Yoko Dominguez appeals from the separate summary judgments entered in favor of defendants Washington Mutual Bank and Javier Gutierrez in her action for job discrimination based upon her sexual orientation. 1 Because triable issues of fact exist concerning whether she timely exhausted her administrative remedies and as to the existence of discrimination, we reverse the judgments. Because Dominguez may not maintain an action for job retaliation against Gutierrez, we remand with directions to enter an order granting him summary adjudication of that claim only. We affirm, however, as to Washington Mutual’s assertion that Dominguez cannot raise triable issues of fact on her punitive damages claim, and, on remand, direct the trial court to grant summary adjudication on that issue only.
FACTS AND PROCEDURAL HISTORY
Yoko Dominguez sued Washington Mutual Bank (WaMu) and WaMu employee Javier Gutierrez for violating the California Fair Employment and Housing Act (FEHA; Gov. Code, § 12900 et seq.), alleging that she had been harassed by Gutierrez and eventually fired from her job at WaMu because she was a lesbian. (Gov. Code, § 12940.) 2 Dominguez began working at WaMu in March 2002 as a temporary employee assigned to processing outgoing mail. 3 Within two weeks’ time, it became known that she was a lesbian. Soon after, mail services coworker Gutierrez began making crude and offensive comments to Dominguez relating to her sexual orientation. 4 These included asking about her favorite sexual position, whether she liked giving or getting oral sex, and whether she was the “stud” with her girlfriend. Gutierrez also called her “macho,” told her she needed a man, and said she would turn a female coworker into a lesbian.
Russell Rough was the direct supervisor of both Dominguez and Gutierrez. Instead of complaining to Rough about Gutierrez’s conduct, sometime in late April 2002, Dominguez went to Rough’s supervisor, Shelly Ferrel, who was also a lesbian. In addition to describing some of the statements Gutierrez made about her, Dominguez also told Ferrel about comments Gutierrez made
Gutierrez then stopped making the offensive comments but began interfering with Dominguez’s work by several means: throwing balls of paper that would jam up the wheels of her pallet jack; stacking heavy boxes in areas that blocked her access to various workstations; and by telling her that he had no mail to send, then later changing his mind after she had prepared all the other mail for distribution, forcing her to re-sort the mail and revise her written report about her work output. Gutierrez also began to whistle an offensive tune whenever he walked by Dominguez. According to Dominguez, the tune was widely known in Mexico as the melodic accompaniment for the Spanish phrase, “Chinga tu madre, cabrón.” 5 Dominguez testified that “chinga tu madre” means “go fuck your mother,” while “cabrón” is a term commonly used to insult men.
In May 2002, Dominguez complained again to Ferrel about Gutierrez’s conduct. Although she did not mention the whistling incidents, she told Ferrel how Gutierrez was interfering with her ability to do her job. She also told Ferrel that she had overheard Gutierrez say, “Fucking lesbian asshole. I am going to fuck her.” According to Dominguez, Ferrel told her it was “obvious that [Rough was] not doing his job” and promised to talk to Rough again about Gutierrez’s behavior. However, Gutierrez continued to interfere with Dominguez’s work and whistle the offensive tune. Between May and August 2002 Dominguez complained to Rough at least 12 times about the work interference issue, but with no effect. In fact, in July of 2002, Dominguez was assigned to work directly with Gutierrez. According to Rough, he might have given Gutierrez verbal warnings, but he never gave Gutierrez a written warning about his conduct.
According to the deposition testimony of Rough and Ferrel, Dominguez was an excellent worker with a great attitude. Sometime in August 2002, Rough asked Dominguez if she wanted to become a permanent WaMu employee and when she answered yes told her to apply for the job. She did so, but two days later, on August 23, 2002, was fired because Rough and Ferrel claimed she was frequently late for work. On August 8, 2003, Dominguez filed an administrative complaint for sexual orientation discrimination with the state Department of Fair Employment and Housing (DFEH). When the DFEH issued her a right-to-sue letter, Dominguez sued WaMu and Gutierrez. Although the complaint listed only one cause of action, it expressly
WaMu moved for summary judgment on three primary grounds: (1) Dominguez did not file the mandatory administrative complaint with the DFEH within one year of the last discriminatory act, meaning she failed to timely exhaust her administrative remedies (§ 12960, subd. (d)); (2) she could not show that WaMu knew or had reason to know what Gutierrez was doing; (3) Gutierrez’s conduct was not bad enough to constitute unlawful harassment and discrimination; and (4) WaMu fired Dominguez for a legitimate reason based on her frequent tardiness.
The trial court granted WaMu’s motion. Underlying its ruling was the finding that Gutierrez’s misconduct as it related to Dominguez’s sexual orientation ended sometime in May 2002 when he stopped making his offensive comments. His conduct after that time—interfering with Dominguez’s work and whistling the offensive tune—was so different and unrelated in nature, the court found, that it did not extend the limitations period under the so-called continuing violation doctrine. 6 The court also found that Dominguez had no evidence to rebut WaMu’s claim that it fired her for a legitimate, nondiscriminatory reason due to her tardiness.
Soon after, Gutierrez brought his own summary judgment motion on two of the same grounds: (1) Dominguez’s action was barred because she did not file a DFEH complaint until August 8, 2003; and (2) his alleged misconduct was not serious enough or frequent enough to constitute actionable discrimination. The trial court agreed, finding as it had with WaMu’s summary judgment motion that the harassment stopped in May 2002, and that Gutierrez’s alleged actions after that time were too dissimilar to invoke the continuing violation doctrine. The court also found that Gutierrez’s actions after that time were insufficient to constitute a FEHA violation.
STANDARD OF REVIEW
Summary judgment is granted when a moving party establishes the right to the entry of judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) In reviewing an order granting summary judgment, we must assume the role
A defendant moving for summary judgment meets its burden of showing that there is no merit to a cause of action if that party has shown that one or more elements of the cause of action cannot be established or that there is a complete defense to that cause of action. (Code Civ. Proc., § 437c, subds. (c)(2), (p)(2).) If the defendant does so, the burden shifts back to the plaintiff to show that a triable issue of fact exists as to that cause of action or defense. In doing so, the plaintiff cannot rely on the mere allegations in his pleadings, “but, instead, shall set forth the specific facts showing that a triable issue of material fact exists . . . .”
(Id.,
subd. (p)(2).) A triable issue of material fact exists only if the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.
(Santillan v. Roman Catholic Bishop of Fresno, supra,
DISCUSSION
1. Dominguez Offered Sufficient Evidence That She Timely Filed Her DFEH Administrative Complaint
A prerequisite to bringing a civil action under FEHA is the filing of an administrative complaint with DFEH no later than one year after the violation occurred. (§ 12960;
Morgan v. Regents of University of California
(2000)
Dominguez argued below, as she does on appeal, that her DFEH complaint was timely under an equitable exception to the one-year deadline
Respondents contend that in evaluating this issue, we should not consider the “chinga tu madre” tune that Gutierrez whistled, or certain offensive remarks Gutierrez supposedly made to others that the trial court excluded as hearsay. Without reaching the validity of those contentions, we will not factor those matters into our analysis. 7 Accordingly, for purposes of our analysis, once Gutierrez stopped making his offensive remarks in or about May of 2002, all that remained was conduct that respondents characterize as nothing more than Gutierrez’s failure to perform his own job properly, or as “improper mail processing.” This conduct was too dissimilar from the verbal abuse that was expressly based on Dominguez’s sexual orientation, and occurred too sporadically, respondents contend, to qualify as continuing violations. We disagree.
The
Richards
court suggested a flexible approach to determining similarity. The wheelchair-bound plaintiff in
Richards
suffered from multiple sclerosis and asked her employer to make certain accommodations to her condition. Over the course of several years, the employer failed to accommodate her in several ways, including persistently blocking access to hallways and a supply room; not preparing a fire escape plan; and not adjusting the timing of the elevator door to provide access to the lunchroom. Some of these occurred within the limitations period, and some occurred outside of it. In holding that all of this together amounted to a continuous course of conduct for purposes of the continuing violation doctrine, the court said that reasonable accommodation of an employee’s disability is “often an ongoing process rather than a single action. As this case well illustrates, this process may have many facets and take a number of different forms.
As with harassment,
an instance of an employer’s failure to accommodate that in isolation may seem trivial can assume greater significance and constitute a greater injury when viewed as
The plaintiff in
Fielder
was an airline employee who, pursuant to federal antidiscrimination laws, sued United Airlines for sexual harassment and retaliation for having reported the harassment.
8
The federal district court granted summary judgment for the employer in part because it found the plaintiff filed her administrative complaint too late. The Ninth Circuit reversed, holding that a variety of different discriminatory acts that occurred both within and outside of the limitations period constituted a continuing violation. These included reprimanding the plaintiff for escorting her mother onto a flight; refusing her transfer request; refusing to give her required job assistance; and making abusive and insulting comments. The
Fielder
court said that not every incident of discrimination before the limitations period had to be of the same type, so long as there was a corresponding type of discrimination within the period.
(Fielder, supra,
One decision cited by the
Fielder
court for this proposition was
Draper v. Coeur Rochester, Inc.
(9th Cir. 1998)
Because the
Draper
plaintiff described an occurrence “that can be understood only in light of the circumstances that preceded it,” the Ninth Circuit held that the supervisor’s “snide laughter and humiliating response to her allegations of harassment could reasonably have been perceived by her as an act of hostility that was clearly related to the authority he customarily exercised over her and to his prior, as well as his future, discriminatory treatment of her.”
(Draper, supra,
Similar reasoning was applied in
Birschtein v. New United Motor Manufacturing, Inc.
(2001)
With these decisions in mind, we conclude that Dominguez raised triable issues of fact that a continuing violation occurred after Gutierrez stopped his sexual-orientation-themed verbal attacks. Despite respondents’ attempts to minimize Gutierrez’s conduct, Dominguez’s account—which we must accept as true—depicts a months-long, continual campaign to make her work life miserable. This included jamming the wheels of her pallet jack,
WaMu does not address Birschtein, Gutierrez attempts to distinguish that decision because the conduct that occurred within the limitations period in that case—staring at the plaintiff—also occurred outside the limitations period. According to Gutierrez, this is significant because the “same conduct” took place within and without the limitations period. We disagree. As we read Birschtein, Richards, Fielder, and Draper, they do not require that the conduct occurring within the limitations period have occurred outside the limitations period as well. Instead, they focus on whether conduct within the limitations period may be viewed as part of a continuing violation because there is evidence that the former was related to the latter. That is the case here and summary judgment on this ground was therefore improper.
Respondents also contend that no continuing violation occurred because Gutierrez’s conduct was infrequent and trivial, and because it had become permanent when he stopped making offensive comments in May 2002. Dominguez testified at her deposition that Gutierrez was “constantly” blocking her access to her workstation with heavy boxes, that he jammed the wheels of her pallet jack several times from May through August of 2002 as a “campaign to make [her] life impossible at work,” and interfered with her work in other ways during that period. Dominguez complained to Ferrel once about this conduct, and made a dozen such complaints to Rough. Based on this evidence, a trier of fact could find that the harassing conduct was reasonably frequent.
As for “permanency,” it is achieved when the harassing conduct stops, when the employee resigns, or when the employee is on notice that further efforts to end the harassment will be futile.
(Richards, supra,
2. There Was Sufficient Evidence That a FEHA Violation Occurred
In order to prove discrimination under FEHA, Dominguez must show, among other things, that she was subjected to conduct that was so severe and
WaMu also contends there was no evidence that it was ever on notice of Gutierrez’s conduct. (See
Swinton v. Potomac Corp.
(9th Cir. 2001)
3. There Are Triable Fact Issues That WaMu’s Stated Reason for Firing Dominguez Was a Pretext
WaMu was granted summary judgment on the alternative ground that Dominguez failed to raise a triable issue of fact that WaMu’s stated legitimate reason for firing her—habitual tardiness—was a pretext.
(Morgan, supra,
88
The evidence cited in WaMu’s appellate brief is not as clear and undisputed as WaMu contends. Some of the evidence comes from Dominguez’s deposition, where although she admits being five minutes late on July 10, 2002, she explains that changes to her scheduled start time on certain days made it appear that she had been late. The bulk of WaMu’s contention, however, rests on the testimony of Rough, who said he kept track of Dominguez’s lateness in a handwritten log. According to his log entries, Dominguez was late twice in May, twice in June, twice in July, and twice in August, and went missing for 25 minutes on August 13. However, according to Ferrel, the significant factor in firing Dominguez was her tardiness “right there at the end.” This is confirmed by a WaMu employee status report for Dominguez, which quotes Rough as saying she was let go on August 23, 2002, because she had been late the last two days.
However, according to Dominguez, on August 21, 2002, Rough sent her to fill out an application for full-time employment with WaMu. If so, then it is reasonable to infer that any and all tardiness from before that date was unimportant to WaMu and had no bearing on the decision to fire her two days later. Furthermore, even though Dominguez admitted in her deposition that she was late a few times, she attributed that to sleeplessness caused by Gutierrez’s conduct. As for the rest, between her deposition testimony and entries from her diary that were included in the record, she flatly denied being late and in fact accused Rough of lying or otherwise engineering things to make it appear as if she had been late. This clearly raises an evidentiary conflict that should have precluded the summary judgment.
Finally, WaMu contends an inference of pretext cannot arise because there was too long a time gap between Dominguez’s complaint to Ferrel and the decision to fire her, and because it makes no sense to believe she was asked to apply for full-time work if she were the victim of discrimination. As our previous discussions show, there was little or no gap between Dominguez’s many complaints to Rough and the decision to fire her. As for Rough having asked Dominguez to apply for full-time work, it is arguable that Rough did so
4. The Punitive Damages Claim Against WaMu
The trial court ruled that summary judgment was proper as to Dominguez’s punitive damages claim against WaMu because Dominguez’s underlying claims had each failed. WaMu asks us to summarily adjudicate the punitive damages claim on another ground raised below—that there was no evidence that Rough or Ferrel were its managing agents. (Code Civ. Proc., § 437c, subd. (f)(1) [summary adjudication proper as to punitive damages claims];
California School of Culinary Arts v. Lujan
(2003)
5. The Retaliation Claim Against Gutierrez Was Improper
One aspect of Dominguez’s three-part cause of action was a retaliation claim against Gutierrez. However, retaliation claims are proper against an employer only, not against individual employees.
(Jones
v.
The Lodge at Torrey Pines Partnership
(2008)
DISPOSITION
For the reasons set forth above, the summary judgments entered for WaMu and Gutierrez are reversed. The matter is remanded to the superior court with directions to enter a new order granting Gutierrez summary adjudication of
Flier, J., and Bigelow, J., concurred.
Notes
We consolidated the two appeals for purposes of argument and decision.
All further undesignated section references are to the Government Code. We will sometimes refer to WaMu and Gutierrez collectively as respondents.
Dominguez obtained her WaMu job through Adecco, an employment agency for temporary workers. She submitted her timecards to, and received her paychecks from, Adecco. Although WaMu contends that Dominguez was Adecco’s employee, it does not dispute that it was subject to FEHA in regard to its treatment of Dominguez.
At least for purposes of their separate summary judgment motions, neither WaMu nor Gutierrez has chosen to dispute Dominguez’s version of these comments.
As best we can determine from the record and the parties’ briefs, the tune was the seven-note refrain commonly associated in the United States with the musical phrase, “Shave and a haircut, two bits.”
We discuss this doctrine, post.
WaMu contends that evidence of the “chinga tu madre” tune was not admissible because Dominguez never complained to Ferrel or Rough about that and because it requires expert evidence to establish the meaning of foreign language terms and phrases. The trial court sustained its objection to that evidence.
Because FEHA is considered a counterpart of the federal antidiscrimination statute (42 U.S.C. § 2000e et seq.), federal decisions construing the latter may be relied on when interpreting FEHA.
(Richards, supra,
The record is confused about when this meeting with Ferrel took place. Although Dominguez was asked about this at deposition in regard to a supposed August 2002 meeting with Ferrel, she is very clear elsewhere in her testimony that she met with Ferrel only twice, in April and May 2002. Under the summary judgment standard of review, we infer that Dominguez made that statement to Ferrel in May 2002.
Although some of the evidence we have relied on was not included in Dominguez’s opposition separate statement of disputed fact, it was in the record before the trial court and we exercise our discretion to consider it.
(San Diego Watercrafts, Inc. v. Wells Fargo Bank
(2002)
WaMu contends that discrimination was highly unlikely given that Ferrel was also a lesbian. However, Ferrel appears to have relied heavily on what Rough was telling her. Dominguez testified that Rough began treating her unfairly after learning she was a lesbian. Combined with the evidence that Rough was essentially falsifying Dominguez’s tardiness, an inference arises that Rough was deceiving Ferrel about that issue.