In a published case recently handed down by the Third District, a new concept for alleging retaliation may be emerging: Preemptive.
In this unusual fact situation, an employee of the California Youth Offender Parole Board entered a swimsuit content at which her boss was present. During the contest the boss kissed the employee on the cheek although the employee did not complain and, apparently, the boss treated her professionally at all other times.
But the incident was witnessed by others.
Meanwhile, another employee was complaining about that same boss and management allegedly began worrying that the bikini-contestant employee (who was not complaining) might bring up the incident at some future point.
So management allegedly set out to force the non-complaining employee to resign... which she did, then sued.
A jury ruled that this amounted to the "constructive discharge" of the employee and the employer appealed arguing that the employee was NOT engaged in any protected activity which would permit what amounted to a "retaliation" charge.
The appellate court rejected the employer's claim and basically ruled that the claim amounted to possible future protected activity (possibly being a witness in a subsequent case).
The case is Steele v. Youth Offender Probation Board.
To read the opinion,
PLEASE CLICK HERE.
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