Receiving a Negative Perforamnce Review Is Not an Adverse Employment Action California

CACI No. 2509. "Adverse Employment Activity" Explained

2509. "Agin Employment Activeness" Explained

[Name of plaintiff ] must prove that [he/she/ nonbinary pronoun] was

subjected to an adverse employment action.

Adverse employment actions are not limited to ultimate actions such equally

termination or demotion. There is an adverse employment action if

[name of defendant ] has taken an activity or engaged in a class or

pattern of bear that, taken as a whole, materially and adversely

affected the terms, weather, or privileges of [name of plaintiff ]'southward

employment. An adverse employment action includes conduct that is

reasonably likely to impair a reasonable employee's chore operation or

prospects for advocacy or promotion. Withal, minor or fiddling

actions or conduct that is not reasonably probable to practise more than anger or

upset an employee cannot plant an adverse employment activity.

New June 2012

Directions for Use

Give this didactics with CACI No. 2500, Disparate Treatment - Essential Factual

Elements, CACI No. 2505, Retaliation, CACI No. 2540, Inability

Discrimination - Disparate Treatment - Essential Factual Elements, CACI No. 2560,

Religious Creed Discrimination - Failurdue east to Conform - Essential Factual

Elements, or CACI No. 2570, Age Discrimination - Disparate Treatment - Essential

Factual Elements, if there is an issue as to whether the employee was the victim of

an adverse employment action.

For instance, the example may involve a pattern of employer harassment consisting of

acts that might not individually exist sufficient to establish discrimination or

retaliation, only taken as a whole plant prohibited conduct. (See Yanowitz 5.

L'Oreal USA, Inc. (2005) 36 Cal.quaternary 1028, 1052-1056 [32 Cal.Rptr.3d 436, 116

P.3d 1123].) Or the case may involve acts that, considered alone, would not appear

to be adverse, but could be adverse under the particular circumstances of the case.

(See Patten v. Grant Joint Union High Schoolhouse Dist. (2005) 134 Cal.App.4th 1378,

1389-1390 [37 Cal.Rptr.3d 113] [lateral transfer can exist adverse employment activity

even if wages, benefits, and duties remain the same].)

Sources and Authority

• "Appropriately viewed, [section 12940(a)] protects an employee confronting unlawful

bigotry with respect not only to so-chosen ultimate employment deportment

such as termination or demotion, merely besides the entire spectrum of employment

actions that are reasonably likely to adversely and materially affect an

employee's chore performance or opportunity for advancement in his or her career.

Although a mere offensive utterance or even a blueprint of social slights by either

the employer or coemployees cannot properly be viewed as materially affecting

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the terms, weather, or privileges of employment for purposes of section

12940(a) (or requite rise to a claim under section 12940(h)), the phrase 'terms,

conditions, or privileges' of employment must be interpreted liberally and with a

reasonable appreciation of the realities of the workplace in gild to afford

employees the appropriate and generous protection against employment

bigotry that the FEHA was intended to provide." (Yanowitz, supra, 36

Cal.4th at pp. 1053-1054, footnotes omitted.)

• "[T]he determination of what type of adverse handling properly should be

considered discrimination in the terms, conditions, or privileges of employment

is not, by its nature, susceptible to a mathematically precise test, and the

significance of particular types of adverse actions must be evaluated by taking

into business relationship the legitimate interests of both the employer and the employee.

Minor or relatively trivial adverse actions or acquit by employers or beau

employees that, from an objective perspective, are reasonably likely to do no

more than anger or upset an employee cannot properly be viewed as materially

affecting the terms, atmospheric condition, or privileges of employment and are not

actionable, but adverse treatment that is reasonably likely to impair a reasonable

employee's job performance or prospects for advancement or promotion falls

within the reach of the antidiscrimination provisions of sections 12940(a) and

12940(h)." (Yanowitz, supra, 36 Cal.fourth at pp. 1054-1055.)

• "An ' "adverse employment activeness," ' . . . , requires a 'substantial adverse

change in the terms and conditions of the plaintiff's employment'. " (Holmes 5.

Petrovich Evolution Co., LLC (2011) 191 Cal.App.4th 1047, 1063 [119

Cal.Rptr.3d 878, internal citations omitted.)

• "Contrary to [defendant]'southward exclamation that information technology is improper to consider collectively

the alleged retaliatory acts, there is no requirement that an employer'southward retaliatory

acts constitute one swift blow, rather than a serial of subtle, nevertheless damaging,

injuries. Enforcing a requirement that each human action separately constitute an agin

employment activity would subvert the purpose and intent of the statute."

(Yanowitz, supra, 36 Cal.fourth at pp. 1055-1056, internal citations omitted.)

• "Moreover, [accused]'due south deportment had a substantial and material impact on the

conditions of employment. The refusal to promote [plaintiff] is an adverse

employment activity nether FEHA. There was likewise a pattern of conduct, the

totality of which constitutes an adverse employment action. This includes

undeserved negative job reviews, reductions in his staff, ignoring his wellness

concerns and acts which caused him substantial psychological impairment." (Due westysinger

five. Car Club of Southern California (2007) 157 Cal.App.4th 413, 424 [69

Cal.Rptr.3d 1], internal citations omitted.)

• "The employment action must be both detrimental and substantial . . . [¶]. Westwarde

must analyze [plaintiff's] complaints of adverse employment deportment to determine

if they event in a material change in the terms of her employment, impair her

employment in some cognizable manner, or show some other employment injury

. . . . [W]e do not find that [plaintiff's] complaint alleges the necessary material

changes in the terms of her employment to crusade employment injury. Near of

CACI No. 2509 FAIR EMPLOYMENT AND HOUSING ACT

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the deportment upon which she relies were i time events . . . . The other

allegations . . . are not accompanied by facts which prove both a substantial

and detrimental effect on her employment." (Thomas five. Department of

Corrections (2000) 77 Cal.App.4th 507, 511-512 [91 Cal.Rptr.second 770], internal

citations omitted.)

• "The 'materiality' exam of agin employment action . . . looks to 'the entire

spectrum of employment actions that are reasonably likely to adversely and

materially affect an employee'south task performance or opportunity for advocacy

in his or her career,' and the exam 'must be interpreted liberally . . . with a

reasonable appreciation of the realities of the workplace . . . .' " (Patten, supra,

134 Cal.App.4th at p. 1389.)

• "Retaliation claims are inherently fact-specific, and the impact of an employer'due south

action in a particular instance must exist evaluated in context. Accordingly, although

an adverse employment action must materially affect the terms, weather condition, or

privileges of employment to exist actionable, the determination of whether a

particular activity or course of conduct rises to the level of actionable comport

should take into account the unique circumstances of the affected employee every bit

well equally the workplace context of the claim." (Whitehall v. County of San

Bernardino (2017) 17 Cal.App.fifth 352, 366-367 [225 Cal.Rptr.3d 321].)

• "[A] mere oral or written criticism of an employee . . . does not meet the

definition of an adverse employment activity nether [the] FEHA." (Light v.

Department of Parks & Recreation (2017) fourteen Cal.App.5th 75, 92 [221

Cal.Rptr.3d 668].)

• "Mere ostracism in the workplace is insufficient to plant an adverse

employment decision. However, ' "[W]orkplace harassment, if sufficiently severe

or pervasive, may in and of itself institute an adverse employment activeness

sufficient to satisfy the second prong of the prima facie case for . . . retaliation

cases." [Citation].' " (Kelley v. The Conco Companies (2011) 196 Cal.App.4th

191, 212 [126 Cal.Rptr.3d 651], internal citations omitted.)

• "Not every change in the conditions of employment, however, constitutes an

adverse employment activity. ' "A change that is merely opposite to the

employee'due south interests or not to the employee'south liking is insufficient." . . .'

'[W]orkplaces are rarely idyllic retreats, and the mere fact that an employee is

displeased past an employer's human action or omission does non drag that deed or

omission to the level of a materially agin employment activeness.' " (Malais v.

Los Angeles Metropolis Fire Dept. (2007) 150 Cal.App.quaternary 350, 357 [58 Cal.Rptr.3d

444].)

• "[R]efusing to let a former employee to rescind a voluntary discharge - that

is, a resignation free of employer compulsion or misconduct - is not an adverse

employment action." (Featherstone v. Southern California Permanente Medical

Group (2017) x Cal.App.5th one150, 1161 [217 Cal.Rptr.3d 258].)

• "[T]he reduction of [plaintiff]'s hours alone could plant a material and

adverse employment action by the [defendant]." (Light , supra , fourteen Cal.App.5th at

p. 93.)

FAIR EMPLOYMENT AND HOUSING ACT CACI No. 2509

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• "[A] job reassignment may be an adverse employment action when information technology entails

materially adverse consequences." (Simers v. Los Angeles Times

Communications, LLC (2018) 18 Cal.App.5th 1248, 1279 [227 Cal.Rptr.3d 695].)

• "[T]he deprival of previously promised training and the failure to promote may

constitute agin employment actions." (Low-cal , supra , fourteen Cal.App.5th at p. 93.)

• "The trial court correctly found that the human activity of placing plaintiff on administrative

leave [involuntarily] was an adverse employment activeness." (Whitehall , supra, 17

Cal.App.fifth at p. 367.)

• "[Plaintiff] has presented no say-so, and we are aware of none, belongings that a

single threat of an adverse employment action, never carried out, could itself

found an adverse employment activity under the standard articulated in

Yanowitz and its progeny." (Meeks v. AutoZone, Inc. (2018) 24 Cal.App.fifth 855,

879 [235 Cal.Rptr.3d 161].)

Secondary Sources

viii Witkin, Summary of California Law (i1th ed. 2017) Constitutional Law,

§§ 1052-1055

Chin et al., California Practice Guide: Employment Litigation, Ch. 7-A, Title VII

And The California Fair Employment And Housing Act, ¶¶ vii:203, 7:731, 7:785 (The

Rutter Group)

iii Westwardilcox, California Employment Law, Ch. 43, Ceremonious Actions Under Equal

Employment Opportunity Laws, § 43.01 (Matthew Bough)

ii California Forms of Pleading and Practice, Ch. onexv, Civil Rights: Employment

Bigotry, § 115.36 (Matthew Bender)

21 California Forms of Pleading and Practise, Ch. 249, Employment Constabulary:

Termination and Discipline, § 249.12 (Matthew Bender)

x California Points and Authorities, Ch. 100, Employer and Employee: Wrongful

Termination and Discipline, § 100.42 (Matthew Bough)

CACI No. 2509 FAIR EMPLOYMENT AND HOUSING Human action

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Source: https://www.justia.com/trials-litigation/docs/caci/2500/2509/

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