2005-14

Adverse Employment Action Necessary to Prove Employee’s Claim for Retaliation.

In Pinero v. Specialty Restaurants Corp., 2005 DJDAR 7535 (Cal. App. 2d Dist., Division 8, June 22, 2005) (Published June 24, 2005), the Court of Appeal affirmed the trial court’s finding that the employee did not establish a case of retaliation under the Fair Employment and Housing Act (FEHA) because he was not subjected to a substantial adverse change in the terms and conditions of his employment.

In October 1998, Specialty Restaurant Corp. (SRC) hired Alberto Pinero as the General Manager of Luminaries, a restaurant in Monterey Park, California. At that time, Pinero had a pending age discrimination action against his former employer, Alfred Balderrama, who was also a member of the Monterey Park City Council. Unaware of the pending lawsuit, SRC promoted Pinero to General Manager of its "flagship" restaurant, Castaways on January, 1999. In late April or early May 1999, SRC’s President and Chief Executive Officer, David Tallichet, learned of Pinero’s age discrimination action while speaking with Balderrama about obtaining a lease extension from the City of Monterey Park. Tallichet spoke with Pinero and attempted to convince him to abandon or settle the lawsuit, to which Pinero stated that the lawsuit was a private matter that was of no concern to SRC. On May 18, 1999, a meeting was conducted in Tallichet’s office, attended by Pinero, Pinero’s attorney, two SRC attorneys, David Tallichet and his son John Tallichet, who is SRC’s Vice-President of Operations. During that meeting, one of the SRC attorneys told Pinero that he had concealed information regarding the lawsuit from SRC when he was hired, and that he would be fired for having done so.

After the meeting, Pinero claimed that in retaliation for the lawsuit, his supervisor, Hoss Babaie, began to repeatedly criticize him about his job performance, creating an intolerable work environment and forcing him to resign.

Pinero filed an employment action against SRC for retaliating against him for the protected activity of filing an age discrimination action against Balderrama, in violation of the FEHA. SRC moved for nonsuit and the trial court granted the motion, finding that Pinero did not establish that he was subjected to any form of adverse employment action. The Court of Appeal affirmed the ruling, stating that "[f]rom an objective standard, the evidence does not reveal any employer decision or action which a jury could conclude would be reasonably likely to deter a reasonable employee from engaging in protected activity."

The court first explained that "to establish a prima facie case of retaliation in violation of FEHA, a plaintiff must show he engaged in a protected activity, his employer subjected him to an adverse employment action, and a causal link exists between his protected activity and the employer’s action". After acknowledging that Pinero’s filing of an age discrimination action qualified as "protected activity," the court turned to the question of whether the evidence supported Pinero’s claim that he had suffered "adverse employment action" while working for SRC. The court turned to federal court decisions to help define "adverse employment action" because of a lack of meaningful state precedence on the issue. The three most common approaches taken by federal courts to interpret anti-discrimination statutes were a restrictive view, which limited adverse employment actions to those involving "ultimate employment decisions, such as firing, demotion or reduction in pay," a broader "materiality" test, which included "a wide range of intermediate employment decisions, so long as the decision or action materially and detrimentally affected the terms and conditions of a plaintiff’s employment," and the "deterrence test" promulgated by the Equal Opportunity Employment Commission (EEOC), which defined adverse employment action as "any adverse treatment that is based on a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity." The court rejected the most restrictive view, explaining that it was inappropriate here because "every California court which [had] considered the issue [had] rejected such a restrictive view." Although the court also expressed some reluctance to apply the EEOC’s "deterrence test" because it had only been adopted in one depublished case, the court ultimately decided that the employer’s actions here did not satisfy either of the requirements in the two remaining approaches.

The evidence, viewed in the light most favorable to Pinero, showed that Pinero had suffered no adverse employment action, and instead had only been displeased by the employer’s work-related criticism. Applying the "materiality" test, which requires a "substantial change in the terms and conditions of the plaintiff’s employment", the court found that Pinero had not suffered any substantial changes in his working conditions. After the meeting, Pinero’s "job responsibilities and title did not change, he was not demoted, and his salary, bonus structure, benefits and all other forms of compensation suffered no impact as a result of his employer’s knowledge of his lawsuit against Balderrama." Pinero complained that his supervisor, would constantly "nitpick" at him about his responsibilities, and that he subjected Pinero to "more than nitpicking" after the meeting. However, the court noted that Pinero never clarified what he meant by "more than nitpicking" and apart from the "nitpicking," Pinero experienced no other job-related problems at SRC. Additionally, despite the fact that his supervisors were not pleased with Pinero’s job performance since he was transferred to Castaways, he was never disciplined. While he did face criticism by his two supervisors, Hoss Barbaie and John Tallichet, Tallichet’s criticism occurred before he was made aware of the pending lawsuit, and Barbaie criticized Pinero’s work before and after learning of the action. The court ruled that mere criticism is insufficient and that because "SRC did nothing affirmative to effect a material change in any term or condition of Pinero’s employment as a result of learning about his lawsuit against Balderrama," Pinero had no claim for retaliation under the "materiality" test.

The court further explained that Pinero had no claim even when applying the less stringent "deterrence test," which only requires that the criticisms be based on a retaliatory motive and that they be reasonably likely to deter people from engaging in protected activity. The court stated that "no evidence indicate[d] either of Pinero’s supervisors acted from a retaliatory motive." Instead, the criticism by John Tallichet "arose directly from an inspection which disclosed numerous deficiencies at Castaways," and Babaie had made it a point to "assure Pinero that he considered the [lawsuit] private, and expected that it would not interfere with his work."

The court concluded that while "it [was] understandable Pinero was angered, displeased or even insulted by the criticisms he received when he took over Castaways, such displeasure [was] simply not actionable….[and] no basis exist[ed] on which to conclude Pinero was subjected to adverse employment action by SRC."

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Prosecutors Not Entitled to Absolute Immunity for Acts that are Administrative or Investigative.

In Botello v. Gammick, 2005 DJDAR 7575 (9th Cir. No. 03-16618, June 23, 2005) (Published June 24, 2005), the Ninth Circuit Court of Appeals considered whether prosecutors who retaliated against an investigator for whistleblowing were entitled to absolute immunity and whether Washoe County ("County"), where the prosecutors were employed was entitled to absolute immunity. The court affirmed the district court’s decision in part and reversed and remanded in part, holding that the prosecutors were entitled to absolute immunity in their decision not to prosecute the investigator’s cases, but were not protected by absolute immunity for trying to dissuade an employer from hiring the investigator since there was no connection to the judicial process, and holding that the County was also not entitled to absolute immunity.

Rene Botello was a child sexual assault investigator for the Washoe County Sheriff’s Office (WCSO) who learned that a nurse who regularly testified as a medical expert in child sexual assault cases was "indisputably wrong" in her medical findings that two female children had been victims of sexual abuse. Botello was told by three different doctors, who had each performed separate examinations on the two children, that there was no physical evidence to support the nurse’s findings that the children had been sexually assaulted, and informed him that the findings were in "gross error."

Botello reported his findings to his superiors, including Washoe County District Attorney Richard Gammick and Deputy District Attorney John Helzer, who regularly used the nurse’s testimony for sexual assault convictions. In response to Botello’s disclosures, Gammick and Helzer accused Botello of not being a "team player" and warned him to keep his mouth shut about the nurse’s testimony. Disturbed by the prosecutors’ reactions to his reports, Botello reported his concerns about the nurse’s findings as well as concerns about a possible cover-up by the District Attorney’s office to the Nevada Attorney General’s Office and the Federal Bureau of Investigation (FBI). Concurrently, Botello resigned his position with the WCSO and applied for a position with the Washoe County School District Police Department.

After Botello’s report to the Attorney General’s Office and the FBI, Gammick and Helzer immediately retaliated, contacting his new employer and attempting to dissuade them from hiring Botello by making false allegations about his character and performance while working at WCSO. Additionally, they notified the School Police Department that Botello must not participate in any investigations and that the DA’s Office would refuse to file any case where he participated in any phase of the investigation. As a result of the prosecutors’ threats, Botello was assigned to desk duty and kept away from investigations.

Botello filed a complaint alleging violation of his First Amendment rights under 42 U.S.C. § 1983, and defamation and intentional infliction of emotional distress under Nevada law. The defendants moved to dismiss the complaint on the grounds of absolute immunity, and the district court granted the motion, dismissing Botello’s § 1983 claim pursuant to Fed. R. Civ. P. 12(b)(6) and Botello’s state law claims without prejudice pursuant to 28 U.S.C. § 1367.

The court evaluated the case by examining the scope of their decision in Roe v. City & County of San Francisco, 109 F.3d 578 (9th Cir. 1997), "which held that prosecutors were entitled to absolute immunity for refusing to prosecute any cases referred by a particular officer absent additional corroborating evidence or testimony." In determining whether a prosecutor has absolute immunity from liability under § 1983, the court explained that their conduct needed to be "intimately associated" with the judicial phase of the criminal process. When the "intimate association" with the judicial phase is missing, and prosecutors are performing administrative or investigative functions, only qualified immunity is available. The court clarified that "[t]o determine whether an action is judicial, administrative, or investigative, the court looks at ‘the nature of the function performed, not the identity of the actor who performed it.’"

In looking at the specific actions of the prosecutors, the court held that while the prosecutors were entitled to absolute immunity for their decision not to prosecute Botello’s cases, they were not entitled to absolute immunity for their attempts to dissuade the School Police Department from hiring Botello, and for their demands that Botello be barred from participating in any aspect of any investigation. While expressing concern that the prosecutors failed to explain their refusal to prosecute Botello’s cases under any circumstances, the court reasoned that their decision to not prosecute Botello’s cases was "intimately tied to the judicial process and. . .thus entitled to absolute immunity." However, the court rejected the prosecutors’ claim that their conduct fell within a district attorney’s prosecutorial function, and held that calling the employer to sabotage Botello’s job prospects had no connection to the judicial process. Instead, the prosecutors were involving themselves in the personnel decisions of the School Police Department, and thus "were at best performing an administrative function. . .[that] could only be entitled to qualified immunity." The court also denied absolute immunity for the prosecutors’ demands that Botello be barred from participating in any aspect of an investigation. Although the prosecutors argued that staffing directives fell within Roe’s protection, the court disagreed, stating that the prosecutors failed in their burden "to demonstrate a connection between their unexplained, unqualified blanket prohibition on Botello’s involvement in any aspect of an investigation and the judicial process." Instead, the prosecutors were attempting to make staffing decisions that the chief of the School Police Department, who would only be entitled to qualified immunity, would normally make. The case was remanded to the district court to consider whether qualified immunity would be appropriate.

Finally, in determining whether the County itself was entitled to absolute immunity, the court held that liability may attach "for an isolated constitutional violation. . .when the person causing the violation has final policymaking authority." Although both parties agreed that Gammick, as the District Attorney, had final policymaking authority, the dispute focused on whether Gammick was a policymaker for the state or the County. To determine whether an officer is a state or county official, the court looked to "state law to determine whether the particular acts the official is alleged to have committed fall within the range of the official's state or county functions," and found that Gammick was acting as a policymaker for the County when he performed acts outside the scope of absolute immunity. Therefore, the County was not entitled to absolute immunity.

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