Fired at work for doing the right thing – when is retaliation illegal?

CHRIS Cerbone was hired as a head football coach and physical education teacher at a private high school in the summer of 2012. According to news outlets, sometime in December 2012, Cerbone heard that varsity football players were hazing freshman players in the school locker room. The older players were allegedly exposing their genitals to harass the younger players.
Cerbone, a former New York police officer, reported the incident to Child Protective Services, the school chaplain, and then the principal. Shortly after his report, Cerbone and four other coaches were fired by the school. The school contended that Cerbone was fired because he failed to properly supervise his players.
Cerbone sued the school and diocese of Sacramento for wrongful termination based on illegal retaliation.
The case went all the way to trial, where even then, the employer continued to claim that Cerbone was not fired for being a whistleblower and for reporting the sexual hazing, but for neglect of duty. The jury, however, did not buy the employer’s arguments, and instead found in favor of Cerbone, awarding him $900,000 in compensatory damages.  Rather than prolong the case in appellate court, the parties entered into an agreed judgment in Cerbone’s favor and settled the case with the payment of $4 million by the employer. The settlement amount includes Cerbone’s attorneys’ fees and costs.
Once again, this case reminds us that although employers generally have the power to terminate employees at will, such power has limitations. An employer shall not retaliate against an employee for providing information to a government or law enforcement agency, where the employee reasonably believes that a violation of state or federal laws has occurred. The employer also cannot retaliate against an employee who complain only within a company about unlawful practices.
In order to succeed in a claim for illegal retaliation, the employee must prove all of the following:
1) The employee engaged in protected activity, such as claiming wages due, reporting discrimination, testifying as a witness, or some other action to help enforce the law. Filing a grievance, contacting the media, refusing to perform illegal assignments, and other forms of standing up against violations of the law are also protected.
2) The employer knew or believed that the employee engaged in such protected activity –The employer’s investigation or interrogation of an employee who had the courage to speak up can reveal that the employer has knowledge of the protected activity. If the retaliation occurs shortly after the employee’s complaint, then the timing may suggest that the employer’s true motive was to retaliate against the employee.
3) The employee suffered an adverse employment action – An action that costs the worker money will be an adverse employment action. This includes discharge, demotion, and denial of promotions or benefits. Formal discipline is generally accepted as an adverse employment action.
4) The employee’s protected activity caused the employer to take adverse action. – Causation can be proven either by direct evidence or by an inference. Direct evidence is evidence that the employer reacted against the protected activity. If a supervisor ranted about someone reporting a violation, that is direct evidence of the employer’s intent against protected activity. Similarly, if the employer announced that whoever calls the government will be fired, or warned employees against reporting violations, that is direct evidence of retaliation.
Employees who prove they were wrongfully terminated may recover loss of earnings, emotional distress, and in certain cases, attorneys’ fees and costs, and punitive damages.

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The Law Offices of C. Joe Sayas, Jr. welcomes inquiries about this topic. All inquiries are confidential and at no-cost.  Atty. Sayas’ Law Office is located at 500 N. Brand Blvd. Suite 980, Glendale, CA 91203. You can contact the office at (818) 291-0088 or visit  www.joesayaslaw.com. 

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C. Joe Sayas, Jr., Esq. is trial attorney who has obtained several million dollar recoveries for his clients against employers and insurance companies. He has been selected as a Super Lawyer by the Los Angeles Magazine, featured in the cover of Los Angeles Daily Journal’s Verdicts and Settlements, and is a member of the Million Dollar-Advocates Forum.