WAN TIN, Plaintiff and Appellant, v. BANK OF AMERICA, NATIONAL ASSOCIATION et al., Defendants and Respondents.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
* * * * * *
Plaintiff and appellant Wan “Winnie” Tin 1 appeals from the trial court's summary judgment in favor of defendants and respondents Bank of America, National Association (the bank) and Richard Duncan (collectively respondents) on her claims for sexual harassment, discrimination on the basis of sex, race and national origin, retaliation, and wrongful termination in violation of public policy. We affirm the summary judgment. We find that appellant's sexual harassment and discrimination claims are time-barred, that her retaliation claim fails as a matter of law, and that she has not created a triable issue of fact as to her wrongful termination claim.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant is from mainland China and joined the bank as a personal banker in its Temple City branch on April 4, 2001. Throughout her employment, appellant received copies of the bank's Associate Handbook. It is undisputed that appellant understood from the handbook that she was to: (1) avoid all circumstances that could produce any conflicts of interest or the appearance of any conflicts of interest; (2) respect the confidentiality of information obtained in the course of business, including information related to the financial affairs of customers, and that she was to keep information concerning accounts or customers confidential; (3) not look up information on company records for anything other than a business need; (4) not engage in conduct unbecoming an associate, which would include inappropriately yelling at or threatening another employee; and (5) treat employees in a professional, nonabusive and nonthreatening manner.
Appellant also received copies of the bank's Sexual Harassment and Discrimination Policy, which instructed employees to immediately report any harassment and provided several avenues for doing so, including a toll free number. Appellant did not use any of the bank's procedures for reporting harassment or discrimination during her employment with the bank.
In August 2002, appellant became a loan officer in the bank's consumer real estate division, working under David McLaughlin in the Glendale Mortgage Sales Office. Later, during her deposition in this case, appellant identified three alleged incidents of sexual harassment by McLaughlin: (1) In October 2002, while McLaughlin was driving appellant to see clients, he put his hand on her thigh and told her that he wanted to have an Asian girlfriend, to which appellant responded only that she already had a boyfriend; (2) on one occasion in 2003, McLaughlin told “sexual jokes” in the presence of appellant and at least one other female employee, but appellant could not recall what he said; and (3) on one other occasion in 2003, McLaughlin said to appellant, “beautiful pink suit. I believe the underwear must match with the color,” to which appellant responded “you make me so embarrassed,” and walked away. Appellant never reported any of these alleged incidents of sexual harassment to anyone at the bank.
In October 2003, appellant transferred to the bank's Arcadia branch. She testified that she made the transfer because she did not like the way McLaughlin treated her; when she had any questions, she could not reach McLaughlin “because normally we don't see him in the sales office”; and she wanted to work in a Chinese community because most of her clients were Chinese.
A few months before her transfer to the Arcadia office, appellant applied for the position of sales manager in the Arcadia branch, but was not selected. Instead, the bank hired Oscar Merino, who had ten years' experience in the mortgage industry and prior experience as a manager at IndyMac Bank, where he was responsible for maintaining that bank's retail lending program. In contrast, appellant had only been a loan officer in the real estate mortgage industry for about seven months and had no management experience in the real estate industry. Appellant testified that she was not upset that Merino was hired for this position instead of her.
After appellant transferred to the Arcadia branch, she developed a hostile working relationship with a coworker, Cynthia Young,2 who was the sales assistant in that office and in a subordinate position to appellant. Appellant believed that Young and Merino were having a romantic relationship, though she admitted that she never observed them holding hands, kissing or otherwise interacting in a romantic manner. Appellant admitted that she and Young had multiple disagreements, generally over relatively minor office matters. Appellant tried to involve her coworkers in her disputes with Young by getting them to take her side, which resulted in complaints to management about appellant's behavior.
By July 2004, Merino had left the bank and was replaced as the Arcadia branch manager by Ann Watson. In August 2004, Watson and respondent Richard Duncan, who was Watson's supervisor and the regional manager, met with appellant and Young and instructed them to treat each other professionally, to avoid conflicts, and to let Duncan know if there were any more problems. Young later reported to the bank's regional office that appellant had physically threatened her. On August 25, 2004, Watson met with appellant, who denied physically threatening Young, became upset and yelled at Watson. After consulting with the bank's personnel department, on August 30, 2004, Watson gave appellant a written warning outlining her inappropriate conduct towards Young and others in the Arcadia office. Appellant admitted that she understood that she had to comply with the warning and the bank's policies and that any failure to do so could result in further disciplinary action, including termination of employment.
On October 6, 2004, appellant and Young had another altercation. According to appellant, she asked Young to have the air conditioner fixed, to which Young responded, “Don't push me.” Appellant then told Young, “I'm not afraid of you․ Do whatever you want.” Appellant claimed that Young lunged toward her, and appellant called 911. The police, and later Watson, interviewed appellant, Young, and the only other employee who witnessed the incident, and everyone agreed that appellant had instigated Young, but that Young should not have responded as she did. Young was given a written warning as a result of the incident. The police report described the incident as a “verbal” assault.
On November 3, 2004, another sales assistant sent Watson an e-mail reporting that appellant had called her twice “trying to get personal information regarding our pay and job responsibilities, she even offered to give me [Young's] SS # to check how much she is paid and went on complaining about her.” That same week another employee told Watson that she had seen appellant accessing the bank's customer service computer system to obtain Young's account information. On November 4, 2004, Watson asked appellant if she had accessed Young's account information. According to Watson, appellant admitted that she had, and then complained that Young's pay was higher than that of other sales assistants.
Watson then discussed appellant's misconduct with Duncan and the bank's personnel department. Everyone agreed that appellant should be terminated for violating the bank's policy prohibiting employees from accessing account information for nonbusiness reasons and for violating the terms of her written warning. On November 5, 2004, Watson and Duncan met with appellant and advised her that her employment was being terminated because she had accessed Young's account information without authorization for nonbusiness reasons. Watson and Duncan both stated in their declarations in support of the summary judgment motion that appellant admitted having done so.
After she was terminated, appellant placed several calls to Duncan's cell phone, asking him to provide a letter of reference. He advised her of the bank's policy for verifying employment through the personnel department. Appellant called him around 10 times one evening demanding a letter of reference. He reported this conduct to the bank's personnel department, and contacted the local police, but decided not to press charges.3
On October 5, 2005, appellant filed an administrative complaint with the California Department of Fair Employment and Housing (DFEH), claiming that she had been fired due to her sex, race and national origin and in retaliation for “protesting.” She requested and received an immediate right to sue letter issued on October 17, 2005.
On October 12, 2006, appellant filed a complaint against respondents, alleging claims for sexual harassment, discrimination on the basis of sex, race and national origin, retaliation, and wrongful termination.4 After appellant was twice ordered to appear for her deposition, she testified that she had been sexually harassed by McLaughlin, as discussed above. At her deposition, appellant identified the following three allegedly harassing incidents after her transfer to the Arcadia office: (1) In May or June 2004, Merino said that appellant's son's eye color was the same as his, and “maybe he's my kid,” to which appellant responded, “you are silly”; (2) sometime before June 2004, a coworker, Alex Wang, referred to appellant as his girlfriend; and (3) Merino's romantic or “paramour” relationship with Young.
Appellant admitted that she never complained to anyone at the bank about the first two incidents. Indeed, she considered Wang such a close friend that she trusted him to fly alone with her 10-month-old son to China to deliver him to her parents. Two or three weeks after she complained that Merino was dating Young, Merino was replaced by Watson.
Appellant also admitted that she never complained to anyone at the bank that she felt she was being discriminated against by Watson or anyone else. At her deposition, she testified that she was discriminated against solely by McLaughlin and Watson, and identified the following three alleged incidents of discrimination: (1) In October 2002, McLaughlin said that he wanted an Asian girlfriend; (2) McLaughlin commented that appellant did not “understand the culture” when she was not hired for the sales manager position, though appellant testified “Maybe I don't, who knows”; and (3) in August 2004, Watson commented that appellant was not from this country and cared only about making money, to which appellant made no response.
Respondents moved for summary judgment on the grounds that appellant's sexual harassment and discrimination claims were time-barred and that she had failed to make a prima facie showing of harassment, discrimination, retaliation or wrongful termination. Respondents relied primarily on appellant's deposition testimony and the declarations of Watson and Duncan. Appellant opposed the motion, relying largely on her 31-page declaration and attached exhibits, to which respondents filed objections that were never addressed by the trial court.
After taking the matter under submission, the trial court granted summary judgment in favor of respondents. The court found that appellant's sexual harassment and discrimination claims were time-barred, that no paramour relationship existed as a matter of law, that appellant failed to establish that any disparate treatment toward her was based on sex, race or national origin, that respondents had legitimate reasons for appellant's termination, and that she failed to establish these reasons were pretextual. Judgment was entered on October 28, 2008. Prior to entry of judgment, appellant, apparently acting in propria persona, filed a motion for reconsideration, which was denied. This appeal followed.
I. Jurisdiction to Consider Appeal.
We decide as a preliminary matter whether this court has jurisdiction to consider this appeal.
The notice of appeal indicates that appellant is appealing from “[a]n order after judgment,” and mentions the motion for reconsideration. An order denying a motion for reconsideration is a nonappealable order. (Association for Los Angeles Deputy Sheriffs v. County of Los Angeles (2008) 166 Cal.App.4th 1625, 1633 [“the prevailing view among our appellate courts has been that an order denying a motion for reconsideration is not an appealable order under any circumstances”]; Annette F. v. Sharon S. (2005) 130 Cal.App.4th 1448, 1458 [“[W]e are persuaded by the reasoning of the majority of recent cases that have concluded orders denying motions for reconsideration are not appealable”].)
Although the notice of appeal is therefore in error, we do not believe that the error is fatal to the appeal. Notices of appeal are to be liberally construed in favor of their sufficiency, and errors are overlooked so long as it is reasonably clear what appellant was trying to appeal from, and the respondent could not possibly have been misled or prejudiced by the error. (See Walker v. Los Angeles County Metropolitan Transportation Authority (2005) 35 Cal.4th 15, 20-22 [notice of appeal from unappealable order denying new trial should be liberally construed to encompass appeal from underlying judgment, where no prejudice to respondent].) If the underlying order was independently appealable, we would not be able to review it on its merits unless the notice of appeal was timely filed as to that order. (See Crotty v. Trader (1996) 50 Cal.App.4th 765, 768-769.)
The underlying summary judgment in this case was entered on October 28, 2008. It does not appear from the record that any notice of entry of judgment was served. Appellant therefore had 180 days in which to file a notice of appeal from the underlying summary judgment. (Cal. Rules of Court, rule 8.104(a)(3).) Appellant's notice of appeal filed on March 26, 2009 was therefore timely. Because respondents do not claim that they were prejudiced by the defective notice of appeal or that it was unclear that appellant was appealing from the summary judgment, we construe the notice of appeal as an appeal from the underlying summary judgment.
II. Standard of Review.
We review a grant of summary judgment de novo, considering “ ‘all of the evidence set forth in the [supporting and opposition] papers, except that to which objections have been made and sustained by the court, and all [uncontradicted] inferences reasonably deducible from the evidence.’ ” (Artiglio v. Corning Inc. (1998) 18 Cal.4th 604, 612.) “In independently reviewing a motion for summary judgment, we apply the same three-step analysis used by the superior court. We identify the issues framed by the pleadings, determine whether the moving party has negated the opponent's claims, and determine whether the opposition has demonstrated the existence of a triable, material factual issue.” (Silva v. Lucky Stores, Inc. (1998) 65 Cal.App.4th 256, 261.) If there is no triable issue of material fact, “we affirm the summary judgment if it is correct on any legal ground applicable to this case, whether that ground was the legal theory adopted by the trial court or not, and whether it was raised by defendant in the trial court or first addressed on appeal.” (Jordan v. Allstate Ins. Co. (2007) 148 Cal.App.4th 1062, 1071.)
The general rule is that summary judgment is appropriate where “all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law․” (Code Civ. Proc., § 437c, subd. (c).) A defendant “moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) The moving defendant may meet this burden either by showing that one or more elements of a cause of action cannot be established or by showing that there is a complete defense thereto. (Code Civ. Proc., § 437c, subd. (o)(2); Aguilar v. Atlantic Richfield Co., supra, at p. 850.) “ ‘[A]ll that the defendant need do is to show that the plaintiff cannot establish at least one element of the cause of action ․ [;] the defendant need not himself conclusively negate any such element․’ [Citation.]” (Mills v. U.S. Bank (2008) 166 Cal.App.4th 871, 894.) Once the moving party's burden is met, the burden shifts to the plaintiff to demonstrate the existence of a triable issue of material fact. (Silva v. Lucky Stores, Inc., supra, 65 Cal.App.4th at p. 261.) The plaintiff must produce “substantial” responsive evidence sufficient to establish a triable issue of fact. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 163.) “[R]esponsive evidence that gives rise to no more than mere speculation cannot be regarded as substantial, and is insufficient to establish a triable issue of material fact.” (Ibid.) “ ‘ “When opposition to a motion for summary judgment is based on inferences, those inferences must be reasonably deducible from the evidence, and not such as are derived from speculation, conjecture, imagination, or guesswork.” ’ [Citation.]” (Mills v. U.S. Bank, supra, at p. 894.)
III. The Sexual Harassment and Discrimination Claims Are Time-Barred.
A party claiming discrimination or harassment in violation of FEHA must file an administrative complaint with the DFEH within one year of the date that the alleged discriminatory or harassing conduct occurred. (Gov.Code, § 12960, subd. (d).) Appellant filed her administrative complaint with the DFEH on October 5, 2005.
With respect to her sexual harassment claim, during her deposition appellant identified three alleged incidents of sexual harassment by McLaughlin: (1) In October 2002, McLaughlin put his hand on her thigh and told her that he wanted to have an Asian girlfriend; (2) on one occasion in 2003, McLaughlin told “sexual jokes” in the presence of appellant and at least one other female employee; and (3) on one other occasion in 2003, McLaughlin told appellant her pink suit was beautiful and that he guessed her underwear was the same color. Each of these alleged incidents occurred while appellant was still under McLaughlin's management in the Glendale office. Appellant has admitted that there were no more incidents of harassment by McLaughlin after she transferred to the Arcadia office in October 2003, which was two years before she filed her DFEH complaint.
When asked at her deposition whether she suffered any harassing conduct after her transfer to the Arcadia office, appellant identified three more alleged incidents: (1) In May or June 2004, Merino commented that appellant's son might be his because they had the same eye color; (2) sometime between March and June 2004, appellant's coworker Alex Wang referred to her as his girlfriend; and (3) Merino's romantic relationship with Young. But the latest of these alleged harassing events (the alleged paramour relationship between Merino and Young) would have necessarily ended in or about July 2004, when Merino left the bank. All of these alleged incidents occurred more than one year before appellant filed her administrative complaint with the DFEH in October 2005.
With respect to her discrimination claims, appellant testified at her deposition that she had been discriminated against by McLaughlin and Watson, and identified three alleged incidents of discrimination: (1) In October 2002, McLaughlin said he wanted an Asian girlfriend; (2) when appellant was not hired for the sales manager position in 2003, McLaughlin commented that appellant did not understand the culture; and (3) in August 2004, Watson said that appellant was not from this country and cared only about making money. Again, each of these alleged discriminatory incidents occurred no later than August 2004, which was more than one year before appellant filed her administrative complaint with the DFEH.
While appellant concedes that “some” of the allegedly wrongful conduct falls outside the one-year statute of limitations, she argues that her claims are still actionable under the “continuing violation” doctrine. We disagree.
“A complaint arising under FEHA is timely if any of the discriminatory practices continues into the limitations period.” (Accardi v. Superior Court (1993) 17 Cal.App.4th 341, 349.) Our Supreme Court has recognized that there may be a continuing violation if an employer's unlawful actions are (1) sufficiently similar in kind; (2) have occurred with reasonable frequency; (3) and have not acquired a degree of permanence such that it would be clear to a reasonable employee that any further effort to end the alleged harassment would be futile. There were no facts to support such a situation here. (Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798, 823.)
The only wrongful conduct that appellant identifies in her opening brief as having continued into the limitations period is her allegation that after transferring to the Arcadia office she was forced to witness an inappropriate romantic or “paramour” relationship between her branch manager Merino, and her subordinate coworker Young, who allegedly received preferential treatment as a result of sexual favors. A claim based on a paramour relationship exists when the employee demonstrates that “widespread sexual favoritism was severe or pervasive enough to alter his or her working conditions and create a hostile work environment.” (Miller v. Department of Corrections, supra, 36 Cal.4th at p. 466.) Even if appellant could prove such a claim, Merino's employment with the bank ended in July 2004 when he resigned and was replaced as branch manager by Watson, a female. Thus, any alleged paramour relationship and its ability to adversely affect appellant's employment also ended at that time, more than a year before appellant filed her administrative complaint.
Under FEHA, appellant's failure to timely exhaust her administrative remedy was a jurisdictional, not procedural, defect that required summary judgment be entered against appellant on her FEHA claims for sexual harassment and discrimination. (Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal.App.4th 1718, 1724.)
IV. Appellant's Retaliation Claim Fails as a Matter of Law.
FEHA makes it unlawful “[f]or any employer ․ to discharge, expel, or otherwise discriminate against any person [ (1) ] because the person has opposed any practices forbidden under this [Act] or [ (2) ] because the person has filed a complaint, testified, or assisted in any proceeding under this [Act].” (Gov.Code, § 12940, subd. (h).) (Sada v. Robert F. Kennedy Medical Center (1997) 56 Cal.App.4th 138, 155.) To establish a prima facie case of retaliation, a plaintiff must show that she engaged in a protected activity, she was thereafter subjected to adverse employment action by her employer, and there was a causal link between the two. (Addy v. Bliss & Glennon (1996) 44 Cal.App.4th 205, 217.)
In her complaint and in her written opposition to the summary judgment motion, appellant took the position that she was terminated in retaliation for complaining about sexual harassment and discrimination on the basis of sex, race and national origin. But the evidence is undisputed that appellant never reported a single incident of sexual harassment or discrimination to her employer. The only conduct that appellant did report was insubordination by Young. Appellant complained to Watson in August and September 2004 that Young was uncooperative, rude, difficult to work with, late to work, and failed to take directions. But these complaints do not involve FEHA-covered claims of sexual harassment or discrimination. Indeed, like appellant, Young is Chinese and female. Thus, appellant cannot meet her initial burden of establishing that she engaged in protected activity.
On appeal, appellant claims that she was terminated in retaliation for engaging in the protected activity of filing a police report.5 She argues that such action is protected under Labor Code section 1102.5, subdivision (b), which provides: “An employer may not retaliate against an employee for disclosing information to a government or law enforcement agency, where the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation or noncompliance with a state or federal rule or regulation.”
Appellant concedes that Labor Code section 1102.5 is a “whistle-blower” statute and that its purpose is to “encourag[e] workplace whistle-blowers to report unlawful acts without fearing retaliation․” (Green v. Ralee Engineering Co. (1998) 19 Cal.4th 66, 77.) An uncodified preamble to a 2003 amendment to Labor Code section 1102.5 provides: “ ‘The Legislature finds and declares that unlawful activities of private corporations may result in damages not only to the corporation and its shareholders and investors, but also to employees of the corporation and the public at large. The damages caused by unlawful activities may be prevented by the early detection of corporate wrongdoing. The employees of a corporation are in a unique position to report corporate wrongdoing to an appropriate government or law enforcement agency. [¶] The Legislature finds and declares that it is the public policy of the State of California to encourage employees to notify an appropriate government or law enforcement agency when they have reason to believe their employer is violating laws enacted for the protection of corporate shareholders, investors, employees, and the general public.’ ” (Italics added.) (Stats.2003, ch. 484, § 1; see generally Carter v. California Dept. of Veterans Affairs (2006) 38 Cal.4th 914, 925 [an uncodified section is part of the statutory law and may be used as an aid in construing a statute].) 6
Here, appellant did not report any wrongdoing on the part of her corporate employer to the police. Rather, she called the police because she believed a coworker was about to physically assault her in her place of employment. Appellant argues that “there is nothing to prevent this statute from applying to situations where employees report workplace violence to local law enforcement,” but she cites to no authority to support her argument.
Because appellant cannot establish that she engaged in any protected activity, her retaliation claim fails as a matter of law.
V. Appellant Cannot Establish Wrongful Termination in Violation of Public Policy.
A claim for wrongful termination in violation of public policy requires that the policy satisfies four elements: “ ‘ “First, the policy must be supported by either constitutional or statutory provisions. Second, the policy must be ‘public’ in the sense that it ‘inures to the benefit of the public’ rather than serving merely the interests of the individual. Third, the policy must have been articulated at the time of the discharge. Fourth, the policy must be ‘fundamental’ and ‘substantial.’ ” ' [Citation.]” (Franklin v. The Monadnock Co. (2007) 151 Cal.App.4th 252, 258.)
Appellant argues that her claim for wrongful discharge is based on two statutory provisions: Labor Code sections 1102.5 and 6400. We have already determined that section 1102.5 is unavailing here. Likewise, we find Labor Code section 6400 to be unavailing.
Labor Code section 6400, subdivision (a) provides: “Every employer shall furnish employment and a place of employment that is safe and healthful for the employees therein.” 7 While the language of section 6400 focuses on occupational injury, appellant is correct that it can include an employer's duty to adequately address potential workplace violence. (City of Palo Alto v. Service Employees Internat. Union (1999) 77 Cal.App.4th 327, 337.) But the evidence here shows that appellant never complained to her employer prior to calling the police that Young had physically threatened her; she had only complained about Young's insubordination. To the contrary, the evidence shows that Young had previously reported to regional management that appellant had physically threatened her. There is no evidence that the bank had notice that appellant believed she was working in an unsafe environment. Both Watson and Duncan stated in their declarations in support of the summary judgment motion that following the police report, Young, not appellant, was given a written warning. Although appellant states in her declaration in opposition to the summary judgment motion that Watson and Duncan “faulted” her for calling the police, she does not explain this statement.
Moreover, nearly a month after the incident in which appellant called the police, an employee complained to Watson that appellant was trying to access Young's confidential information and another employee told Watson that she had seen appellant using the bank's customer service computer system to obtain Young's confidential account information. Watson and Duncan explained to appellant that this was the reason she was being terminated. In short, appellant has failed to provide substantial evidence that she was wrongfully terminated in violation of public policy.
VI. The Trial Court Did Not Violate Code of Civil Procedure Section 437c(g).
Appellant contends that the judgment must be reversed because the trial court failed to comply with the requirement of Code of Civil Procedure section 437c, subdivision (g), that “Upon the grant of a motion for summary judgment, on the ground that there is no triable issue of material fact, the court shall, by written or oral order, specify the reasons for its determination. The order shall specifically refer to the evidence proffered in support of, and if applicable in opposition to, the motion which indicates that no triable issue exists. The court shall also state its reasons for any other determination.”
Appellant's contention is wholly without merit. The trial court's minute order set forth its reasoning, and cited to both the factual record and legal authority. Even if a trial court fails to perform this statutory duty, reversal is not automatically required. (Ruoff v. Harbor Creek Community Assn. (1992) 10 Cal.App.4th 1624, 1627.) The de novo standard for appellate review of an order granting summary judgment frequently means the lack of a proper order constitutes harmless error. (Soto v. State of California (1997) 56 Cal.App.4th 196, 199 [“The lack of a statement of reasons presents no harm where ․ independent review establishes the validity of the judgment”].)
The summary judgment is affirmed. Respondents are awarded their costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
FN1. Appellant's legal name is Wan Tin, but she goes by the name of Winnie Tin.. FN1. Appellant's legal name is Wan Tin, but she goes by the name of Winnie Tin.
FN2. In her declaration in opposition to the summary judgment motion, appellant refers to Young as “Asian American.” Young's later supervisor, Ann Watson, refers to Young as “Chinese” in her declaration in support of the motion.. FN2. In her declaration in opposition to the summary judgment motion, appellant refers to Young as “Asian American.” Young's later supervisor, Ann Watson, refers to Young as “Chinese” in her declaration in support of the motion.
FN3. Appellant admitted that restraining orders have been issued against her for making harassing telephone calls, including one obtained by a sitting Superior Court judge whom appellant had been dating. She also admitted that she was under criminal indictment for violating that restraining order. Because that judge's courtroom was adjacent to that of the judge assigned to appellant's instant case, the judge recused herself.. FN3. Appellant admitted that restraining orders have been issued against her for making harassing telephone calls, including one obtained by a sitting Superior Court judge whom appellant had been dating. She also admitted that she was under criminal indictment for violating that restraining order. Because that judge's courtroom was adjacent to that of the judge assigned to appellant's instant case, the judge recused herself.
FN4. Although appellant's complaint combines her claims for sexual harassment and sexual discrimination under a single cause of action, such claims are distinct causes of action, each arising from different provisions of the Fair Employment and Housing Act (FEHA) (Gov.Code, § 12900, et seq.). (Miller v. Department of Corrections (2005) 36 Cal.4th 446, 460-461, fn. 5.) Except for her harassment claim, appellant did not present any evidence that she was discriminated against based on her sex.. FN4. Although appellant's complaint combines her claims for sexual harassment and sexual discrimination under a single cause of action, such claims are distinct causes of action, each arising from different provisions of the Fair Employment and Housing Act (FEHA) (Gov.Code, § 12900, et seq.). (Miller v. Department of Corrections (2005) 36 Cal.4th 446, 460-461, fn. 5.) Except for her harassment claim, appellant did not present any evidence that she was discriminated against based on her sex.
FN5. Although respondents claim this is a “new” theory raised by appellant for the first time on appeal, we note that appellant's complaint did allege this theory, and that her attorney briefly raised it at the hearing on the summary judgment motion.. FN5. Although respondents claim this is a “new” theory raised by appellant for the first time on appeal, we note that appellant's complaint did allege this theory, and that her attorney briefly raised it at the hearing on the summary judgment motion.
FN6. Labor Code section 1102.5 was amended in 2003 “to add a number of whistleblower-related provisions and additional penalties.” (Campbell v. Regents of University of California (2005) 35 Cal.4th 311, 329, fn. 5; Stats.2003, ch. 484, §§ 2, 7.). FN6. Labor Code section 1102.5 was amended in 2003 “to add a number of whistleblower-related provisions and additional penalties.” (Campbell v. Regents of University of California (2005) 35 Cal.4th 311, 329, fn. 5; Stats.2003, ch. 484, §§ 2, 7.)
FN7. In her complaint, appellant cited instead to Labor Code section 6310. Subdivision (a) of section 6310 provides that “No person shall discharge or in any manner discriminate against any employee because the employee has done any of the following: [¶] (1) Made any oral or written complaint to the division, other governmental agencies having statutory responsibility for or assisting the division with reference to employee safety or health, his or her employer, or his or her representative.”. FN7. In her complaint, appellant cited instead to Labor Code section 6310. Subdivision (a) of section 6310 provides that “No person shall discharge or in any manner discriminate against any employee because the employee has done any of the following: [¶] (1) Made any oral or written complaint to the division, other governmental agencies having statutory responsibility for or assisting the division with reference to employee safety or health, his or her employer, or his or her representative.”
_, J. _, J. ASHMANN-GERST CHAVEZ