Despite A Lack Of Temporal Proximity, Participation In A Protected Activity (Reporting Harassment of A Co-Worker) May Be A Sufficient Motivating Factor To Find A Termination Violates The FEHA

A wrongful discharge claim typically arises under common law and does not entitle a prevailing plaintiff to attorney fees. A successful claim under the Fair Employment and Housing Act (“FEHA”), however, does entitle the prevailing plaintiff to fees. On February 1, 2011, in Green v. Laibco, LLC, the California Court of Appeal, in a case involving both a common law wrongful discharge claim and a FEHA retaliation claim, upheld an award of attorney fees under FEHA on the basis that the plaintiff’s complaint of sexual harassment of a colleague was a motivating factor for her discharge. The court also upheld an award of punitive damages.

Case Background

Teresa Green sued Laibco (doing business as Las Flores Convalescent Hospital) when she was fired after twenty-one years of employment. Green, who was the Activities Director for Las Flores, was discharged on April 17, 2007, after a resident was badly burned when he accidentally set himself on fire while smoking. Although Green was not present when the resident was burned, her staff was responsible for supervising unsafe residents while they smoked during the day shift.

Green sued for wrongful discharge in violation of public policy and retaliation under FEHA, alleging that her discharge was in retaliation for complaining about patient care and safety, for refusing to give false information to the Department of Health Services, and for complaining about the sexual harassment of a colleague.

The jury awarded Green $1,237,086 in compensatory damages and $1,237,086 in punitive damages. Las Flores appealed, raising two issues: (1) whether the record contained sufficient evidence of Las Flores’s financial condition to support the punitive damages award; and (2) whether there was sufficient evidence to support the jury’s finding that Green’s complaint of sexual harassment of a colleague was a motivating factor for her termination.

The Appeal

The Court of Appeal upheld the judgment, concluding there was sufficient evidence to uphold both the punitive damages award and the finding that Green’s sexual harassment was a motivating reason for her discharge.

Harassment complaint as a motivating factor. The jury’s special verdict included a finding that Green complained to hospital administrator Laib Greenspoon that Green’s colleague Roxana Marroquin had been sexually harassed, and that Green’s complaint was a motivating reason for the hospital’s decision to discharge her. Marroquin, Green’s assistant, told Green that maintenance worker Javier Castellanos was harassing her and making her feel uncomfortable. Green reported the alleged harassment to Greenspoon in accordance with the hospital’s policy. Green and Marroquin met with Greenspoon in Spring 2006. According to the evidence presented at trial, Greenspoon did not appear particularly interested in the complaint, but told Green and Marroquin he would look into it.

Castellanos had a close relationship with and later married the hospital’s dietary supervisor, Desiree Buchanan, and Buchanan was friends with Director of Nursing Services Alma Renita Morgan. Green testified that, after she reported Castellanos for harassing Marroquin, Green’s department did not get the support it needed to provide services and had difficulty getting assistance in the areas of dietary and nursing. Green also presented evidence that when she told Morgan she felt she was being retaliated against for reporting the harassment: Morgan replied, “Well, … why did you report that? You hurt [Buchanan]. You made her cry. Doesn’t [Marroquin] know how to handle herself?” Green testified these conditions persisted until she was discharged.

On appeal, Las Flores argued Green could not seek attorney fees under FEHA because there was insufficient evidence that Las Flores was motivated to discharge Green for supporting Marroquin’s complaint of sexual harassment. Las Flores argued that Green’s proof of causation rested exclusively on an inference arising from the temporal proximity between her support for Marroquin and her eventual termination, and that temporal proximity alone was insufficient to prove causation. Las Flores also argued that too much time had elapsed between Green’s complaint in Spring 2006 and her discharge in April 2007 to permit a reasonable inference that the complaint motivated the discharge.

The court disagreed, finding that the evidence presented showed various sorts of retaliatory conduct that persisted until Green’s employment ended, and that a jury could reasonably conclude that Green’s complaint about Marroquin’s sexual harassment was a motivating factor in her discharge. The court noted that, while a long period between protected activity and adverse employment action may undermine an inference of causal connection, here there was an intervening pattern of conduct consistent with a retaliatory intent, thereby sustaining a sufficient connection. Accordingly, the court upheld the attorney fee award under FEHA.

Punitive damages award. The court also upheld the award of punitive damages. Las Flores argued that Green failed to offer evidence of its net worth or financial condition sufficient to justify punitive damages. The court disagreed, reasoning that evidence of the hospital’s profits for the most recent 12 months and evidence of a positive net worth as presented through the testimony of its CEO was sufficient “meaningful” evidence of the hospital’s financial condition.” The court also noted that if the evidence was deficient, it was due to defendant’s CEO’s “stonewalling” and evasive testimony on the topic of the company’s net worth while testifying at trial.

What Green Means For Employers

Despite the lack of temporal proximity between a protected activity and an adverse employment action, an employee may still be able to demonstrate a causal connection sufficient to establish motivation for the purposes of FEHA if the employer engages in “a pattern of conduct consistent with retaliatory intent.” In addition, it is important to keep in mind that an employee can be engaging in protected activity when reporting alleged sexual harassment even if the harassment is of a third party.

For further information, please contact the Seyfarth attorney with whom you work or any Labor & Employment attorney on our website.