An Administrator's Guide to California Private School Law

Chapter 7 - Recognizing And Preventing Harassment, Discrimination And Retaliation

C. C AUSAL C ONNECTION /N EXUS Whether an employee can establish a causal connection between the protected activity and the school action depends on whether the totality of the circumstances indicates a retaliatory motive. Those factors include the timing of the school’s action, and whether the decision-maker knew of the protected conduct. 1. T IMING The timing of events may be evidence of a causal nexus depending on how close the events occurred in relation to each other. Where there is a gap in time between the protected activity and the adverse employment action, courts will take that fact into consideration, but not treat it as dispositive. The passage of time between the protected activity and the adverse action may not be enough by itself to defeat a retaliation claim. But when the adverse employment action follows immediately after the protected activity, courts have held that the timing alone may be enough—in some situations—to find the two events causally connected. 2. S CHOOL ’ S K NOWLEDGE To bring a successful retaliation claim, an employee or student must also be able to demonstrate that the school – and in particular the decision-makers involved in the adverse employment action – knew of the protected activity. School awareness of the protected activity is an essential component of any retaliation claim. Circumstantial evidence will be insufficient to infer a causal link if the individual cannot show the required school knowledge. In Morgan v. Regents of the University of California , 971 the California Court of Appeals rejected plaintiff’s retaliation claim because there was no evidence that the decision-makers who took the challenged adverse employment action knew of his prior discrimination complaint. 972 Similarly, in Clark County School District v. Breeden , 973 the United States Supreme Court rejected plaintiff’s retaliation claim, in part because she produced no evidence that the decision maker who ordered the adverse employment action knew of her protected activity. Haberman v. Cengage Learning, Inc. 974 Employee was a sales representative for Cengage Learning, Inc., a textbook publishing company. The employee’s direct supervisor made repeated sexual advances and innuendos to her. Meanwhile, the employee was experiencing performance problems and the President of the company recommending placing her on a performance improvement plan (“PIP”). A month after this recommendation, the employee complained to the President that she was being harassed by her supervisor. About a month later, the employee’s performance had not improved and the President decided to implement the recommended PIP. The next month, the employee complained to the Company’s human resources department that she was being harassed and she sued the Company for retaliation. The Company was able to prevail on the retaliation claim because it provided evidence that the President recommended placing the employee on the PIP a month before she made her initial complaint. The employee argued that she complained to her co-workers about the harassment before the

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