Katherine Eidson, is an electrician for Lawrence Berkeley National Laboratory since the summer of 2001. The facility is managed by the Regents of the University of California, and is on a 200-acre site in the Berkeley Hills. Eidson became a permanent Lab employee in November 2001 and was assigned to “MRO,” the maintenance, repair, and operation group. She worked with the fire alarm electrician crew.

In November 2006, Eidson suffered an industrial injury when she fell off a ladder at work while rewiring a switch. She was out on medical leave for just over a year – until December 2007 – to recover.

Eidson was eager to return to work but disappointed that she could not return to her previous electrician job since that involved climbing ladders, which she understood she could not do at that time. She was still experiencing vertigo and dizziness, and she was concerned about whether she would improve. With the assistance of a return-to-work coordinator/accommodations specialist, Eidson returned to work on the fire alarm crew, but instead of working in the field she worked mostly in an office.

The Lab continued to reassess what types of accommodations and work restrictions were appropriate for Eidson. Over time, she was gradually cleared to work in other settings and capacities. Eidson was involved in assessing her recovery and determining appropriate job duties.

At some point, Eidson learned that she was being paid less than the other supervisors in maintenance, repair, and operations. She also learned that they were being invited to training sessions that she was not being invited to attend. She raised these concerns over the years starting in 2011 and several following years, including filing a formal grievance with the Lab in January 2014. The Lab’s human resources department conducted an analysis and concluded that there were no issues with Eidson’s classification or pay.

The Lab ultimately offered Eidson a job in the commissioning department, which was a promotion that offered a higher pay range. Eidson accepted the job but did so “under protest” because she did not want to change positions.

In April 2017 Eidson sued her employer alleging discrimination based on sex; retaliation; failure to prevent harassment, discrimination, or retaliation; and disability discrimination, all in violation of the California Fair Employment and Housing Act (FEHA).

As of the time of trial in May 2019, Eidson was still employed by the Lab in the commissioning department. Since being transferred, Eidson had not applied for any other Lab position. She had received annual pay increases. She nonetheless continued to be unhappy in her position.

The jury found against Eidson on her gender-based claims, but found in her favor on her disability-based claims. Jurors concluded that Eidson suffered an adverse employment action as the result of disability discrimination and retaliation. They also found that reasonable steps were not taken to prevent discrimination or retaliation. The jury awarded Eidson $650,000 in damages.

The Regents filed a motion for judgment notwithstanding the verdict (JNOV) which was granted. The trial court concluded that, as a matter of law, Eidson failed to prove that she suffered an adverse employment action. Her appeal was affirmed in the unpublished case of Eidson v Regents – A158666 (August 2022)

Although this is an unpublished case, thus adding no new controlling law in California, the Opinion nonetheless provides an excellent summary of what constitutes an “adverse employment action.”

In order to establish that the Regents wrongfully discriminated against her based on her disability, Eidson was required to prove that (1) the Regents was an employer, (2) Eidson was an employee of the Regents, (3) the Regents knew that Eidson had a disability that limited a major life activity, (4) Eidson was able to perform the essential job duties, (5) the Regents subjected Edison to an adverse employment action, (6) Eidson’s disability was a substantial motivating reason for the Regents’ conduct, (7) Eidson was harmed, and (8) the Regents’ conduct was a substantial factor in causing Eidson’s harm.

“Eidson failed to prove the fifth element – that she suffered an adverse employment action.” The Court quoted excerpts from the California Supreme Court decision in Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1049 to illustrate some of the considerations.

The term “adverse employment action” “has become a familiar shorthand expression referring to the kind, nature, or degree of adverse action against an employee that will support a cause of action under a relevant provision of an employment discrimination statute.” The determination of whether a particular action or course of conduct rises to the level of actionable conduct should take into account the unique circumstances of the affected employee as well as the workplace context of the claim.

“A change that is merely contrary to the employee’s interests or not to the employee’s liking is insufficient.”

“[W]orkplaces are rarely idyllic retreats, and the mere fact that an employee is displeased by an employer’s act or omission does not elevate that act or omission to the level of a materially adverse employment action.” If every minor change in working conditions or trivial action were a materially adverse action then any “action that an irritable, chip-on-the-shoulder employee did not like would form the basis of a discrimination suit.”

A careful reading of the cases linked to this article could more thoroughly embellish what courts have considered to be “an adverse employment action.”