Mokler v. County of Orange

• Decision Date: 26 November 2007
• Docket Number: No. G036029.,G036029.
• Citation: 157 Cal.App.4th 121,68 Cal.Rptr.3d 568
• Court: California Court of Appeals Court of Appeals
• Parties: Pamela M. MOKLER, Plaintiff and Appellant, v. COUNTY OF ORANGE et al., Defendants and Appellants.

68 Cal.Rptr.3d 568

157 Cal.App.4th 121

Pamela M. MOKLER, Plaintiff and Appellant, v. COUNTY OF ORANGE et al., Defendants and Appellants.

No. G036029.

Court of Appeal, Fourth District, Division 3.

November 26, 2007.

Horvitz & Levy, Frederic D. Cohen, Kim L. Nguyen, Encino; Lynberg & Watkins, Norman J. Watkins and William F. Bernard, Orange, for Defendants and Appellants.

Law Offices of H. Bryan Card, H. Brian Card, Tustin; Law Offices of Robert H. Pourvali, Robert H. Pourvali, Calabasas; Esner, Chang & Ellis, Stuart B. Esner and Andrew N. Chang, Oakland, for Plaintiff and Respondent.

OPINION

ARONSON, J.

Defendants County of Orange (County) and Chris Norby appeal from the trial court's denial of their motion for judgment notwithstanding the verdict (JNOV) following a jury determination that the County terminated Pamela Mokler in violation of California's whistleblower statute, Labor Code section 1102.5, and that Norby sexually harassed Mokler, creating a hostile work environment under the Fair Employment and Housing Act (FEHA), Government Code section 12900 et seq. Defendants contend the trial court erred because Mokler's failure to exhaust her administrative remedies barred her from pursuing her retaliatory discharge claim. Defendants also challenge the sufficiency of the evidence to support her claims for retaliation and sexual harassment. Mokler appeals the trial court's order granting the County a new trial on damages, conditioned on Mokler refusing a damage award remitted from approximately $1.6 million to $125,000. Mokler challenges the sufficiency of the evidence to support the trial court's statement of reasons for overturning the jury's damages verdict.

We conclude the County waived its exhaustion defense by failing to raise it before trial. We also conclude that substantial evidence supports Mokler's retaliatory dismissal claim. Mokler's sexual harassment claim against Norby fails, however, because Norby's alleged harassment was not sufficiently severe or pervasive to alter the conditions of Mokler's employment and create an abusive working environment. We also conclude substantial evidence supports the new trial order on damages. We therefore reverse the trial court's order denying JNOV as to Mokler's harassment claim, but otherwise affirm the remainder of the JNOV order. We also affirm the new trial order.

I FACTUAL BACKGROUND

Consistent with the standard of review, we set forth the facts developed in the record in the light most favorable to the judgment. (See Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224, 229, 30 Cal. Rptr.3d 145,113 P.3d 1159.)

A. The Latino Coalition Foundation (LCF) Proposal

The Office on Aging (OoA) serves as an advocate for County residents aged 60 and older. The office receives federal and state funding, and is required to meet federal and state mandates. In November 2000, the County hired Mokler as OoA's executive director. Mokler was first supervised by William Baker, the County's director of the Community Services Agency, whose oversight included the OoA. Baker consistently rated Mokler's performance as "exceptional" from the time she was hired until Baker retired in March 2003.

In December 2002, the federal government awarded OoA $800,000 as "one-time" funds, designated exclusively for new projects. The funds had to be spent no later than June 30, 2003, or they would revert back to the federal government. To solicit bids for projects, OoA issued requests for proposal (RFP) to approximately 1,000 agencies and providers. OoA received four proposals in response.

One of these proposals came from LCF, a nonprofit charity devoted to helping Latinos with health care issues. LCF proposed to use $212,000 to put together street fairs where LCF could provide health services information to the Latino community. One of the members of LCF's board of advisors was David Padilla, whom Mokler had recently dated. Under the County's standard procurement procedures, OoA forwarded the four proposals to an impartial evaluation committee to make funding recommendations to the Board of Supervisors. The first meeting of the evaluation panel took place on March 7, with a follow-up meeting scheduled for the next week to score the proposals.

While the evaluation committee considered the proposals, Mokler instructed Janice Parks, an OoA publicist, to obtain a copy of LCF's proposal and independently review its feasibility. Mokler explained she planned to place Parks in charge of the project if the panel recommended funding. She also sought to obtain a copy of the LCF proposal for Francisco Valle, one of the County's paid consultants, because of his expertise in Latino outreach and marketing. Mokler reasoned that given the tight deadline for using the funds, her team had to start working on the LCF proposal "[i]n warp speed" if approved by the committee.

Parks's initial attempt to obtain a copy of LCF's proposal failed. An OoA contracts staff member refused her request, explaining all proposals were confidential and available only to the evaluation committee. Christian Teeter, one of Mokler's subordinates who had access to the vendor's proposals, checked with the CEO purchasing department and was told that providing Parks with a copy of the proposal would violate county policy. Upon learning of these developments, Mokler reviewed section 4.2.4 of the contracts manual, which provides: "`Proposals will not be considered public information until action is filed with the Board of Supervisors for the specific purpose of making an award. Prior to contract award, proposals shall be accessible only to county personnel or other members of the proposal evaluation committee having a legitimate interest in them.'" After reviewing the manual, Mokler believed that Valle and Parks had a "legitimate interest" in seeing the proposals and that she had the authority to decide they could review it. Based on this understanding, Mokler instructed Teeter to provide Parks and Valle with copies of the proposal, and then directed Parks to review the proposal.

After considering the LCF proposal, the review committee gave it a lower score than competing proposals, and the OoA communicated the committee's concerns to LCF. LCF's director, Robert De Posada, met with Mokler and Parks to discuss the issues raised by the panel, such as the short time frame, the number of events, and LCF's failure to designate a local person to head the project. Based on these discussions, De Posada submitted a revised proposal which reflected a budget reduced from $212,000 to $122,000, and the selection of Padilla as the local project manager. Ultimately, the LCF proposal was not funded though the RFP process, but through a pilot project with the state.

B. The Hospital Van IFB

While in Washington, D.C., Mokler met Carlos Olamendi, a member of the Latino Leadership Foundation, who suggested raising funds to pay off a loan coming due on the "diabetic outreach van" owned by Mission Hospital, which used it to provide services to the Latino community. Mokler later discussed the issue with Baker, who thought using the van to target diseases affecting the Latino population was a good idea. Baker then gave Mokler the green light to "sole source" the van, rather than opening a bidding process for other contractors. Because of concerns over the propriety of their procedure, a staff member suggested they fund the project through an "IFB" or invitation for bid process. After discussing the matter, Baker told Mokler: "`just go along with it....'" "`The way to do it is to write a tight scope of work'" so that only Mission Hospital would receive the contract. Baker explained to her, "`This is a little game we play in the county.'" Mokler nevertheless researched the existence of other organizations that could potentially compete for diabetic outreach to seniors in South Orange County, and found none.

C. Removal of the Contracts Department from OoA Oversight

Baker retired on March 27, 2003, and Vicki Landrus was appointed interim Community Services Agency director the following day. On April 11, 2003, Landrus told Mokler the County planned to transfer OoA's contracts department to the CEO purchasing department. In response, Mokler complained that this would violate the County's contract with the California Department of Aging (CDA), which allows the state to terminate its contract to fund OoA if the organizational structure of OoA is materially changed.¹ Mokler also expressed her belief that removal of the contracts department violated both federal and state law.

On April 18, 2003, Mokler again complained to her supervisors and county counsel about the illegality of reorganizing the OoA. She also prepared a memorandum on the subject and asked Bill Mahoney, the County's assistant chief executive officer (CEO), to obtain an opinion from county counsel. On April 21, 2003, the County removed the contracts department from OoA and transferred supervisory responsibility to the CEO purchasing department. On April 23, Mokler received a phone call from Mr. Rawlings in the CEO purchasing department stating that Teeter is "`effective immediately ... reporting 100 percent to me.'" According to Mokler, this significantly changed the organization in the OoA because Teeter was the OoA's operations director and was in charge of various services such as contracts, gerontology, and health information. Mokler believed it was illegal to have Teeter report to Rawlings and shared her views with her supervisors on several occasions.

Concerned about these warnings, Mokler's supervisors instructed her, both verbally and in writing, not to communicate with the CDA. Worried that Mokler might leak information regarding the change to the CDA, Mokler's supervisors flew to Sacramento on May 2 and met with Ed Long, a CDA official, to short-circuit any allegation of illegal activity Mokler might report. According to Mokler, these supervisors misrepresented to Long the...