Monday, November 14, 2016

Page 4

Court of Appeal Limits Scope of FEHA Retaliation Provision

By a MetNews Staff Writer

The retaliation provision of the Fair Employment and Housing Act does not protect an employee who complains about an employer’s alleged discrimination against its consumers, the First District Court of Appeal has ruled.

Div. Five Wednesday affirmed a San Francisco Superior Court judge’s grant of summary judgment to the defendants in an action brought by David Dinslage, a retired employee who worked for the city’s Recreation and Parks Department for 38 years.

Dinslage said he was forced to retire after the city eliminated his position of coordinator of assistive services as part of 2010-2011 budget cuts and did not hire him for another position. His role as coordinator was to organize recreational opportunities for disabled children and adults.

City officials said it was necessary to eliminate Dinslage’s job, along with those of nearly 150 other employees, because the department was under orders from then-Mayor Gavin Newsom to cut $12.4 million from its budget. The department said it was able to identify $8.7 million in new revenue sources, but that $3.7 million in actual cuts were needed.

The decision to include Dinslage’s position among those cut, the department said, stemmed in part from a philosophical shift in focus—from having separate programs for the disabled to finding ways to include them in programs designed for the public as a whole. Dinslage was not hired for another position, it said, because he did poorly in a second round of interviews—featuring more than 100 candidates—partly due to his continuing resentment over the elimination of his post and questioning of the reorganization that he would have to help implement if hired.

Dinslage claimed that the city retaliated against him over his advocacy on behalf of the disabled children and adults he had been serving and his opposition to the shift in programming, as well as his opposition to a proposal—which the Recreation and Parks Commission ultimately rejected—to relocate an annual car show, the proceeds of which are donated to the department specifically to support disabled programming, from Golden Gate Park.

He also claimed he was discriminated against because of his age.

Presiding Justice Barbara J.R. Jones, writing for the Court of Appeal, agreed with Superior Court Judge Ernest H. Goldsmith that the plaintiff failed to present a prima facie case of age discrimination or FEHA retaliation.

Age discrimination, Jones said, cannot be inferred solely from the fact that Dinslage was 60 years old when he suffered an adverse employment action. The government’s arguments that Dinslage was laid off because of the budget crisis and that he was not rehired because he interviewed poorly and opposed the refocusing of the disabled programs were legitimate, were supported by the evidence, and were not rebutted by proof of pretext, the presiding justice concluded in an unpublished portion of the opinion.

In the published part, Jones rejected the contention that Dinslage’s advocacy on behalf of separate programs for the disabled, his opposition to the relocation of the car show, and his general opposition to what he saw as discrimination by the department against the disabled constituted protected activity that would support a retaliation claim.

The FEHA, the jurist noted, creates a cause of action for retaliation where the employee has suffered adverse action as a result of opposing “any practices forbidden under” that act. She acknowledged that under the case law, opposition to a practice that is found not to be unlawful may support a claim, as long as the employee’s mistaken belief that the practice was unlawful was reasonable.

Dinslage’s claim fails, however, because he could not reasonably have believed that the department was engaged in an unlawful practice with regard to employment, Jones wrote.

She cited state and federal cases that an employment retaliation claim could not be based on an employee’s opposition to alleged racial discrimination against citizens by fellow employees, or on conduct by the employer that allegedly harmed the environment.

Jones also cited federal cases holding that even if the employee opposed an employment practice, a retaliation claim will not lie if no reasonable person would believe the practice to be unlawful based on indisputable facts, as when an employee claimed to have been disciplined for opposing a requirement to submit employment-related claims to binding arbitration.

The case is Dinslage v. City and County of San Francisco, 16 S.O.S. 5661.