Dominguez v. Washington Mut. Bank, 168 Cal. App. 4th 714 (2008)

Yoko Dominguez, a former temporary employee of Washington Mutual assigned to processing outgoing mail, alleged that a co-worker (Javier Gutierrez) had made crude and offensive comments to her after learning that Dominguez was a lesbian. Dominguez complained about Gutierrez’s comments to her supervisor’s supervisor (who was also a lesbian) as well as to her direct supervisor who “might have given” Gutierrez verbal warnings about his conduct. Shortly thereafter, Dominguez’s supervisor invited her to apply to become a full-time, regular employee, but two days after she applied, she was fired because she was “frequently late for work.” In her lawsuit, Dominguez alleged discrimination, harassment and retaliation in violation of the Fair Employment and Housing Act; the trial court granted defendants’ summary judgment motions on statute of limitations grounds and because Dominguez had no evidence to rebut WaMu’s claim that it fired Dominguez for a legitimate nondiscriminatory reason (her tardiness). The Court of Appeal reversed in part, holding that Dominguez timely filed her administrative complaint with the California Department of Fair Employment and Housing (“DFEH”). Although Gutierrez’s verbal taunts ceased in May of 2002 and Dominguez did not file her DFEH complaint until August of 2003, Gutierrez’s post-May 2002 conduct (e.g., jamming the wheels of Dominguez’s pallet jack, blocking her access to her work stations with heavy boxes and otherwise interfering with the performance of her job) may have constituted a continuing violation that extended through August of 2002 (when her employment was terminated). Further, the Court held that triable issues of fact existed as to whether Gutierrez’s conduct was sufficiently hostile and pervasive and whether the stated reason for terminating Dominguez was a pretext (given the almost contemporaneous invitation to apply for full-time employment with WaMu). Finally, the Court held that Dominguez had waived her punitive damages claim against WaMu by failing to properly address it on appeal and that her retaliation claim against Gutierrez was improper in light of Jones v. The Lodge at Torrey Pines P’ship, 42 Cal. 4th 1158 (2008). Cf. Young v. Exxon Mobil Corp., 168 Cal. App. 4th 1467 (2008) (supervisor whose defense was paid by employer was entitled to recover only $1.00 in attorney’s fees even though employee’s claims against supervisor were frivolous and brought in bad faith).