Terry v. Preovolos
Filed 1/4/13
Terry v. Preovolos CA4/1
OFFICIAL REPORTS
California Rules of Court, rule
8.1115(a), prohibits courts and parties from citing or relying on opinions not
certified for publication or ordered published, except as specified by rule
8.1115(b). This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
SANDRA TERRY,
Plaintiff and Respondent,
v.
ATHANASIOS
PREOVOLOS,
Defendant and Appellant.
D060904
(Super. Ct. No.
37-2010-00094289-CU-OE-CTL)
APPEAL
from a judgment of the Superior Court of
County, Frederic L. Link, Judge. Affirmed.
Defendant
Athanasios Preovolos (Preovolos) appeals a judgment entered after the jury
awarded plaintiff Sandra Terry (Terry) $22,000 in lost wages as compensatory
damages for his sexual harassment of her.
On appeal, he contends that under California's Fair
Employment and Housing Act (FEHA), lost wages for employee sexual harassment
cannot be awarded unless the plaintiff was actually or constructively
discharged from employment. We conclude
an employee victim of sexual harassment under FEHA can be awarded compensatory
damages, including lost wages, proximately caused by the harassment, regardless
of whether he or she has been actually or constructively discharged from
employment.
FACTUAL AND PROCEDURAL BACKGROUND
From
August 8, 2005, through May 14, 2010, Terry was an
employee of defendant Preovolos & Associates, A Law Corporation
(Firm). While employed at Firm, Terry
was the executive assistant to Preovolos, an officer and managing agent of
Firm.
On
May 14, 2010, Terry submitted her letter of resignation to Firm that stated in
part:
"Since you have hired another
person, Tammie McQuain, to essentially replace me which has resulted in me
being demoted, with good cause I am quitting my employment at
[Firm]. . . . [¶] . . . [¶]
"After everything I have put into
my job here for you, I am disappointed, hurt and offended. I have been [an] exceptional employee as long
as I have worked here, in [your] exact words, and this demotion and devaluation
is uncalled for. I am in shock and
disgusted. Especially after all of these
years I have put up with the inappropriate conduct that occurs on a daily basis
in this firm, [e]specially the sexually explicit behavior, conversations,
e[-]mails and jokes. I have made it
clear since I began here that I feel that behavior is unacceptable in a
professional environment and it makes me extremely uncomfortable. I was put in difficult situations time and
time again and worried that my lack of buy-in to this behavior would eventually
cost me my job here. Perhaps that is the
underlying reason for my recent demotion.
Since March of this year, I have grown completely intolerant of this
sexual inappropriateness in our office and have let Olin Lewin and Jon Musgrove
know my feelings about it. As a matter
of fact, it is probably since March that you[r] attitude toward me changed so
drastically.
"Anyone in my situation would
agree that I can no longer work under these conditions."
Terry did not respond to Preovolos's letter
asking her to reconsider her resignation and to discuss the matter with him.
In
June 2010, Terry filed a complaint against Preovolos and Firm, alleging causes
of action for: (1) sexual harassment; (2) retaliation; (3) failure to prevent
sexual harassment; (4) constructive termination in violation of public policy;
(5) unpaid wages; (6) failure to provide itemized pay statements; (7) failure
to provide meal periods; (8) waiting time penalties; and (9) unfair business
practices. At trial, Terry presented
evidence that Preovolos made sexual comments and circulated e-mails of a sexual
nature to members of Firm, which conduct continued throughout her employment
and escalated in 2010.
name="_ftnref1" title="">[1] She presented evidence that she raised her
concerns about and discomfort with Preovolos's sexually charged conduct with
three members of Firm's management team.
She presented evidence that after she complained nothing was done to
stop his sexually charged behavior and she was retaliated against for raising
her concerns. She also presented
evidence that Preovolos's sexually charged behavior continued after her filing
of the complaint and through the time of trial.
The
jury found in favor of Terry on her sexual harassment cause of action against
Preovolos and Firm, but found in favor of Firm on her causes of action for
retaliation and constructive discharge.
The jury specifically found: (1) although Terry was not subjected to
unwanted harassing conduct by Preovolos because of her sex, she witnessed his
sexually harassing conduct in her work environment; (2) the harassment was
severe and pervasive; (3) a reasonable woman in her circumstances would have
considered the work environment to be hostile or abusive; (4) she considered
the work environment to be hostile or abusive; (5) she suffered harm as a
result of the sexually harassing conduct; (6) Firm failed to take reasonable
steps to prevent sexual harassment in the workplace; (7) she complained to Firm
management about Preovolos's sexually harassing conduct; (8) she did not suffer
any adverse employment action in retaliation for her complaints; and (9) her
working conditions were not so intolerable that a reasonable person in her
position would have had no reasonable alternative except to resign. The jury awarded Terry $22,000 in economic
damages on her sexual harassment cause of action.
The
trial court denied Preovolos's and Firm's motions for judgment notwithstanding
the verdict and for new trial, and rejected their argument that the jury's
findings did not support an award of economic damages of $22,000. On September 6, 2011,
the court entered a second amended judgment awarding Terry $22,000 against
Preovolos and Firm, jointly and severally.
DISCUSSION
I
Filed
Terry
asserts Preovolos's appeal must be dismissed because his notice of appeal was
not timely filed. On September 6, 2011, the trial court entered its second amended judgment. On September 12, 2011, Terry served on Preovolos a notice of entry of judgment. On Monday, November 14, 2011, Preovolos filed a notice of appeal.
Although
Preovolos's notice of appeal was filed 63 calendar days after he was served
with a notice of entry of judgment, we conclude his notice of appeal was timely
filed because the 60th day after service of the notice of entry of judgment was
Friday, November 11, 2011, Veteran's Day, an official state and judicial
holiday.
holidays. (Code Civ. Proc., §§ 10,
12a, 135; Gov. Code, § 6700.)
Therefore, the first judicial day after Friday, November 11, 2011, was Monday, November 14, 2011. In general, California Rules of Court, rule
8.104(a) provides that a notice of appeal must be filed on or before the
superior court clerk serves the party with a notice of entry of judgment or a
file-stamped copy of the judgment; (2) 60
days after the party filing the notice of appeal serves or
of judgment or a file-stamped copy of the judgment; or (3) 180 days after
entry of judgment. Because the 60th,
61st, and 62nd days after Preovolos was served with a notice of entry of
judgment were holidays, the deadline for filing his notice of appeal was extended
until the first judicial day thereafter, which in this case was Monday,
November 14, 2011. (Code Civ. Proc.,
§§ 12, 12a, 12b; Cal. Rules of Court, rule 8.60(a); Shufelt v. Hall (2008) 163 Cal.App.4th 1020, 1022, fn. 2.) Preovolos's notice of appeal was timely
filed.
II
Damages for Sexual Harassment
Preovolos
contends the judgment against him must be reversed because lost wages for
sexual harassment cannot be awarded unless the plaintiff was actually or
constructively discharged from employment.
He argues that because Terry resigned and the jury expressly found she
had not been constructively discharged, she could not, as a matter of law,
recover her lost wages as compensatory damages for his sexual harassment. He also apparently argues the evidence in
this case does not show his sexual harassment proximately caused Terry's
alleged lost wages.
A
Terry's
complaint alleged causes of action for: (1) sexual harassment; and (2)
constructive discharge from employment in violation of public policy. The jury found in favor of Terry on her
sexual harassment cause of action against Preovolos and Firm, but rejected her
cause of action for constructive discharge.
The jury found Terry suffered harm as a result of Preovolos's sexually
harassing conduct and the harassing conduct was a substantial factor in causing
Terry harm. The jury found Terry
suffered $22,000 in economic damages as a result of the sexual harassment. The trial court entered judgment awarding
Terry $22,000 against Preovolos and Firm, jointly and severally.
B
FEHA
"makes unlawful the sexual harassment of an employee by any person. (Gov. Code, § 12940, subd. [(j)(1)].)
. . . Sexual harassment is
defined as including ' " '[u]nwelcome sexual advances, requests
for sexual favors, and other verbal or physical conduct of a sexual
nature.' " '
[Citation.] It typically is
viewed as taking one or both of two forms: (1) quid pro quo harassment, where
submission to sexual conduct is made a condition of concrete employment benefits,
and (2) hostile work environment, defined as conduct having the purpose or
effect of unreasonably interfering with an individual's work performance or
creating an intimidating, hostile, or offensive working environment." (Weeks
v. Baker & McKenzie (1998) 63 Cal.App.4th 1128, 1146, fns.
omitted.) Government Code section 12940,
subdivision (j)(1), makes it an unlawful employment practice for any person
"because of . . . sex . . . to harass an employee
. . . . Loss of tangible
job benefits shall not be necessary in order to establish
harassment." Harassment
"because of sex" includes sexual harassment and gender
harassment. (Gov. Code, § 12940,
subd. (j)(4)(C).) "[A]n employee
claiming harassment based upon a hostile work environment must demonstrate that
the conduct complained of was severe enough or sufficiently pervasive to alter
the conditions of employment and create a work environment that qualifies as
hostile or abusive to employees because of their sex." (Miller
v. Department of Corrections (2005) 36 Cal.4th 446, 462.) FEHA is to be construed liberally to
accomplish its purposes. (Gov. Code,
§ 12993, subd. (a).)
FEHA
"permits individual suits for damages to enforce its provisions, but it
does not specify what damages are recoverable.
(See [Gov. Code,] § 12965, subds. (b), (c).) This court [i.e., the California Supreme
Court] has concluded that, in an action seeking damages for sexual harassment
under [FEHA], the plaintiff may recover those damages 'generally available in
noncontractual actions.' " (
Court (2003) 31 Cal.4th 1026, 1042.)
FEHA "offers greater protection and relief to employees than does
title VII [of the Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq.)
(Title VII)]. . . . [Under
FEHA], the courts may award unlimited compensatory and punitive damages."
v. Rite Stuff Foods, Inc. (1998) 65 Cal.App.4th 833, 842.) "[I]n a civil action under [FEHA], all
relief generally available in noncontractual actions, including punitive
damages, may be obtained." (
Court (1982) 32 Cal.3d 211, 221 (Commodore).)
C
Preovolos
asserts Terry cannot obtain an award of lost wages as compensatory damages
because she resigned from her employment.
Citing federal cases, he argues we should adopt the federal courts'
so-called "majority rule" under Title VII, which rule requires an
actual or constructive discharge from employment for an award of back pay for
unlawful discrimination. (See, e.g.,
F.2d 1380, 1381, fn. 1; Hertzberg v. SRAM
Corp. (7th Cir. 2001) 261 F.3d 651, 659; Jurgens v. E.E.O.C. (5th Cir. 1990) 903 F.2d 386, 389.) However, Preovolos does not persuade us that
the statutory language of, and public policies underlying, Title VII and FEHA
are sufficiently similar to require the application of the federal courts'
majority rule to cases involving sexual harassment or other discrimination
under FEHA.
In Cloud v. Casey (1999) 76
Cal.App.4th 895 (Cloud), the
plaintiff resigned from her position after allegedly being denied a promotion
based on gender discrimination. (
action for gender discrimination and constructive discharge from employment. (Ibid.) The trial court granted the defendants'
motion for summary adjudication of the constructive discharge claim, finding
the undisputed facts established as a matter of law that her resignation was
not a constructive discharge. (
defendants' motion to exclude all evidence relating to any claim for pay (i.e.,
lost wages) damages following her resignation.
(Id. at p. 901.) The jury found the defendants liable for
gender discrimination. (
On
appeal, Cloud upheld the trial
court's summary adjudication of the plaintiff's constructive discharge claim,
concluding that on the undisputed facts her resignation was not a constructive
discharge as a matter of law. (
However, Cloud concluded the
trial court erred in precluding the plaintiff from presenting evidence of her
postresignation damages caused by the defendants' gender discrimination. (Id.
at p. 909.) In so concluding,
that the federal courts' majority rule, discussed above, should apply to the
plaintiff's FEHA gender discrimination claim.
(Id. at pp. 906-909.) Cloud
stated:
"Neither side has cited, nor have
we found, any California state court case applying the rule to limit a FEHA
plaintiff's damages. But defendants
argue that 10 of 11 federal circuits that have considered the point have
applied the doctrine to limit damages in employment discrimination cases." (Cloud,
supra, 76 Cal.App.4th at p. 906.)
Cloud noted federal courts recognize two policies that underlie damage
awards in Title VII discrimination cases: (1) a policy to make the victim of
discrimination whole; and (2) a policy that an employee should remain on the
job and attack discrimination from within the work relationship to give the
employer an opportunity to ameliorate the effects of discrimination. (Cloud,
supra, 76 Cal.App.4th at p. 908,
citing Nobler v. Beth Israel Medical
Center (S.D.N.Y. 1989) 715 F.Supp. 570, 571.) Cloud
agreed with Nobler that "where
resolution of the discrimination from within the working relationship is not a
viable option, there is no reason to require an employee to stay on the job or
forfeit a right to postresignation damages." (Cloud,
at p. 908.) Accordingly,
limiting back pay and front pay damages in FEHA cases involving a failure to
promote. (Ibid.)
Furthermore,
Cloud cited other reasons for its
refusal to adopt the federal courts' majority rule limiting Title VII awards of
postresignation back pay to cases in which there has been a constructive
discharge. Cloud noted "effective remedies under FEHA should be fashioned
so as to make the individual whole."
(Cloud, supra, 76 Cal.App.4th at p. 906.)
It also noted the California Supreme Court in Commodore held that all relief generally available in
noncontractual actions may be obtained in FEHA civil actions. (Cloud,
at pp. 908-909.) It further noted that
Civil Code section 3333 provides: " 'For the breach of an obligation
not arising from contract, the measure of damages, except where otherwise
expressly provided by this code, is the amount which will compensate
thereby, whether it could have been anticipated or not.' " (Cloud,
at p. 909.) Cloud concluded that because "the statutory objective of FEHA
. . . is to make the victim of discrimination whole," the
plaintiff "was entitled to prove the full extent of her damages necessary
to make her 'whole,' including both back pay and front pay." (Ibid.)
the California Supreme Court denied a petition for writ of mandate after the
trial court denied an employer's motion to strike a request for punitive
damages in a wrongful termination/race discrimination complaint filed against
it. (Commodore,
supra, 32 Cal.3d at pp. 214,
211.) The court noted that although FEHA
does not mention punitive damages, " FEHA does not limit the relief a
court may grant in a statutory suit charging employment discrimination." (Id.
at p. 215.) It stated: "When a
statute recognizes a cause of action for violation of a right, all forms of
relief granted to civil litigants generally, including appropriate punitive
damages, are available unless a contrary legislative intent appears." (Ibid.) Commodore
did not discern any contrary legislative intent. (Ibid.)
Code] [s]ection 12965, subdivision (b), declaring the right to sue when the
Department [of Fair Employment and Housing] fails to act, was added in
1977. [Citations.] Except by providing for attorney fees and
costs, the subdivision does not address the subject of judicial remedies." (Commodore,
supra, 32 Cal.3d at p. 215, fn.
omitted.) The court then addressed the
employer's assertion that FEHA is similar to Title VII and therefore should be
construed as precluding compensatory and punitive damages like the federal
courts in Title VII cases. (
"The employers stress that federal
statutes with similar language [e.g., Title VII] have been held not to
authorize awards of either general compensatory or punitive damages. They rely in particular on interpretations of
. . . section 706(g) of title VII of the Civil Rights Act of 1964 (42
U.S.C.A § 2000e-5(g) [employment discrimination]; [citations].)
"Yet differences between those
laws and [FEHA] diminish the weight of the federal
precedents. . . . [¶] . . . [T]itle VII provides for
judicial handling of federal discrimination claims in civil actions by the [EEOC]
or, when it declines to sue, by persons aggrieved. [Citation.]
The federal statute expressly describes remedies that courts may
assess. ([42 U.S.C.A.]
§ 2000e-5(g).) The [federal] cases
hold that subdivision 5(g) is an implied limitation on courts' remedial powers.
"[FEHA], on the other hand,
provides separate routes to resolution of claims; first, a complaint to the
Department; second, if that agency fails to act, a private court action. The statute discusses remedies only in the
first context; here we are concerned with those available in the second. Federal precedents do not address that
problem." (Commodore, supra, 32
Cal.3d at p. 217, fn. omitted.)
The court further noted "the
possibility that an action might lead to punitive damages may enhance the
willingness of persons charged with violations to offer fair settlements during
the [administrative] conciliation process." (Commodore,
supra, 32 Cal.3d at p. 218, fn.
omitted.) There is a fundamental policy
promoting the right to seek and hold employment free of prejudice. (Id.
at p. 220.) FEHA's "aim is to
provide effective remedies against the evil." (Ibid.) Commodore
further reasoned: "To limit the damages available in a [FEHA] lawsuit
might substantially deter the pursuit of meritorious claims, even where
litigation expenses are payable to the successful employee." (Id.
at pp. 220-221.) Accordingly,
convincing statement of contrary legislative intent, we rule that,
all relief generally available in noncontractual actions, including
punitive damages, may be obtained." (Id.
at p. 221, italics added.) Therefore,
the court denied the writ of mandate sought by the employer. (Ibid.)
damages, including lost wages, generally may be awarded in tort and other
noncontract cases if proximate causation of those damages is shown. (See, e.g., Civ. Code, § 3333.) Rather, he seeks to create an exception to
that compensatory damages rule in FEHA cases in which the victim of
discrimination or harassment resigns, but is not constructively
discharged. However, we do not discern
any justification, whether based on FEHA's language or its underlying public
policy, for that exception to the general compensatory damages rule.
Although
California courts often look to Title VII federal cases when interpreting FEHA,
they do so "[o]nly when FEHA provisions are similar to those in Title
VII." (Johnson v. City of Loma Linda (2000) 24 Cal.4th 61, 74.) "[D]ifferences between [Title VII] and
[FEHA] diminish the weight of the federal precedents." (Commodore,
supra, 32 Cal.3d at p. 217.) The relief provisions of Title VII and FEHA
are so fundamentally different that federal cases determining the availability
of back pay under Title VII provide no precedential value in determining the
availability of lost wages and other compensatory damages under FEHA.
As
discussed above, Commodore held
"FEHA does not limit the relief a court may grant in a statutory suit
charging employment discrimination."
(Commodore,
cause of action for violation of a right, all forms of relief granted to civil
litigants generally, including appropriate punitive damages, are available
unless a contrary legislative intent appears." (Ibid.) Commodore
did not discern any contrary legislative intent. (Ibid.) Therefore, it pronounced the general rule
that "in a civil action under [
all relief generally available in noncontractual actions, including
punitive damages, may be obtained." (Id.
at p. 221, italics added.)
In
contrast, Title VII's language expressly precludes an award of back pay as
unlawful discrimination, stating:
"If the court finds that the
respondent has intentionally engaged in . . . an unlawful employment
practice . . . , the court may
enjoin the respondent from engaging in such unlawful employment practice,
such affirmative action as may be appropriate, which may include, but is not
limited to, reinstatement or hiring
of employees, with or without back pay
. . . , or any other equitable
relief as the court deems appropriate. . . ."
added.)
Although 42 U.S.C. § 1981a, enacted in
1991, amended Title VII to also allow recovery of compensatory and punitive
damages in addition to equitable remedies under 42 U.S.C. section
2000e-5(g)(1), that amendment defined "compensatory damages" as
excluding back pay and other equitable relief, stating: "
section shall not include [
any other type of relief authorized under [42 U.S.C. § 2000e-5(g)]."
see generally, Landgraf v. USI Film
Products (1994) 511 U.S. 244, 252-253.)
Accordingly, under Title VII, an award of back pay may be obtained only
in conjunction with equitable relief (e.g., a reinstatement order) awarded by
the court; it cannot be awarded as compensatory damages.
Because
there is no language in FEHA (or any other California statute) limiting the
definition of compensatory damages available in FEHA cases or, more
specifically, excluding lost wages as a component of compensatory damages, we
conclude Title VII's provisions that expressly limit the availability of back
pay are so fundamentally different that the federal cases determining the
availability of back pay under Title VII, including those cases on which
Preovolos relies, are inapposite to this and other FEHA cases. Accordingly, the Title VII federal cases that
limit back pay awards to those cases involving actual or constructive discharge
provide no precedent, or persuasive authority, on the issue of whether lost
wages are available as compensatory damages for sexual harassment under FEHA.
Furthermore,
we are not persuaded by Preovolos's assertion that the purposes and policies
underlying FEHA would be better served were we to adopt his proposed exception
to the general rule that compensatory damages, including lost wages, may be
recovered in FEHA cases in which sexual harassment proximately causes those
damages. He asserts the purposes of FEHA
would be promoted if an employee who suffers sexual harassment or other
unlawful discrimination is encouraged to remain on the job and allow his or her
employer, within the employment relationship, to remedy the effects of
harassment or other discrimination and prevent it in the workplace in the
future. He argues that a rule precluding
an employee from resigning and then seeking lost wages, without first showing
he or she was constructively discharged, would encourage the employee to remain
on the job and allow the employer to remedy the sexual harassment or other
discrimination. That rule, according to
Preovolos, would further the purposes of FEHA.
However,
rather than furthering the purposes of FEHA, we believe Preovolos's proposed
rule would have the opposite effect. If
an employee is precluded from seeking lost wages as part of compensatory
damages proximately caused by sexual harassment or other discrimination, he or
she arguably may not be "made whole," the purpose of compensatory
damages under FEHA. (
employee is prevented from proving the full extent of damages necessary to make
him or her "whole," including lost wages, the purposes of FEHA are
not promoted. (Id. at p. 909.) By
preventing a victim of sexual harassment or other discrimination from seeking
those damages to be made whole, that employee will have a disincentive to file,
and may be discouraged from filing, a FEHA action to remedy that unlawful
conduct.
In
contrast, if an employer knows it may be liable for lost wages proximately
caused by workplace sexual harassment or other discrimination, that employer
will have an incentive to work with employees to prevent sexual harassment and
other discrimination in the workplace.
We conclude the purposes of FEHA are better served by rejecting
Preovolos's proposed rule and confirming that a victim of sexual harassment or
other discrimination who resigns from his or her job may seek compensatory
damages under FEHA, including lost wages, proximately caused by that unlawful
conduct without proving he or she was constructively discharged.
conclude that when a victim of sexual harassment or other discrimination
resigns without being constructively discharged, that victim's resignation is
"proximate cause" of his or her lost wages or other compensatory
damages. Rather, a FEHA plaintiff bears
the burden at trial to prove, by a preponderance of the evidence, the alleged sexual
harassment or other discrimination proximately caused those lost wages and/or
other compensatory damages. (Civ. Code,
§ 3333.) Proximate cause is a
question of fact for the trier of fact and generally cannot be decided as a
matter of law. Accordingly, when a jury
is properly instructed on proximate causation and a plaintiff's duty to
mitigate damages, we are confident that a jury in a FEHA case will award lost
wages only when the plaintiff proves they are proximately caused by the
defendant's unlawful sexual harassment or other discrimination under FEHA.
damages].) Lost wages are unlikely to be
awarded when it is reasonable, or viable, for a victim of sexual harassment or
other discrimination to remain on the job despite that unlawful conduct. (Cf. Cloud,
supra, 76 Cal.App.4th at p. 908.)
was properly awarded economic damages, including lost wages, against Preovolos
for his unlawful sexual harassment even though the jury found she had not been
actually or constructively discharged from employment.
other discrimination under FEHA who resigns from his or her job may seek and be
awarded lost wages and other compensatory damages proximately caused by such
unlawful conduct, without proving that he or she was constructively discharged.
D
Preovolos
also apparently argues the evidence in this case does not show his sexual
harassment proximately caused Terry's alleged lost wages. In support of that argument, he cites Terry's
resignation letter, which expressed her dismay that Firm hired a person who she
perceived to be her replacement as the office manager. Citing his letter to Terry asking her to
reconsider her resignation and offering to keep her position open for one week,
Preovolos argues her resignation, followed by her failure to reconsider her
resignation and return to work, was the true cause of her lost wages. Therefore, based on the evidence in this
case, he argues his sexual harassment could not have been the proximate cause
of Terry's lost wages.
However,
Preovolos's argument is, in effect, that the evidence is insufficient to
support the jury's finding that his sexual harassment proximately caused
Terry's lost wages. By so arguing on
appeal, he has the obligation to provide an adequate record on appeal and
fairly set forth all material evidence on that issue, including evidence
supporting the jury's verdict. He has
not done so. His briefs omit any
reference to Terry's dismay expressed in her resignation letter regarding
"the inappropriate conduct that occurs on a daily basis in this firm,
[e]specially the sexually explicit behavior, conversations, e[-]mails and
jokes." His briefs also wholly omit
any reference to Martin's testimony.
Martin testified Preovolos frequently made jokes of a sexual nature,
including at Firm meetings, and continued to do so through the time of
trial. That testimony would support a
reasonable inference that even had Terry returned to Firm, Preovolos's sexual
harassment likely would have continued and therefore she acted reasonably by
not returning to work at Firm.
Furthermore,
by stipulating on appeal to an "Agreed Statement" with selected
exhibits as constituting the record on appeal, Preovolos has not included in
the record on appeal any of Terry's trial testimony or the testimony of her
other witnesses (except Martin) that presumably would have been favorable to
Terry and supported the jury's verdict.
By not providing a complete record and setting forth an objective and
fair statement of the material evidence regarding the issue of proximate
causation, Preovolos has waived or forfeited that contention. (Aguilar
v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 132;
425, 435; In re Valerie A. (2007) 152
Cal.App.4th 987, 1002-1003; Stasz v.
Eisenberg (2010) 190 Cal.App.4th 1032, 1039; Arechiga v. Dolores Press, Inc. (2011) 192 Cal.App.4th 567,
571-572; Huong Que, Inc. v. Luu
(2007) 150 Cal.App.4th 400, 409-410.) In
any event, based on the limited evidence contained in the record on appeal, it
appears there is substantial evidence to support the jury's finding that Preovolos's
sexual harassment proximately caused Terry's lost wages.
DISPOSITION
The
judgment is affirmed. Terry is entitled
to costs on appeal.
McDONALD, J.
I CONCUR:
NARES, Acting P. J.
I CONCUR IN THE RESULT:
O'ROURKE, J.
name="_ftn1" title="">[1] That evidence included
the testimony of Robert Martin, Firm's controller and a member of its
management team, who testified that Preovolos frequently made jokes of a sexual
nature, including at Firm meetings, and the conduct continued through the time
of Martin's testimony at trial.
name="_ftn2" title="">[2] The judgment also
awarded Terry other monetary damages against Firm.
