A gas company dispatcher, who sent her former supervisor hundreds of text messages, phone calls and emails, even after receiving explicit instructions to stop from the former supervisor and her current supervisor, was not able to support a claim of retaliation in violation of the Fair Employment and Housing Act after her employer required her to undergo a psychological evaluation. Since the employer’s decision was a legitimate and reasonable response to the employee’s behavior, the California Court of Appeal (downloadable word doc) determined that it could not constitute retaliation in violation of the law.
The employee in this case, Maria Valdivia, worked for Southern California Gas Co., where she was promoted to a dispatch specialist position in October 2009. Three months later, Michael Connors became Valdivia’s supervisor. By May 2010, Valdivia had begun emailing Connors hundreds of times. She also called him, texted him, and drove by his home uninvited. By June, Gregory Gellnick became Valdivia’s supervisor. The voluminous emails, texts, and calls to Connors continued even after he ceased being Valdivia’s supervisor, though. Gellnick had a meeting with Valdivia in February 2011 to tell her to cease contacting Connors.
Valdivia, however, did not stop. Connors became more concerned about Valdivia’s behavior, and the employer’s human resources department became involved. Valdivia was suspended from work for two days in April 2011 for defying an explicit directive to cease contacting Connors. Even after the suspension, Valdivia continued calling Connors.
Eventually, the employer’s Workplace Violence Mitigation Team investigated and recommended a psychological evaluation. The letter placing Valdivia on paid leave pending the evaluation reiterated that she was prohibited from contacting Connors or his wife for any reason. Still, she did not stop. The psychologist who interviewed Valdivia recommended that the employer not allow her to return to work until she could demonstrate that she understood the need for her to acknowledge and respect professional boundaries.
The employee sued, alleging that the employer violated the FEHA. She claimed that the employer’s actions, including the mandatory psychological evaluation, were the result of retaliation for sexual harassment complaints she’d previously made to an internal complaint hotline about Gellnick and a training conductor.
The employer asked the trial court to award summary judgment in its favor, which the court did. It ruled that Valdivia’s claims did not comprise a viable FEHA violation case. She appealed but was not successful. While the two sides disputed whether or not the employee engaged in a protected activity, the employee’s retaliation case could not survive regardless. In order to succeed on a retaliation claim, the employee must prove that her protected activity caused the employer to engage in its adverse employment action against her. Even if Valdivia’s complaints did, as she argued, amount to an assertion of sexual harassment (and not just generalized poor treatment), she still had a proof problem when it came to causation. The adverse action Valdivia cited was her two-day suspension and the evaluation demand. Each of the individuals involved with suspending Valdivia and requiring the evaluation testified that they were completely unaware that the employee had lodged a sexual harassment complaint when they made their decision, making it impossible for the sexual harassment assertion to have caused the suspension and mandatory evaluation.
Even if Valdivia had met the law’s causation requirement, her case still would have failed as long as the employer had a legitimate, nonretaliatory reason for taking the action it took, which the gas company had in this case. Valdivia’s pattern of behavior toward Connors, which the court described as “relentless” and “unyielding,” raised valid concerns about her emotional stability. Deciding to suspend Valdivia and order the evaluation in light of her behavior clearly had a legitimate and nonretaliatory basis. An employee can still succeed in a discrimination case if she can show that the reason offered by her employer was a mere pretext for engaging in retaliation. Valdivia, however, had no such proof in her case that would indicate that the employer’s true reason for acting was anything other than those the employer stated.
In making out a retaliation case in violation of the FEHA, showing that you, as an employee, engaged in a protected action and then suffered from a negative action at work some time afterward is not enough. There are many elements that must all be present to build a successful retaliation case. For straightforward advice and diligent representation in your FEHA case, contact the Oakland employment attorneys at the Law Offices of Stephen M. Fuerch. Our attorneys have the necessary experience to give you the information and guidance you need to approach your case. Contact us through our website or call our office at (925) 463-1073 to schedule your confidential initial consultation today.
More Blog Posts:
Harassment Not Sufficiently Severe, Pervasive to Allow California Spa Worker to Win Case, Oakland Personal Injury Attorney Blog, Sept. 15, 2015
University Allowed to Require Professor to Submit to Psychological Exam, Oakland Personal Injury Attorney Blog, Nov. 14, 2014