The trial court improperly granted summary judgment to employer defendant on employee plaintiff’s claim of FEHA-prohibited retaliation for supporting a co-worker’s complaint of sex discrimination, after she provided sufficient evidence of (1) adverse employment actions and (2) retaliatory motive. The trial court improperly granted summary judgment to defendant on plaintiff’s claim of retaliation in violation of FEHA for supporting a co-worker’s complaint of sex discrimination. There was sufficient evidence of adverse employment action in plaintiff’s being isolated by her superior, being relegated to a less desirable office, being verbally and physically attacked by her superior, having her hours reduced to zero and being denied a promotion. Plaintiff also produced sufficient evidence of retaliatory motive to overcome the employer’s stated reasons for that adverse action by showing that her superior told employees to lie when questioned about the discrimination complaint, and then checked up on employees to see whether they had done so, and when plaintiff failed to confirm what she had said, the superior told her she would be reassigned to a different office and her career was done. Disagreeing with Yau v. Santa Margarita Ford, Inc. (2014) 229 Cal.App.4th 144, this decision holds that despite Miklosy v. Regents of the University of Cal. (2008) 44 Cal.4th 876, the Workers Comp. Act does not preempt employees’ emotional distress claims arising from discrimination or retaliation that constitutes a violation of FEHA. Such discrimination or retaliation is conduct that falls outside the normal risks inherent in the employment relationship and so the claim for intentional infliction of emotional distress arising from that conduct is not preempted.
California Court of Appeal, Fourth District, Division 1 (McConnell, P.J.); August 8, 2017; 2017 WL 3393079