In Steele v. Youthful Offender Parole Board, (— Cal.Rptr.3d —, 2008 WL 2043197, Cal.App. 3 Dist., May 13, 2008), a California Court of Appeal considered whether a state agency caused an employee, whom it feared would provide damaging testimony in a sexual harassment investigation, to resign by creating an unpleasant work environment for her.
The court found that substantial evidence upheld the trial court’s decision that the employer had retaliated against the employee for her participation in a protected activity in violation of the Fair Employment and Housing Act (“FEHA”), and was therefore liable for her economic damages and attorney fees.
Lisa Steele (“Steele”) held a clerical job with the state of California’s Youthful Offender Parole Board (“Board”) and at first received no negative evaluations of her job performance. In 2001 she participated in several bikini modeling contests sponsored by a radio station. At one such contest, the Board’s chairman, Raul Galindo (“Galindo”), attended and approached Steele and attempted to kiss her on the mouth. Steele turned her head and instead received the kiss on her cheek. She later mentioned the incident to co-workers including Kym Kaslar (“Kaslar”), who passed the story on to superiors. Galindo was ultimately reprimanded for his behavior and ordered to attend sexual harassment training.
Kaslar, meanwhile, was instructed by superiors never to discuss the incident and was threatened with adverse action if she did so. Kaslar then filed complaints with the State Personnel Board and Department of Fair Employment and Housing claiming retaliation for her disclosure of the kissing incident. At about the same time, Steele began receiving negative work evaluations, containing various accusations of misconduct she claimed were false. She was also told that due to possible forthcoming budget cuts, it would be wise for her to look for another job. A superior told her to seek work elsewhere because it would “look bad” for the office if she were questioned during an investigation. Steele later signed a false statement that Galindo had not tried to kiss her and she was subsequently given a less desirable work schedule. Finally, in February 2002, Steele resigned and remained unemployed until obtaining a private sector clerical job in January 2003.
Steele filed a lawsuit seeking compensation for economic damages resulting from the loss of her job with the Board. The jury found that the Board had created working conditions for Steele that were so intolerable that she had no reasonable alternative but to resign and awarded her economic damages and attorney’s fees. The Board appealed.
In order to establish a claim of retaliation under FEHA, an employee must show that she was engaged in a protected activity, received an adverse employment action, and that a causal link existed between the protected activity and the adverse employment action, the court said, referring to the test outlined in Yanowitz v. L’Oreal USA, Inc., (2005) 36 Cal.4th 1028. The court found Steele’s role as a potential witness in Kaslar’s retaliation complaint qualified as a protected activity. Second, the facts plainly showed that she was repeatedly subject to adverse employment actions leading up to her resignation. Finally, the evidence strongly suggested a causal link between the protected activity and the adverse action.
From the moment Board officials learned of the kissing incident, they began to fear Steele’s role as a potential witness, if not a potential claimant, against the board, the court found. The harsh work evaluations began immediately thereafter. The record showed that Steele, a young employee new to state service, was “intimidated and threatened” and subjected to a “baseless and inappropriate level” of discipline following the kissing incident. A reasonable inference, the court concluded, is that Board officials “wanted her out of the way.” Furthermore, the court noted a superior’s statement that Steele should seek other employment because her presence could make the office look bad to investigators.
Substantial evidence therefore supported the jury’s finding of a causal link between Steele’s protected activity and her adverse employment action. The judgment for damages and attorneys’ fees was affirmed.