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).
 

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Photo of Tony Oncidi Tony Oncidi

Anthony J. Oncidi is the co-chair of the Labor & Employment Law Department and heads the West Coast Labor & Employment group in the firm’s Los Angeles office.

Tony represents employers and management in all aspects of labor relations and employment law, including…

Anthony J. Oncidi is the co-chair of the Labor & Employment Law Department and heads the West Coast Labor & Employment group in the firm’s Los Angeles office.

Tony represents employers and management in all aspects of labor relations and employment law, including litigation and preventive counseling, wage and hour matters, including class actions, wrongful termination, employee discipline, Title VII and the California Fair Employment and Housing Act, executive employment contract disputes, sexual harassment training and investigations, workplace violence, drug testing and privacy issues, Sarbanes-Oxley claims and employee raiding and trade secret protection. A substantial portion of Tony’s practice involves the defense of employers in large class actions, employment discrimination, harassment and wrongful termination litigation in state and federal court as well as arbitration proceedings, including FINRA matters.

Tony is recognized as a leading lawyer by such highly respected publications and organizations as the Los Angeles Daily JournalThe Hollywood Reporter, and Chambers USA, which gives him the highest possible rating (“Band 1”) for Labor & Employment.  According to Chambers USA, clients say Tony is “brilliant at what he does… He is even keeled, has a high emotional IQ, is a great legal writer and orator, and never gives up.” Other clients report:  “Tony has an outstanding reputation” and he is “smart, cost effective and appropriately aggressive.” Tony is hailed as “outstanding,” particularly for his “ability to merge top-shelf lawyerly advice with pragmatic business acumen.” He is highly respected in the industry, with other commentators lauding him as a “phenomenal strategist” and “one of the top employment litigators in the country.”

“Tony is the author of the treatise titled Employment Discrimination Depositions (Juris Pub’g 2020; www.jurispub.com), co-author of Proskauer on Privacy (PLI 2020), and, since 1990, has been a regular columnist for the official publication of the Labor and Employment Law Section of the State Bar of California and the Los Angeles Daily Journal.

Tony has been a featured guest on Fox 11 News and CBS News in Los Angeles. He has been interviewed and quoted by leading national media outlets such as The National Law JournalBloomberg News, The New York Times, and Newsweek and Time magazines. Tony is a frequent speaker on employment law topics for large and small groups of employers and their counsel, including the Society for Human Resource Management (“SHRM”), PIHRA, the National CLE Conference, National Business Institute, the Employment Round Table of Southern California (Board Member), the Council on Education in Management, the Institute for Corporate Counsel, the State Bar of California, the California Continuing Education of the Bar Program and the Los Angeles and Beverly Hills Bar Associations. He has testified as an expert witness regarding wage and hour issues as well as the California Fair Employment and Housing Act and has served as a faculty member of the National Employment Law Institute. He has served as an arbitrator in an employment discrimination matter.

Tony is an appointed Hearing Examiner for the Los Angeles Police Commission Board of Rights and has served as an Adjunct Professor of Law and a guest lecturer at USC Law School and a guest lecturer at UCLA Law School.