JONES v. LODGE AT TORREY PINES PARTNERSHIP
Filed
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
STATE OF
SCOTT JONES, Plaintiff and Appellant, v. THE LODGE AT TORREY PINES PARTNERSHIP et al., Defendants and Respondents. | D046600 (Super. |
STORY CONTINUED FROM PART I………
A " notice of appeal must be liberally construed." (Cal. Rules Of Court, rule 8.100(a)(2).) Under this rule, " 'the notice can be interpreted to apply to an existing appealable order or judgment, if no prejudice would accrue to the respondent. Thus, notices of appeal referring to an " order" have been interpreted to apply to a " judgment," and those referring to a " judgment" to apply to an " order," " so as to protect the right of appeal if it is reasonably clear what appellant was trying to appeal from, and where the respondent could not possibly have been misled or prejudiced. " ' [Citation.]" (Walker v.
Here, because the judgment identified in Jones's notice of appeal refers to the order granting a new trial and that order is attached to and, therefore, is a part of the judgment, we liberally construe Jones's notice of appeal being from the order granting a new trial as well as from the judgment. It is reasonably clear that Jones intended to appeal the order granting a new trial and there is no indication defendants have been misled or will be prejudiced by our construing the notice of appeal to include an appeal from that order. Accordingly, we deny defendants' motion to dismiss the appeal as to the order granting a new trial and alternative motion to strike all references in Jones's opening brief to an appeal from that order.
II. Jones's Request for Judicial Notice
Jones requests that we take judicial notice of a legislative history report and analysis prepared by Legislative Intent Service regarding Assembly Bill No. 1856 (1999-2000 Reg. Sess.). (Stats. 2000, ch. 1047.) Because the bill clarified that nonsupervisory employees can be liable for sexual harassment under FEHA, Jones contends its legislative history is relevant to the issue in this case of whether Weiss can be held personally liable on Jones's retaliation claim.
Jones's request for judicial notice is overbroad, as he seeks judicial notice of a large volume of documents reflecting the legislative history of Assembly Bill No. 1856, but does not specify any particular document. The problem with such a blanket request for judicial notice is that not all documents comprising a " legislative history" of a statutory enactment are properly subject to judicial notice. (See Kaufman & Broad Communities, Inc. v. Performance Plastering, Inc. (2005) 133 Cal.App.4th 26, 31-39.) Jones's failure to refer to any specific item in the legislative history of Assembly Bill No. 1856 of which judicial notice is proper and relevant deprived defendants of a " reasonable opportunity to meet" the request as required by Evidence Code section 459, subdivision (d). Therefore, we deny Jones's request for judicial notice on the ground it is overbroad. (See Wilson v. John Crane, Inc. (2000) 81 Cal.App.4th 847, 856 [denying request for judicial notice that was " grossly overbroad" ].)
Additionally, a request for judicial notice is properly denied when the materials in question are unnecessary to resolution of the appeal. (Welcher v. Workers' Comp. Appeals Bd. (2006) 142 Cal.App.4th 818, 842, fn. 9; JRS Products, Inc. v. Matsushita Electric Corp. of America (2004) 115 Cal.App.4th 168, 174 [request for judicial notice of legislative history denied because language of statute was plain and consideration of legislative history was therefore unnecessary].) It is unnecessary for us to take judicial notice of the legislative history of Assembly Bill No. 1856 to resolve the issue of whether a nonsupervisory employee can be held liable for retaliation under FEHA, as we can decide that issue based on the relevant statutory language and case law interpreting that language. Accordingly, we also deny Jones's request for judicial notice on the ground it is unnecessary.
Employment Action
" Well-settled standards govern judgments notwithstanding the verdict: 'When presented with a motion for JNOV, the trial court cannot weigh the evidence [citation], or judge the credibility of witnesses. [Citation.] If the evidence is conflicting or if several reasonable inferences may be drawn, the motion for judgment notwithstanding the verdict should be denied. . . . [Citations.] A motion for judgment notwithstanding the verdict of a jury may properly be granted only if it appears from the evidence, viewed in the light most favorable to the party securing the verdict, that there is no substantial evidence to support the verdict. If there is any substantial evidence, or reasonable inferences to be drawn therefrom in support of the verdict, the motion should be denied. . . . [Citation.] The same standard of review applies to the appellate court in reviewing the trial court's granting of the motion. [Citations.] Accordingly, the evidence . . . must be viewed in the light most favorable to the jury's verdict, resolving all conflicts and drawing all inferences in favor of that verdict.' [Citation.]" (Osborn v. Irwin Memorial Blood Bank (1992) 5 Cal.App.4th 234, 258-259.) However, to the extent a motion for JNOV raises legal issues such as the application of law to undisputed facts or the interpretation of a statute or contract, we review the trial court's ruling on the motion de novo. (See Mason v. Lake Dolores Group (2004) 117 Cal.App.4th 822, 829-830 [when the sole issue presented on appeal from JNOV is application of a statute to facts supporting the jury's verdict, it is a question of law subject to de novo review]; Gunnell v. Metrocolor Laboratories, Inc. (2001) 92 Cal.App.4th 710, 719-720; Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4th 280, 284.)
Under California case law, " to establish a prima facie case of retaliation under the FEHA,[[1]] a plaintiff must show (1) he or she engaged in a 'protected activity,' (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer's action. [Citations.] Once an employee establishes a prima facie case, the employer is required to offer a legitimate, nonretaliatory reason for the adverse employment action. [Citation.] If the employer produces a legitimate reason for the adverse employment action, the presumption of retaliation ' " 'drops out of the picture,' " ' and the burden shifts back to the employee to prove intentional retaliation. [Citation.]" (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042 (Yanowitz).) A plaintiff also must show he or she suffered an adverse employment action to establish a prima facie case of discrimination under FEHA. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 355.)[2]
Here, the court granted JNOV based on its conclusion that " the jury's verdict is inconsistent with the current state of California employment law." Specifically, the court decided Jones had not established that an adverse employment action had been taken against him as that term was defined in McRae v. Department of Corrections (2005) 25 Cal.Rptr.3d 911 ( previously published at (2005) 127 Cal.App.4th 779 (McRae I).)[3] The court noted, in its JNOV/new trial order, that to succeed on both his sexual orientation discrimination and retaliation cause of action, Jones " had to establish that an adverse employment action had been taken against him." The court stated: " The evidence presented at trial that [Jones's] case was based on a negative performance evaluation as well as several written criticisms regarding [Jones's] job performance. . . . McRae [I]holds that a negative performance evaluation and written criticisms/warnings do not, in and of themselves individually, or combined, constitute an adverse employment action within the meaning of the causes of action alleged by [Jones], nor did they result in an adverse employment action here. [Jones's] opposition to Defendant[s'] motions for [JNOV] presented an extensive laundry list of conduct that allegedly amounts to adverse employment actions, however, even presuming each of those items was presented at trial, they do not amount to adverse employment actions within the meaning of [Jones's] claims. The only potentially viable conduct in that list is probation, however, the evidence did not show anything resembling probation occurred with respect to [Jones]. None of the conduct listed detrimentally, substantially or materially change[d] the terms and conditions of [Jones's] employment. Therefore, based on the . . . opinion in McRae [I], and considering all of the evidence in the light most favorable to [Jones] in this case, the Court finds there has been no adverse employment action in this case, causing both of [Jones's] claims to fail."
Jones argues, in so many words, that the court's reliance on McRae I's overly restrictive definition of " adverse employment action" was erroneous because the California Supreme Court in Yanowitz hasrejected that definition. Jones contends substantial evidence supports the jury's finding of adverse employment action as that term is defined in Yanowitz.
The court's JNOV ruling clearly was based on McRae I's definition of adverse employment action and the court's conclusion that the evidence failed to show an adverse employment action under that definition. McRae I noted that different courts used different definitions of the term " adverse employment action," and that
McRae I noted some federal courts, including the Ninth Circuit, use a " deterrence test" for determining whether a plaintiff has suffered an adverse employment action. (McRae I, supra, 25 Cal.Rptr.3d at p. 918.) Under that test " an adverse employment action is ' " any adverse treatment that is based on a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity." ' " (Ibid., citing Ray v. Henderson (9th Cir. 2000) 217 F.3d 1234, 1242-1243 (Ray). McRae I noted " [t]he Ninth Circuit has held that adverse employment actions might include demotions, disadvantageous transfers or assignments, refusals to promote, unwarranted negative job evaluations and toleration of harassment by other employees. [Citation.]" (McCrae I, supra, at p. 918, citing Ray, supra, at pp. 1241-1242.) Under the Ninth Circuit's test, some adverse employment actions materially affect the terms and conditions of employment and some do not. (McCrae I, supra, at p. 918, citing Ray, supra, at p. 1242.)
McRae I rejected the deterrence test as overbroad and held " an adverse employment action means an employment action that causes substantial and tangible harm, such as, but not limited to, a material change in the terms and conditions of employment." (McRae I, supra, at p. 919.) McRae I further held " that while something less than an 'ultimate employment action [such as firing , demotion or a reduction in pay]' may be actionable, a plaintiff may seek redress through the courts only for final employment actions; i.e., those that are not subject to reversal or modification through internal review processes." (Ibid., fn. omitted.) As noted, the California Supreme Court granted review in McRae I after the trial court here ruled on defendants' motions for JNOV and new trial (ante, fn. 10), and ultimately retransferred the case to the Court of Appeal for reconsideration in light of Yanowitz, supra, 36 Cal.4th 1028.
In Yanowitz the California Supreme Court addressed the issue of " the appropriate standard for determining whether an employee has been subjected to an adverse employment action for purposes of a retaliation claim under the FEHA." (Yanowitz, supra, 36 Cal.4th at p. 1049.) Yanowitz rejected the " deterrence standard," used by the Ninth Circuit (and the Court of Appeal in Yanowitz), concluding " the term 'otherwise discriminate' in section 12940, [subdivision] (h) should be interpreted to refer to and encompass the same forms of adverse employment activity that are actionable under section 12940, [subdivision] (a).[[4]]" (Id. at pp. 1050-1051, fn. omitted.)
However, Yanowitz noted " [r]etaliation claims are inherently fact-specific, and the impact of an employer's action in a particular case must be evaluated in context. Accordingly, although an adverse employment action must materially affect the terms, conditions, or privileges of employment to be actionable, the determination of whether a particular action or course of conduct rises to the level of actionable conduct should take into account the unique circumstances of the affected employee as well as the workplace context of the claim." (Id. at p. 1052, fn. omitted.) Yanowitz instructs " that the language in section 12940(a) making it an unlawful employment practice for an employer to discriminate against an employee on the basis of race, sex, or the other enumerated characteristics 'in compensation or in the terms, conditions, and privileges of employment' properly must be interpreted broadly to further the fundamental antidiscrimination purposes of the FEHA. Appropriately viewed, this provision protects an employee against unlawful discrimination with respect not only to so-called 'ultimate employment actions' such as termination or demotion, but also the entire spectrum of employment actions that are reasonably likely to adversely and materially affect an employee's job performance or opportunity for advancement in his or her career. Although a mere offensive utterance or even a pattern of social slights by either the employer or co-employees cannot properly be viewed as materially affecting the terms, conditions, or privileges of employment for purposes of section 12940(a) (or give rise to a claim under section 12940(h)), the phrase 'terms, conditions, or privileges' of employment must be interpreted liberally and with a reasonable appreciation of the realities of the workplace in order to afford employees the appropriate and generous protection against employment discrimination that the FEHA was intended to provide." (Id. at pp. 1053-1054, fns. omitted.)
Yanowitz further explained that " the determination of what type of adverse treatment properly should be considered discrimination in the terms, conditions, or privileges of employment is not, by its nature, susceptible to a mathematically precise test, and the significance of particular types of adverse actions must be evaluated by taking into account the legitimate interests of both the employer and the employee. Minor or relatively trivial adverse actions or conduct by employers or fellow employees that, from an objective perspective, are reasonably likely to do no more than anger or upset an employee cannot properly be viewed as materially affecting the terms, conditions, or privileges of employment and are not actionable, but adverse treatment that is reasonably likely to impair a reasonable employee's job performance or prospects for advancement or promotion falls within the reach of the antidiscrimination provisions of sections 12940(a) and 12940(h). (Yanowitz, supra, 36 Cal.4th at pp. 1054-1055, italics added, fn. omitted.) " Actions that threaten to derail an employee's career are objectively adverse." (Id. at p. 1060.)
In considering whether the alleged retaliatory activity against the plaintiff in Yanowitz constituted adverse employment action, Yanowitz stated it was unnecessary to " decide whether each alleged retaliatory act constitutes an adverse employment action in and of itself. . . . [T]here is no requirement that an employer's retaliatory acts constitute one swift blow, rather than a series of subtle, yet damaging, injuries. [Citations.] Enforcing a requirement that each act separately constitute an adverse employment action would subvert the purpose and intent of the statute." (Yanowitz, supra, 36 Cal.4th at pp. 1055-1056, fn. omitted.) Therefore, Yanowitz concluded it was appropriate to consider the alleged retaliatory acts against the plaintiff " collectively under a totality-of-the circumstances approach." (Id. at pp. 1052, fn. 11, 1056.)
McRae I's holding that a plaintiff may seek redress through the courts only for final employment actions that are not subject to reversal or modification through internal review processes is inconsistent with Yanowitz's totality-of-the circumstances approach to determining whether a plaintiff has suffered adverse employment action, which is presumably why the California Supreme Court granted review in McRae I and retransferred the case to the Court of Appeal for reconsideration in light of Yanowitz. The trial court here expressly based its finding of no adverse employment action on McRae I's overly restrictive definition of that term. Thus, the court applied an incorrect standard for determining whether the evidence sufficiently supported the jury's finding of adverse employment for purposes of ruling on the JNOV motions.
Viewing the evidence in the light most favorable to the jury's verdict, and through the lens of Yanowitz's totality-of-the circumstances approach to determining whether a plaintiff has suffered adverse employment action, we conclude the evidence was sufficient to support the jury's finding that Jones suffered adverse employment action – i.e., action that substantially and materially adversely affected the terms and conditions of his employment. There was evidence that when Jones sent Weiss a memorandum asking him to refrain from making unprofessional remarks, Weiss responded with a tirade and physically intimidated Jones by crumpling his memorandum and throwing it at him. The day after Jones met with Fulks to complain about sexual orientation discrimination and harassment at LTP, he received the first of a series of employee warning notices from Weiss – this one concerning his absence from work the previous day (at Fulks's direction) as a result of being too emotional to work after discussing the harassment he had endured at LTP. About a week and a half later, Jones was summoned to meet with Weiss and Fulks and was presented Weiss's extensive memorandum charging him with deficient work performance in a number of areas. Jones viewed the memorandum as a " 30-day notice for poor work performance" based on false charges, and the jury could have reasonably taken the same view. Weiss stopped talking to Jones and began excluding him from weekly LTP management meetings. Weiss and Steen continued to use offensive language in the workplace and Jones overheard Steen threaten to " punch the faggot in the mouth."
Although Jones made it clear during his disability leave that he wanted to return to his job at LTP and would not take a demotion, when his leave expired, Fulks placed him on paid administrative leave until the issue of where he would return to work was resolved. Fulks and the general manager of LTP told Jones he could return to LTP but he was still on his 30-day probation and his sudden disability leave had " burn[ed] a bridge" with LTP's management. When Jones told Fulks he had met with a representative of DFEH, Fulks accused him of " blackmailing" the hotel.
After Jones returned to work at LTP, he continued to be excluded from meetings and was warned by a coworker to watch his back. There was evidence that during a meeting Weiss said, " We've got to get Scott Jones out of here." After Jones filed his complaint with DFEH, he was excluded from an important " coordination meeting" of Evans Hotels management employees regarding the upcoming Buick Invitational golf tournament. His assistant was included in the meeting and he had previously been included in Buick Invitational coordination meetings. Between
Based on this evidence and the evidence that Jones was harassed by Weiss and Steen based on his sexual orientation,[5] the jury could reasonably conclude that Jones suffered adverse treatment in the form of a series of damaging injuries that would be reasonably likely to impair a reasonable employee's job performance or prospects for advancement or promotion – i.e., actions that threatened to derail his career. (Yanowitz, supra, 36 Cal.4th at pp. 1054-1055, 1060.) In accordance with the adverse employment action instruction it was given, the jury reasonably could have based its adverse employment action finding on evidence that Jones experienced " significantly diminished material responsibilities" (e.g., exclusion from management and Buick Invitational planning meetings) and " unwarranted probation." Accordingly, the court erred in granting defendants' motions for JNOV on the ground there was insufficient evidence of adverse employment action.[6]
IV. JNOV in Favor of Weiss on the Ground an Individual Cannot Be Held Liable
for Retaliation Under FEHA
We agree with Jones that the court erred in granting JNOV in favor of Weiss on the ground a supervisor cannot be held liable for retaliation under FEHA. As noted FEHA retaliation claims are brought under section 12940, subdivision (h), which makes it an unlawful employment practice " [f]or any employer, labor organization, employment agency, or person to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part [including section 12941]." (Italics added.)
In its JNOV order the court stated: " [W]ith respect to Defendant Weiss, McClung v. Employment Development Department (2004) 34 [Cal.]4th 467 [(McClung)], confirming past opinions, makes it abundantly clear that an individual cannot be held liable for retaliation, the cause of action alleged against Weiss under . . . [section] 12940(h)." However, McClung did not address the issue of whether an individual employee can be held liable for retaliation under section 12940, subdivision (h); it addressed the retroactivity of an amendment to section 12940, subdivision (j)(3), which contains FEHA's prohibition against harassment and does not address retaliation.[7]
Defendants argue that the reasoning of Reno v. Baird (1998) 18 Cal.4th 640 (Reno), which held individual supervisors are not liable for employment discrimination under FEHA (id. at pp. 644-663), applies equally to retaliatory personnel actions. Although Reno discussed a number of reasons supporting its conclusion that there is no
individual liability for discrimination under FEHA, it largely based that conclusion on FEHA's differing treatment of harassment and discrimination. Reno observed: " Although the FEHA prohibits harassment as well as discrimination, it treats them differently. It prohibits 'an employer . . . or any other person' from harassing an employee. (§ 12940, subd. (h)(1), italics added.) It defines a 'person' as including 'one or more individuals, partnerships, associations, corporations, limited liability companies, legal representatives, trustees, trustees in bankruptcy, and receivers or other fiduciaries.' (§ 12925, subd. (d).) The FEHA, however, prohibits only 'an employer' from engaging in improper discrimination. (§ 12940, subd. (a).)" (Reno, supra, 18 Cal.4th at p. 644.) Reno later noted: " [T]he Legislature has . . . distinguished between discrimination and harassment. Whatever similarities there may be between the two, the employer ultimately does the former; coworkers and supervisors do the latter. Harassment claims are legitimately distinguished from discrimination claims because they are based on different types of conduct. Behavior that gives rise to a harassment claim is not related to performing one's job duties except insofar as it occurs within the work environment. Behavior that gives rise to a discrimination claim, on the other hand, is often indistinguishable from performing one's job duties. Thus, the Legislature properly tailored the FEHA in order to address these distinct claims." (Id. at p. 657.)
Walrath v. Sprinkel (2002) 99 Cal.App.4th 1237 (Walrath) decided that a cause of action against a supervisory employee is not barred by Reno. Walrath stated: " [T]here is authority recognizing a common law cause of action for retaliatory wrongful discharge as well a cause of action against an individual supervisor for retaliation in violation of FEHA. Blom v. N.G.K. Spark Plugs (U.S.A.), Inc. (1992) 3 Cal.App.4th 382 and Carmichael v. Alfano Temporary Personnel (1991) 233 Cal.App.3d 1126 recognize a common law cause of action for wrongful discharge in retaliation for an employee's action seeking to correct employment discrimination. (See also Stevenson v. Superior Court (1997) 16 Cal.4th 880 [recognizing common law cause of action for wrongful discharge in violation of public policy against age discrimination].) Page v. Superior Court (1995) 31 Cal.App.4th 1206 held that an individual supervisor may be liable for retaliation against an employee in violation of FEHA.
" Although the foregoing cases were decided prior to Reno v. Baird, supra, 18 Cal.4th 640, there are later cases as well. The Ninth Circuit Court of Appeals held in 2001 that Reno v. Baird does not apply to a retaliatory termination claim against an individual supervisor under the FEHA because a different statute is involved. (Winarto v. Toshiba
Defendants argue Walrath was wrongly decided and that under the reasoning of Carrisales, the language in section 12940, subdivision (h), making the prohibition against retaliation applicable to " any . . . person" should not be construed as imposing individual liability against a supervisor for retaliatory acts. In Carrisales, supra, 21 Cal.4th at pp. 1134-1140, the California Supreme Court held that liability for sexual harassment under FEHA did not extend to nonsupervisory coworkers even though the statutory provision prohibiting harassment expressly applies to any " employer . . . or any other person." (§ 12940, subd. (h).) The Supreme Court's conclusion was largely based on the second sentence of the harassment provision which then stated: " 'Harassment of an employee or applicant by an employee other than an agent or supervisor . . . shall be unlawful if the entity, or its agents or supervisors, knows or should have known of this conduct and fails to take immediate and appropriate corrective action.' " (Id. at p. 1135.) Carrisales construed this sentence to mean that harassment by an employee other than an agent or supervisor constituted an unlawful employment practice only if the employer became aware, or reasonably should have become aware, of the harassment and failed to take appropriate corrective action. (Id. at pp. 1135-1136.) Carrisales concluded: " If the employer takes appropriate action, no unlawful employment practice has occurred. If the employer fails to take such action, there may be an unlawful employment practice, but it is by the employer, not the coworker." (Id. at p. 1136.)
Although, as noted, the Legislature responded to Carrisales by amending section 12940 to specifically provide that a coworker could be held personally liable for harassment (§ 12940, subd. (j)(3)), McClung held the amendment changed the law regarding liability for harassment and did not apply retroactively. (McClung, supra, 34 Cal.4th at pp. 470-477.) Therefore, defendants argue, McClung reaffirmed the validity of Carrisales's reasoning (that a FEHA reference to unlawful employment practice being committed by a " person" does not mean an individual employees is subject to liability for the unlawful practice).
We do not read Carrisales and McClung as mandating a construction of section 12940, subdivision (h), that precludes individual liability for retaliation. Carrisales expressly declined to decide the issue of whether individuals can be liable for retaliation under that provision. Carrisales noted that a couple of cases contain dicta suggesting individuals can be liable for retaliation because the statutory prohibition against retaliation extends to " persons" and observed: " However, whatever rule might apply to retaliation (we express no opinion), the statutory language regarding retaliation contains no additional language comparable to the second sentence of section 12940(h)(1). We must construe section 12940(h)(1) in its entire context, not reference to the quite different overall language of section 12940, subdivision (f)." [8] (Carrisales, supra, 21 Cal.4th at p. 1138, italics added.) The italicized statement in Carrisales shows that the high court's interpretation of the statutory harassment provision as not subjecting individual employees to liability was based on language that is not present in section 12940, subdivision (h)'s prohibition against retaliation.
We agree with Walrath and Taylor that an individual supervisor can be held liable for retaliation under section 12940, subdivision (h). Accordingly, we conclude the trial court erred in granting JNOV in favor of Weiss on the ground he cannot be held personally liable for retaliation.
TO BE CONTINUED AS PART
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[1] Prohibited retaliation under the FEHA is addressed in section 12940, subdivision (h), which provides that it is 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 this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part."
[2] Defendants contend Jones has abandoned his sexual orientation discrimination claim because his opening brief seeks reversal only as to his retaliation claim. Although Jones's argument that there is substantial evidence of adverse employment focuses primarily on his retaliation claim, largely because much of the relevant evidence involves conduct that can reasonably be viewed as retaliatory, the argument goes to his sexual orientation discrimination claim as well. E.g., Jones's opening brief includes a list of 12 evidentiary items showing retaliation followed by the statement: " WEISS, Fulk[s'] and Steen's discriminatory and retaliatory conduct caused a 'materially adverse change' in JONES'[s] employment, to the extent that JONES was forced to take disability leave for 'on-the-job harassment.' " (Italics added.) We do not construe Jones's opening brief as abandoning his sexual orientation discrimination claim.
[3] The California Supreme Court granted review in McRae I and retransferred the case to the Court of Appeal for reconsideration in light of Yanowitz, supra, 36 Cal.4th 1028 and Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074. (McRae I, supra, review granted
[4] Section 12940, subdivision (a), is " the initial and basic antidiscrimination provision of the FEHA applicable to employers." (Yanowitz, supra, 36 Cal.4th at p. 1049.) Section 12940, subdivision (a), provides it is unlawful for " an employer, because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, or sexual orientation of any person, to refuse to hire or employ the person or to refuse to select the person for a training program leading to employment, or to bar or to discharge the person from employment or from a training program leading to employment, or to discriminate against the person in compensation or in terms, conditions, or privileges of employment."
[5] Although the court granted summary adjudication in favor of The Lodge, Weiss and Steen on Jones's cause of action for sexual orientation harassment and instructed the jury that there was no claim at issue for sexual harassment of Jones, the jury was presented with substantial evidence that Jones was harassed by Weiss and Steen based on his sexual orientation.
[6] We recognize that in considering whether there was substantial evidence of adverse employment action against Jones, the court did not have the benefit of Yanowitz's clarification of the meaning of that term in the context of FEHA litigation.
[7] The amendment made it clear that a nonsupervisory employee can be held personally liable for harassment, contrary to an earlier holding in Carrisales v. Department of Corrections (1999) 21 Cal.4th 1132 (Carrisales). McClung decided the amendment was not retroactive. (McClung, supra, 34 Cal.4th at p. 477.)
[8] A number of the subsections of section 12940 were redesignated after Carrisales. Former section 12940, subdivision (h)(1), concerning harassment is now section 12940, subdivision (j)(1), and former section 12940, subdivision (f), concerning retaliation is now section 12940, subdivision (h).
