Employee Could Not Show That Letter Of Warning Was An Adverse Action Because It Barred Her From Receiving Discretionary Bonus.

Christine Holman worked as a sales representative for Altana, Inc. Sales representatives were eligible for bonus compensation every trimester if the employee: (1) worked for the Company on the first day of the third month of the trimester and at the time of bonus payout; (2) averaged at least 121 calls during each month of the bonus period; and (3) was in good standing with regards to performance standards. Once eligible, the amount of the bonus payment was based on the ranking of the employee's territory's "share of market" and "share of market change" as compared to other territories within the region.

On June 5, Holman's supervisor, Alexea Berchem, went on a ride-along with Holman in the field. Holman told Berchem that she and other representatives believed that younger, male employees seemed to get more work opportunities than the older, female employees. On September 29, the Company gave Holman a letter of warning based on her deficient work performance. The letter made her ineligible to receive a bonus. On September 29, Holman took a medical leave and never returned to the Company.

Holman sued the Company alleging retaliation in violation of FEHA. At trial, the superior court granted the Company's motion for nonsuit on the retaliation claim. The California Court of Appeal affirmed.

To state a prima facie case of retaliation, an employee must prove that he or she was subjected to an adverse employment action. The employer's action must involve a detrimental and substantial effect on the plaintiff's employment. The letter of warning itself did not constitute an adverse action because a mere oral or written criticism of an employee does not meet the definition of an adverse employment action under the FEHA. A loss of a bonus which is automatically linked to a higher performance rating can constitute an adverse employment action. However, a bonus that is entirely discretionary is not actionable.

To qualify for a bonus in the relevant trimester, Holman had to show that she averaged 121 calls for each month of the trimester, and would have been an employee on November 1 and at the time of the payout. But there was no evidence that Holman averaged 121 calls for each month of the trimester. Moreover, there was no evidence that she was an employee on November 1 or when the bonus was paid out. Consequently, she was not eligible to receive the bonus and her failure to receive the bonus was not an adverse action.

In addition, there was no evidence to establish that Holman would have received a bonus in an amount significant enough that deprivation would have had a detrimental and substantial effect on her employment.

Holman v. Altana Pharma US, Inc. (2010) ___ Cal.App.4th ____ [2010 WL 2599337].