Responding to Employer Defenses

While California is indeed an at-will employment state, the at-will doctrine has significant exceptions that your termination violates. At-will employment means an employer can fire an employee for any LAWFUL reason—not for an ILLEGAL reason.

The California Supreme Court has long recognized that at-will employment does not permit termination that violates public policy. In Tameny v. Atlantic Richfield Co. (1980), the Court held that "an employer's right to discharge an 'at will' employee is still subject to limits imposed by public policy."

My termination falls within recognized exceptions to at-will employment:

1. Statutory Protections: Labor Code § 1102.5 (whistleblower), § 98.6 (wage complaints), § 132a (workers' comp), § 6310 (safety), and FEHA all create statutory exceptions to at-will employment.

2. Public Policy Exception: Under Tameny and Gantt v. Sentry Insurance (1992), termination that violates fundamental public policy is actionable regardless of at-will status.

3. Implied Contract Exception: Statements in employee handbooks, policies, or verbal assurances can create an implied contract limiting at-will employment.

Your "at-will" defense is a complete misstatement of California law when the termination violates any of these exceptions.

The "performance issues" justification is pretextual—a false reason given to cover the true retaliatory motive. California courts apply the McDonnell Douglas burden-shifting framework to evaluate pretext, and the evidence here demonstrates the stated reason is not credible.

Evidence of Pretext:

1. Timing: The alleged "performance issues" were first raised [shortly after / at the same time as] my protected activity. If my performance was truly deficient, why wasn't it documented before I engaged in protected activity?

2. Prior Record: My employment record demonstrates satisfactory or better performance. I received [positive reviews / promotions / raises / awards] before my protected activity. My performance did not suddenly deteriorate.

3. Lack of Documentation: You cannot produce contemporaneous documentation of performance issues because none existed before I engaged in protected activity.

4. Comparative Treatment: Other employees with similar or worse "performance issues" were not terminated, demonstrating disparate treatment.

5. Shifting Explanations: The reasons given for my termination have changed over time, a hallmark of pretext.

Under Harris v. City of Santa Monica (2013), I need only show that retaliation was a "substantial motivating reason" for the adverse action, not the sole reason.

The claimed "layoff" or "restructuring" does not immunize you from liability for retaliation. A facially neutral business decision can still be unlawful if it is motivated by retaliatory intent or if the employee was selected for termination because of protected activity.

Evidence that the "layoff" is pretextual:

1. Suspicious Timing: The "restructuring" was announced or implemented [shortly after] my protected activity. This timing suggests I was targeted.

2. Selection Criteria: If this was a legitimate reduction in force, what objective criteria were used to select employees for termination? Was I the only one affected? Were others in my department retained?

3. Position Filled: If my position was truly eliminated, why was it later filled (or currently open) with a replacement? A "position elimination" that results in hiring a replacement is evidence of pretext.

4. Inconsistent Application: Were others who engaged in protected activity also "laid off"? Is there a pattern of targeting employees who complain?

Under Guz v. Bechtel National (2000), even a legitimate restructuring can give rise to liability if the plaintiff was selected for discriminatory or retaliatory reasons.

My activity is protected under California law. Protected activity includes, but is not limited to:

1. Whistleblower Activity (Lab. Code § 1102.5): Disclosing information to a supervisor, government agency, or person with authority over the employee where the employee has reasonable cause to believe the information discloses a violation of state or federal law. I need not prove an actual violation occurred—only that I had a reasonable belief.

2. Internal Complaints: Under California law, complaints made internally (to supervisors, HR, compliance) are protected even if not made to an outside agency. See Green v. Ralee Engineering Co. (1998).

3. Opposition Activity: Under FEHA, "opposing" unlawful practices is protected. This includes complaining, refusing to participate in unlawful conduct, and supporting others' complaints.

4. Participating in Investigations: Assisting in any investigation, proceeding, or hearing under California employment laws.

The activity I engaged in [describe] falls squarely within these protections. Whether you agree with the substance of my complaint is irrelevant—the law protects the act of complaining, not just complaints that are ultimately proven correct.

Causal connection can be established through both direct and circumstantial evidence. California courts recognize multiple types of evidence that establish causation:

1. Temporal Proximity: My termination occurred [time period] after my protected activity. California courts have held that close temporal proximity alone can establish an inference of retaliation. See Loggins v. Kaiser Permanente ("close temporal proximity can, by itself, create a triable issue of retaliation").

2. Changed Treatment: After my protected activity, I experienced [describe negative treatment]: exclusion from meetings, removal from projects, increased scrutiny, negative comments, etc. This pattern of changed treatment links my protected activity to the ultimate termination.

3. Knowledge: The decision-maker who terminated me knew about my protected activity. Knowledge combined with adverse action creates an inference of retaliation.

4. Pretext: The stated reason for my termination is pretextual [reference performance defense above], which further supports the inference that the real reason was retaliation.

5. Pattern: [If applicable] Other employees who engaged in similar protected activity were also subjected to adverse treatment, demonstrating a pattern.

Even if the ultimate decision-maker claims ignorance, California law recognizes the "cat's paw" theory of liability. Under this doctrine, if a biased subordinate influenced the termination decision, the employer is liable even if the final decision-maker was unaware of the protected activity.

In Reeves v. Safeway Stores (2004), the California Court of Appeal held that an employer cannot insulate itself from liability by delegating investigation or recommendation to biased subordinates while the final decision-maker remains technically "unaware."

Additionally:

1. Imputed Knowledge: Knowledge of supervisors and managers is imputed to the company. If my direct supervisor knew about my complaint, that knowledge is the company's knowledge.

2. Investigation Failures: If the decision-maker failed to conduct an independent investigation and simply rubber-stamped a biased recommendation, that failure demonstrates negligent (or willful) adoption of the retaliatory motive.

3. Circumstantial Evidence: Even without direct evidence of knowledge, circumstantial evidence (timing, changed treatment, pretextual reason) can establish that the decision-maker either knew or should have known.

The "same actor" inference is just that—an inference, not a rule of law. California courts have consistently held that the same actor defense does not automatically defeat a retaliation claim.

1. Not Determinative: In Bradley v. Harcourt, Brace and Co. (9th Cir. 1996), the court held that the same actor inference is merely a factor to consider, not a complete defense. The inference can be overcome by other evidence of retaliatory motive.

2. Changed Circumstances: The person who hired me did so BEFORE I engaged in protected activity. My complaint changed the relationship. It is entirely plausible that the same person who hired me would retaliate after I reported wrongdoing.

3. Additional Evidence: The other evidence of retaliation—timing, pretext, changed treatment—outweighs any "same actor" inference.

4. Does Not Apply to Retaliation: The same actor inference originated in discrimination cases (where the theory is that someone who hires a person of a certain characteristic wouldn't fire them for that characteristic). It is far less applicable in retaliation cases, where the person's attitude toward the employee demonstrably changed after the protected activity.

California law does not require employees to exhaust internal complaint procedures before engaging in protected activity or before filing a retaliation claim.

1. No Exhaustion Requirement: Unlike some federal employment statutes, California's whistleblower and retaliation laws do not require internal complaint procedures to be exhausted. See Lab. Code § 1102.5 (no such requirement).

2. Informal Complaints Protected: In Yanowitz v. L'Oreal USA (2005), the California Supreme Court held that even informal complaints—refusing to follow an unlawful directive, verbal complaints to supervisors—constitute protected activity.

3. External Reports Protected: Employees are protected for reporting directly to government agencies without first making internal complaints.

4. Internal Complaint Futility: Even if internal procedures existed, I was not required to use them if doing so would have been futile or dangerous. Given the company's response to my [initial complaint/concerns], further internal complaints would have been pointless and potentially exposed me to additional retaliation.

Your company's failure to take my concerns seriously when I did raise them internally demonstrates why exhaustion was unnecessary.

My claims are timely. California employment claims have the following limitations periods:

1. Lab. Code § 1102.5 (Whistleblower): 3 years under CCP § 338(a). If filed within this period, the claim is timely.

2. FEHA Claims: 3 years to file with CRD (as of January 1, 2020, extended from 1 year). I filed/will file within this period.

3. Wrongful Termination (Tameny): 2 years under CCP § 335.1 for tort claims.

4. Breach of Contract: 2 years (oral) or 4 years (written) under CCP § 339/337.

5. Continuing Violation Doctrine: If the employer engaged in a pattern of retaliation, the limitations period may be calculated from the last act in the series.

6. Discovery Rule: For some claims, the statute doesn't begin to run until the employee knew or should have known of the wrongful conduct.

My termination occurred on [DATE]. I am filing/filed this claim on [DATE], well within the applicable limitations period.

While arbitration agreements are generally enforceable, there are several grounds to challenge enforcement:

1. Unconscionability: Under Armendariz v. Foundation Health Psychcare Services, employment arbitration agreements must meet certain minimum requirements. If the agreement fails these requirements, it may be unconscionable and unenforceable:

- Neutral arbitrator - Adequate discovery - Written decision - All remedies available in court - Employer pays arbitrator's fees - Bilateral (not just employee's claims arbitrated)

2. Procedural Unconscionability: The agreement was presented as a condition of employment, on a take-it-or-leave-it basis, with no meaningful opportunity to negotiate.

3. Substantive Unconscionability: The terms are one-sided, favoring the employer.

4. PAGA Claims: Under Viking River Cruises v. Moriana (2022) and subsequent California cases, PAGA representative claims may not be subject to arbitration.

5. Administrative Complaints: Arbitration agreements typically do not bar administrative complaints to agencies like DLSE or CRD.