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Filed 4/21/04

CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN



AMAANI LYLE,
Plaintiff and Appellant,
v.
WARNER BROTHERS TELEVISION PRODUCTIONS et al.,
Defendants and Respondents.


B160528
(Los Angeles County

Super. Ct. No. BC239047)




APPEAL from a judgment and post-judgment order of the Superior Court of Los Angeles County. David A. Horowitz, Judge. Affirmed in part and reversed in part with directions.

Mark Weidmann and Scott O. Cummings for Plaintiff and Appellant.

Adam Levin and Samantha C. Grant for Defendants and Respondents.

Defendants, producers and writers of a popular television show raise a unique defense to plaintiff’s claim of sexual harassment. Defendants admit the use of sexually coarse, vulgar and demeaning language in the workplace but maintain such language was essential to the creative process of developing scripts for the show. For the reasons we explain in Part IV (C) of our opinion we conclude “creative necessity” is not an affirmative defense to a cause of action for sexual harassment but it is a factor a jury can consider along with other factors in determining whether defendants’ conduct created a hostile work environment for the plaintiff.

We further hold the trial court erred in granting summary adjudication to some of the defendants on plaintiff’s causes of action for sexual and racial harassment but correctly granted summary adjudication as to all defendants on her causes of action for termination and retaliation in violation of the Fair Employment and Housing Act (FEHA) and common law. Finally, we reverse the order awarding attorney fees and vacate the award of costs for redetermination by the trial court.


FACTS AND PROCEEDINGS BELOW
When Lyle, an African-American woman, learned the producers of “Friends” were looking for writers’ assistants for the upcoming season she applied for the position. Two executive producers and writers on the show, Adam Chase and Gregory Malins, interviewed Lyle. She understood “one of the most important aspects of the job was taking very copious and detailed notes for the writers” when they were discussing story lines, jokes and dialog. A writers’ assistant had to be able “to sort through what was being discussed with the writers and pick out the dialog and jokes that were most likely to be used in the script[.]” In order to perform these duties, Lyle understood, it was “extremely important” for a writers’ assistant “to be able to type quickly.” Lyle told Chase and Malins she could type “really, really fast” and stated on her job application she could type 80 words per minute. On the recommendation of Chase and Malins, Lyle was hired as a writers’ assistant on “Friends” in June 1999. Lyle worked directly under Chase and Malins and at times for a supervising producer, Andrew Reich, who was also a writer on the show. No one tested Lyle’s typing speed before she was hired.

As we discuss more fully below, Lyle contends soon after she began working on the show she complained to Chase, Malins and other producers and writers about the fact “Friends” had no black characters. She continued to make those complaints up to the day before she was fired. Lyle also contends defendants subjected her to racial and sexual harassment through offensive and bigoted comments and jokes made by Chase, Malins, Reich and other writers during writers’ meetings. Defendants maintain Lyle was terminated for a legitimate, nondiscriminatory reason—poor job performance. She was not able to type fast enough to keep up with the speed of the discussion at the writers’ meetings. As a consequence important jokes and dialogue were missing from her notes. Defendants further maintain even if Lyle could prove offensive and bigoted comments and jokes were made in her presence during writers’ meetings these comments and jokes were not severe or pervasive enough to create a hostile work environment as a matter of law. Finally, defendants contend lewd, crude, vulgar jokes and comments in the writers’ room were an indispensable means of developing gags, dialogue and story lines for “Friends” which is a show about the lives of young sexually active adults.

Chase and Malins terminated Lyle from her job as a writers’ assistant four months after hiring her.

Lyle filed a complaint under the FEHA with the Department of Fair Employment and Housing (DFEH) alleging she had been terminated based on race and gender discrimination and in retaliation for complaining about the show’s racial discrimination against African-American actors. She later amended her FEHA complaint to allege claims of racial and sexual harassment.

After receiving a right-to-sue letter from the DFEH Lyle brought this action against organizations and individuals involved in the production and writing of “Friends” including Warner Brothers Television Productions, NBC Studios (NBC), Bright, Kauffman, Crane Productions (BKC), and producers-writers Chase, Malins and Reich. Her first amended complaint alleges causes of action under the FEHA for race and gender discrimination, racial and sexual harassment and retaliation for opposing racial discrimination against African-Americans in the casting of “Friends” episodes. The complaint also alleges common law causes of action for wrongful termination in violation of the public policies against racial and gender discrimination and retaliation for complaining about racial discrimination in violation of the FEHA.

The trial court granted the defendants’ motions for summary judgment. As to Lyle’s causes of action under the FEHA the court ruled NBC and BKC were not Lyle’s employers and therefore not liable on any cause of action. Moreover Lyle’s harassment claims were time barred and in any event she could not factually establish her claims of racial and gender discrimination, retaliation or harassment as to any defendant. As to Lyle’s common law causes of action for wrongful termination in violation of public policy the trial court ruled Lyle could not establish defendants terminated her based on race or gender discrimination or in retaliation for her complaints about such discrimination against African-American actors. The court subsequently entered judgment for all defendants and awarded them $21,131 in costs.

In a post-judgment order the trial court awarded defendants jointly attorney fees in the sum of $415,800 on the ground the FEHA causes of action were “frivolous, unreasonable and without foundation.”

Lyle filed a timely appeal from the judgment and the post-judgment award of attorney fees.

We affirm the judgment in part and reverse it in part. We agree the defendants are entitled to summary adjudication on Lyle’s causes of action for termination based on race, gender and retaliation. We conclude, however, triable issues of fact exist as to Lyle’s causes of action for sexual and racial harassment against Warner Brothers, BKC, Chase, Malins and Reich.1 We further conclude the award of attorney fees to defendants jointly must be reversed and the award of costs must be vacated and recalculated by the trial court to reflect our partial reversal of the judgment.
DISCUSSION


I.

DEFENDANTS WERE ENTITLED TO SUMMARY ADJUDICATION ON LYLE’S CAUSES OF ACTION FOR WRONGFUL TERMINATION IN VIOLATION OF THE FEHA BECAUSE DEFENDANTS ESTABLISHED A LEGITIMATE, NONDISCRIMINATORY REASON FOR HER TERMINATION WHICH SHE DID NOT REBUT.

Lyle contends the defendants fired her from her position as a writers’ assistant based on her race (African–American), sex (female) and in retaliation for her opposition to defendants’ racially discriminatory hiring practices with respect to the cast of “Friends.”






A. Legal Background.

Under the FEHA it is “an unlawful employment practice” for an “employer” to discharge a person from employment “because of race [or] sex . . . .”2 It is also an unlawful employment practice for an “employer . . . to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under [the FEHA] . . . .”3

In a case in which the plaintiff has no direct evidence the defendants terminated her employment because of her race or sex the plaintiff can show unlawful discrimination circumstantially if she can do two things. First, she must make out a prima facie case of discrimination. To do this she must show (1) she is a member of a protected class; (2) she was performing her position competently; (3) she was terminated from her employment; and (4) there are circumstances suggesting a discriminatory motive behind her termination.4 Second, if the defendants produce sufficient evidence of a legitimate, nondiscriminatory reason for the plaintiff’s termination the plaintiff must produce evidence showing the defendants’ purported reason is a mere pretext to cover up discrimination.5 To do this she may show the purported reason is factually untrue or there is direct or circumstantial evidence of bias on the part of defendants.6

The foregoing analysis, known as the McDonnell Douglas formula,7 applies at the trial of a FEHA cause of action. On a defendant’s motion for summary adjudication of a FEHA cause of action the McDonnell Douglas burdens are reversed and, as on any other summary adjudication motion, the defendant employer must show either the plaintiff cannot establish one or more elements of her FEHA cause of action or that she cannot rebut the employer’s showing of a legitimate, nondiscriminatory reason for her termination with evidence raising a rational inference of discrimination, such as evidence the employer’s proffered reason for termination is pretextual.8 The employer may make this showing by presenting evidence conclusively negating an element of the cause of action or “by showing” through evidence “that the plaintiff does not possess, and cannot reasonably obtain, needed evidence[.]”9

Defendants in the present case have attempted to negate Lyle’s FEHA claims by defeating her prima facie case with evidence her poor job performance was the motivating reason for her termination.





B. Defendants’ Evidence Of Lyle’s Poor Performance.

Malins testified he worked on the “Friends” show as a writer and producer during the entire time Lyle was employed as a writers’ assistant. He and Chase, another writer and producer, made the decision to hire Lyle after personally interviewing her. At the same time, Malins and Chase also hired Alex Bernstein, a male Caucasian, as a writers’ assistant. The principal duty of a writers’ assistant is to support the writers by typing detailed notes of their discussions about story development, jokes and dialogue to be used in the scripts for “Friends” episodes.

During the time Lyle and Bernstein were employed on “Friends” Malins personally observed them performing their duties in the writers’ room. Malins found their performances unsatisfactory. In Malins’ opinion neither Lyle nor Bernstein could type “fast enough to keep up with the speed of the discussions in the writers’ room.” He also observed “on a number of occasions both Lyle and Bernstein had not included in their respective notes important jokes and dialogue that were being discussed by the writers.” Chase testified at his deposition Lyle “constantly” left out important material from her notes.

Five other writers testified they had problems with Lyle’s work. They all commented on Lyle’s slow typing speed as compared to other writers’ assistants with whom they had worked. They also mentioned specific deficiencies such as completely missing key dialogue and discussions or the subtlety of particular comic lines, leaving out of her notes important jokes or the jokes’ punch lines, inaccuracies in taking down what the writers said while creating dialogue, and attaching the wrong character to a block of dialogue. The writers also testified they found similar deficiencies in Bernstein’s work. These concerns were brought to the attention of Malins and Chase who in turn reported them to Todd Stevens, a co-executive producer of the show.

Stevens testified that upon receiving the complaints from Chase, Malins and other writers on the show he met with Lyle and Bernstein and “verbally counseled each of them separately about the deficiencies in their performance and told them that their respective performance needed to improve.” Approximately three weeks later Chase and Malins told Stevens they had decided to terminate both Lyle and Bernstein because they were not typing fast enough to keep up with the writers’ conversations and were missing important jokes and dialogue as they were discussed in the writers’ room. Stevens informed Lyle and Bernstein their respective employment was being terminated because of their slow typing speed.

We find defendants produced sufficient evidence to establish Chase and Malins terminated Lyle because they were dissatisfied with her performance as a writers’ assistant. The most important aspect of the job was taking quick and accurate notes on ideas for story lines, dialogue and jokes as the writers bounced around ideas in their meetings. Chase and Malins, who hired Lyle, came to the conclusion after approximately four months she could not type fast enough to completely and accurately capture these thoughts as they flew around the writers’ room. This conclusion was shared by several other writers on the show who reviewed Lyle’s notes after meetings and discovered key dialogue and jokes were missing, incomplete or inaccurate. These deficiencies were brought to Lyle’s attention and she was allowed to continue for three more weeks before Chase and Malins decided she would have to be terminated.

Several factors support the truthfulness of the reason asserted for Lyle’s termination.

Defendants have been consistent in their reason for dismissing Lyle. She admits she was told when she interviewed for the job typing speed was important. Furthermore, Lyle had worked as a writers’ assistant on other television shows so it is reasonable to conclude she knew what would be expected of her in her job with “Friends.” Defendants have consistently asserted from the time they employed Lyle through the present appeal their problem with Lyle was her inability to quickly and accurately take notes on the writers’ meetings.10 Of course, the mere fact an employer stakes out a position and sticks to it will not be determinative if a trier of fact could reasonably find the employer did not honestly believe in its position.11 Here, however, independent evidence corroborates the defendants’ claim of poor performance.

Chase and Malins, who made the decision to hire Lyle, made the decision to fire her four months later. Where the same person is responsible for both the hiring and the firing of the employee, and both actions occur within a short period of time, a strong inference arises there was no discriminatory motive.12

In addition, the fact defendants fired a male Caucasian writers’ assistant at the same time and for the same reason they fired Lyle is strong evidence Lyle was not subjected to disparate treatment based on her race or gender.13

We conclude defendants’ evidence of Lyle’s poor job performance coupled with the corroborating evidence discussed above satisfied defendants’ burden of showing Lyle’s FEHA causes of action have no merit. Defendants negated an essential element of Lyle’s prima facie case—that she was performing adequately at the time of her termination—and established a legitimate, nondiscriminatory reason for terminating her—inability to perform the key duties of her job.

The burden thus shifted to Lyle “to show that a triable issue of one or more material facts exists” as to her causes of action.14 In the context of a FEHA action this means Lyle had to produce evidence sufficient “to raise a rational inference that discrimination occurred.”15






C. Lyle’s Evidence Of Pretext.

Lyle does not dispute defendants’ evidence she made mistakes in her note taking, leaving out key dialogue, jokes and the like. Rather, she contends defendants are using her mistakes as an excuse to cover up their true reasons for firing her—racial and sexual animus and retaliation for her complaints about defendants’ hiring practices with respect to minority actors. In support of this contention, Lyle produced the following evidence.






(1) White male writers’ assistants also had performance

problems but were not terminated.

Zack Rosenblat, a white male, worked as a writers’ assistant on “Friends” at the same time as Lyle. Marta Kauffman, one of the executive producers, testified Rosenblat was not “meticulous” in his work. His notes often contained typographical errors and he sometimes delivered his drafts to the wrong people. Rosenblat was not terminated.

Another white male, Brian Boyle, would often “space out” during writers’ meetings according to supervising producer Ted Cohen. When Boyle was “spaced out” he missed parts of jokes or dialogue. Defendants did not terminate Boyle even though his performance problem—missing key parts of jokes and dialogue—was the same problem defendants used to justify terminating Lyle.




(2) Defendants’ conduct was inconsistent with their “poor

performance” rationale.

At the time defendants hired Lyle they told her she would receive written performance appraisals. She never received such an appraisal. Malins admitted there were no written records supporting Lyle’s alleged poor job performance.

While Lyle was employed on “Friends” Chase gave her a “typing tutor” program. Chase never told her, however, her job was in jeopardy. On the contrary, Chase and Malins frequently told Lyle she was “doing a good job.” On the night before her termination Chase told Lyle “you’re doing a good job” and not to worry about the typing.




(3) Lyle was fired after protesting to her supervisors about

the absence of African-American actors in the show.

Lyle testified she protested to Chase and Malins on numerous occasions about the lack of African-American actors in “Friends” and that she “was very adamant about it.” She began voicing her objections in August and continued voicing them up to the day before defendants terminated her in October. She not only expressed her view to Chase and Malins individually but also voiced it in meetings attended by the other writers on the show. In order to get her point across, Lyle “pitched” story ideas involving black characters to Chase and Malins. She also urged them to at least hire African-Americans to appear as extras in background and crowd scenes.

Lyle further testified Chase and Malins expressed agreement with her position when she brought it up but no steps were ever taken to implement a change in actor hiring practices while she was employed on the show. On the contrary, she produced evidence showing Kevin Bright, a senior producer on the show, believed “Friends” was being unfairly criticized by the media and some organizations for its lack of casting diversity.




(4) Defendants failed to investigate Lyle’s claims she suffered

racial and gender discrimination.

Lyle produced evidence Warner Brothers, under whose auspices “Friends” was produced, had a written policy against race and gender discrimination and harassment. This policy provided employee complaints about discrimination and harassment would be “taken seriously and investigated” and “[n]o employee who communicates a question or report of possible wrongdoing will be disciplined or retaliated against in any way.”

Lyle testified that notwithstanding this policy Stevens told her at the time he terminated her employment “if I caused any problems in my exit interview I would not be allowed to ever work for Warner Brothers again.” Despite Stevens’s warning, Lyle told the Human Resources manager who conducted her exit interview she believed she was being discriminated against because she was the only African-American writers’ assistant and white males who had performance problems were counseled, not fired. Following the exit interview Lyle was classified as not eligible for rehire. Defendants produced no evidence an investigation was conducted into Lyle’s grievance. The Human Resources manager testified she did not view Lyle’s statement at her exit interview as a “complaint.”




(5) Defendants replaced Lyle with a less qualified white male.

Chase testified he replaced Lyle and Bernstein with two white males. He admitted he had the same kinds of problems with the two replacements as he had with Lyle and Bernstein. Chase did not know whether the two replacements were also fired because he left the show at the end of the season.






(6) Chase, Malins, Reich and other producers continuously

made jokes and disparaging remarks about women

and African-Americans.

Lyle testified that during writers’ meetings Chase, Malins and other writers constantly made comments and jokes about women and sex and ridiculed and mocked African-Americans. Chase and Malins in particular engaged in endless dialogue about their experiences with oral and anal sex, which actresses on the show they would like to have sex with and what size and shape of breasts and buttocks they found most attractive. Chase, Malins and Reich regularly mocked African-Americans by mimicking black ghetto slang, referring to them as “homies” and telling racist jokes. On one occasion, Reich looked directly at Lyle while he told a racist story in which a black woman was the brunt of the joke.






C. Lyle’s Evidence Did Not Raise A Triable Issue Of Fact As To

Whether Defendants’ Reason For Terminating Her Was

Pretextual.

Where, as here, the employer has produced evidence of a legitimate, nondiscriminatory reason for its action we evaluate the employee’s opposing evidence to determine whether it is sufficient, if credited, to raise a rational inference of intentional discrimination.16 Here we conclude Lyle failed to satisfy her burden of raising a reasonable inference the asserted ground for her termination—poor performance—was pretextual.

Lyle’s evidence is insufficient to raise an inference of discrimination based on different treatment of white male writers’ assistants.

Although Kauffman, an executive producer, testified Rosenblat’s notes often contained typographical errors and he sometimes delivered them to the wrong people, she also testified she did not terminate him because “he knew the jokes; he understood . . . what to write down, what to give back to us. . . . And, he got it. He got the process and was able to spit it back.” In contrast, the evidence showed Lyle did not “get it.” Unlike Rosenblat, Lyle often was not able to accurately transcribe a joke or a line of dialogue and “spit it back.” While Rosenblat may not have been “meticulous” in his work, defendants could make a reasonable business judgment his faults were outweighed by his strengths while Lyle’s were not.17

It is undisputed a white male writers’ assistant, Boyle, would often “space out” in writers’ meetings and miss taking notes on jokes and dialogue but was not fired. The record shows, however, the reason Boyle was not fired as a writers’ assistant was because he was promoted to the position of a staff writer.

Defendants replaced Lyle with a white male who apparently had the same difficulties as Lyle in accurately transcribing jokes, dialogue and story lines. There is no evidence, however, defendants knew this replacement was unqualified when they hired him nor is there any evidence he was retained on the staff after his shortcomings were discovered.

Lyle’s evidence is also insufficient to raise an inference of pretext based on defendants’ “inconsistent” conduct with regard to her job performance.

Lyle produced evidence she did not receive the promised written performance appraisal and defendants did not prepare written records of her alleged poor performance. In addition, no one told Lyle her job was in jeopardy. Instead, defendants told her she was doing a good job. This evidence might be relevant to show pretext if the issue in this case concerned the adequacy of Lyle’s job performance. But the adequacy of Lyle’s job performance is not in issue. Lyle does not dispute defendants’ assertion her notes often omitted important jokes, dialogue and story lines. Thus she concedes defendants had a legitimate, nondiscriminatory reason for terminating her. The issue is whether Lyle’s inadequate job performance was the motivating reason for her termination, as defendants maintain. Lyle’s evidence of inconsistent conduct does not have a tendency in reason to prove or disprove defendants’ alleged discriminatory motivation in terminating Lyle’s employment.

The evidence does not support Lyle’s claim defendants attempted to cover up their discriminatory motivation in firing her.

Lyle contends defendants failed or refused to investigate her claim of race and gender discrimination which she made during her exit interview. Defendants’ Human Resources manager testified, however, she referred Lyle’s claim to the legal department because she understood Lyle had already retained an attorney to advise her in the matter of her termination. This appears to have been a reasonable response to Lyle’s complaint under the circumstances.

Contrary to Lyle’s contention in her brief on appeal there is no evidence in the record Stevens told Lyle not to make any complaints about harassment or discrimination at her exit interview or she would never work for Warner Brothers again. In her declaration in opposition to summary judgment Lyle stated Stevens told her if she “caused any problems in [her] exit interview” she would not be rehired at Warner Brothers. There is no evidence as to what Stevens thought would be a “problem.” Notes on the exit interview taken by the Human Resources manager state Lyle told the interviewer Stevens told her “make nice at her exit and he would make her eligible for rehire status with [Warner Brothers].” Obviously, defendants did not believe Lyle “made nice” at her exit interview because the evidence shows she is barred from rehire at Warner Brothers. The decision to bar her from being rehired, however, took place after her termination and therefore has no bearing on defendants’ motivation for the termination.

The evidence of gender and racial animus on the part of the producers, while relevant, was not enough to raise a triable issue of fact as to intentional discrimination against Lyle.

Lyle produced evidence of numerous incidents of gender and racial slurs, jokes and comments by Chase, Malins and other producers and writers during writers’ meetings. Such conduct may be direct evidence of unlawful discrimination where there is a nexus between the remarks and the adverse employment decision.18 No such nexus appears from the evidence in the present case. Nevertheless, even where there is no nexus between the remarks and the employment decision, workplace comments disparaging persons because of their gender or race can be circumstantial evidence of discrimination if they are made or tolerated by supervisors as occurred here.19 Such evidence by itself is insufficient to withstand summary judgment but may tip the balance in favor of the plaintiff where there is additional evidence showing a prima facie case of discrimination and pretext. As we have explained, however, additional supporting evidence is not present in this case.

Finally, there is no evidence to support Lyle’s claim defendants discharged her because she complained about the absence of African-American actors on “Friends.”

The FEHA makes it an unlawful employment practice to discharge an employee because the employee “has opposed any practices forbidden under [the FEHA].”20 Without question, the FEHA forbids intentional discrimination in hiring because of race.21 But the mere fact Lyle complained about defendants’ failure to hire minority actors for the show is not enough to raise a triable issue of retaliation. Lyle produced no evidence defendants engaged in purposeful discrimination against minorities or that she believed the defendants were engaged in such conduct. Moreover, Lyle produced no evidence of a causal link between her complaints and her termination.22 Showing a causal link usually requires evidence of a near proximity in time between the employee’s protected action and the employer’s retaliatory action.23 Here, however, Lyle testified she voiced her complaints about the absence of African-American actors during three of the four months she was employed on “Friends.” The fact Bright, a senior producer on the show, believed “Friends” was being unfairly criticized over its hiring practices does not bolster Lyle’s case. There is no evidence Bright was involved in the decision to fire Lyle. Furthermore, at his deposition Bright testified his problem was with the media, not with Lyle. Asked if he believed it would be inappropriate for a writers’ assistant to criticize the lack of minority actors on “Friends,” Bright responded, “No, I don’t think it would be inappropriate. [E]verybody’s entitled to their opinion.”24

In summary, defendants presented strong evidence Lyle was terminated for a legitimate business reason—she could not adequately perform the duties of a writers’ assistant—and that this reason was not pretextual. Lyle was aware of the duties of a writers’ assistant from her preemployment interview with Chase and Malins and her previous employment on another television show. Defendants’ proffered reason for discharging Lyle remained constant from the time of her discharge through this appeal.25 Chase and Malins made the decision to hire Lyle and the decision to fire her, all within a short period of time.26 Chase and Malins fired a white male writers’ assistant at the same time and for the same reason as Lyle.27

In contrast to defendants’ strong showing they did not discriminate against Lyle in terminating her employment, Lyle created only a weak issue of purposeful discrimination based solely on remarks by Chase, Malins and other writers and producers disparaging women and African-Americans.

Lyle’s prima facie case was damaged by her admission she could not type fast enough to keep up with the discussions in the writers’ meetings and that she failed to include important jokes and dialogue in her notes. Furthermore, she produced only thin evidence her poor performance was not the true reason for her termination. Lyle could not show white male writers’ assistants were treated more favorably than she or that defendants’ conduct was inconsistent with their proffered reason for terminating her.28 She did not produce sufficient evidence of a “cover-up” to raise an inference defendants’ proffered reasons were pretextual.29 Her evidence of gender and racial jokes, slurs and comments, while relevant to proving discrimination, is not sufficient in itself to overcome the defendants’ evidence race and gender were not factors in Lyle’s termination.30 Her claim of retaliation fails primarily because there is no evidence of a causal link between her complaints about defendants’ minority hiring practices and her discharge from employment.31

We affirm the trial court’s summary adjudication of Lyle’s causes of action for discharge in violation of the FEHA and wrongful termination in violation of public policy. Lyle failed to produce sufficient evidence from which a rational trier of fact could find it more likely than not defendants’ proffered reason for terminating her was pretextual.32


II.

LYLE EXHAUSTED HER ADMINISTRATIVE REMEDY WITH RESPECT TO HER CLAIMS OF RACIAL AND SEXUAL HARASSMENT OR AT LEAST A TRIABLE ISSUE OF FACT EXISTS AS TO THAT ISSUE.

The facts regarding Lyle’s complaints to the DFEH are undisputed. On December 1, 1999, less than two months after her discharge, Lyle filed complaints with the DFEH against each of the defendants. She checked boxes on the DFEH complaint form indicating she was fired and denied promotion because of her gender, race and national origin. She did not check the box marked “harassment.” In each complaint Lyle stated: “I believe I was fired and denied promotion because of my sex, race and ancestry.” She made no mention of racial or sexual harassment Ten months later, on October 20, 2000, Lyle filed amended complaints against the defendants. This time she checked boxes on the complaint form indicating she was fired, harassed, and denied promotion because of her gender, race and national origin.

Based on these undisputed facts defendants assert Lyle cannot sue for race or gender harassment because she did not claim harassment in her December 1999 complaints and the claims of harassment in the October 2000 complaints are time barred.




A. Lyle’s Complaints Of Racial And Sexual Harassment Are

“Reasonably Related To” Her Complaints Of Discrimination

Because Of Gender, Race And National Origin.

Before bringing a civil action based on a violation of the FEHA the plaintiff must exhaust her administrative remedy by filing a complaint with the DFEH and receiving a right-to-sue letter.33 Defendants maintain Lyle failed to exhaust her administrative remedy with respect to her harassment claim because she did not check the box on the DFEH complaint form to indicate she was alleging harassment nor did she mention harassment in the space provided on the form for explaining the basis for her complaint.

In deciding whether a plaintiff in a civil action has exhausted her administrative remedy under the FEHA California courts, following the lead of the federal courts in Title VII cases, have been fairly liberal in interpreting the plaintiff’s DFEH complaint. Violations not specifically mentioned in a DFEH complaint can be included in a civil complaint if they reasonably would have been discovered in the agency’s investigation of the charged violations or if they are “like or related” to those specified in the DFEH complaint.34 We conclude Lyle’s civil complaint meets both these tests.

Sexual harassment is a form of discrimination,35 thus the two are “related” for purposes of an action under the FEHA. Lyle’s failure to check the “harassment” box on the DFEH complaint form is not determinative.36 Furthermore, racial and sexual discrimination in employment decisions is frequently accompanied by racial and sexual harassment of the employee. Surely the DFEH investigators are experienced enough to know this. Thus it is fair to conclude racial and sexual harassment, if it occurred, reasonably would have been discovered in the DFEH’s investigation of Lyle’s complaint about racial and sexual discrimination in her termination from employment. The present case is similar in this respect to Baker v. Children’s Hospital. In Baker, the court reversed a summary judgment for defendant and allowed the plaintiff to pursue a civil action under the FEHA for harassment, biased evaluations, and denial of pay raises and promotions due to his race and in retaliation for pursuing an internal grievance even though his DFEH complaint only alleged racial discrimination in the terms of his employment.37 The court held the civil complaint’s “allegations of harassment and differential treatment encompass the allegations of discrimination in [plaintiff’s] DFEH complaint.”38 Moreover, the court stated, “it is reasonable that an investigation of the allegations in the original DFEH complaint would lead to the investigation of subsequent discriminatory acts undertaken by respondents in retaliation for appellant’s filing an internal grievance.”39

The Legislature has directed the provisions of the FEHA “shall be construed liberally for the accomplishment of [its] purposes[.]”40 It would be inconsistent with

the remedial purpose of the FEHA to impose technical pleading requirements on lay persons who often file their DFEH complaints without the aid of an attorney and in the throes of emotional distress from their employers’ unlawful conduct.41






B. Alternatively, A Triable Issue Of Fact Exists As To Whether

Any Of The Alleged Acts Of Racial And Sexual Harassment

Occurred Within The FEHA’s One Year Limitation Period.
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