Court of Appeal Rules for Whistleblowing Employee (Who Was Wrong on the Law)

In Patrick Kelley v. The Conco Companies, the Court of Appeal recently upheld an employee’s claim for retaliation against his former employer even though it found that he was mistaken for thinking that the company broke the law.

Patrick Kelley was a union employee and in July of 2006 he was hired by Conco Companies as an apprentice ironworker. While working, Kelley was subject to sexually explicit and threatening comments by his male coworkers. Kelley complained to his managers about the sexual harassment, which drew the ire of his coworkers. At this point, Kelley was a target and the threats just increased.

Kelley worked for other contractors after Conco but the Steel and Iron industry was a small world and Kelley’s new coworkers berated him for complaining at Conco. By November of 2007, Kelley was deeply depressed and he decided to resign. Kelly filed suit for sexual harassment, sex discrimination and retaliation under the California Fair Employment and Housing Act.

The Court’s Analysis

The trial court granted the employer’s motion for summary judgment, rejecting Kelley’s claims of sexual harassment, sex discrimination and retaliation.

The Court of Appeal agreed that Kelley did not present a claim for sexual harassment. The Court overturned previous law that held that a Plaintiff could sue for same-sex harassment as long as the Plaintiff proved he was being treated “differently” because of his gender (Singleton v. United States Gypsum Co. (2006) 140 Cal.App.4th 1547, 1557 [in a very similar case, Court upheld claim for sexual harassment where male, heterosexual Plaintiff was subject to homosexual taunts].) The Court held that, “[w]hat matters, however, is not whether the two sexes are treated differently in the workplace, but whether one of the sex is treated adversely to the other sex in the workplace because of their sex. (citation.) While Kelley was undoubtedly subjected to grossly offensive comments and conduct, he did not produce evidence which would support a claim that he suffered discrimination in the workplace because of his gender.”

But even though the Court found that unlawful sex discrimination/harassment did not occur, Kelley still had a valid claim for “retaliation” under the Fair Employment and Housing Act: “a retaliation claim may be brought by an employee who has complained of or opposed conduct that the employee reasonably believes to be discriminatory, even when a court later determines the conduct was not actually prohibited by the FEHA. [Citations.] [¶] . . “

This rule is immensely powerful for employees and works outside of the discrimination context as well. For example, if an employee mistakenly thinks that he is not being paid all the wages owed to him, complains and is terminated as a result, that employee has claim for unlawful retaliation.

The Court of Appeal’s ruling to uphold retaliation for the mistaken employee is good public policy. Employees who reasonably (but mistakenly) stand up for their rights should not have to fear being retaliated against. Callanan, Rogers & Dzida, LLP frequently represents employees faced this type of unlawful retaliation.

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