• Trial Court Erred In Granting Judgment To Employer In Sexual Orientation Discrimination Lawsuit Because Employee Alleged Facts Sufficient To Show That Her Coworker's Actions Constituted A Continuing Violation And Her Discrimination Complaint Was Timely
  • January 28, 2009 | Author: Bruce A. Scheidt
  • Law Firm: Kronick Moskovitz Tiedemann & Girard, A Law Corporation - Sacramento Office
  • In Dominguez v. Washington Mutual Bank, (--- Cal.Rptr.3d ---, Cal.App. 2 Dist., Nov. 21, 2008), a California Court of Appeal considered whether a trial court erred in granting summary judgment in favor of an employer in an employee’s lawsuit for sexual orientation discrimination where the employee filed her complaint with the Department of Fair Employment and Housing (“DFEH”) more than one year after offensive comments were made by a coworker concerning her sexual orientation but the complaint was filed within one year of when the coworker interfered with her ability to perform her work. The Court of Appeal held that the trial court erred when it granted judgment in favor of the employer because triable issues of fact remain as to whether the employee’s DFEH complaint was timely and whether she exhausted her administrative remedies before filing her lawsuit.

    Yoko Dominguez began working for Washington Mutual Bank (“WaMu”) in March 2002 as a temporary employee. Soon after, it became known that Dominguez was a lesbian, her coworker, Javier Gutierrez began to make crude and offensive comments to her about her sexual orientation. Russell Rough was both workers’ direct supervisor. In late April 2002, Dominguez went to Rough’s supervisor and described the comments and statements Gutierrez was making to and about her. The supervisor promised to talk to Rough about Gutierrez’s behavior. Gutierrez stopped making offensive comments, but he began interfering with Dominguez’s work by jamming the wheels of her pallet jack, blocking her access to work stations by stacking heavy boxes nearby, and telling her that he had no mail to send and then later changing his mind so that Dominguez had to re-sort the mail and revise her written reports.

    Dominguez again complained to Rough’s supervisor in May 2002 that Gutierrez was interfering with her ability to do her job and making comments about her sexual orientation. The supervisor promised to talk to Rough about Gutierrez’s behavior. Rough never gave Gutierrez a written warning about his behavior and Gutierrez continued to interfere with Dominguez’s ability to do her work. Between May and August 2002, Dominguez complained to Rough at least 12 times that Gutierrez was interfering with her work. In August 2002, Rough asked Dominguez to apply for a permanent position at WaMu. Two days later, however, Dominguez was fired because Rough and his supervisor claimed she was frequently late for work.

    Dominguez filed a complaint with the DFEH on August 7, 2003. After DFEH issued her a right-to-sue letter, Dominguez filed a lawsuit against WaMu and Gutierrez claiming violation of the Fair Employment and Housing Act (“FEHA”). The trial court granted WaMu’s and Gutierrez’s motion for summary judgment. The court found the harassment ended in May 2002 when Gutierrez stopped making offensive comments. It further found that Gutierrez’s conduct in interfering with Dominguez’s work “was so different and unrelated in nature . . . that it did not extend the limitations period under the so-called continuing violation doctrine.”

    The Court of Appeal held that the trial court erred in granting summary judgment in favor of WaMu on the ground that Dominguez failed to exhaust her administrative remedies. The trial court found that the harassment ended in May 2002. Dominguez was fired on August 23, 2002, and she filed her complaint with the DFEH on August 8, 2003. “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.” WaMu and Gutierrez argued that Dominguez failed to exhaust her administrative remedies because she did not file her complaint with the DFEH within one year after the harassment ended in May 2002, and therefore, her lawsuit was barred.

    Dominguez asserted the “continuing violation doctrine” should apply to her claim. The continuing violation doctrine is an equitable exception to the one-year deadline, under which “a FEHA complaint is timely if discriminatory practices occurring outside the limitations period continued into that period.” A continuing violation is found to exist where “(1) the conduct occurring within the limitations period is similar in kind to the conduct that falls outside the period; (2) the conduct was reasonably frequent, and (3) it had not yet acquired a degree of permanence.”

    The Court of Appeal held that Dominguez raised triable issues of facts as to each of the three prongs, and therefore, the trial court erred in granting summary judgment in favor of WaMu. A continuing violation can “be shown by a series of related acts so long as there is sufficient evidence to show that those acts are related closely enough to constitute a continuing violation.” Gutierrez’s actions in interfering with Dominguez’s work, which occurred within one year of the filing of the DFEH complaint, were not so dissimilar to his verbal abuse, which occurred outside the one-year period that his actions could not be seen as a continuing violation. The interference with Dominguez’s work must be examined in light of the verbal abuse that occurred prior to Dominguez making a complaint about Gutierrez’s verbal abuse. The court found there was a reasonable inference that Gutierrez’s actions in interfering with Dominguez’s work “was just another way for Gutierrez to harass Dominguez about her sexual orientation without expressly saying so.”

    The court stated that the focus must be 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.” The court found that such was the case here and that summary judgment was improper.

    Also, Dominguez alleged sufficient facts to show that “she was subjected to conduct that was so severe and pervasive that it created a hostile work environment.” Dominguez alleged that the harassing conduct happened on a daily or nearly daily basis and she complained to her supervisor at least 12 times in a three-month period.

    Dominguez also presented sufficient evidence to raise a triable issue of fact as to whether WaMu’s stated reason for firing her (tardiness) was a mere pretext for discrimination. Questions of fact remain as to the frequentness of Dominguez’s tardiness and whether some of the alleged tardiness actually occurred.

    The court did find that summary judgment was properly granted on Dominguez’s claim against Gutierrez for retaliation. “[R]etaliation claims are proper against an employer only, not against individual employees.”

    The Court of Appeal sent the case back to the trial court to allow Dominguez to proceed on her sexual orientation discrimination lawsuit.