptive Retaliation Is Still a Violation of Law
  • June 19, 2008 | Author: Colette M. Koby
  • Law Firm: Miller & Martin PLLC - Nashville Office
  • A Court of Appeal in the State of California reviewed and affirmed the decision of the Superior Court in Lisa Steele v. Youthful Offender Parole Board, 2008 WL 2043197(Cal.)  The court's primary evaluation was whether an employer can retaliate against an employee in advance of a protected act.  Here, the court found the defendant liable under California's Fair Employment and Housing Act (FEHA) for retaliation. The plaintiff, Steele, worked at the Youthful Offender Parole Board (YOPB) as an office assistant/receptionist. She completed her six-month probationary period without fault or criticisms of her work performance.  In addition to her role, Steele also participated in civic activities on behalf of YOPB.  One activity, which lies at the center of this legal debate, involved her competing in bikini contests hosted by local radio stations. On one such occasion, Raul Galindo, Chairman of the YOPB, attended a competition. After the contest, Steele thanked Galindo for attending. As Steele was saying goodbye, Galindo leaned in to kiss her mouth, causing Steele to evade his outward approach.  Though the kiss made contact with Steele's cheek and she was taken aback, Steele ultimately described the event as non-offensive.

    As news of the incident reached the YOPB, concerns regarding the appearance of impropriety and the potential affect on Galindo's political career and their own careers surfaced. The YOPB was also concerned that Steele was a witness to prior allegations of inappropriate conduct by Galindo. YOPB management felt that if any sexual harassment claims against Galindo were ever raised, Steele could potentially provide strong corroborative evidence that may prove to be detrimental to Galindo's image.  Subsequently, the YOPB decided to use negative coercion toward Steele to induce her into resigning from her job at the YOPB.

    Steele eventually resigned, but later sued the YOPB alleging retaliation under the FEHA. Steele alleged she was a victim of retaliation because: (1) she was a potential witness in a proceeding filed by a former co-worker against the YOPB, (2) she suffered intolerable and aggravating working conditions leading to the constructive discharge from her employment with YOPB and (3) the intolerable and aggravating working conditions she suffered, were causally related to her being a potential witness in the proceeding filed by a former co-worker.

    The trial court returned a verdict in favor of Steele, holding the YOPB was liable to Steele for retaliation under the FEHA. The jury determined that the YOPB created such intolerable working conditions that a reasonable person in Steele's position would have had no choice but to resign. The YOPB appealed, contending that Steele failed to present sufficient evidence to establish the elements of a constructive discharge claim.  The YOPB also claimed Steele lacked sufficient evidence to establish a causal link between her protected activity and the alleged adverse employment action needed in order to support a retaliation claim.

    The Court of Appeal affirmed the trial court decision, agreeing with the evidence presented by Steele. Here, the Court determined Steele sufficiently established that YOPB management intentionally and wrongfully held over her head several uninvestigated and allegedly false work performance criticisms, budget crises, and unauthorized employee transfers, all of which would be extremely damaging to her career growth.  The Court further noted, acts such as altering Steele's work hours, and deceptively portraying themselves as amicable work associates while disparaging her name behind closed doors, served as pure evidence of a negative animus toward Steele.  Furthermore, despite the YOPB assertion that these negative acts were never ordered by management, the Court of Appeal vehemently ruled to the contrary.  Not only did the Court find the YOPB authorized the actions that compelled Steele to resign, the Court determined their actions were causally related to Steele's potential engagement in a protected activity.

    Here, the critical point of clarification is that the protected activity in question had not yet occurred, despite the YOPB's fear of negative reprisal by Steele.  The Court of Appeal's ruling affirms that an employee's protected rights are not necessarily triggered by protected activity.  The FEHA prohibits employers from retaliating against an employee because they are actual or potential witnesses in a proceeding. Employers should not engage in retaliatory actions to avoid potential liability even if an employee has not been identified as a witness.  Employers cannot legally head off anticipated protected activity before it takes place. Such action is still considered retaliation in violation of the FEHA.