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Lindberg v. California Dep't of Education10/31/2005
activity." (Gov. Code, ยง 8547.2, subd. (d).)
C. Adverse Employment Action
Defendants next challenge the sufficiency of the evidence that Lindberg suffered an adverse employment action. They claim that their conduct towards Lindberg constituted nothing more than non-actionable changes in the terms and conditions of his employment.
The term "adverse employment action" means a "substantial adverse change in the terms and conditions of the plaintiff's employment." (Akers v. County of San Diego (2002) 95 Cal.App.4th 1441, 1455.) Under this definition, "an adverse employment action is not limited to `ultimate' employment acts, such as a specific hiring, firing, demotion, or failure to promote decision." (Ibid.) Conversely, " change that is merely contrary to the employee's interests or not to the employee's liking is insufficient." (Ibid.) Isolated incidents like the delay of a single paycheck, the failure to receive an overtime check, and an early job change do not constitute material changes in the terms of employment. (Thomas v. Department of Corrections (2000) 77 Cal.App.4th 507, 511-512.)
In Akers v. County of San Diego, the court concluded the plaintiff met this standard when she proved at trial that her employer conducted a slanted investigation into her complaints of discrimination, threatened that she would never return to her former job, and gave her negative employment evaluations. (Akers v. County of San Diego, supra, 95 Cal.App.4th at pp. 1456-1457.)
In retaliation cases at least, the Ninth Circuit Court of Appeals has adopted the more liberal deterrence test, as set forth in Ray v. Henderson (9th Cir. 2000) 217 F.3d 1234, 1242-1243. Under this analysis, an action is cognizable as an adverse employment action if it is "reasonably likely to deter employees from engaging in protected activity." (Id. at p. 1243.) In Ray, the employee complained to his supervisor's boss about his supervisor's treatment of women in his office, and filed a counseling request with the Equal Employment Opportunity Commission. (Id. at pp. 1237-1238.) In retaliation, his supervisor eliminated employee meetings, eliminated a flexible start- time policy, instituted lockdown procedures, and reduced his workload and pay. (Id. at pp. 1237-1238, 1243-1244.) Ray held that this evidence met the employee's burden of proving adverse employment action. (Id. at p. 1244.)
Regardless of which standard we use, there is substantial evidence upon which a jury could find that Lindberg suffered adverse employment action. Lindberg had held the position of Adult Education consultant for approximately 20 years. He had an excellent reputation as a specialist in compliance monitoring and had uncovered significant evidence of fraud by the CBO's, which he communicated to his superiors and to investigators. Soon after these disclosures, he was removed from his position and given a dead-end job with noth
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