Barseghyan v. County of Los Angeles, No. B249184 (November 20, 2014): A California Court of Appeal recently held that an employee whose new supervisors were unaware that she had filed a sexual harassment complaint in her previous position did not engage in unlawful retaliation. The court reasoned that a necessary element of a retaliation claim is a causal link between the protected activity and the alleged adverse action, and essential to that causal link is evidence that the employer knew that the employee had engaged in protected activity. However, the court also ruled that the employee had offered direct evidence of disability discrimination and that the trial court’s granting of the employer’s motion for summary adjudication on this claim was error.

Vergine Barseghyan was employed by the County of Los Angeles for the Department of Public and Social Services (DPSS) in its Greater Avenue for Independence (GAIN) program. In 2008, she filed an internal complaint alleging that two of her coworkers had sexually harassed her. Barseghyan later filed a complaint with the Department of Fair Employment and Housing alleging sexual harassment, discrimination, and retaliation—all stemming from her harassment allegations.

In 2009, the County of Los Angeles and Barseghyan entered into a settlement agreement. Under the terms of the agreement, in exchange for a transfer and a promotion, Barseghyan waived all of her claims. In 2012, she filed suit against the county alleging retaliation for opposing alleged sexual harassment, disability discrimination, and retaliation based on disability (among other claims). The trial court ruled in the county’s favor and Barseghyan appealed.

Retaliation for opposing sexual harassment. The California Court of Appeal first addressed Barseghyan’s claim that the county retaliated against her for filing a sexual harassment claim.  Barseghyan alleged that she suffered adverse employment actions in her new position as a result of her prior complaints of sexual harassment. The court held that even if the county had taken an adverse employment action against the employee (for which it did not have a legitimate business reason) the employee had not shown that the county took these actions in retaliation for her filing of a sexual harassment claim.

The court found that Barseghyan’s new supervisors had testified that they were unaware that she had made sexual harassment complaints before she was transferred to her new position. In addition, the court noted that Barseghyan acknowledged that her new supervisors were the only individuals who she alleged engaged in adverse employment actions against her and that she did not have any evidence that the new supervisors were aware of her prior complaint. Thus, the court concluded that Barseghyan failed to present evidence of causation between her employer’s alleged adverse employment actions and her engagement in protected activity in her previous position.

Retaliation based on disability. Next, the court considered Barseghyan’s claim that the county retaliated against her for complaining to her supervisors about their failure to address her need for an accommodation. Barseghyan alleged that, in her new position, she was denied the computer codes she needed to complete her work, she was denied the 9/80 schedule (according to which she worked 80 hours in 9 days with the tenth day off) that she had before she was transferred, she was excluded from staff meetings, she was denied a bilingual bonus, and she was not promoted while other workers were. Even assuming that these claims are true, the court found that Barseghyan’s claim failed. According to the court, she failed to present any evidence showing that these actions—which occurred prior to her request for a disability accommodation—occurred as a result of disability discrimination

Disability discrimination. The Court of Appeal also ruled that the trial court erred in granting the county’s motion for summary judgment. Barseghyan alleged that she was subjected to adverse employment actions in her new position because of her disability. For example, Barseghyan claimed that she consistently received positive comments on her annual performance reviews, yet she was only rated “qualified” for the job. Barseghyan claimed that when she asked her supervisor about her performance review, he stated that it was because of her disability.

The court found that such a comment—made contemporaneous with an adverse employment action—constitutes direct evidence of discrimination. Because the evidence presented by Barseghyan “was more than sufficient to raise triable issues of material fact,” the Court of Appeal ruled that the trial court’s grant of the county’s motion for summary adjudication was in error.

Practical Impact

According to Leslie E. Wallis, a shareholder in the Los Angeles office of Ogletree Deakins, “We typically think of retaliation as the more difficult claim to overcome in a summary judgment motion. However, in Barseghyan, there was direct evidence of discrimination. This evidence allowed the appellate court to find that the plaintiff could state her claim for disability discrimination even though she could not state a claim for retaliation. Currently, disability discrimination is one of the most prevalent causes of action in California. This case supports the position that a single comment related to an employee’s disability can, in certain specific circumstances, be enough to swing the pendulum in the employee’s favor and to keep a disability discrimination claim alive. Here, according to the plaintiff, the manager linked the plaintiff’s disability to her performance. Therefore, managers need to remain vigilant about keeping discussions of performance and disability completely separate and to appropriately document and support the reasons for performance ratings.”