Wrysinski v. Agilent Technologies

Filed 9/27/06 Wrysinski v. Agilent Technologies CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Placer)

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Defendant Agilent Technologies, Inc., fired plaintiff Colleen E. Wrysinski (also known as Colleen Striberg) while she was on leave for the birth of her child. Plaintiff filed a multi-count complaint alleging wrongful termination, gender and pregnancy discrimination, and violation of related federal and state statutes. After a lengthy trial but brief deliberations, the jury awarded plaintiff compensatory damages of $963,580 and punitive damages of $3,854,320. With prejudgment interest and liquidated damages awarded under a federal statute, the total judgment against defendant was $5,224,272.82. The court also awarded plaintiff her attorney fees.

On appeal, defendant raises a multitude of issues relating to liability, damages, and attorney fees. We disagree and therefore affirm the judgment.

FACTS AND PROCEEDINGS

The record in the case is lengthy and technical, a situation aggravated by the abundant use of acronyms, detailed descriptions of computer chip testing processes, and the jargon of a human resources program. We simplify our recitation of facts as much as possible, and defer recounting some evidence to our analysis of defendant’s claims on appeal. Viewed in a light most favorable to the jury’s findings, the evidence revealed the following:

Defendant, an offshoot of Hewlett-Packard, is a Fortune 500 technology corporation with net revenue in 2003 of more than $6 billion. Defendant prides itself on its corporate values, including “[t]rust, respect, and teamwork,” and the belief “that people want to do a good job and will if given proper tools and support.” It values “[u]ncompromising integrity,” demonstrated in part by “[d]eal[ing] openly and honestly to earn the trust and loyalty of others.” Another value emphasized is “[a]ccountability,” including “[m]anag[ing] by ambitious but realistic performance objectives, reward[ing] those who meet them and priz[ing] those who exceed them,” while “[a]ddress[ing] poor performance directly and specifically.”

These values were emphasized in defendant’s management training program, known as Vantage or “beAgilent,“ and are reflected in defendant’s “Personnel Policies & Guidelines“ (PPG) for employees.

For example, the PPG’s outline a series of progressive steps to be taken with employees who require corrective action. They provide that “[t]he purpose of the corrective action process is to improve the employee’s performance to a sustained acceptable level. The process should permanently resolve unacceptable performance.” The steps to be taken start with a verbal discussion between manager and employee about “areas of performance that have become or may be leading to unacceptable performance in order to give the employee an opportunity to correct the problem before crossing the line into a formal written warning.” If the verbal discussion does not resolve the matter, a written warning should be given to the employee to “formally document[] the need for immediate improvement.” This warning, which becomes part of the employee’s personnel file, “should reference previous verbal discussions, identify the performance problems, state clear performance expectations, and indicate that failure to sustain an overall acceptable level of performance may lead to further corrective action.”

If the written warning does not suffice, the third step in the corrective action chain is probation. The probation document “should reference the previous verbal discussions and written warning and state that unless immediate and significant improvement is evidenced and sustained over a designated timeframe, termination of employment will result.” If this improvement is not forthcoming, an employee may be terminated with the approval of “the entity human resources and general managers.”

Employees receive evaluations with scores in a number of different areas. A rank of “1” is given to “[t]op performers,” a rank of “2” to those who “[c]onsistently perform above expectations,” and a rank of “3” to “[s]olid performers consistently performing at or above expectations.” Other Vantage materials compare the top score of “1” to being an Olympic medalist or a Grammy Award winner, a score of “2” to being in the Olympic finals or having a platinum record, and a score of “3” to being a member of the Olympic team or having a recording contract. Employees who do not receive at least a “3” are “put on PIR,” i.e., “performance improvement required,” and given a last-chance plan for improvement. Guidelines call for 20 percent of defendant’s employees to be ranked in category 1, and 40 percent of employees in each of categories 2 and 3. Salary raises, awards and grants of stock options are given to employees who meet or exceed expectations.

Defendant hired plaintiff in May 2000 as the Post-Silicon Verification Project Manager at its Roseville research and development laboratory. Her primary focus was on preparations for an upcoming chip testing program. Her unit had significant morale and employee problems, and plaintiff worked to improve the unit’s productivity and working relationships. She also helped to recruit new college graduates to work for defendant.

When plaintiff was first hired, Margie Evashenk served as both lab manager and acting section manager, and supervised plaintiff. Evashenk was very encouraging and had no complaints about plaintiff’s performance.

In September 2000, Aaron Masters became section manager and plaintiff’s direct supervisor. In November 2000, plaintiff received her six-month evaluation. Masters was the evaluating manager and Evashenk was the reviewing manager. Masters rated plaintiff a “3,” i.e., a “[s]olid performer[] consistently performing at or above expectations.” He noted that plaintiff had made several hires during a time when “the environment has been difficult and good people have been hard to find.” In outlining plaintiff’s strengths, he stated that plaintiff “makes clear decisions and follows through with actions. She has also proven diligent about communicating her reasoning, processes and decision outcomes.” He commended her for motivating her team, observing that plaintiff had been given charge of a team “with both motivational and attitude issues. Over the summer [plaintiff] has managed to improve the attitude and the motivation of the team.” She demonstrated “a high degree of initiative in her hiring efforts and with her efforts [had] come a good degree of success.”

Areas for development focused on the need for plaintiff to increase her knowledge of the business environment, work with others across team lines in the company, and exhibit more of a “can do attitude.” Masters noted his intent to work with plaintiff to develop their relationship, particularly on planning matters. He said he needed to understand plaintiff’s hiring objectives because he had some concerns about the quality and skill sets of the people plaintiff had hired.

The evaluation summary noted that plaintiff had “made good progress” with her team. Masters noted that as her team situation improved, plaintiff should “broaden her focus and become more of a management team player. She has a solid skill set from which to draw and build from.” He commented that plaintiff “as well as the rest of us, have opportunities to improve our effectiveness. We need to identify the tasks before us, communicate our requirements for success, and devise creative ways to accomplish our tasks with the limited resources.”

An internal comparative ranking list from mid-November 2000 showed plaintiff with a rank of “3” and the comment “[n]eed to see more structure from her.”

On November 13, 2000, defendant awarded plaintiff 1,900 shares of stock options, a grant that represented defendant’s “confidence in [her] to help lead our company into the future.” One month later, on December 15, 2000, plaintiff received a $1,000 bonus “for her dedication and outstanding efforts in recruiting for the Roseville Tachyon Lab.” Plaintiff also received a six percent merit salary increase. On the notification of this increase, Masters wrote, “Thanks for the effort in pulling our Post Silicon team out of the mud, organizing them and making them productive.”

In December 2000, plaintiff told Masters that she was pregnant and expecting a child in July 2001, and began to discuss her plans for leave with him. Plaintiff wanted to take a total of six months of leave, during which she planned to remain available via e-mail and telephone. Defendant’s PPG’s outlined three potential sources for pregnancy and parental leave: 12 weeks of leave under the federal Family and Medical Leave Act (FMLA) for “the birth of an employee’s child [and] to care for the newborn child,” a medical leave of absence or disability leave for “maternity,” and a personal leave of absence for “caring for a newly adopted or newly born child.”

Plaintiff proposed taking disability leave from June 8, 2001 to August 28, 2001, the period encompassing four weeks before her due date through six weeks after. From August 28, 2001 to January 4, 2002, plaintiff planned to use a combination of flexible time off and time off without pay, then return to work January 7, 2002 at three-fourths time. She intended to resume full-time employment March 4, 2002.

Masters told plaintiff that was fine, but he e-mailed Evashenk and Lisa Brown, then the section manager, that he had “a pending problem with [plaintiff] leaving in June for six months.”

During early 2001, plaintiff dealt with several different problems in the lab. Delays in production and glitches in development delayed plaintiff’s ability to test defendant’s new chip as planned. Personnel problems also arose. One of plaintiff’s employees, Shel Randall, was particularly problematic. Plaintiff met with him on a weekly basis to coach him, and created performance plans with measurable goals. Plaintiff kept written records of these efforts and placed them in Randall’s personnel files. She gave these plans to Masters to review, and she kept him informed of her efforts to help Randall improve his work performance.

During the same time, in the spring of 2001, the dot-com bubble burst. Julian Elliot, the vice president and general manager of the division in which plaintiff worked, met with his managers, including Evashenk, to discuss possible reductions in force and the need to “raise the bar” for employees. He directed the managers to identify the bottom 10 percent of employees. Evashenk in turn consulted Masters and the other section manager, Lisa Brown, and submitted a “bottom 10 percent list” to Michael Vargas, the division’s human resources manager.

Presence on this list did not mean that an individual would be fired. It was instead a tool for managing the performance of these employees, and a way of offering help for improvement. Brown testified that she worked with her managers to insure that there was “every opportunity” for individuals on this list to get off of it. Supervisors were to have conversations with their employees to give them a chance to improve or rebut the charges, define expectations and develop a plan with “short-term deliverables” and milestones to demonstrate improvement. Several employees who were placed on this list in fact improved their performance and avoided any adverse consequences.

Plaintiff was not told that some of the people she managed, including Randall, were on this list. Plaintiff herself was not initially put on the “bottom 10 percent” list, although Evashenk was concerned about plaintiff’s supervision of Randall. Instead, Evashenk expected Masters to coach plaintiff, in accordance with defendant’s values and policies, and develop goals, objectives and metrics for evaluation. Plaintiff testified that she not only received no coaching, she received no indication from Masters that anything was wrong with her performance or managerial capabilities.

In early April, Evashenk e-mailed Masters to learn the status of Randall’s performance. Masters e-mailed plaintiff two weeks later asking what was being done to “raise the bar” with Randall, and plaintiff responded minutes later to explain what was being done and to note that Randall’s move to a new location in the lab seemed promising. Masters, however, told Evashenk that plaintiff was not giving Randall appropriate direction. Evashenk concluded that plaintiff was doing nothing about Randall’s performance and therefore decided, with Masters and Brown, to add plaintiff’s name to the “bottom 10 percent” list. Randall was also on this list. In explaining Randall’s status to Vargas, the human resources manager, Evashenk wrote in part that Randall “was not given any ‘pre-PIR’ coaching by [plaintiff] (indicative of the reasons why she has been added to the list).” Neither Evashenk nor Vargas did any independent investigation to assess plaintiff’s managerial abilities.

Masters never told plaintiff that she was on this list, nor did he provide any coaching or develop goals and objectives for plaintiff to meet. Masters and Vargas said that they kept this information from plaintiff because they did not want to upset her pregnancy or her plans for leave. Masters, Vargas and Evashenk together decided to keep plaintiff on the bottom 10 percent list until she returned from leave.

Had plaintiff not been going on leave, Vargas testified that he would have instructed Masters (1) to have “active conversations” with plaintiff to give her an opportunity to respond and “have a chance to improve or rebut the charges,” (2) to define his expectations for plaintiff and explain where she was falling short, and (3) develop a plan for improvement that would include “sort-term deliverables.”

Plaintiff began her leave June 7, 2001, unaware that there were any problems with her managerial abilities or her performance. In fact, in July 2001, plaintiff received a letter from corporate headquarters commending her for her efforts on college recruiting.

In July 2001, Evashenk left defendant’s employ, and Lisa Brown was promoted from being section manager to a position as Integrated Circuit Business Unit Manager, managing the entire Roseville lab.

As defendant’s financial picture became clearer, a layoff policy, known as the “August 2001 Workforce Management Program” (WMP), was promulgated, setting out the guidelines to be used in determining which employees would be retained and which would be terminated. The WMP explicitly was “focused on the need to have employees leave the company.” The guidelines specified that “[b]usiness decisions will drive the need to use this Program, not the performance of individual employees. For example, a manager cannot use the elements of the [WMP] in lieu of following the corrective action process to manage a single individual whose performance needs improvement.” The WMP was “not intended to be used to manage correction action situations/PIR or performance problems.” The guidelines set forth a mandatory process to be followed to determine “WMP participants,” i.e., those who would lose their jobs. These guidelines were designed to reflect defendant’s values.

The process first involved identifying the essential job functions and the skills needed to accomplish these objectives. Managers were to explain why they selected these particular critical skills as the evaluation measure, and submit this documentation to the human resources department for approval. Second, the manager was to assess each employee against this list of skills. As a third step, “after the manager has identified the critical skills needed to operate the department and the critical skills possessed by each employee, the manager should then rate the employees in his or her department based on the importance and the number of critical skills they possess.” Managers were cautioned not to use personal feelings or discriminatory factors such as gender, physical condition, or family status in rating their employees.

As a fourth step, the manager was then to review these ratings with someone from Human Resources and explain his or her decisions. The manager was also to inform Human Resources “if there is a significant discrepancy between the results of an employee’s skill assessment and the employee’s most recent performance evaluation,” and explain this discrepancy.

As a final step, a list was then to be prepared of those employees who were to be retained and those who were to be included in the WMP. The guidelines also cautioned that “[t]he use of the [WMP] requires the approval of [defendant’s] Executive Staff.” (Original bolding.) Further, “[c]hanges to the processes and/or documentation must have the approval of the appropriate Corporate Legal Representative and [defendant’s] Executive Staff.”

Defendant determined that layoffs would be required in some divisions but not in others. The division in which plaintiff worked was spared. However, the division was given permission to use the WMP guidelines to reorganize to meet business needs by terminating employees who “didn’t have the skill sets to move forward.” Whether such a reorganization would be undertaken was left to the discretion of each business unit manager, and Brown was the only manager who elected to undertake this process.

Brown initially identified eight people, later pared to four, to be laid off under the WMP, all of whom were on the “bottom 10 percent list.” Plaintiff was among those selected. Brown and Vargas had previously discussed the possible need to fill plaintiff’s position before she returned from leave. Brown described plaintiff as lacking the “skills, flexibility to manage [her] team,” reflecting Masters’ assessment, not on any independent investigation or review of records.

Brown and Masters followed none of the steps required under the WMP guidelines. There had been no identification of critical functions or the skills sets required, and there had been no assessment of each employee skills. Brown did not bring plaintiff’s previous positive evaluation to Vargas’s attention. Only when terminations were being processed did Brown instruct Masters to develop a skill set analysis for these employees. Brown then reviewed and discussed this analysis with Masters.

Masters calculated that plaintiff’s leave under FMLA expired September 4, 2001, and he called her at home on September 5 to inform her that she was being terminated as of September 14, 2001. When plaintiff called Brown to get additional information, Brown told her that her position was being eliminated and she did not qualify for the open project manager position, despite the fact that plaintiff had experience doing many of these functions.

Before plaintiff was laid off, Masters had interviewed Jim Pickerell for the vacant project manager job. Masters conducted this interview with Brown’s knowledge, even though, contrary to defendant’s policies, there had been no requisition for this position submitted, approval for the hiring had not been obtained, and Pickerell had not submitted an on-line application. After plaintiff was fired, Pickerell filled out an online application for a different type of position, but was hired as a project manager. He was hired the same day plaintiff’s termination became effective, at a salary higher than plaintiff’s.

Plaintiff’s third amended complaint included 11 causes of action, nine of which went to a jury. (Plaintiff dropped her claim of negligence per se during trial and the court sustained a demurrer to a cause of action for discrimination under the FMLA.)

The first through third causes of action alleged violations of the Fair Employment and Housing Act (Gov. Code, § 12940), specifically, sex discrimination, discrimination on the basis of pregnancy and/or medical condition, and failure to prevent discrimination. The fourth cause of action alleged wrongful termination in violation of public policy. The fifth cause of action alleged discrimination and retaliation for use of the California Family Rights Act (CFRA). The sixth cause of action alleged retaliation for taking leave under the FMLA, and the seventh alleged that defendant interfered with plaintiff’s rights under the FMLA. The two remaining causes of action invoked other FEHA protections (Gov. Code, § 12945), namely, that defendant discriminated on the basis of pregnancy and the taking of pregnancy leave, and that defendant retaliated against plaintiff for taking pregnancy leave.

A lengthy trial ensued. Essentially, plaintiff asserted that her termination stemmed from being placed on the bottom 10 percent list, something that defendant never told her about because, paternalistically, it did not want to upset her pregnancy. As a consequence, she had no opportunity to rebut defendant’s perceptions of her work and was given no coaching to improve. In plaintiff’s words, she was a “sitting duck.”

Plaintiff asserted that defendant wanted to get rid of her and fill her position while she was on leave, and tried to justify its conduct after-the-fact. She testified she had no idea that defendant had a negative view of her work. She challenged the accuracy of defendant’s assessment, and testified that had she been aware of problems, she would have revised her planned leave to address defendant’s concerns. She also emphasized that she did not lose her job as the result of a true layoff, but as part of a voluntary program developed by Brown in derogation of defendant’s own policies and values.

Defendant countered that no coaching was possible in the time remaining before plaintiff left on maternity leave, and that its decision to terminate plaintiff was a business decision, unrelated to plaintiff’s pregnancy or use of leave and instead reflective of plaintiff’s inability to do her job.

After brief deliberations, the jury returned its special verdicts, rejecting plaintiff’s claims of retaliation and those made under the CFRA but finding in her favor on all other claims. The jury awarded plaintiff $287,765 for past economic loss, $558,815 for future economic loss, and $117,000 in noneconomic damages, for total compensatory damages of $963,580. The jury also awarded punitive damages of $3,854,320.

The trial court awarded liquidated damages of $347,068.91 under the FMLA and prejudgment interest, for a total judgment of $5,224,272.82 against defendant. The court also awarded plaintiff her attorney fees.

This appeal followed.

DISCUSSION

I. ISSUES RELATING TO LIABILITY

A. Admissibility of Ison Testimony

Defendant contends that the trial court erred in permitting the expert testimony of Elizabeth Ison, an attorney specializing in labor and employment law. Defendant asserts that the substance of this witness’s testimony was not properly disclosed and that her testimony was speculative and invaded the province of the jury. Defendant also challenges Ison’s expert qualifications. None of these claims has merit.

“A trial court’s decision to admit expert testimony ‘will not be disturbed on appeal unless a manifest abuse of discretion is shown.’ [Citation.] . . . ‘[T]he courts have the obligation to contain expert testimony within the area of the professed expertise, and to require adequate foundation for the opinion.’” (Kotla v. Regents of University of California (2004) 115 Cal.App.4th 283, 291-292 (Kotla).)

In accordance with Evidence Code section 801, an expert witness may offer an opinion that is “(a) [r]elated to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact; and (b) [b]ased on matter (including his special knowledge, skill, experience, training, and education) perceived by or personally known to the witness or made known to him . . . that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates . . . .”

The parties must disclose their expert witnesses by filing a declaration that includes “[a] brief narrative of the general substance of the testimony that the expert is expected to give.” (Former Code Civ. Proc., § 2034, subd. (f)(2)(B).)

Here, plaintiff designated Ison, a labor and employment attorney, as an expert witness who would testify “as to her opinions regarding the conduct of [defendant] and its treatment of [p]laintiff due to her pregnancy and/or taking maternity leave or leave for the birth of her child, as well as her opinions as to [defendant’s] failure to follow State laws with regard to pregnancy and pregnancy-related leaves.”

Defendant filed a motion in limine to exclude Ison’s testimony, challenging both the need for expert testimony and Ison’s qualifications as an expert. The parties agreed that some aspects of Ison’s proposed testimony were inadmissible under Kotla, which held that a human resources expert could not opine that certain facts were “indicators” that an employee had been discharged for retaliatory reasons. (Kotla, supra, 115 Cal.App.4th at pp. 286, 291.) The Kotla court found this testimony invaded the province of the jury to draw conclusions from the evidence. (Id. at pp. 291-294.)

In arguing that Ison’s proposed testimony was nonetheless proper, plaintiff relied on a footnote in Kotla, in which the court clarified that the use of human resource experts in employment cases was not entirely precluded. The Kotla court commented, “Expert testimony on predicate issues within the expertise of a human resources expert is clearly permissible. For example, evidence showing (or negating) that an employee’s discharge was grossly disproportionate to punishments meted out to similarly situated employees, or that the employer significantly deviated from its ordinary personnel procedures in the aggrieved employee’s case, might well be relevant to support (or negate) an inference of retaliation. Opinion testimony on these subjects by a qualified expert on human resources management might well assist the jury in its factfinding.” (Kotla, supra, 115 Cal.App.4th at p. 294, fn. 6.)

Defendant protested that this type of testimony differed from the original description of Ison’s proposed testimony, which, according to defendant, centered on whether discrimination did or did not occur and defendant’s state of mind. Plaintiff countered that her expert disclosure described Ison’s testimony in broad terms that would cover testimony of the sort permitted under Kotla.

The trial court agreed, refusing to preclude Ison’s testimony but adding, “That isn’t to say that I wouldn’t rule favorably to objections to her testimony[] that may invade the province of the jury.” The court noted, “In judging the admissibility of expert opinions, they must, of necessity, be in subject areas which are not within the general common knowledge of people, which I don’t believe that the area of human resources actions is generally within the common knowledge of people. So she is an expert, properly disclosed to speak on that issue.”

In her testimony, Ison outlined her expertise in advising clients on human resources issues. She described in highly complimentary terms defendant’s human resource materials, including its detailed values statement, its manager’s training program, and its guidelines for workforce reduction. Plaintiff’s counsel gave Ison a hypothetical based on plaintiff’s version of events. Ison described defendant’s conduct under that scenario as a significant departure from its stated practices and procedures, and she explained these discrepancies.

On appeal, defendant raises several challenges to Ison’s testimony. First, defendant contends that the court erred in permitting plaintiff to amend her disclosure statement at trial to cover Ison’s testimony. No such amendment occurred. The court instead concurred with plaintiff’s claim that Ison’s testimony was covered by the initial broad description in plaintiff’s disclosure.

Defendant’s reliance on cases such as Bonds v. Roy (1999) 20 Cal.4th 140 is misplaced. In Bonds, a medical malpractice case, defendant disclosed an orthopedic surgeon who was to testify about the extent of plaintiff’s disability. (Id. at pp. 142-143.) At trial, however, defendant sought to have this witness testify about the standard of care. (Id. at p. 143.) The trial court refused to permit this testimony, finding it outside the area described in the expert witness declaration. (Ibid.) The Supreme Court affirmed, ruling the trial court properly limited the expert’s testimony to the general substance of what had previously been described in the declaration. (Id. at pp. 148-149.)

Here, the declaration describing Ison’s proposed testimony was not similarly circumscribed. Plaintiff described Ison as testifying, in part, about her opinion of defendant’s conduct toward and treatment of plaintiff. Whether defendant adhered to its own guidelines in those dealings is part of that opinion. The court acted within its discretion in determining that Ison’s testimony fell within the scope of this description. (See Jones v. Moore (2000) 80 Cal.App.4th 557, 566.)

Defendant contends this testimony was not the proper subject for an expert witness because it invaded the province of the jury. We disagree. Ison’s testimony focused on whether defendant followed its policies and procedures in its dealings with plaintiff. The trial court acted within its discretion in concluding that human resources policies and issues are matters beyond the experience of a typical juror, and are thus properly the subject of expert testimony. Unlike the situation in Kotla, Ison did not testify about defendant’s motivations. Instead, Ison’s testimony centered on defendant’s deviation from its stated practices and procedures in its dealings with plaintiff, an area in which the Kotla court expressly noted that expert testimony is permissible. (Kotla, supra, 115 Cal.App.4th at p. 294, fn. 6.) The jury was left to determine whether any variations between theory and practice were evidence of discrimination.

Defendant chastises Ison for failing to analyze whether defendant treated other employees any differently, and asserts that this omission rendered her testimony speculative. We do not agree. Ison’s focus was whether defendant treated plaintiff in accordance with stated policies and procedures; how defendant treated other employees was not relevant to this point. Defendant’s criticisms were matters for the jury to consider. They go to the weight to be accorded to Ison’s testimony, not its admissibility.

Underlying defendant’s attack on Ison’s testimony is a challenge to Ison’s qualifications as an expert. The court reviewed Ison’s curriculum vitae, considered her testimony regarding her experience, and determined that she had sufficient skill and experience to qualify as an expert witness, even though she had never testified as an expert before.

Defendant cannot demonstrate that the court abused its discretion in making this determination. Every expert witness has a first time qualifying as an expert. Ison’s relative lack of experience went to the weight to be accorded her opinions, and defense counsel emphasized these perceived shortcomings in its cross-examination of Ison.

There was no error in permitting Ison to testify.

B. Sufficiency of the Evidence

Defendant contends there is insufficient evidence to support the jury’s verdicts finding that defendant discriminated against plaintiff due to her gender, pregnancy, and use of pregnancy-related leave. We disagree.

We consider the evidence in a light most favorable to the jury’s verdicts, giving plaintiff the benefit of every reasonable inference and resolving conflicts in support of the judgment. (Bardis v. Oates (2004) 119 Cal.App.4th 1, 10.)

In challenging the sufficiency of the evidence here, defendant raises several specific arguments. It asserts that the alleged act of discrimination was the failure to provide plaintiff with coaching before she took her disability leave, and that no evidence was presented that similarly situated employees were treated any differently. Defendant is wrong on several counts.

First, plaintiff argued not only that she was wrongly given no coaching to improve any deficiencies in performance, she also argued that she was never given an opportunity to respond to the critical assessments. For example, defendant placed plaintiff on the bottom 10 percent list in large part due to her failure to supervise Shel Randall. However, plaintiff presented evidence that she in fact coached Randall and had placed documentation outlining her efforts in Randall’s personnel file. Plaintiff was given no chance to rebut defendant’s perceptions because she was never told she was on the bottom 10 percent list or that any of her employees were on that list.

Similarly, defendant faulted plaintiff for delays in testing, delays that plaintiff said were caused by other departments and glitches with the chip. Again, plaintiff was given no opportunity to respond to these claims because she was never informed of them. Defendant ignores this theory of liability in attacking the judgment.

Second, defendant’s assessment of the lack-of-coaching theory of discrimination is erroneous. Abundant evidence was presented concerning defendant’s values, PPG’s, and the guidelines to be utilized for workforce reduction. Defendant touted its investment in its employees and its efforts to insure that its employees succeeded. Plaintiff presented evidence of the progressive measures defendant required of its managers in dealing with employees who did not meet expectations, and demonstrated that while other employees received coaching and assistance in improving performance, she did not.

Defendant also errs in contending that plaintiff cannot demonstrate causation. It argues that because there was not enough time for sufficient coaching before plaintiff went on maternity leave, plaintiff could not have improved her performance enough to avoid termination. Again, defendant puts all of its eggs in the lack-of-coaching basket, ignoring the fact that plaintiff was also denied an opportunity to respond to defendant’s criticisms.

But defendant’s argument also fails on its own terms. Evashenk testified that while a full-blown PIR-plan might not have been possible given plaintiff’s plans for leave, some type of coaching could have been provided. She testified that it was not appropriate to keep plaintiff in the dark about the performance issues.

Moreover, plaintiff testified that she would have restructured her leave plans had she known of any problems with her performance. Defendant counters that plaintiff was on disability for part of her leave and therefore unable to work, but plaintiff presented evidence that defendant’s personnel materials used the terms “maternity leave” and “disability leave” interchangeably. There was sufficient evidence from which the jury could conclude that plaintiff could have, and would have, revised her leave plans had she been aware of any problems.

Defendant’s challenges to the sufficiency of the evidence are unavailing.

C. Liability Under FMLA

Defendant contends that, as a matter of law, plaintiff cannot state a claim that defendant interfered with plaintiff’s rights under the FMLA. (See 29 U.S.C. § 2612 et seq.) We disagree.

“The FMLA provides job security and leave entitlements for employees who need to take absences from work for personal medical reasons, to care for their newborn babies, or to care for family members with serious illnesses. [Citation.] The FMLA entitles qualifying employees to take unpaid leave for up to 12 weeks each year provided they have worked for the covered employer for 12 months. [Citation.]

“The FMLA creates two interrelated substantive rights for employees. [Citation.] First, an employee has the right take up to twelve weeks of leave for the reasons described above. [Citation.] Second, an employee who takes FMLA leave has the right to be restored to his or her original position or to a position equivalent in benefits, pay, and conditions of employment upon return from leave. . . .” (Xin Liu v. Amway Corp. (9th Cir. 2003) 347 F.3d 1125, 1132 (Liu).)

FMLA protects employees by specifically providing that it is unlawful “for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under [FMLA].” (29 U.S.C. § 2615, subd. (a)(1).)

Plaintiff’s seventh cause of action alleged defendant interfered with her rights under the FMLA. Specifically, she alleged that her right to leave was “interfered with in that Plaintiff’s taking of FMLA-protected leave was a negative factor in its decision to terminate her. Plaintiff’s use of FMLA leave was a negative factor in Defendant’s decision to leave Plaintiff on the bottom ten percent list, thereby setting her up for termination, rather than addressing with her whatever issues prompted her to be placed on the list, and used as a factor in her termination.”

The trial court instructed the jury that the FMLA makes it unlawful “for an employer to interfere with restrain, deny the exercise or the attempt to exercise any right provided therein. Plaintiff . . . claims in her seventh cause of action that [defendant] interfered with her rights under the FMLA. To prevail on this claim, she must, therefore, demonstrate that [defendant] used her taking of Family Medical Leave as a negative factor in employment actions or treated [plaintiff] differently in terms, conditions, or privileges of employment because she used Family Medical Leave.”

In its special verdict on this cause of action, the jury specifically found that defendant “use[d] the taking of [FMLA leave] as a negative factor in employment actions or treat[ed plaintiff] differently in terms, conditions or privileges of employment because she used [FMLA.]”

On appeal, defendant contends that there can be no liability as a matter of law because plaintiff did not seek reinstatement to her position as her FMLA leave expired. Consequently, it argues, it did not interfere with her exercise of her rights, and the jury’s verdict on this cause of action must be reversed.

Defendant correctly asserts that an employee is entitled to reinstatement only while the employee is on FMLA leave. Once leave expires, the right to that job expires as well. (See Hunt v. Rapides Healthcare System, LLC (5th Cir. 2001) 277 F.3d 757, 763-764.) But this argument is beside the point. Plaintiff’s complaint did not allege a violation of the substantive provisions of FMLA. She did not claim that she had been denied FMLA leave or reinstatement under the provisions of FMLA. Instead, the seventh cause of action alleged that defendant interfered with her FMLA rights by using her taking of leave as a negative factor in making its employment decisions. That is an entirely different basis for liability.

We have noted that the federal FMLA statute makes it unlawful for an employer to “interfere with . . . the exercise of . . . any right provided under [FMLA].” (29 U.S.C. § 2615, (a)(1).)

The implementing regulations for FMLA define “interference” to include “not only refusing to authorize FMLA leave, but discouraging an employee from using such leave.” (29 C.F.R. § 825.220, subd. (b).) The regulations add that an employer “is prohibited from discriminating against employees or prospective employees who have used FMLA leave. . . . [E]mployers cannot use the taking of FMLA leave as a negative factor in employment actions, such as hiring, promotions or disciplinary actions . . . .” (29 C.F.R. § 825.220, subd. (c), italics added.)

“Thus, at trial, an employee may prevail on a claim that an employer interfered with rights by terminating her in violation of FMLA by showing, ‘by a preponderance of the evidence that her taking of FMLA-protected leave constituted a negative factor in the decision to terminate her. She can prove this claim, as one might any ordinary statutory claim, by using either direct or circumstantial evidence, or both.’ [Citation.]” (Liu, supra, 347 F.3d at pp. 1135-1136; see also Bachelder v. America West Airlines (9th Cir. 2001) 259 F.3d 1112, 1125.)

That is precisely what plaintiff did. Defendant is wrong in suggesting that interference cannot occur if an employee received all of the FMLA leave to which he or she is entitled and then fails to seek reinstatement. In defining interference as including unlawful conduct taken against employees “who have used” FMLA leave, rather than against only those who plan to use FMLA leave or who are currently using it (see 29 C.F.R. § 825.220, subd. (c)), the regulation extends protection even to those who received all of the leave to which they were entitled under the FMLA. Interference is not limited to unlawful attempts to discourage or prevent an employee from utilizing FMLA leave; interference also occurs if an employer utilizes the taking of leave--whenever it occurred--as a negative factor in an employment decision.

The reasons for such a provision are clear: the protections provided by FMLA would be illusory if an employer could honor an employee’s FMLA leave but then hold the taking of this leave against an employee in making later employment decisions. As the Ninth Circuit held in Bachelder, the regulation is a “reasonable interpretation of the statute’s prohibition on ‘interference with’ and ‘restraint of’ employee’s rights under the FMLA.” (Bachelder v. America West Airlines, supra, 259 F.3d at p. 1122-1123.)

Defendant’s challenge is without merit.

D. Liability Under CFRA

Defendant contends that plaintiff cannot state a cause of action for violations of the CFRA. This claim is moot.

Defendant was not held liable for any cause of action implicating the CFRA. The jury returned special verdicts specifically finding that plaintiff’s utilization of leave under the CFRA played no role in her discharge. Because the jury did not find in plaintiff’s favor on these claims, we need not determine whether a hypothetical award under the CFRA would have been proper.

II. ISSUES RELATING TO DAMAGES

A. Economic Damages

1. Evidence Relating to Alleged Failure to Mitigate Damages.

Defendant contends the court erred in striking its mitigation defense and precluding the testimony of vocational rehabilitation expert Allen Nelson, who would have testified about plaintiff’s alleged failure to mitigate her damages. The court’s ruling was proper.

We review the relevant chronology in order to put defendant’s claim in context.

In March 2003, in its answer to the second amended complaint, defendant asserted plaintiff’s failure to mitigate damages as an affirmative defense. Defendant took plaintiff’s deposition in April 2003.

In September 2003, plaintiff disclosed two expert witnesses, Elizabeth Ison, who would testify on matters relating to liability, and Dr. Charles Mahla, an economist, who would testify about “his opinions concerning Plaintiff’s economic damages as a result of her termination . . . in September 2001, both as to past and future wage loss as well as to benefit calculations and other factors supporting Plaintiff’s economic damage claim.”

In mid-October 2003, defendant designated Allen Nelson, a vocational consultant as a supplemental expert witness. Nelson was expected to testify “in the area of vocational rehabilitation, including the availability of jobs to Plaintiff and persons similarly situated to her, and the present and future earning capacity of such persons in response to the assumptions underlying the opinions of Plaintiff’s damage expert.”

Mahla’s deposition took place October 30, 2003. The examination focused on Mahla’s calculations of damages based on back pay and front pay. At one point, defense counsel asked Mahla how plaintiff had described her efforts to secure alternative employment. After Mahla responded, the following discussion ensued:

“Q. As a result of what she told you and what you had seen in the documents you were provided, is one of your assumptions, therefore, that [plaintiff] made adequate efforts to mitigate her damage up until the present and will continue to do so in the future?

“A. Well, that’s--that’s a difficult question to answer as posed because adequacy of search is--it is difficult for an economist who has data and has evidence that someone has engaged in a search and has made decisions with respect to that search that led them to a certain path. I don’t--I can’t sit here today and say that every rock was upturned by [plaintiff], neither can I say that she didn’t give an adequate attempt at finding employment in the high tech field.

“Q. So, the assumption underlying the analysis you provided was that you don’t know whether or not [plaintiff] could have earned more money in the past and it’s just something you’re not going to consider? You are going to accept the data for what it is and that this is what she actually earned, this is what she is actually doing and move forward?

“A. The only assumption I’m making is she argued rationally she has--she has attempted in a rational way to mitigate her harm from her lost income from [defendant]. There is and there is every reason to believe that she has--she hasn’t acted in a way that would have worked to have her earning less money than she otherwise would have.”

Nelson’s deposition took place on November 5, 2003. He stated that he had formed three opinions: (1) that plaintiff should have realized that she needed to get other training to broaden her job possibilities, (2) that plaintiff should have started her job search and/or training earlier than she did, and (3) that Mahla had underestimated plaintiff’s wage earning potential.

In her motion in limine No. 6, plaintiff sought to exclude this testimony. She asserted that Nelson had not been properly disclosed, and she accused defendant of “sandbagging.” She also questioned the substance of Nelson’s proposed testimony. She noted that since Nelson could not identify any open project manager jobs in the computer industry in the greater Sacramento area, there was no comparable employment available and mitigation of damages was a moot point. She also argued that testimony about plaintiff’s efforts to find work and the timing of those efforts were matters that a juror of common experience could evaluate and was not the proper subject of expert testimony.

In motion in limine No. 12, plaintiff sought to exclude any evidence that she had not made reasonable efforts to minimize her lost income. She noted that defendant had not provided any information in response to interrogatories propounded in October 15, 2002, including interrogatory No. 211.2, asking whether defendant contended that plaintiff “has not made reasonable efforts to minimize the amount of [her] lost income[.]” Defendant had responded in part that it viewed this interrogatory as “premature and discovery is continuing.”

Plaintiff noted that she had responded to defendant’s interrogatories at the same time and disclosed information about her economic damages and lost income. As noted, on April 8, 2003, plaintiff’s deposition had taken place. And, in August 2003, plaintiff had propounded supplemental interrogatories. Defendant did not supplement its response to interrogatory No. 211.2.

Plaintiff asserted her motion in limine No. 12 should be granted because defendant was attempting “to ‘backdoor’ what it neglected to do in discovery.”

The trial court agreed with both of plaintiff’s claims. In granting motion in limine No. 6, the court ruled: “Defendants knew of the existence of the potential for challenging plaintiff’s mitigation of her damages and chose not to retain or disclose an expert on that subject. Defendant’s affirmative defense No. 4 . . . raised the issue of failure to mitigate damages in March 2003. Plaintiff’s deposition was taken by the defense in April 2003. Expert witness designations took place in the fall of 2003. As a consequence, had defendants wished to raise the issue of failure to properly mitigate damages, they could have done so, but they did not. Instead, defendants have waited for plaintiff’s designation, and are now keying on an obscure passage in Mahla’s deposition in which he purports to have assumed that plaintiff acted reasonably in mitigating her damages. The proof or lack of proof of that fact is not solely within the province of an expert opinion. Defendant’s delayed disclosure, ostensibly in response to Mahla’s proposed testimony, is prohibited.”

Similarly, in granting plaintiff’s motion in limine No. 12, the court ruled: “Defendant provided no information regarding failure to mitigate damages, and opposed plaintiff’s efforts to determine the evidence held by defendant which might go to show the same. The court will strike the affirmative defense No. 4 and will not permit evidence, questions, or insinuations that the plaintiff has failed to mitigate her damages.” However, the court told defense counsel that he could ask plaintiff whether she could have earned more money sooner than she actually did.

Defendant contends the court’s rulings were erroneous. We do not agree.

As the chronology of events makes clear, the mitigation issue was raised early in these proceedings. Yet defendant elected not to retain an expert on this issue until late in the day, after plaintiff had disclosed her own expert witnesses. The court acted well within its discretion in determining that preclusion of this evidence was warranted. (See former Code Civ. Proc., § 2034, subd. (j).)

Moreover, Nelson’s proposed testimony did not establish a failure to mitigate damages.

“The general rule is that the measure of recovery by a wrongfully discharged employee is the amount of salary agreed upon for the period of service, less the amount which the employer affirmatively proves the employee has earned or with reasonable effort might have earned from other employment. [Citations.] However, before projected earnings from other employment opportunities not sought or accepted by the discharged employee can be applied in mitigation, the employer must show that the other employment was comparable, or substantially similar, to that of which the employee has been deprived; the employee’s rejection of or failure to seek other available employment of a different or inferior kind may not be resorted to in order to mitigate damages. [Citations.]” (Parker v. Twentieth Century-Fox Film Corp. (1970) 3 Cal.3d 176, 181-182, fn. omitted.) “The burden is on the employer to prove that substantially similar employment was available which the wrongfully discharged employee could have obtained with reasonable effort.” (Chyten v. Lawrence & Howell Investments (1993) 23 Cal.App.4th 607, 616.)

In his deposition, Nelson stated that he was unaware of any open positions for a project manager in the computer industry in the Sacramento area during the relevant timeframe. He opined that plaintiff might have taken other computer-related jobs or, after training, transferred her skills to a new field. This testimony is insufficient to establish that these positions were substantially similar to plaintiff’s previous job, and therefore cannot be utilized to establish failure to mitigate damages.

Defendant also sought to utilize Nelson’s testimony to establish that plaintiff could have begun her job search earlier. That issue, however, is a matter of common experience and does not require expert testimony. (Evid. Code, § 801, subd. (a).)

Finally, defendant contends that even if Nelson was not properly disclosed, his expert testimony should have been admitted to impeach Mahla, plaintiff’s expert witness. Defendant misconstrues the nature of proper impeachment testimony.

Former Code of Civil Procedure section 2034, subdivision (m), the provision in effect at trial, provided in relevant part: “A party may call as a witness at trial an expert not previously designated by that party if: . . . that expert is called as a witness to impeach the testimony of an expert witness offered by any other party at the trial. This impeachment may include testimony to the falsity or nonexistence of any fact used as the foundation for any opinion by any other party’s expert witness, but may not include testimony that contradicts the opinion.” (Stats. 1995, ch. 797, § 1, pp. 6182-6183.)

“‘This can be done either by cross-examination of the expert or by calling other witnesses to offer evidence showing the nonexistence or error in the data upon which the first expert based his opinion. [Citations.]’ [Citation.] Thus, a nondesignated expert may testify as to the facts underlying the expert’s opinion. [Citation.] ‘However, under section 2034, subdivision (m), “‘calling an expert witness to express an opinion contrary to that expressed by another expert witness is not the “impeachment” contemplated by section [2034, subdivision (m)].’” [Citation.]’ Although the distinction between a ‘fact’ and ‘opinion’ may be thin, it has to be made. In doing so, trial courts are to strictly construe the term ‘foundational fact’ so as to ‘prevent a party from offering a contrary opinion of his expert under the guise of impeachment.’ [Citation.]” (Mizel v. City of Santa Monica (2001) 93 Cal.App.4th 1059, 1067-1068, fn. omitted.)

Here, Nelson’s proposed testimony did not constitute impeachment, but instead was opinion testimony. Mahla’s testimony focused on the economics of plaintiff’s damages, not on vocational rehabilitation issues, such as the existence of comparable jobs or the timing of plaintiff’s job hunt. Mahla’s fleeting reference to plaintiff’s efforts to secure employment was peripheral to his testimony. Nelson’s view that plaintiff could have done more and done it sooner does not impeach that view; it is simply a different opinion.

In short, the trial court did not abuse its discretion in precluding defendant’s proffered evidence relating to mitigation of damages.

2. Alleged Errors in Calculation of Damages

Defendant asserts the trial court erred in ruling on three challenges to Mahla’s calculations. None has merit.

First, defendant contends the court erred in precluding questioning Mahla about alleged inconsistencies in his methodology. Mahla computed plaintiff’s lost income by comparing plaintiff’s earnings in her current profession as a real estate agent to what she would have earned had she continued in her job with defendant. Mahla concluded that plaintiff’s real estate earnings would not catch up to her earnings with defendant until the year 2011. If plaintiff had continued working in another job in the computer industry, her earnings would not have caught up until 2021.

Defendant contends these calculations demonstrate a “result-oriented methodology,” in that had Mahla calculated plaintiff’s income in the real estate scenario through 2021, the evidence would have shown that plaintiff was projected to earn more than she would have earned with defendant. Defendant asserts it should have been permitted to raise this point with Mahla to demonstrate that plaintiff had no loss of front pay.

Civil Code section 3333 provides that the proper measure of damages is the amount that will compensate a plaintiff for all of the detriment proximately caused by a defendant’s conduct. The fact that plaintiff was fortunate enough to land in a position that may ultimately prove to be more lucrative than her position with defendant does not mean that plaintiff was not damaged. Until the year 2011, plaintiff’s earnings will be less than she would have earned had she not been wrongfully terminated. That loss is the proper subject of a damages claim.

As plaintiff aptly notes, defendant is essentially arguing that it did plaintiff a favor by wrongfully terminating her because she will end up, years later, better off than she would have otherwise. Needless to say, defendant offers no authority to support such a self-serving view of remedies, and the trial court properly excluded any argument to this effect.