McRae v. Dep’t of Corrections, 127 Cal. App. 4th 779 (2005)

Dr. Margie McRae filed a lawsuit against her employer, the California Department of Corrections, and four individual defendants, seeking damages for discrimination and retaliation in violation of the Fair Employment and Housing Act (FEHA). The trial court granted summary judgment to the four individual defendants, and the case proceeded to trial against the Department. The jury returned a verdict against McRae on her discrimination claim, but it awarded her $75,000 on her claim of retaliation. The Court of Appeal reversed the judgment, holding that neither the law nor the evidence permitted a finding of retaliation in this case. The Court held that plaintiff had failed to prove that the Department’s allegedly retaliatory actions (a letter of instruction, an unimplemented suspension and a transfer to another facility) caused “substantial and tangible harm, such as, but not limited to, a material change in the terms and conditions of employment”; the Court rejected the “overbroad” deterrence test applied by the Ninth Circuit in Title VII cases. Cf. Jackson v. Birmingham Bd. of Ed., 544 U.S. 167, 125 S. Ct. 1497 (2005) (Title IX provides private right of action for claim of retaliation by girls’ basketball coach who complained about funding and access to equipment and facilities).