Mendoza v. W. Med. Ctr. Santa Ana

• Decision Date: 23 April 2014
• Docket Number: G047394
• Citation: Mendoza v. W. Med. Ctr. Santa Ana, 222 Cal.App.4th 1334, 166 Cal.Rptr.3d 720 (Cal. App. 2014)
• Court: California Court of Appeals
• Parties: Romeo MENDOZA, Plaintiff and Respondent, v. WESTERN MEDICAL CENTER SANTA ANA et al., Defendants and Appellants.

222 Cal.App.4th 1334

166 Cal.Rptr.3d 720

Romeo MENDOZA, Plaintiff and Respondent,

v.WESTERN MEDICAL CENTER SANTA ANA et al., Defendants and Appellants.

G047394

Court of Appeal, Fourth District, Division 3, California.

Filed January 14, 2014

Review Denied April 23, 2014

See 3 Witkin, Summary of Cal. Law (10th ed. 2005) Agency and Employment, § 251 et seq.

Appeal from a judgment of the Superior Court of Orange County, Ronald L. Bauer, Judge. Reversed. (Super.Ct. No. 30–2011–00459349)

Vaughn & Vaughn, Donald A. Vaughn, San Diego, and Robert J. Bello for Defendants and Appellants.

C. Athena Roussos, Sacramento; The Lampel Firm and Eric P. Lampel for Plaintiff and Respondent.

OPINION

IKOLA, J.

A jury voted nine to three to award $238,328 to plaintiff Romeo Mendoza, who claimed he was fired in retaliation for reporting allegations of sexual harassment. The court instructed the jury with the 2012 version of CACI No. 2430 and a special verdict form consistent therewith. Case law issued subsequent to the judgment leads us to conclude the court committed prejudicial error in doing so. (See Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 152 Cal.Rptr.3d 392, 294 P.3d 49 (Harris ); Alamo v. Practice Management Information Corp. (2013) 219 Cal.App.4th 466, 161 Cal.Rptr.3d 758 (Alamo ).) We reject, however, defendants' contention that they are entitled to a defense judgment as a matter of law. Accordingly, we reverse the judgment for a new trial.

FACTS

First hired as a staff nurse in 1990, Mendoza was employed at a hospital for more than 20 years.¹ By 2010, Mendoza was an intermediate-level supervisor on the overnight shift and even filled in periodically as the person in charge at the hospital (“House Supervisor”). By all accounts, and as reflected by his long term of service and march up the ranks of authority, Mendoza was an excellent nurse. As defense counsel stated during a pretrial hearing, “we will stipulate he was a fine employee, he was performing his job competently, he received awards, he received commendations.... This is not a case where Mr. Mendoza was terminated because he performed his job in a substandard manner[,] because he made medical errors or anything of that nature.”

In late October 2010, Mendoza reported to a House Supervisor that he was being sexually harassed by Del Erdmann, a per diem House Supervisor hired by defendants in April 2010. Whenever Mendoza and Erdmann worked the same shift, Erdmann was Mendoza's supervisor. After the complaint was passed up the chain of command, the matter was referred to the human resources department and an investigation ensued.

Mendoza and Erdmann are both gay men. The gist of Mendoza's accusation was that Erdmann, on numerous occasions, harassed Mendoza on the job with inappropriate comments (e.g., “I know you want me in your ass”), physical contact (e.g., Erdmann blowing air in Mendoza's ear), and lewd displays (e.g., Erdmann showing his genitals to Mendoza). According to Mendoza's testimony, this behavior began in August 2010 with words and culminated in October with Erdmann exposing himself. Mendoza denied he consented to Erdmann's behavior. Mendoza denied he had ever willingly engaged in flirtatious or lewd conduct with Erdmann. Mendoza told Erdmann to stop. Mendoza admitted that he violated defendants' policy by not immediately reporting Erdmann's behavior. Mendoza ultimately complained about Erdmann's conduct after a second incident in which Erdmann exposed himself and said, “I know you want this in your ass.”

Erdmann, on the other hand, testified (and stated during defendants' investigation) that Mendoza consented to Erdmann's conduct and participated in other mutual interactions (e.g., Mendoza would bend over provocatively in front of Erdmann, Mendoza requested that Erdmann display his genitals, Mendoza assisted Erdmann in exposing his genitals). Indeed, Erdmann claimed he was a reluctant participant in conduct initiated by Mendoza. At both the investigation stage and at trial, Mendoza and Erdmann were the only two individuals identified with personal knowledge of what occurred between them at the hospital.

Mendoza's expert witness took issue with the quality of the investigation process. Defendants did not prepare a formal investigation plan. Defendants did not take written statements from Mendoza or Erdmann. Defendants did not immediately interview Erdmann, and suspended the investigation while Mendoza missed work for several weeks following a bicycle accident. When Mendoza returned to work, Mendoza and Erdmann were interviewed simultaneously rather than separately. Defendants did not interview anyone other than Mendoza and Erdmann (such as coworkers who might provide insights as to the credibility of the two men). The individual charged with completing the investigation was not a trained human resources employee, but was instead the supervisor of Erdmann and Mendoza. On cross-examination, Mendoza's expert conceded he was unaware of any specific information that would have been uncovered had defendants conducted a proper (in the expert's view) investigation. But a subsequent witness (an employee who conducted Erdmann's orientation) testified that he noticed Erdmann making sexual innuendos during the orientation.

Upon the completion of the investigation, defendants fired both Mendoza and Erdmann on December 14, 2010. The written notice of termination provided by defendants to Mendoza cited “unprofessional conduct” as the reason for Mendoza's dismissal. According to their testimony, the individuals participating in the decision concluded that both Mendoza and Erdmann were complicit in inappropriate and unprofessional behavior. There is a progressive discipline system in place at the hospital, subject to which an employee could be verbally warned, warned in writing, suspended, or terminated. Defendants claim to have considered but rejected a lesser punishment for Mendoza.

Mendoza sued defendants for wrongful termination in violation of public policy.² Answering a special verdict form, the jury found defendants liable for wrongful termination in violation of public policy. The jury determined that Mendoza suffered $93,328 in past economic loss and $145,000 in past emotional distress. The court subsequently entered judgment in favor of Mendoza and against defendants in the total amount of $238,328, plus interest from the date of judgment and costs. Defendants filed a timely notice of appeal.

DISCUSSION

“[W]hen an employer's discharge of an employee violates fundamental principles of public policy, the discharged employee may maintain a tort action and recover damages traditionally available in such actions.” (Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167, 170, 164 Cal.Rptr. 839, 610 P.2d 1330.) “To support a common law wrongful discharge claim, the public policy ‘must be: (1) delineated in either constitutional or statutory provisions; (2) “public” in the sense that it “inures to the benefit of the public” rather than serving merely the interests of the individual; (3) well established at the time of the discharge; and (4) substantial and fundamental.’ ” (Haney v. Aramark Uniform Services, Inc. (2004) 121 Cal.App.4th 623, 642, 17 Cal.Rptr.3d 336.)

With one exception, the elements of Mendoza's claim are undisputed by the parties on appeal. Mendoza was discharged by his ex-employers, defendants, after Mendoza accused a supervisor, Erdmann, of sexual harassment. The public policy invoked by Mendoza supports his claim in the abstract (i.e., a common law wrongful termination action may be based on the firing of an employee because the employee reports sexual harassment to the employer). ³Mendoza suffered harm as a result of his termination (and the amount of damages awarded by the jury is not challenged on appeal).

The crux of the case is causation, a slippery concept in tort law generally and employment law in particular. (See, e.g., Clarke, A Better Route Through the Swamp: Causal Coherence in Disparate Treatment Doctrine (2013) 65 Rutgers L.Rev. 723; Katz, The Fundamental Incoherence of Title VII: Making Sense of Causation in Disparate Treatment Law (2006) 94 Geo. L.J. 489; Univ. of Tex. Southwestern Med. Center v. Nassar (2013) ––– U.S. ––––, 133 S.Ct. 2517, 186 L.Ed.2d 503 [five to four decision examining causation element in federal retaliation claims].)

Mendoza claims his report of sexual harassment caused defendants to fire him. In other words, defendants retaliated against Mendoza for accusing his superior (Erdmann) of sexual harassment. On the other hand, defendants cite their belief that Mendoza willingly participated in sexual misconduct on the job as their motivation for firing Mendoza. From defendants' perspective, Mendoza's report only “caused” his firing in the sense that it alerted defendants to Mendoza's misconduct. Defendants concede it is against public policy to fire employees because they report actual sexual harassment. But defendants posit it is not against public policy for employers to fire employees after the employer determines in good faith that the employee actually participated in sexual misconduct on the job. (See Joaquin, supra, 202 Cal.App.4th at p. 1226, 136 Cal.Rptr.3d 472 [“an employer may discipline or terminate an employee for making false charges, even where the subject matter of those charges is an allegation of sexual harassment”].)

On appeal, defendants attack the judgment by pointing to alleged instructional error with regard to the element of causation. Defendants also assert there is insufficient evidence in the record to support the jury's causation findings.

Prejudicial Instructional Error Occurred Requiring Reversal

Initially, defendants obtained a very favorable jury instruction and special verdict form on the issue of causation. The jury was instructed as follows: “3. That Romeo Mendoza's report of sexual harassment by Del Erdmann was the motivating reason for Romeo Mendoza's...