Passatino v. Johnson & Johnson Consumer Products, Inc. (9th Cir. 2000) 212 F.3d 493, 507

In Passatino v. Johnson & Johnson Consumer Products, Inc., the Ninth Circuit Court of Appeals addressed the issue of retaliatory intent and the inference thereof in cases involving adverse employment actions closely following protected complaints.

Retaliatory intent refers to the underlying motive or purpose of an employer’s adverse employment action against an employee who engages in protected activity, such as reporting information about workplace conditions. California Labor Code section 232.5 specifically addresses retaliation against employees who report workplace conditions. It prohibits employers from terminating or retaliating against an employee who has made such reports. The provision seeks to protect employees from adverse employment actions based on their exercise of protected rights.

In Passatino, the court recognized that retaliatory intent may be inferred when an adverse employment action closely follows a protected complaint. This inference is based on the concept of temporal proximity, which acknowledges that when an employer takes retaliatory action soon after a protected complaint, it raises suspicions that the adverse action may be motivated by retaliation rather than legitimate, independent reasons.

The court emphasized that temporal proximity alone is not conclusive evidence of retaliatory intent. It is just one factor to consider in the analysis. Courts will also assess other evidence and factors to determine the employer’s motive, such as patterns of behavior, consistency of reasons, documentary evidence, and witness testimony. These additional elements help establish a broader context and assist in determining whether the adverse employment action was a result of retaliation.

The Passatino case highlights the importance of evaluating the totality of the circumstances in retaliation cases. Close temporal proximity between the protected complaint and the adverse employment action serves as evidence to support the inference of retaliatory intent. However, courts will consider other factors and evidence to determine the employer’s true motive, as temporal proximity alone may not be sufficient to establish retaliation.