In McRae v. Department of Corrections, (2005 Daily Journal D.A.R. 3222, Cal.App. 1 Dist., Mar. 18, 2005), the California Court of Appeal addressed the issue of whether an employer’s action of transferring a doctor from one facility to another constituted an adverse employment that would support her claim of retaliation.
Facts
Dr. Margie McRae began working for the California Department of Corrections (Department) as a surgeon in 1992 at the California Medical Facility in Vacaville. Approximately two months after Dr. McRae filed a racial discrimination complaint with the Department of Fair Employment and Housing (DFEH), the Chief Medical Officer (CMO) at Vacaville received a report that Dr. McRae had left her emergency room post unattended. The CMO issued a letter instructing Dr. McRae to familiarize herself with the regulations and memoranda which outline a surgeon’s responsibility to be at his or her post during rotations.
Not long after the CMO issued the letter, another report surfaced that Dr. McRae had failed to follow the CMO’s directions and to provide proper care for two patients. An investigation resulted in a thirty-day suspension. However, the suspension was never implemented because Dr. McRae was on non-industrial disability leave at the time and was not even aware of the suspension. Before Dr. McRae returned from disability leave, Department ordered her to report to work at Solano Prison instead of Vacaville. She filed a DFEH complaint alleging that the transfer was ordered in retaliation for her previous complaint
Dr. McRae filed a lawsuit against the Department and several of its employees alleging discrimination and retaliation. A jury found against Dr. McRae on the claim of discrimination, but found in her favor on the claim of retaliation.
Appellate Court Decision
The Court of Appeal reversed the judgment in favor of Dr. McRae on the claim of retaliation. In order to successfully make a claim for retaliation, an employee must show that she was engaged in a protected activity, she was subjected to an adverse employment action, and there was a link between the protected activity and the adverse action. The Court found that Dr. McRae failed to show she was subjected to an adverse employment action.
Under California Law, “an adverse employment action means an employment action that caused substantial and tangible harm, such as, but not limited to, a material change in the terms and conditions of employment.” An employee may only seek redress through the courts for final employment decisions, which are those decisions that are not subject to reversal or modification through the employer’s internal review process.
The Court found that the letter of instruction from the CMO was not an adverse employment action and noted that employee criticism is a “useful and necessary tool” for the employer, the employee, and the public. It also found that the decision to suspend Dr. McRae for thirty days was not an adverse employment action because the suspension never took place.
As for the transfer to Solano, the transfer did not include a demotion or a reduction in pay or loss of benefits; did not involve a change of status, job title, responsibilities, work hours, or commute time; and did not compromise Dr. McRae’s safety. Therefore, the transfer was not an adverse employment action. Furthermore, the incidents of alleged retaliation, taken together, did not amount to a pattern of conduct that rose to the level of an adverse employment action.
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