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Nicole Riley worked in the El Dorado County Psychiatric Health Facility (PHF) where she expressed concerns about safety. These concerns related to changes to work schedules that resulted in fewer staff at times and construction modifications to the layout of the PHF that eliminated a hallway providing visual access to the community room before entering it..

After she was injured by a patient and filed a workers’ compensation claim, she took a higher paying job with the Office of the Public Guardian because she felt unsafe at the PHF.

Less than two months into the one-year probationary period for her new job, she was terminated for failure to complete probation satisfactorily. Riley sued the County for wrongful termination on a number of theories, including retaliation under the Fair Employment and Housing Act She alleged the proffered reason for her dismissal was pretextual.

She alleged “the real reason she was fired from the Public Guardian’s Office was to retaliate against her for her complaints about safety concerns” and the firing “constituted unlawful discrimination for her association with and advocacy for mental health and disabled patients and was retaliation for filing her worker’s compensation claim.

The trial court granted the County’s motion for summary judgment. On appeal from the judgment in favor of the County, Riley contends the trial court erred in finding her claims were not covered by FEHA. She asserts that her advocating for mentally disabled patients and her filing of a workers’ compensation claim were protected activities and she had associational status due to her advocacy for a protected class.

The court of appeal affirmed the dismissal in the unpublished case of Riley v County of El Dorado.

In order to establish a prima facie case of retaliation under the FEHA, a plaintiff must show (1) he or she engaged in a ‘protected activity,’ (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer’s action.

Once an employee establishes a prima facie case, the employer is required to offer a legitimate, nonretaliatory reason for the adverse employment action. If the employer produces a legitimate reason for the adverse employment action, the presumption of retaliation “drops out of the picture,” and the burden shifts back to the employee to prove intentional retaliation.

In finding Riley’s complaints regarding safety were not a protected activity, the trial court relied in part on Dinslage v. City and County of San Francisco (2016) 5 Cal.App.5th 368. Complaints about workplace safety are not a protected activity that will support a FEHA retaliation claim.

With respect to the workers’ compensation claim, the determination as to what constitutes a protected activity is inherently fact driven.

Here, the filing of the workers’ compensation claim was completely unrelated to any discriminatory employment practice. Riley did not file for stress injuries caused by discriminatory harassment. Rather, she sought–and received–treatment in the form of physical therapy, chiropractic, and acupuncture services, for her physical injuries of bumps, bruises, and neck and shoulder injuries caused by an assault in the workplace. In this circumstance, the filing of a workers’ compensation claim is not a protected activity.