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Shelton v. City of Manhattan Beach9/28/2004
ployment action consists only of a "termination, demotion, or denial of an available job" as argued by defendants. (Richmond v. Shasta Community Services Dist. (2004) 32 Cal.4th 409, 422; Ginns v. Savage (1964) 61 Cal.2d 520, 524, fn. 2.)
Moreover, two Court of Appeal cases-Thomas v. Department of Corrections (2000) 77 Cal.App.4th 507, 510-512 (Thomas), and Akers v. County of San Diego (2002) 95 Cal.App.4th 1441, 1455 (Akers)-have, subsequent to Guz, specifically considered the meaning of "adverse employment action" and have adopted a broader approach than that asserted by defendants. Separate divisions of the Court of Appeal for the Fourth Appellate District decided Thomas and Akers. Neither decision accepts defendants' analysis.
In Thomas, the Court of Appeal for the Fourth Appellate District, Division Two, observed, "[T[here appears to be no California decisions defining the scope of an adverse employment action[.]" (Thomas, supra, 77 Cal.App.4th at p. 510.) The court further noted that federal authority on the definition of an adverse employment action varies from circuit to circuit. However, the court explained: " ost circuits agree that an adverse employment action requires `a materially adverse change in the terms of . . . employment.' (Kocsis v. Multi-Care Management, Inc. (6th Cir. 1996) 97 F.3d 876, 885.)" (Thomas, supra, at p. 510.) The Thomas court further observed, " ost circuits require that the action `be more disruptive than a mere inconvenience or an alteration of job responsibilities. A materially adverse change might be indicated by termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices that might be unique to a particular situation.' (Crady v. Liberty Nat. Bank and Trust Co. (7th Cir. 1993) 993 F.2d 132, 136.) The employment action must be both detrimental and substantial. (Bernheim v. Litt (2d Cir. 1996) 79 F.3d 318, 327 (conc. opn. of Jacobs, C.J.).)" (Thomas, supra, at p. 511.)
In Akers, the Court of Appeal for the Fourth Appellate District, Division One, agreed with Thomas. The court held: " e . . . agree with the Thomas court's observation that to be actionable, the retaliation must result in a substantial adverse change in the terms and conditions of the plaintiff's employment. A change that is merely contrary to the employee's interests or not to the employee's liking is insufficient." (Akers, supra, 95 Cal.App.4th at p. 1455.) The Akers court concluded, " n action constitutes actionable retaliation only if it had a substantial and material adverse effect on the terms and conditions of the plaintiff's employment." (Ibid.)
Whether an employment action is adverse requires a case-by-case determination based on objective evidence. (Blackie v. State of Me. (1st Cir. 1996) 75 F.3d 716, 725; Thomas, supra, 77 Cal.App.4
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