What Acts of Protected Activity are Relevant in a FEHA Case?

What Acts of Protected Activity are Relevant in a FEHA Case?

Because subjecting an employee to adverse actions before he engaged in a protected activity could not constitute retaliation under the California Fair Employment and Housing Act, it was error for the court to admit evidence of conduct before the employee's protected activity of filing administrative complaints of discrimination and retaliation.


Rafi Kourounian obtained a $425,000 jury verdict on his claim that the California Department of Tax and Fee Administration (“the Department”) retaliated against him for filing an internal complaint with its Equal Opportunity Office (EEO).

The Department hired Kourounian as a tax auditor in 1989. He was promoted to “senior tax auditor” in 2001. In April 2012, he was promoted to business tax specialist 1 (BTS1), which included a one-year probationary period.

Several witnesses testified that Kourounian's performance prior to his 2012 promotion was very good. In September 2012, while he was serving as a probationary BTS1, Kourounian was informed that he was selected to be appointed as a limited term supervisor because the person who held the supervisory position was going on maternity leave. In mid-October 2012, his supervisor gave him a taxpayer's complaint and asked him to investigate it. The complaint alleged that his co-worker SS had discriminated against a taxpayer due to his age. He investigated and made findings of discriminatory conduct by SS and criticized the chain of command for not following required procedures. A supervisor (CC) was in the chain of command. He reported his findings to his then-supervisor and CC. He thought they were angry at him.

In January 2013, his limited term supervisorial position ended, and he was placed under the supervision by the two people he’d criticized in his investigative report.

In March 2013, he filed an EEO complaint, claiming that SS was discriminating against him on the basis of age and race or national origin, and she was retaliating against him because of his findings in the taxpayer complaint investigation. The trial court admitted this document into evidence.

In May 2013, as a result of the March/April EEO complaint, Kourounian was assigned to report to a new supervisor, CC. He testified that on his first work day with CC, she came up to him in front of others and “started shouting and saying that the reason you are in this situation is because of the complaint you filed, and you're going to be told and I'm going to get you.” CC was his direct supervisor for only a few months, until August or September.

CC eliminated Kourounian's field audits and required him to stay in the office. He wasn’t allowed to work as part of a crew. He was the only auditor not assigned to a crew. After two or three months he was permitted to resume field audits because there was no other work for him to do. Also, he wasn’t permitted to do public speaking on behalf of the Department after May 2013, although he had done so previously. CC also denied him mobile working privileges; he was the only one so denied. She required him to email her a report in the morning detailing what he was going to work on that day and a second email in the evening detailing what he had done that day. She never replied to these emails. He had never had such a requirement before and, as far as he knew, no other auditor had had such a requirement.

While this was going on, Kourounian filed a second EEO complaint, alleging retaliation for filing the March/April EEO complaint. This complaint was also admitted into evidence.

The May EEO complaint is very short, and covered events from May 15 through May 17, 2013, involves only three incidents, and focuses on CC. In August or September 2013, while still on probation for the promotion, Kourounian was formally rejected, and he returned to his previous position.

In its defense, the Department offered explanations for the actions Kourounian alleged were retaliatory. It presented evidence that he was competent, but as far as 2011 he made errors in his work and didn’t provide enough detail in his audits.

In 2015, Kourounian filed this action alleging a single cause of action for retaliation prohibited by statute. The trial court made clear that plaintiff's claim was based on “retaliation against him for making discrimination claims and for adverse actions other than the [Notice of Rejection During Probation] [¶] Accordingly the Stipulation does not bar the claims advanced here.”

The Court of Appeals’ Decision

The Court of Appeals stated that error alone is not sufficient to reverse a judgment. A decision will be reversed only when a party demonstrates that prejudicial error occurred and caused appellant “substantial injury” and that a “different result would have been probable” absent the error. Reversal is warranted where “‘it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.” The Court explained that such a “‘probability’ in this context does not mean more likely than not, but merely a reasonable chance, more than an abstract possibility.”

The Department contended the trial court erred in permitting Kourounian to introduce evidence of actions by his supervisor which occurred before his protected activity of filing the March/April EEO complaint. As a result, it sought to exclude evidence of all conduct in his EEO complaint that didn’t constitute retaliation. Specifically, the Department argued that his investigation of a taxpayer complaint wasn’t a protected activity under the FEHA and that the Act only protects against retaliation caused by engaging in a protected activity. Kourounian's first protected activity was the March/April EEO complaint which alleged age and race discrimination (in addition to the investigation of the taxpayer complaint). Adverse actions taken before a protected activity couldn’t constitute retaliation under the FEHA.

In his opposition to the motion, Kourounian conceded that he couldn’t seek compensation for any of the acts complained of in his March-April 2013 EEO complaints. He then argued that the fact that he filed the March/April EEO complaint and the content of the allegations in the documents submitted to the EEO were admissible on the issue of motive to demonstrate why his supervisors would have a motive to retaliate against him, as alleged in his May 2013 claims.

The trial court stated that it was for the jury to decide whether alleged acts were retaliation. The Department protested that “the first EEO complaint is not, as a matter of law, a complaint of retaliation. So anything listed in that complaint cannot go to the jury.” The court responded: “I disagree. The prior judges in this case would disagree.” But the trial court was mistaken as to the other judge’s previous ruling.

The Court of Appeals opined that as a matter of both logic and law, acts of retaliation must occur after the protected activity. To establish a prima facie case of retaliation, a plaintiff must show that she engaged in protected activity, that she was thereafter subjected to adverse employment action by her employer, and there was a causal link between the two. Because retaliation under the Act requires the plaintiff to show that the employer was motivated to retaliate by the plaintiff's protected activity, actions the employer took before the plaintiff engaged in the protected activity are irrelevant.

The judgment was reversed. Kourounian v. California Dept. of Tax & Fee Administration (Court of Appeal of California, Second Appellate District, 5/24/23).

Bottom Line

Retaliation under the FEHA requires a plaintiff to show that the employer was motivated to retaliate by the plaintiff's protected activity. As such, actions taken by the employer before the plaintiff engaged in the protected activity are irrelevant.

Related Posts
  • LA County Expands “Ban the Box” Requirement Read More
  • DOJ Announces Final Rule on ADA Web Content Accessibility Read More
  • Should Obesity Qualify as a Disability under California Law? Read More