Could Your Reporting Of Protected Activity Have Caused Your Termination Of Employment?
Both direct and circumstantial evidence may be used to prove causation, Colarossi v. Cory, 97 Cal.App.4th 1142, 1152, 119 Cal.Rptr.2d 131 (2002). CACI 2430 only requires that the violation of public policy was a "motivating factor." An employer is liable for wrongful termination even if the termination was only partially motivated by an illegal reason, Balog v. LRJV, 204 Cal.App.3d 1295, 1309, 250 Cal.Rptr. 766 (1988).
Case law does not establish any hard and fast rules about how long can transpire between the protected activity and the adverse employment action. Obviously this is a fact based question. There could be a case in which a very angry manager admitted to somebody else that they were getting an employee back for protected activity occurring 18 months earlier, and the court would not be able to dismiss the case as a matter of law, due to timing, with evidence like that. California cases have allowed retaliation claims to go forward, based upon timing, when far longer periods of time have elapsed between the protected activity and the adverse employment action than is present in this case.
In Colarossi, during May of 1997 Plaintiff participated in a sexual harassment investigation, Colarossi, 1147, 133. Plaintiff was fired in February of 1998, Id. at 1147, 134. The court held that based upon the totality of the evidence a reasonable trier of fact could conclude there was a retaliatory motivation and reversed summary judgment, Id. at 1155, 140.
Akers v. County of San Diego, 95 Cal.App.4th 1441, 1453, 116 Cal.Rptr.2d 602, 611 (2002) involved an October of 1996 letter written by counsel complaining of gender and pregnancy discrimination to support retaliation occurring up until February of 1999, Id. at 1451, 609.
Iwekaogwu v. City of L.A., 75 Cal.App.4th 803, 808-809, 814 Cal.Rptr.2d 505, 509, 514 (Review Denied 2000) dealt with an employee who complained of race discrimination August of 1991 and went to trial for retaliation through October 8, 1996. The court of appeals affirmed the verdict on this case involving retaliation years after the protected activity.
In Flait v. N. Amer. Watch Co., 3 Cal.App.4th 467, 472, 4 Cal.Rptr.2d 522, 525, 526 (1992), Flait was terminated in January of 1988 and alleged it was retaliation for reporting sexual harassment last in August of 1987, but first in March of 1987. The court held "[p]retext may be inferred from the timing of the company's termination decision," Id. at 479, 530.
California Health and Safety Code Section 1278.5(b) prohibits healthcare facilities from discriminating or retaliating against employees who present complaints or grievances about the care, services, or conditions of a healthcare facility. California Health and Safety Code Section 1278.5(d) creates a rebuttable presumption the employee has been discriminated against for so reporting if the discriminatory treatment occurs within 120 days of the reporting.31 U.S.C. 3729 (otherwise known as the Federal False Claims Act) and California Government Code Sections 12650-12651 (Otherwise known as the California State False Claims Act) prohibits all companies (including healthcare facilities) from making false claims for reimbursement such as to Medi-Cal or Medicare. False claims in the healthcare setting often involve submitting claims for services not rendered, or inflating the charges.
California Government Code Section 12940(g) makes it discrimination under the Fair Employment and Housing Act to harass, discharge, or otherwise discriminate against a person because they have made a report under Section 11161.8 of the Penal Code that prohibits retaliation against hospital employees who report suspected patient abuse by health facilities or community care organizations. This means that employees in nursing homes, assisted living facilities, or adult day care facilities may not be mis-treated for reporting suspected patient abuse.
Healthcare workers are also whistleblowers if they are fired for making a complaint about something that they believe would result in the loss of their license. Additionally, a healthcare worker who is retaliated against for refusing to perform a service that they are not licensed for is also a whistleblower. Whistle blowing involves reporting of protected activity and resulting in a termination of your employment. Have you been terminated from your job and felt you were wrongfully dismissed based on accusations of whistle blowing? We can help.
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