Dominguez v. Washington Mutual Bank

Facts

The FEHA conditions the right to sue on timely administrative exhaustion. “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.” (Dominguez v. Washington Mutual Bank (2008) 168 Cal.App.4th 714, 720, citing Gov. Code, § 12960.) An equitable gloss on that deadline — the continuing violation doctrine — makes “a FEHA complaint … timely if discriminatory practices occurring outside the limitations period continued into that period.” (Id. at p. 721.) A continuing violation exists if “(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.” (Ibid., citing Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798, 823.)

Yoko Dominguez began working at Washington Mutual Bank (WaMu) in March 2002 as a temporary employee processing outgoing mail. (Dominguez, supra, 168 Cal.App.4th at p. 717.) She was placed through a temporary-staffing agency, Adecco, but WaMu did not dispute that it was subject to the FEHA as to its treatment of her. (Id. at p. 717, fn. 3.) “Within two weeks’ time, it became known that she was a lesbian.” (Id. at p. 717.)

Soon after, a mail-services coworker, Javier Gutierrez, “began making crude and offensive comments to Dominguez relating to her sexual orientation.” (Dominguez, supra, 168 Cal.App.4th at p. 717.) For purposes of the summary judgment motions, neither defendant disputed her account of the comments. (Id. at p. 717, fn. 4.) Gutierrez asked “about her favorite sexual position, whether she liked giving or getting oral sex, and whether she was the ‘stud’ with her girlfriend,” called her “‘macho,’” told her she “needed a man,” and said “she would turn a female coworker into a lesbian.” (Id. at p. 717.) In late April 2002, rather than complaining to the shared direct supervisor, Russell Rough, Dominguez reported the conduct to Rough’s supervisor, Shelly Ferrel, who was also a lesbian; Ferrel promised to speak to Rough. (Id. at pp. 717–718.)

“Gutierrez then stopped making the offensive comments but began interfering with Dominguez’s work by several means.” (Dominguez, supra, 168 Cal.App.4th at p. 718.) He threw “balls of paper that would jam up the wheels of her pallet jack,” stacked “heavy boxes in areas that blocked her access to various workstations,” and told her “he had no mail to send, then later chang[ed] his mind after she had prepared all the other mail … forcing her to re-sort the mail and revise her written report.” (Ibid.) He also whistled, whenever he passed her, a tune the opinion describes as widely associated in Mexico with a vulgar Spanish phrase; the trial court excluded that evidence, and the Court of Appeal did not factor it into its analysis. (Id. at pp. 718, 721 & fn. 7.)

In May 2002, Dominguez again complained to Ferrel, describing the work interference and reporting that she had overheard Gutierrez say, “‘Fucking lesbian asshole. I am going to fuck her.’” (Dominguez, supra, 168 Cal.App.4th at p. 718.) Ferrel again said she would talk to Rough. (Ibid.) “However, Gutierrez continued to interfere with Dominguez’s work … . Between May and August 2002 Dominguez complained to Rough at least 12 times about the work interference issue, but with no effect,” and in July she was assigned to work directly with Gutierrez. (Ibid.) Rough and Ferrel both described Dominguez as “an excellent worker with a great attitude.” (Ibid.)

In August 2002, Rough invited Dominguez to apply for a permanent WaMu position; she did so, “but two days later, on August 23, 2002, was fired because Rough and Ferrel claimed she was frequently late for work.” (Dominguez, supra, 168 Cal.App.4th at p. 718.) Nearly a year later, “[o]n August 8, 2003, Dominguez filed an administrative complaint for sexual orientation discrimination” with the DFEH, obtained a right-to-sue letter, and sued. (Ibid.) Her single cause of action embedded three FEHA theories: discriminatory discharge (§ 12940, subd. (a)); retaliation for opposing unlawful practices (§ 12940, subd. (h)); and harassment of a person providing services under a contract (§ 12940, subd. (j)(1)). (Id. at pp. 718–719.)

Procedural history

WaMu moved for summary judgment on four grounds: that Dominguez had not filed her DFEH complaint “within one year of the last discriminatory act” and thus failed to timely exhaust (§ 12960, subd. (d)); that WaMu neither knew nor had reason to know of Gutierrez’s conduct; that the conduct was not severe or pervasive enough to be actionable; and that it had fired her for legitimate tardiness. (Dominguez, supra, 168 Cal.App.4th at p. 719.) The trial court granted the motion, 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,” and that his later conduct “was so different and unrelated in nature … that it did not extend the limitations period under the so-called continuing violation doctrine.” (Id. at p. 719.) The court also found no evidence rebutting WaMu’s tardiness explanation. (Ibid.)

Gutierrez separately moved on the same limitations ground and on the contention that his post-May conduct was not serious or frequent enough to be actionable; the trial court agreed on both points. (Dominguez, supra, 168 Cal.App.4th at pp. 719–720.) Dominguez appealed both summary judgments, which Division Eight consolidated. (Id. at pp. 716–717 & fn. 1.) The Court of Appeal reversed, with directions to grant summary adjudication only against Dominguez on her retaliation claim against Gutierrez and on her punitive-damages claim against WaMu, and to deny the motions “in all other aspects.” (Id. at pp. 716–717, 727–728.) The panel was unanimous; there was no dissent. (Id. at p. 728.)

Issue

The dispositive question was timeliness of exhaustion: on summary judgment, did Dominguez raise triable issues of fact that her August 8, 2003 DFEH complaint was timely under the continuing violation doctrine, where the harasser’s explicit sexual-orientation comments stopped in May 2002 — more than one year before filing — but a campaign of facially neutral work interference continued through her August 23, 2002 discharge? Subsidiary issues followed if the action was timely: whether triable issues existed on the severity and pervasiveness of the conduct, on WaMu’s notice, and on whether WaMu’s tardiness rationale was pretextual; and whether the retaliation claim could lie against the individual coworker and the punitive-damages claim against WaMu could survive. (Dominguez, supra, 168 Cal.App.4th at pp. 720–727.)

Holding

Reasoning

The framework: exhaustion, the one-year clock, and the continuing-violation exception. The court began with the statutory prerequisite — a DFEH complaint “no later than one year after the violation occurred” (§ 12960) — and the equitable exception that saves otherwise stale claims. (Dominguez, supra, 168 Cal.App.4th at pp. 720–721.) Drawing the three-factor test verbatim from Richards, the court asked whether the in-period conduct was “similar in kind” to the out-of-period conduct, “reasonably frequent,” and not yet possessed of “a degree of permanence,” and announced its bottom line up front: “Taking each requirement in turn, we conclude Dominguez raised triable issues of fact on all three.” (Id. at pp. 721–722.) The court accepted the defense framing that, once the excluded whistling and certain hearsay remarks were set aside, “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’” — and then disagreed that this defeated the doctrine. (Id. at p. 721.)

Similarity — a “flexible approach” drawn from Richards and Fielder. The court read Richards to teach that “similar kinds of unlawful employer conduct … may take a number of different forms.” (Dominguez, supra, 168 Cal.App.4th at p. 722, quoting Richards, supra, 26 Cal.4th at p. 823.) Because the FEHA “is considered a counterpart of the federal antidiscrimination statute,” the court turned to federal authority, principally Fielder v. UAL Corp. (9th Cir. 2000) 218 F.3d 973, where reprimands, transfer refusals, denial of job assistance, and insults — different acts inside and outside the limitations period — together formed one continuing violation. (Id. at p. 722 & fn. 8.) Fielder held 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,” and that “[a] continuing violation could be shown by a series of related acts.” (Ibid.)

The pivotal analogues: Draper and Birschtein. The court leaned hardest on two cases in which overt sexual harassment had given way to subtler, related conduct. In Draper v. Coeur Rochester, Inc. (9th Cir. 1998) 147 F.3d 1104, the only in-period act was the harasser’s “snide laughter” dismissing the plaintiff’s complaint that she was “digging up old bones”; the Ninth Circuit held that act had to be read “in light of the circumstances that preceded it” and that it could be “perceived … as an act of hostility … clearly related to … his prior, as well as his future, discriminatory treatment of her.” (Dominguez, supra, 168 Cal.App.4th at pp. 722–723.) Birschtein v. New United Motor Manufacturing, Inc. (2001) 92 Cal.App.4th 994 was closer to home: there, after a coworker’s sexual come-ons stopped, he took to staring at the plaintiff several times a day, and the court — “[m]indful of the Richards court’s caution that different types of acts may constitute harassment” — held the staring sufficiently related to the earlier overt harassment to render the DFEH complaint timely. (Id. at p. 723.)

Application to Gutierrez’s campaign. Accepting Dominguez’s account as true on summary judgment, the court found it depicted “a months-long, continual campaign to make her work life miserable,” from which “[a] reasonable inference arises that this was just another way for Gutierrez to harass Dominguez about her sexual orientation without expressly saying so.” (Dominguez, supra, 168 Cal.App.4th at pp. 723–724.) The court pointed to Dominguez’s own contemporaneous characterization — that she told Ferrel “they have found other ways to do their things.” (Id. at p. 724.)

Rejecting Gutierrez’s “same conduct” distinction of Birschtein. Gutierrez argued Birschtein was different because the in-period staring there had also occurred outside the period, so the “‘same conduct’” spanned both. (Dominguez, supra, 168 Cal.App.4th at p. 724.) The court rejected the premise: Birschtein, Richards, Fielder, and Draper “do not require that the conduct occurring within the limitations period have occurred outside the limitations period as well”; 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.” (Ibid.) WaMu, for its part, “does not address Birschtein.” (Ibid.)

Frequency. On the second factor, the court credited deposition testimony that Gutierrez was “‘constantly’” blocking access to her workstation, jammed her pallet jack “several times from May through August of 2002 as a ‘campaign to make [her] life impossible at work,’” and otherwise interfered, prompting one complaint to Ferrel and “a dozen such complaints to Rough.” (Dominguez, supra, 168 Cal.App.4th at p. 724.) “Based on this evidence, a trier of fact could find that the harassing conduct was reasonably frequent.” (Ibid.)

Permanence — the doctrinal heart. The decisive move was the court’s treatment of the third factor. Quoting Richards, the court held that “‘permanency’ … 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.” (Dominguez, supra, 168 Cal.App.4th at p. 724, citing Richards, supra, 26 Cal.4th at p. 823.) Respondents’ permanency argument “is based solely on the notion that Gutierrez’s conduct achieved that status when the offensive comments stopped in May 2002, but ignores the conduct that occurred after that time.” (Ibid.) Because the harassing course of conduct — properly understood to include the later sabotage — had not stopped, Dominguez had not resigned, and a jury could find she was not yet on notice that protest was futile, “there were triable issues of fact on that issue as well.” (Ibid.)

Severity, notice, and pretext. Having reopened timeliness, the court swept aside the remaining grounds. The post-comment interference was “a daily or near daily campaign … that a trier of fact could find was motivated by the same discriminatory intent,” raising triable issues on whether it was “sufficiently hostile and pervasive.” (Dominguez, supra, 168 Cal.App.4th at p. 725.) On notice, the court inferred from Dominguez’s April and May reports to Ferrel — and Ferrel’s promises to relay them to Rough — plus the dozen complaints to Rough, that “a trier of fact could determine that WaMu had notice of the harassment.” (Id. at pp. 725–726.) On pretext, “[o]ur independent review of the evidence” showed the tardiness rationale was genuinely disputed: conflicting accounts of the few admitted late arrivals, the suspicious timing of a discharge two days after Rough invited Dominguez to apply for a permanent post, and evidence that “Rough was essentially falsifying Dominguez’s tardiness” and “deceiving Ferrel.” (Id. at pp. 726–727 & fn. 11.)

The two points against Dominguez. The court was not uniformly favorable. The retaliation claim against Gutierrez failed as a matter of law because “retaliation claims are proper against an employer only, not against individual employees,” though Gutierrez “still remains potentially liable for any acts of harassment actually performed by him” under section 12940, subdivision (j)(3). (Dominguez, supra, 168 Cal.App.4th at p. 726, citing Jones v. The Lodge at Torrey Pines Partnership (2008) 42 Cal.4th 1158.) And the punitive-damages claim against WaMu was “deem[ed] … waived” because, beyond “a passing reference in the conclusion of her reply brief,” Dominguez failed to address WaMu’s managing-agent argument with authority or record citation. (Id. at p. 727.)

Significance

Dominguez sits squarely in the line that runs from Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798 — the California Supreme Court’s foundational continuing-violation decision — through Birschtein and into routine FEHA limitations practice. Its contribution is to apply the Richards framework to the recurring fact pattern in which an employee complains, the overt slurs stop, and the harasser switches to facially neutral retaliation-by-sabotage. The decision confirms that the doctrine’s “similarity” prong is satisfied by relatedness, not identity: conduct of an entirely different outward form can be one continuing violation if a factfinder could infer it is “just another way” of pursuing the same discriminatory animus. (Dominguez, supra, 168 Cal.App.4th at pp. 723–724.)

Its sharpest practical teaching concerns permanence. By holding that the limitations clock does not begin merely because the explicit comments ceased — that permanence requires the conduct to stop, the employee to resign, or the employee to be on notice that further protest is futile — the court denied defendants a powerful summary-judgment lever: the argument that the “last discriminatory act” is the last overt one. (Dominguez, supra, 168 Cal.App.4th at p. 724.) The case also reaffirms two settled but frequently litigated propositions: that FEHA retaliation claims do not lie against individual coworkers (id. at p. 726), and that appellate points raised without analysis or authority are forfeited (id. at p. 727). Its limits bear emphasis: the holding is procedural — triable issues, not liability — and rests on the summary-judgment posture in which Dominguez’s account had to be accepted as true and the doctrine’s reach was a “question[] of fact.”

Key quotes

“A reasonable inference arises that this was just another way for Gutierrez to harass Dominguez about her sexual orientation without expressly saying so.” (Dominguez, supra, 168 Cal.App.4th at p. 724.)

“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.” (Id. at p. 724.)

“[The cases] 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.” (Id. at p. 724.)

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Practice pointer

Open questions

The court reached the timeliness and merits issues without resolving several matters it expressly set aside. It declined to decide whether the excluded “chinga tu madre” whistling evidence was properly excluded, noting only that “[w]ithout reaching the validity of those contentions, we will not factor those matters into our analysis” — leaving open how that evidence, if admitted, would bear on similarity and frequency. (Dominguez, supra, 168 Cal.App.4th at p. 721 & fn. 7.) Because the disposition is procedural, the ultimate questions remained for the trier of fact: whether the post-May conduct was in fact related to the earlier slurs, whether it was reasonably frequent, whether permanence had attached, whether the conduct was severe or pervasive, whether WaMu had notice, and whether tardiness was a pretext — each held only to present “triable issues of fact.” (Id. at pp. 724–727.) Finally, the court affirmed summary adjudication of the punitive-damages claim on waiver grounds, expressly declining to reach the merits of WaMu’s managing-agent argument. (Id. at p. 727.)