— RETALIATION —

42 U.S.C. § 2000e-3(a) Discrimination for making charges, testifying, assisting, or participating in enforcement proceedings - It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment, for an employment agency, or joint labor-management committee controlling apprenticeship or other training or retraining, including on-the-job training programs, to discriminate against any individual, or for a labor organization to discriminate against any member thereof or applicant for membership, because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.

 

The federal Family and Medical Leave Act (“FLMA”) “provides job security to an employee who is absent from work because of the employee's own serious health condition or to care for specified family members with serious health conditions." (Chin, et al., Cal. Practice Guide: Employment Litigation (The Rutter Group 2014) ¶ 12:6, p. 12-3; 29 U.S.C. § 2601(b)(1), (2).) To establish a prima facie case of FMLA interference, an employee must establish (1) “ ‘he [or she] was eligible for the FMLA's protections, (2) his [or her] employer was covered by the FMLA, (3) he [or she] was entitled to leave under the FMLA, (4) he [or she] provided sufficient notice of his [or her] intent to take leave, and (5) his [or her] employer denied him FMLA benefits to which he was entitled.’ “ (Escriba v. Foster Poultry Farms, Inc. (9th Cir. 2014) 743 F.3d 1236, 1243.)

 

The California Family Rights Act (“CFRA”) was enacted as a state counterpart to the FMLA. Its purpose is to allow employees to take leave from work for certain personal or family medical reasons without jeopardizing their job security. (See Nelson v. United Technologies (1999) 74 Cal.App.4th 597, 606 [88 Cal.Rptr.2d 239].) The CFRA has two principal components: a right to leave of up to 12 weeks in any 12-month period to care for a family member or for the employee's own medical condition (Gov. Code, § 12945.2, subds. (a), (c)(2)(A)), and a right to reinstatement in the same, or a comparable, position at the end of the leave (Gov. Code, § 12945.2, subd. (a)).

 

An employee who takes a FMLA/CFRA leave is entitled to come back to work. (See 29 U.S.C. § 2614(a)(1) [providing employees with right "to be restored" to same or comparable position]; and 29 C.F.R. § 825.216(a) (2014) [stating that employee has no greater right to reinstatement or to other benefits than if employee had been continuously employed during leave period, and that “[a]n employer must be able to show that an employee would not otherwise have been employed at the time reinstatement is requested in order to deny restoration to employment”].) Courts use language from the FMLA and the CFRA interchangeably. (Liu v. Amway Corp. (9th Cir. 2003) 347 F.3d 1125, 1132, fn. 4 [“CFRA adopts the language of the FMLA and California state courts have held that the same standards apply....”]; see Pang v. Beverly Hospital, Inc. (2000) 79 Cal.App.4th 986, 993 [94 Cal.Rptr.2d 643] [CFRA incorporates federal regulations interpreting the FMLA "to the extent they are not inconsistent with [CFRA] or other state laws"].)

 

Employers cannot deny employees reinstatement “unless the refusal is justified by the defenses stated in section 11089(c)(1) and (c)(2).” (Cal. Code Regs., tit. 2, § 11089, subd. (a).) Section 11089, subdivision (c)(1) states in part: “An employee has no greater right to reinstatement or to other benefits ... of employment than if the employee had been continuously employed during the CFRA leave period.” This defense is qualified, however, by the requirement that “[a]n employer has the burden of proving, by a preponderance of the evidence, that an employee would not otherwise have been employed at the time reinstatement is requested in order to deny reinstatement.” (Cal. Code Regs., tit. 2, § 11089, subd. (c)(1).)

 

There are two theories of recovery for wrongful conduct by an employer under the CFRA and the FMLA: “interference” claims prevent employers from wrongly interfering with employees' approved leaves of absence, and “retaliation” or “discrimination” claims prevent employers from terminating or otherwise taking action against employees because they exercise those rights. (See Smith v. Diffee Ford-Lincoln-Mercury, Inc. (10th Cir. 2002) 298 F.3d 955, 960; 29 U.S.C. § 2615(a)(1), (2).)

 

To establish a prima facie case of retaliation, in violation of either the FMLA or FEHA/CFRA, a plaintiff must show he or she was (1) engaged in protected activity, (2) the employer subjected him or her to an adverse employment action and (3) there is a causal connection between the protected activity and the employer's action. (Akers v. County of San Diego (2002) 95 Cal.App.4th 1441, 1453; Dudley v. Department of Transportation (2001) 90 Cal.App.4th 255, 261.) Courts apply the burden-shifting analysis of McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792: First, the “‘plaintiff must show (1) he or she engaged in a "protected activity," (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer's action.’ ” (Loggins v. Kaiser Permanente Internat. (2007) 151 Cal.App.4th 1102, 1109.) In other words, a plaintiff must show a nexus between the protected activity and the adverse employment action.

 

Second, “[i]f the employee successfully establishes these elements and thereby shows a prima facie case exists, the burden shifts to the employer to provide evidence that there was a legitimate, nonretaliatory reason for the adverse employment action.” (Loggins v. Kaiser Permanente Internat., supra, 151 Cal.App.4th at p. 1109.)

 

Third, “[i]f the employer produces evidence showing a legitimate reason for the adverse employment action, ‘the presumption of retaliation ”’” drops out of the picture, “’” [citation], and the burden shifts back to the employee to provide ‘substantial responsive evidence’ that the employer's proffered reasons were untrue or pretextual." (Ibid.)

 

California law recognizes a cause of action for wrongful termination in violation of public policy where an employee can “show that the important public interests they seek to protect are tethered to fundamental policies that are delineated in constitutional or statutory provisions.” Green v. Ralee Eng'g Co., 19 Cal. 4th 66, 71 (1998) (internal quotation marks and citation omitted). To prevail on a claim for wrongful discharge in violation of public policy, a plaintiff must establish that (1) an employer-employee relationship existed; (2) plaintiff's employment was terminated; (3) the violation of public policy was a motivating reason for the termination; and (4) the termination was the cause of plaintiff's damages. Haney v. Aramark Unif. Servs., Inc., 121 Cal. App. 4th 623, 641 (2004). In retaliation cases, California law includes, as protected acts, employees refusing to violate federal or state local laws, rules, or regulations. See Cal Lab Code § 1102.5.

 

The causal link between the employee’s protected activity and the employer’s adverse action may be established by an inference derived from circumstantial evidence, such as the employer's knowledge that the employee engaged in protected activities, the proximity in time between the protected action and allegedly retaliatory employment decision, and a pattern of conduct consistent with a retaliatory intent (e.g., hostile treatment, exclusion from meetings, termination). Jordan v. Clark (9th Cir. 1988) 847 F2d 1368, 1376; Morgan v. Regents of Univ. of Calif. (2000) 88 CA4th 52, 69, 105 CR2d 652, 666; Wysinger v. Automobile Club of Southern Calif. (2007) 157 CA4th 413, 421, 69 CR3d 1, 7.