Dawson v. Country Club of Rancho Bernardo CA4/1

Filed 3/23/15 Dawson v. Country Club of Rancho Bernardo CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

KRISTEN DAWSON, D064654

Plaintiff and Appellant,

v. (Super. Ct. No. 37-2011-00091828-
CU-OE-CTL)
COUNTRY CLUB OF RANCHO
BERNARDO,

Defendant and Respondent.

APPEAL from a judgment of the Superior Court of San Diego County, Joan M.

Lewis, Judge. Reversed with directions.

Law Offices of Johanna S. Schiavoni, Johanna S. Schiavoni; Gruenberg Law, Josh

D. Gruenberg and Susan M. Swan for Plaintiff and Appellant.

Stutz Artiano Shinoff & Holtz, Jack M. Sleeth, Jr., and Melissa A. Lewis for

Defendant and Respondent.
 Kristen Dawson, an employee of the Country Club of Rancho Bernardo (the

Club), sued the Club and her supervisor, Joe Furlow (together, Defendants), alleging

causes of action for sexual harassment under the California Fair Employment and

Housing Act (FEHA) (Gov. Code, § 12900 et seq.)1 and intentional infliction of

emotional distress. She also sued the Club for failure to prevent harassment, wrongful

termination in violation of public policy, and retaliation. The trial court granted

Defendants' motion for summary adjudication of Dawson's harassment, failure to prevent

harassment, and intentional infliction of emotional distress claims. The trial court later

granted the Club's motion for summary judgment of Dawson's claims for wrongful

termination in violation of public policy and retaliation. Dawson appeals the judgment.

We conclude the trial court erred by granting summary adjudication and summary

judgment of Dawson's claims. When viewing the evidence in the light most favorable to

Dawson, she has raised triable issues of material fact in connection with each cause of

action. Accordingly, we reverse the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

The Club hired Dawson as a dining room supervisor in February 2008. She began

as an hourly employee, but was quickly promoted to the salaried position of food and

beverage manager, overseeing 20 restaurant staff.

In October 2010 the Club hired Furlow as clubhouse manager. He became

Dawson's direct supervisor.

1 Statutory references are to the Government Code unless otherwise specified.
2
 On December 12, 2010, Furlow sent an e-mail from "joe_furlow@yahoo.com" to

Dawson's Club e-mail address that said, "lets get you some golf lessons sometime soon,

ok?!"2 Dawson interpreted this as Furlow offering to have a Club golf pro provide her

with some lessons, so she responded on December 14, "I am definitely on board for golf

lessons sometime soon!" On December 17, Furlow responded, "OK, happy to give you

some anytime, lets figure out a day and maybe we could grab lunch or dinner too? Shoot

me your personal e-mail too if thats ok, I don't want this to be a work thing!" This e-mail

"automatically made [Dawson] uncomfortable," so she did not respond; instead, she

discussed it with coworker Don Murders, her boyfriend, and her father.

On December 23, Furlow sent another e-mail from his yahoo.com account to

Dawson's Club address. He suggested meeting at an offsite driving range so that Club

members would not distract them. Furlow added, golf "is certainly not . . . an easy game

at times, but playing with friends and adding libations can enhance the experience."

Dawson was still uncomfortable, so again she did not respond.

On January 2, 2011, Furlow sent two more e-mails from his yahoo.com account to

Dawson's Club account. In the first, he asked, "Just checking to see if you are up for

some golf lessons after work Tuesday?" In the second, he stated (in part), "There is a

driving range one exit north of pomerado, we should go there Tuesday, ok? I am staying

the night, so if you want, let's go have some dinner and talk about dinner menu and wine

2 As is often the case, the e-mail communications in the appellate record contain
typographical errors and do not always observe proper grammatical and capitalization
conventions. We quote from the e-mails without correction.
3
list. Have you been to barrel room?" The e-mails made Dawson uncomfortable because

Furlow was her "boss" and she interpreted the overnight reference as "insinuating

something."

Murders was with Dawson when she received the January 2 e-mail. Dawson

wanted to write Furlow an e-mail "in a way that would not offend him, if he were to get

upset, that [she] didn't want to do dinner with him or have him teach [her] golf lessons."

Murders helped Dawson draft the following response, which she sent Furlow on January

2: "I want to make our restaurant something that we are both proud of as well. . . . My

only concern is that I don't want to be in a position to give members or staff any reason to

make any kind of assumptions if they saw the two of us together off premises. I know it

might sound a bit paranoid, but I have seen how fast rumors can spread and

unfortunately, it has happened to me in the past where members and/or staff had made

false assumptions. This can occur in any business setting, and although as innocent as it

may be, some people could perceive it differently which is sad that they would do such a

thing. With that being said, I am not willing to take that risk. [¶] . . . I would be

completely fine with a group setting to visit different restaurants, etc."

A few days later, Furlow dropped by Dawson's office and asked, "Are we okay?"

Furlow said he was "concerned" about Dawson's e-mail and did not "want [her] to think

[he] want[ed] to make this a work thing." Dawson described him as being "a little huffy

and puffy about it." Trying to "calm the situation," Dawson responded that she thought

his ideas were good, but she only wanted to do things in a group setting with other

managers. Furlow became defensive. He said, "Well, the club can't afford to take

4
everyone out to dinner all the time," and claimed the Club's board of directors and his

wife knew about his plans to take Dawson to other restaurants to taste items.

A few weeks later, Furlow approached Dawson at work and said they needed to

talk. They went into Furlow's office, he shut the door, and said, "We have a

problem . . . . My wife found the e-mails . . . . [¶] and she's really upset and she's going

to contact you and she said she's going to e-mail you. . . . All I ask is when you receive

that e-mail that you delete it and don't read it and I'll get this taken care of." Dawson was

"dumbfounded" because she did not think she had done anything wrong. Furlow

explained that he had marital problems—his wife had cheated on him and they had "trust

issues." Dawson was uncomfortable discussing Furlow's personal life with him. She

said she would delete any e-mail from his wife, and the conversation ended. Dawson

never received an e-mail from Furlow's wife.

In February, on Dawson's third employment anniversary, the Club's board of

directors issued her a commendation noting her personal contribution to the Club's

success.

On February 20, a Sunday that Dawson had off from work, Furlow called her on

her personal cell phone while she was vacationing in Palm Springs with her roommate,

her boyfriend, his sister, and the sister's husband. Furlow told Dawson he thought they

"had a moment"—"I looked at you and you looked at me" and "we had a moment"—in

the kitchen at work the previous Friday. Dawson had no idea what Furlow was talking

about and told him she did not feel the same. Furlow responded, "if you didn't feel it,

then that's fine. I just think that you're a really beautiful girl and that any guy would be

5
lucky to have you. And I'm just going through a rough patch right now, and I don't know

what you want from me." Dawson told Furlow five or six times, "[A]ll I'm looking for

from you is a professional working relationship." Furlow responded, "Okay," but then

proceeded to tell Dawson he was going to leave his wife because she cheated on him and

they had trust issues, that his dad encouraged him to get a divorce, and that he wanted to

move to San Diego from Long Beach and bring his kids with him. Dawson got off the

phone as quickly as possible. She told her family and friends how much the call bothered

her, and that if Furlow kept it up, she would report it to the Club's human resources (HR)

department.

Within weeks, Furlow began making changes around the clubhouse and bar

without telling Dawson, even though the changes were within her responsibilities.

Furlow hired three new employees without Dawson's input; bypassed Dawson to meet

with her subordinates about changes or concerns, instead of discussing them with

Dawson as he had done before; and made changes, like offering a new wine or changing

the dining room setup, without notifying Dawson.

On April 11, another of Dawson's days off, Furlow called her on her personal cell

phone to "clear some things up." Dawson responded that she was at a memorial service

and could not talk.

On April 14, Dawson received a voicemail from one of the Club's wine vendors

who was expressing disappointment that he would no longer be working with the Club.

Dawson went to Furlow's office to ask that he let her know of such changes in the future,

as wine vendor relationships related to her job duties. Furlow became very aggressive,

6
yelling that he was "outraged" that Dawson would "defend a vendor." Furlow yelled so

loudly that a coworker whose office was near Furlow's became concerned. Dawson left

Furlow's office very upset.

The following day, April 15, Furlow asked Dawson to come to his office. He

whispered to Dawson, "I'm really concerned about your mental health." He then

confronted her with a printout of an e-mail exchange between "kristen-

dawson@live.com" and "joe@uptoparstaffing.com" (one of Furlow's e-mail addresses).

The first e-mail was dated April 11 from "joe@uptoparstaffing.com" and read: "Why

don't we talk today via phone.. What time works for you?" The response dated April 14

from "kristen-dawson@live.com" read, "[W]e need to talk.....you are quite the dick. or

do you even have one? could be fun, not sure your agenda, kind of a insecure control

freak, huh?"

Furlow asked Dawson, "What is this? Do I need to . . . have my attorney present?"

Dawson read the e-mail exchange. She had never used the "kristen-dawson@live.com"

address and was unfamiliar with the "live.com" domain. Dawson responded, "I did not

write this. You know I didn't do this . . . . Are you really doing this right now?" Furlow

replied, "Well, I have a lot more where those came from." Dawson had Murders and the

Club's HR representative, Melissa Stotz, come to Furlow's office to witness their

conversation. Stotz observed Dawson to be visibly shaken.

Stotz entered Furlow's office and asked what was happening. Furlow said Dawson

had been sending him e-mails, calling him names, and that he would go to the Club's

board. Furlow presented the e-mail to Stotz to read. After reading it, Stotz thought it did

7
not "seem like something [Dawson] would write." Stotz immediately contacted the

Club's president (Rick Lindsey), and the board's HR chairman (Bob Walder). Stotz

informed Dawson that Walder and Lindsey would come to the Club later that day.

Dawson went home to calm down and to retrieve printed copies of the e-mails from

Furlow's yahoo.com account.

Dawson met with Lindsey and Walder later in the day on April 15. She explained

everything that had happened between her and Furlow, beginning with the e-mails from

his yahoo.com account that began in December and ending with the revelation of the

live.com e-mail Furlow showed her.

Furlow gave Walder printouts of more than 30 additional e-mails between

Furlow's three different e-mail accounts—his Club account, "jfurlow39@gmail.com" and

"joe@uptoparstaffing.com"—and "kristen-dawson@live.com."3 The live.com e-mails

began on December 18, 2010 with an e-mail from "Dawson" to Furlow's Club account

asking him to give her golf lessons, adding "I don't want this to be a work thing . . . .

maybe [we can] grab lunch or dinner afterwards?"4 Furlow responded on December 21,

offering to provide lessons after the rain stops. "Dawson" later responded, "Now that the

rain has stopped, lets figure out a date soon. I dont want to make this a work obligation

either. So, if thats ok, can we keep this non-working? Hope that makes sense. If you

3 There appear to be some duplicates within this tally due to replies and forwards
that contained prior e-mail messages.

4 This e-mail was sent the day after Furlow's follow-up e-mail to Dawson's Club
account wherein he offered to give her lessons not as part of any "work thing."

8
want, send me your personal e-mail so we keep it out of that arena." Furlow responded

on December 23 with a response nearly identical to his December 23 e-mail from his

yahoo.com account to Dawson's Club account regarding offsite lessons.5

On January 2, 2011, Furlow sent "Dawson" an e-mail from his

uptoparstaffing.com e-mail address that is nearly identical to the January 2 e-mail from

his yahoo.com account to Dawson's Club account regarding the offsite driving range and

Furlow's overnight stay. "Dawson" responded on January 8, stating, "Would be great to

see you off schedule but while we are working together it doesn't work for me. So until

then, just wanted you to know and keep it status quo."

On January 23 and 24, Furlow exchanged several e-mails with "Dawson" from his

gmail.com account. In them, Furlow confides in "Dawson" about his unhappy marriage

and his wife's infidelity. Apparently in response to "Dawson's" suggestion that the two of

them take a trip,6 Furlow wrote, "I dont know what a dinner or drink after hours would

lead to, but I am curious about it to be honest. I understand your reasonings to go far far

away, but how far is far far away Oceanside, Downtown SD, Carlsbad or Alaska or

Hawaii? Just kidding." Furlow also wrote, "the emails we have shared are both

dangerous and more dangerous."

"Dawson" responded on January 23 by thanking the "Tough Ass" for "opening up"

about his problems and by consoling him. "She" also clarified that by "far away" she

5 The only difference is that the response to "Dawson" also provided Furlow's
uptoparstaffing.com e-mail address.

6 The e-mail containing that apparent suggestion is not in the appellate record.
9
meant traveling to a desert golf course for an overnight stay with two other coworkers,

but suggesting that if "she" and Furlow "had close or attached rooms and a few drinks

after meetings, that might be nice." The e-mail was signed "Kristen xo."

Furlow responded on January 24 by opening up further, writing seven additional

paragraphs about his marital situation. He also wrote, "I think you and I need to go have

a drink! I would at least like to try to have a conversation with you (away from work)

and see what happens. If there is a spark, they we can deal with that. However, if there

is not a spark (or one of us does not get a spark), no harm no foul and we just work

together. I enjoy working with you and I don't want to try to make something out of

anything if nothing is there. Lets go have a drink just you and I and take it from there.

No trips, no overnight stays, let's go have an uncomfortable drink."

"Dawson" responded on January 24 by providing advice about infidelity, therapy,

and children. She also wrote, "I'd love to get to know you better and think you could do

better and make this work for you. You are what many of us are looking for and I'd hate

to see you wait until you are 50 to figure that out. So, let's keep that drink on hold until

you've had time to think and reply back, OK? [¶] xxxxoooo Kristen."

On March 22, "Dawson" e-mailed Furlow asking if they could meet offsite,

repeatedly calling him a "hardass," and concluding "must be so much fun being

miserable."

On March 24, "Dawson" sent the following e-mail to Furlow's

uptoparstaffing.com and gmail.com accounts: "Joe—i wanted to check and see if i

shared your e-mail to me about your whole marriage and inviting me to a drink and told

10
our board how we did more after a drink and that as my manager you used your position

and i fealt sexually exploited what you might say. you know i was vulnerable and only

trying to win the approval of the new boss, right? i know when i mentioned something to

Ed K. he was interested. maybe i should share this with you wife too? she seemed to

nail me pretty quick, wonder what she'd do if i told her how we had sex and how quick

you went after me? you have made me feel badly and all i wanted was to do a good job."

On April 3, "Dawson" forwarded Furlow "their" January 23 and 24 e-mail

exchanges with this new message: "Wonder what the board or SD labor relations or your

wife would think?? You are an unhappy guy, you could be very happy if you wanted

though."

On April 6, "Dawson" e-mailed Furlow's uptoparstaffing.com address the

following message: "going down." Furlow responded, "What? What are you talking

about? Going down what?" "Dawson" then replied, "use your imagination!" "She" also

asked Furlow to call "her" on "her" cell phone.

On April 9, "Dawson" e-mailed Furlow at his uptoparstaffing.com account after 10

p.m., asking "You up?" Over one hour later, "Dawson" e-mailed again to ask, "When are

we going to get that drink? Lets just do it, who cares?"

On April 11 and 12, "Dawson" and Furlow exchanged e-mails trying to arrange a

phone call.

On April 13, Furlow forwarded to his Club e-mail address several of the e-mail

chains between "kristen-dawson@live.com" and his gmail.com and uptoparstaffing.com

accounts.

11
 The e-mail exchanges between "kristen-dawson@live.com" and Furlow ended

with the April 14 "dick" e-mail that Furlow presented to Dawson on April 15.

Walder showed Dawson the live.com e-mails. She was shocked and deeply

disturbed by the e-mails; when she read the last one, she broke down crying. Dawson

denied sending the e-mails, said she had never seen them before, and suspected Furlow

had written both sides of the conversations because "it was very apparent it was his

language." She surmised he had done so because "he knew that [his prior] conduct was

wrong so he was trying to protect himself by creating an account where [Dawson] sent

him stuff in order to make [her] look a part of it." After Dawson read the live.com e-

mails, she told Walder she felt she was working in a hostile work environment.

Dawson asked Walder and Lindsey to investigate the situation and determine who

sent the e-mails. She also asked, while the investigation was pending, that she have less

direct communication with Furlow. Walder accommodated Dawson's request by having

her and Furlow each report to separate board members who then conferred with one

another. Fearing someone was out to get her, Dawson asked to park in the members' lot

at the Club so she would not have to walk to the isolated employee parking lot. Walder

allowed this.

Walder began investigating the live.com e-mails. Dawson volunteered access to

her personal computer, e-mail accounts, and her boyfriend's personal computer. She also

established to Walder's satisfaction that she could not have sent the April 14 "dick" e-

mail—she was dining at a restaurant with her boyfriend's family when the e-mail was

sent and Walder confirmed with the boyfriend's father and two restaurant servers that

12
Dawson did not send any e-mails during that time. Walder later told Dawson he also

learned live.com e-mails can not be sent from mobile devices.

Walder told Dawson "he believed 100 percent" that she did not write the live.com

e-mails. In addition to confirming she could not have sent the April 14 e-mail, Walder

concluded there was nothing consistent between the tone and format of Dawson's work e-

mails and the live.com e-mails, and it was apparent to Walder that Dawson had not seen

the e-mails before he showed them to her.

Walder told Furlow, "I will need to look through your computers[,] both personal

and professional, along with your BlackBerry." Furlow responded, "I have a great deal

of personal information on that." Furlow agreed to "bring them in"—presumably

referring to his personal computers—but he never did. The appellate record does not

reveal whether Furlow ever made his work computer or e-mail available. However,

Furlow did confirm that when he sent e-mails to Dawson from his work computer he had

to select between her Club account and "kristen-dawson@live.com."

Dawson insisted the Club investigate Furlow's e-mail and became "exasperated"

when Walder did not require Furlow to make his computers available for examination.

Walder considered "inappropriate" Dawson's efforts to "set deadlines on [his] schedule of

when" to examine Furlow's computers "[b]ecause it wasn't up to her as to what direction

th[e] investigation was going."

Ultimately, Walder was unable to determine who sent the live.com e-mails, but

concluded that fact was "immaterial to the investigation." Walder explained in an April

26, 2011 memorandum regarding his investigation: "I . . . have asked [Furlow] for access

13
to his personal [e-mail] twice. Each time he has said that he would provide access, also

claiming that there is confidential information in the [e-mail]. [Furlow] has not given me

access at this time. [¶] Considering that [Furlow] has not granted access to his [e-mail]

addresses, I have to then conclude that the [e-mails] are nothing more than hearsay. We

have words on paper but nothing to prove that the [e-mails] are factual. I also have to

conclude that without the [e-mails], the situation is reduced to poor management."

On April 27, Dawson met with Walder, Lindsey and Club president Ron Smith.

They told Dawson the investigation was finished; it was inconclusive as to who sent the

live.com e-mails; the Club could not reprimand Furlow without proof he sent the e-mails;

and, even if he sent them, it was from his personal e-mail and not his work address.

Dawson asked about continuing to investigate the source of the e-mails, but Walder

responded that "if [Furlow] doesn't hand [his computers] over, there's not much [the

Club] can do." The investigation ended and Dawson and Furlow continued working

together. Furlow was reprimanded for his handling of the wine vendor incident, but not

for sexual harassment.

Discouraged with the outcome of the Club's investigation, Dawson retained legal

counsel and filed a lawsuit against the Club and Furlow on May 24, 2011, alleging sexual

harassment (against both), failure to prevent harassment (against the Club), and

intentional infliction of emotional distress (against both). Walder received a draft of the

complaint. The day he received it, Walder had intended to offer Dawson a new position

at the Club: catering and special events manager. The following day, Walder told

Dawson, "I was going to offer you this position, but then I received your lawsuit."

14
 Walder ultimately offered Dawson the new position. He initially referred to it as a

promotion, but later acknowledged it was not. Furlow called it a "lateral" move. Dawson

considered it a "step down" because she would no longer oversee the food and beverage

department or manage the 20-person restaurant staff, but rather, would be in a special

event sales role. The new position included no pay raise and required Dawson to have

the same amount of communication, if not more, with Furlow. Dawson told coworker

Murders she felt the Club was retaliating against her by offering the new position.

Dawson felt "Walder's conduct towards [her] took a drastic turn" and that her

"days were numbered." Walder viewed Dawson's lawsuit as an act of retaliation and

feared "she would be looking for anything possible in an attempt to try to hurt the

[C]lub." He offered to hire an investigator to look into Furlow's e-mails if she dropped

the lawsuit. In a June 1 e-mail to Dawson's attorney, Walder wrote—for the first time—

that Dawson had "performance" issues. Walder would not answer Dawson's questions

about the purported performance issues or Club vacation policy, instead requesting that

Dawson decide promptly whether she would accept the new catering role.

Walder testified in his deposition that Dawson was "incompetent" 75 percent of

the time he worked with her, and that her performance was merely "satisfactory" the

remaining 25 percent of the time. He claimed that Dawson's incompetence included

failing to return phone calls, being unable to quote him certain prices, and lacking

planning skills. Although Walder said Dawson was incompetent in planning a meeting

for his company, he admitted he later "raved to [her] about how great the event was."

15
 Walder also testified in his deposition that he changed his mind about Dawson's

authorship of the live.com e-mails based on an e-mail Furlow allegedly received from the

slightly different "kristen_dawson@live.com"7 account during the course of the

litigation.8 Walder did not confirm that Dawson sent the e-mail.

On June 3, Dawson and Walder exchanged several e-mails about some of the

terms of the new catering position. Walder told Dawson he needed her decision soon or

they would find someone else for the role.

On June 8, Furlow notified Dawson via e-mail that another employee would take

over her role of scheduling bartender and cocktail server shifts. Dawson e-mailed Walder

the following day to accept the catering position because she found "it apparent that [her]

responsibilities are slowly being taken away anyway."

On June 10, Walder recommended to the Club's board that the Club terminate

Dawson's employment. The board followed Walder's recommendation and voted to

terminate Dawson. Walder prepared a termination letter, and he and Stotz met with

7 This address has an underscore instead of a dash between "kristen" and "dawson."

8 The unedited e-mail reads: "Joe i heard you were let go from CCRB. i have
always had it in me to bring closure to move on and forgive and this is my closure. you
are an ass. the most complete asshole I have ever met. i was so ready to be your friend
and make that place rock and you couldn't deal with that. i have moved on and have a
new job and boyfriend. i was ready to make CCRB our place and we could have and had
a lot of fun doing it. your wife sent me a stupid email threatening me but you said you
were in a bad marriage, figure your shit out Joe, again if you are happy its cool if not dont
fuck with people! i have my peace now, time to move on. sorry it didn't work, coulda
been great and a lotta fun, thats all for me, i feel better and able to move on and past us.
still sorry u couldnt figure it out :( [¶] no need to reply whewwww [¶] i know u wanted
to fuck me after that :) c-ya k? [¶] bye! :)"
16
Dawson to notify her of her termination, which was effective immediately. Walder's

letter cited the following bases for Dawson's termination: (1) her submitting to the

accounting department a personnel action request (PAR) that sought to retroactively

reduce an hourly employee's pay rate without first notifying him; (2) her "previous

performance issues," including her responsiveness to customers; and (3) poor

management of a Memorial Day event.

Dawson disagreed with Walder's cited bases. Regarding the PAR, Dawson

explained that when she hired Greg LeChance as a server, she told him that he would

start with a training pay rate of $8.50 per hour, but he would not be eligible for tips; when

his training was complete, after about two weeks, his hourly pay would decrease to $8.00

per hour but he would be eligible to share in tips. Someone informed Dawson that

LeChance had completed his training and was participating in tips, but his hourly pay rate

had not been reduced. Dawson completed a PAR requesting a 50-cent per-hour pay

reduction for the current pay period and submitted the PAR to accounting for approval by

Furlow as Club manager. Accounting caught the retroactive discrepancy and the PAR

was never implemented.

As for her performance issues, Dawson disputed Walder's assertion that he had

verbally counseled her on several occasions. The only occasion Dawson recalled was

Walder commenting on his secretary and Dawson playing phone tag while coordinating

the menu for Walder's corporate event at the Club. But even then, Walder did not

communicate to Dawson that his secretary was frustrated with Dawson's responsiveness.

Walder understood that as a Club member and board member he was able to complain to

17
HR about Club employees, but he never did so regarding Dawson. He apparently

mentioned Dawson's responsiveness to Furlow in December 2010 or January 2011, but

Furlow considered Walder's grievances to be "miniscule" issues that did not "merit actual

documentation." Walder acknowledged Dawson had never been disciplined in writing.

Regarding the Memorial Day event, Dawson cited an e-mail from Furlow in which

he wrote to Dawson, "No need to be here Monday, Bea and I will cover the Memorial

Day Holiday Tournament."

Stotz supervised Dawson while she gathered her personal belongings and escorted

her to her car. Stotz told Dawson she "felt like [Dawson's termination] was wrong."

Dawson amended her complaint to add a claim against the Club for wrongful

termination in violation of public policy.

On September 25, 2012, the trial court granted the Club's motion for summary

adjudication of Dawson's claims for sexual harassment, failure to prevent harassment,

and intentional infliction of emotional distress. The trial court viewed the evidence

supporting Dawson's harassment claim "as falling into three separate categories": (1)

Furlow's conduct before April 15, (2) Furlow's showing the live.com e-mail to Dawson

on April 15, and (3) Walder's showing Dawson the remaining 30 live.com e-mails. The

trial court rejected Dawson's retaliation arguments because retaliation "was unpled in [the

harassment] cause of action" and "is not an element of a cause of action for sexual

18
harassment."9 Citing Dawson's testimony that she did not feel sexually harassed until

Walder showed her the additional live.com e-mails during the course of the investigation

she requested, the trial court found Dawson did not meet "her burden of showing that the

additional e-mails shown to her during [the Club's] investigation represents sexually

harassing conduct or that the conduct in this case was severe or pervasive." Based on the

same reasoning and findings, the trial court found that Dawson's claims for failure to

prevent harassment and intentional infliction of emotional distress also failed. Because

the trial court had summarily adjudicated all claims in which Furlow was a named

defendant, the court entered judgment in his favor on November 8, 2012.

The trial court granted Dawson leave to amend her complaint to add a cause of

action for retaliation in violation of FEHA. The Club then moved for summary judgment

on Dawson's remaining wrongful termination and retaliation claims. The Club conceded

Dawson had made a prima facie showing of retaliation and, thus, the Club accepted the

initial burden of establishing it had a legitimate, nonretaliatory reason for terminating

Dawson. The trial court accepted the Club's argument that Dawson's attempt to

retroactively reduce LeChance's pay constituted a legitimate reason for termination,

9 The trial court clarified "that some of Plaintiff's arguments are more relevant to her
[wrongful termination in violation of public policy claim] and Defendants have requested
no ruling – and the Court expresses no opinion thereon – as to that cause of action."
19
rejected Dawson's contention that it was mere pretext,10 and granted the Club's motion.

The trial court entered judgment in favor of the Club on June 3, 2013.

On August 7, 2013, Dawson filed a notice of appeal purporting to appeal the

November 2012 judgment in favor of Furlow and the June 2013 judgment in favor of the

Club. Furlow moved unopposed to dismiss as untimely the appeal as to his November

2012 judgment. We granted his motion. Therefore, this appeal concerns only the June

2013 judgment in favor of the Club.

DISCUSSION

Dawson contends the trial court erred by granting the Club's summary

adjudication motion because the court misapplied sexual harassment law and did not

view the evidence in the light most favorable to Dawson, which would have revealed

triable issues of fact. She contends the trial court also erred by granting the Club's

summary judgment motion because there is a triable issue of fact regarding whether the

Club articulated a legitimate reason for terminating her.

On appeal from the entry of a summary judgment, we apply the same standard that

was applicable in the trial court, i.e., we independently review the record to determine

whether there are triable issues of material fact. (Saelzler v. Advanced Group 400 (2001)

25 Cal.4th 763, 767.) "We liberally construe the evidence in support of the party

opposing summary judgment and resolve doubts concerning the evidence in favor of that

10 The trial court noted that it "would agree that a triable issue as to pretext would
exist if the only bases offered for Plaintiff's termination were poor performance issues
such as mis-calendaring and mis-pricing."
20
party." (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037; Miller v.

Department of Corrections (2005) 36 Cal.4th 446, 470 (Miller) [reversing grant of

summary judgment in a sexual harassment and retaliation case where the "Court of

Appeal failed to draw [reasonable inferences in favor of the nonmoving party] and took

too narrow a view of the surrounding circumstances"].)

I. DEFENDANTS' SUMMARY ADJUDICATION MOTION

We begin by examining the trial court's order granting summary adjudication of

Dawson's claims for sexual harassment, failure to prevent sexual harassment, and

intentional infliction of emotional distress.

A. Legal Framework

FEHA "recognize[s] two theories of liability for sexual harassment claims.

[Citations.] '. . . quid pro quo harassment, where a term of employment is conditioned

upon submission to unwelcome sexual advances . . . [and] hostile work environment,

where the harassment is sufficiently pervasive so as to alter the conditions of employment

and create an abusive work environment.' " (Herberg v. California Institute of the Arts

(2002) 101 Cal.App.4th 142, 149.) Dawson alleged hostile work environment sexual

harassment.

In construing FEHA, our high court has held that the hostile work environment

form of sexual harassment is actionable only when the harassing behavior is pervasive or

severe. (Miller, supra, 36 Cal.4th at p. 462.) To prevail, an employee must show that the

harassing conduct was "severe enough or sufficiently pervasive to alter the conditions of

employment and create a work environment that qualifies as hostile or abusive to

21
employees because of their sex." (Ibid.) "To be pervasive, the sexually harassing

conduct must consist of 'more than a few isolated incidents.' " (Hughes v. Pair (2009) 46

Cal.4th 1035, 1048.) If the alleged harassment was not pervasive, the employee must

show that it was "severe in the extreme." (Herberg v. California Institute of the Arts,

supra, 101 Cal.App.4th at p. 151.)

"To be actionable, 'a sexually objectionable environment must be both objectively

and subjectively offensive.' " (Lyle v. Warner Brothers Television Productions (2006) 38

Cal.4th 264, 284.) "That means a plaintiff who subjectively perceives the workplace as

hostile or abusive will not prevail under the FEHA, if a reasonable person in the

plaintiff's position, considering all the circumstances, would not share the same

perception. Likewise, a plaintiff who does not perceive the workplace as hostile or

abusive will not prevail, even if it objectively is so." (Ibid.)

Under FEHA, the existence of a hostile work environment depends upon the

totality of the circumstances. (Miller, supra, 36 Cal.4th at p. 462.) " 'These may include

the frequency of the discriminatory conduct; its severity; whether it is physically

threatening or humiliating, or a mere offensive utterance; and whether it unreasonably

interferes with an employee's work performance.' " (Ibid.) "The United States Supreme

Court has warned that the evidence in a hostile environment sexual harassment case

should not be viewed too narrowly." (Ibid.) " '[T]he objective severity of harassment

should be judged from the perspective of a reasonable person in the plaintiff's position,

considering "all the circumstances." [Citation.] . . . . [T]hat inquiry requires careful

consideration of the social context in which particular behavior occurs and is experienced

22
by its target. . . . The real social impact of workplace behavior often depends on a

constellation of surrounding circumstances, expectations, and relationships which are not

fully captured by a simple recitation of the words used or the physical acts performed.

Common sense, and an appropriate sensibility to social context, will enable courts and

juries to distinguish between simple teasing or roughhousing . . . and conduct which a

reasonable person in the plaintiff's position would find severely hostile or abusive.' "

(Ibid., quoting Oncale v. Sundowner Offshore Services, Inc. (1998) 523 U.S. 75, 81–82.)

B. Analysis

1. Sexual harassment

Dawson contends the trial court misapplied the law by not considering evidence of

Furlow's and Walder's retaliatory conduct in connection with her sexual harassment

claim and by not considering the totality of the circumstances. We agree. When viewed

in the light most favorable to Dawson, the totality of the circumstances—including

Furlow's (but not Walder's) retaliatory conduct—establish that triable issues of fact exist

regarding Dawson's subjective belief that she was sexually harassed and whether that

belief was objectively reasonable.

a. Furlow's (but not Walder's) alleged retaliation is relevant to Dawson's
sexual harassment claim

Regarding the trial court's "reject[ion]" of Dawson's retaliation theory as irrelevant

to her sexual harassment claim, Birschtein v. New United Motor Manufacturing, Inc.

(2001) 92 Cal.App.4th 994 (Birschtein) is instructive. There, plaintiff Michelle

Birschtein worked on an assembly line in an auto manufacturing plant, which required

23
her to work in a fixed location as forklifts delivered parts and materials to the assembly

line. (Id. at p. 997.) Forklift operator George Bonillia asked Birschtein on a date three or

four times, but Birschstein declined each time and told him she did not want to go out

with him. (Ibid.) Bonillia told Birschtein he wanted to " 'eat her,' " which upset

Birschtein and prompted her to ask Bonillia what he meant. (Ibid.) Bonillia replied, " 'I

want to eat you all over.' " (Ibid.) Birschtein yelled at Bonillia to leave, which he did

after sitting on his forklift for a while. (Id. at pp. 997-998.) Two or three days later,

Bonillia again approached Birschtein and told her he was having fantasies about bathing

her in a tub surrounded by candles and carrying her to a bed covered with rose petals.

(Id. at p. 998.) Birschtein yelled at Bonillia to leave, which he did after sitting on his

forklift for another minute. (Ibid.) Birschtein complained to her foreman and began to

carry mace to work. (Ibid.) After her complaint, Bonillia never spoke to Birschtein

again. (Ibid.) But he did drive his forklift near her station five to 10 times each day and

stare at her for five to 10 minutes each time. (Ibid.) Birschtein complained about

Bonillia's staring, which then decreased to two or three times per day for five to ten

seconds at a time. (Ibid.) Bonillia's stares were not sexual, they were upset. (Id. at pp.

998-999.) Bonillia's only post-complaint sexual act was one occasion when he grabbed

his crotch while he drove his forklift by Birschtein's station, staring at her. (Id. at p. 999.)

Birschtein's employer investigated Bonillia's conduct, but took no disciplinary or

corrective action because the investigator " 'didn't feel that [Bonillia's] actions warranted

it.' " (Ibid.) Birschtein sued for hostile work environment sexual harassment, and the

trial court granted summary judgment for her employer. (Id. at pp. 999-1000.)

24
 The Court of Appeal reversed. As relevant here, the court concluded Bonillia's

nonsexual, retaliatory staring could still constitute sexual harassment. (Birschtein, supra,

92 Cal.App.4th at p.1001, citing Accardi v. Superior Court (1993) 17 Cal.App.4th 341,

345-346 [" '[S]exual harassment does not necessarily involve sexual conduct.' "].) As the

court explained, "What began as Bonillia's overt acts of sexual harassment (asking for

dates, the 'eat you' remarks, his specifically sexual bathing fantasies) were later

transmuted by plaintiff's reaction (her complaints to management about the offensive

conduct) into an allegedly daily series of retaliatory acts—the prolonged campaign of

staring at plaintiff—acts that were directly related to, indeed assertedly grew out of, the

antecedent unlawful harassment." (Id. at p. 1002.) The court thus concluded Birschtein's

evidence "was sufficient to raise a triable issue of material fact, i.e., whether Bonillia's

apparent retaliatory acts were sufficiently allied with the prior acts of harassment to

constitute a continuing course of unlawful conduct." (Ibid.)

Similarly, Dawson presented evidence that after she made clear during the Palm

Springs phone call that she was only interested in a professional relationship with Furlow,

his attitude toward her changed from one of romantic pursuit to retaliation. He cut

Dawson out of the decision-making loop for job-related decisions and secretly met with

her subordinates. This culminated in the April 14 incident regarding Furlow's

replacement of a wine vendor during which he yelled loudly at Dawson. The next day,

Furlow questioned Dawson's mental health, showed her the April 14 "dick" e-mail, and

told Dawson, "I have a lot more where those came from.' " After Dawson complained to

HR, Furlow continued to keep her in the dark on management decisions and reassigned

25
some of her duties. Considering this evidence in the light most favorable to Dawson, we

conclude Furlow's "apparent retaliatory acts were sufficiently allied with the prior acts of

harassment to constitute a continuing course of unlawful conduct" (Birschtein, supra, 92

Cal.App.4th at p. 1002, italics added) such that the trial court should have considered the

retaliatory acts in connection with Dawson's sexual harassment claim.11

Dawson has not convinced us that Walder's alleged retaliatory acts are relevant to

her sexual harassment claim.12 Whereas the nonsexual retaliation in Birschtein was a

"transmutat[ion]" of Bonillia's own previous sexual harassment (Birschtein, supra, 92

Cal.App.4th at p. 1002), Dawson has not directed us to evidence in the record that shows

Walder's alleged acts of retaliation "were sufficiently allied with [Furlow's alleged] prior

acts of harassment" (ibid.), or were directed at Dawson "because of [her] sex" (Miller,

supra, 36 Cal.4th at p. 462)—as opposed to her engagement in the protected activity of

reporting or suing for alleged sexual harassment—such that the trial court should have

considered them in connection with Dawson's sexual harassment claim.

Dawson argues her case is like Miller, supra, 36 Cal.4th at page 466, which she

characterizes as the Supreme Court having found evidence of a hostile work environment

based, in part, on a "supervisor's refusal to intervene in abusive conduct against the

plaintiff by another employee, and the supervisor's retaliation against the plaintiff . . .

11 The Club's explanation that certain of the alleged retaliatory acts were merely the
result of managerial streamlining resulting from Furlow's hire is for the trier of fact to
evaluate.

12 They are, of course, relevant to her claims for retaliation and wrongful termination
in violation of public policy.
26
after she cooperated with an internal affairs investigation into the supervisor's conduct."

(Underscoring omitted.) However, Miller is readily distinguishable because the

retaliating supervisor was having an affair with (among others) the employee who was

abusive to the plaintiff and it was that affair (together with the others) that contributed to

the hostile environment of which the plaintiff complained. (Id. at pp. 466-468.) There

are no facts similarly linking Walder's alleged retaliatory conduct to any earlier

harassment in which Walder was involved.

Therefore, we conclude the trial court erred by not considering evidence of

Furlow's alleged retaliatory conduct in connection with Dawson's claim for sexual

harassment. Thus, we will consider that evidence among the totality of the circumstances

supporting Dawson's sexual harassment claim.

b. Whether Dawson subjectively felt harassed is a triable issue of fact

The Club argued below, as it does now, that Dawson testified she did not

subjectively believe she was being sexually harassed until Walder showed her the

live.com e-mails on April 15. The trial court agreed and appears to have considered only

whether being shown the live.com e-mails during the course of the investigation could

constitute sexual harassment. We conclude the trial court erred by viewing the evidence

too narrowly. (Miller, supra, 36 Cal.4th at p. 462; Oncale v. Sundowner Offshore

Services, Inc., supra, 523 U.S. 75, 81–82.)

In support of its argument, the Club asserts "Dawson testified that she did not find

any of the conduct spanning the two months after the invitation for golf lessons and

27
dinner, leading up to the April incident with the wine vendor, to be sexually harassing."

This assertion is unsupported for at least two reasons.

First, the Club's record citation does not support the conclusion. Dawson was

asked in deposition, "But in between those two dates had anything happened that you

thought was sexual harassment?" However, the "two dates" were not the December

"invitation for golf lessons and dinner" and the "April incident with the wine vendor," as

the Club represents; rather, they were "the February 20 [Palm Springs] phone call and the

April 11 phone call" to "clear some things up" when Dawson was at a memorial service.

Second, the Club's argument ignores other portions of Dawson's deposition

testimony where she cites conduct by Furlow prior to the revelation of the live.com e-

mails that she considered "instance[s] of sexual harassment" by Furlow. For example,

Dawson testified she considered the January conversation when Furlow told her his "wife

found the e-mails" to be an "instance of sexual harassment" that made her

"uncomfortable." She also testified she considered Furlow's February 20 Palm Springs

phone call an "instance of sexual harassment" that made her uncomfortable. And she

testified she considered Furlow's April 11 memorial service call to "clear some things up"

an "instance of sexual harassment." In addition, although she did not characterize it as an

instance of sexual harassment, Dawson testified Furlow's January 2 "staying the night" e-

mail was "offensive" and made her "uncomfortable." This evidence is sufficient to create

28
a triable issue of fact regarding whether Dawson subjectively felt that she was sexually

harassed.13

c. Whether Dawson objectively felt harassed is a triable issue of fact

The trial court's finding that Dawson did not objectively feel harassed appears to

have also been based on the court's acceptance of the Club's assertion that Dawson did

not subjectively feel sexually harassed until Walder showed her the live.com e-mails.

For the same reasons discussed above regarding Dawson's subjective belief, the trial

court's finding is erroneous in connection with Dawson's objective belief.

Considering the "totality of the circumstances" (Miller, supra, 36 Cal.4th at p.

462), we conclude Dawson opposed the Club's motion with sufficient evidence to reach

trial. Dawson testified she experienced several "instance[s] of sexual harassment" by

Furlow before she ever saw one live.com e-mail. She testified the revelation and her

reading of the live.com e-mail's further constituted sexual harassment. And she presented

evidence that her rebuffing of Furlow's advances transmuted his harassing conduct from

sexual to retaliatory. (Birschtein, supra, 92 Cal.App.4th at p. 1002.) This is sufficient to

create a triable issue of fact.

Consistent with its theory that Dawson admitted she did not feel sexually harassed

until Walder presented the live.com e-mails, the Club argues that Walder showing

13 We are unpersuaded by the Club's argument that Dawson did not make clear that
she was complaining about "sexual harassment." Our Supreme Court "do[es] not believe
employees should be required to elaborate to their employer on the legal theory
underlying the complaints they are making, in order to be protected by the FEHA."
(Miller, supra, 36 Cal.4th at p. 474.) And, in any event, Dawson told Walder after she
read the live.com e-mails that she felt she was working in a hostile work environment.
29
Dawson the e-mails cannot constitute sexual harassment because it was not done

"because of [her] sex" (Miller, supra, 36 Cal.4th at p. 462). In other words, Walder did

not show Dawson the live.com e-mails to sexually harass her, but rather, to investigate

her claim of sexual harassment. We are not persuaded that Walder's presentation of the

live.com e-mails to Dawson during the investigation precludes a finding that Furlow

sexually harassed her.

Dawson presented evidence from which a jury reasonably could conclude Furlow

wrote the live.com e-mails with the intent that Dawson and others would see them.

Regarding authorship, (1) Furlow possessed the e-mails; (2) he sent virtually identical e-

mails to Dawson's Club account and the live.com account without ever questioning the

need to repeat himself verbatim in separate e-mail chains; (3) similarly, he never

questioned the parallel e-mail chains about golf lessons—the first started by him on

December 12, and the second started by "Dawson" on the live.com account on December

18; and (4) Furlow never let the Club examine his computer. The Club can, of course,

argue at trial that Furlow is not the author of the live.com e-mails.

As for Furlow's intent that Dawson see the e-mails, Dawson explained it well in

her deposition. When asked why she thought it was sexually harassing conduct by

Furlow for Walder to show her the live.com e-mails during an investigation that she

wanted done, Dawson responded, "Because he gave them to them. I mean, he gave them

the e-mails. So it's still – just because [Furlow] didn't give them to me directly, he still

put it out there for people to see. That's still sexual harassment." Put differently, a jury

could reasonably conclude that Furlow drafted the e-mails with the intent that he or

30
someone else would ultimately show them to Dawson and other coworkers to give the

false impression that she was voluntarily participating in the conduct about which she

would later complain.

The Club also contends Dawson could not have been sexually harassed by the

live.com e-mails because she only briefly viewed a few of them. While Dawson testified

she could not remember exactly how many of the e-mails she read, Walder documented it

in detail in his investigation notes: "I presented the e-mails that [Furlow] had given me

one at a time to [Dawson]. I observed her to read each one individually."

The Club attempts to downplay the severity of the live.com e-mails, writing, "[a]t

their worst, kristen-dawson@live.com makes a joke about 'going down' and calls Furlow

a 'tough ass' and a 'dick,' but these are more insults than sexually suggestive." We

conclude a jury could disagree with the Club's characterization of the e-mails. Indeed, it

appears Walder did; in his deposition, he gave the following "evaluation" of the live.com

e-mails: "From my observation, we have a 30-something-year-old female and a 30-

something-year-old male that may have had some sort of a sexual attraction between each

other. The e-mails that came from the female were much more inappropriate than the e-

mails that came from the male. Do I consider that creepy? If she's trying to get laid, it is

what it is." In addition, nothing in the record suggests the live.com e-mail about "going

down" was any more "a joke" (as the Club contends) than Bonillia's statement in

Birschtein that he wanted to " 'eat [Birschtein],' " and " 'eat [Birschtein] all over.' "

(Birschtein, supra, 92 Cal.App.4th at p. 997.) Further, there is abundant additional

"sexually suggestive" content in the live.com e-mails, such as "Dawson's" suggestion of

31
"attached [hotel] rooms"; "her" threat to tell the Club's board "she" felt "sexually

exploited" by Furlow; "her" threat to tell Furlow's wife "how we had sex and how quick

you went after me"; and her reference to Furlow's "dick."

Aside from the specific content of the live.com e-mails, a jury could consider

Furlow's alleged concoction of a virtual "Dawson" who threatens to blackmail Furlow

and who others perceive as "inappropriate" and "trying to get laid" as contributing to a

hostile work environment. Indeed, Dawson testified it was not just her reading the e-

mails that she felt was sexually harassing but also learning "the fact that the e-mails

existed and were about [me]. [¶] . . . [¶] It was—to read these e-mails that were not me

that someone else had written, and I think the sexually explicit manner is sexual

harassment."

In sum, considering the totality of the evidence in the light most favorable to

Dawson, we conclude she opposed the Club's motion for summary adjudication as to her

sexual harassment claim with "evidence of ' "sufficiently severe or pervasive" ' conduct

that ' " 'alter[ed] the conditions of [her] employment' " ' such that a jury reasonably could

conclude that the conduct created a work environment that qualifies as hostile or abusive

to employees because of their gender." (Miller, supra, 36 Cal.4th at p. 468.)

Consequently, the trial court erred by summarily adjudicating the claim in the Club's

favor.

2. Failure to prevent harassment

The trial court found Dawson's claim for failure to prevent harassment failed "[f]or

the same reasons" as her sexual harassment claim. Based on our conclusion that the trial

32
court erred by summarily adjudicating Dawson's sexual harassment claim, we likewise

conclude the trial court erred by summarily adjudicating her claim for failure to prevent

harassment.

3. Intentional infliction of emotional distress

Similarly, the trial court found Dawson's claim for intentional infliction of

emotional distress failed "based on the [sexual harassment] findings." For the reasons

just discussed, we conclude the trial court also erred by summarily adjudicating Dawson's

intentional infliction of emotional distress claim.

II. THE CLUB'S SUMMARY JUDGMENT MOTION

Dawson contends the trial court erred by granting the Club's summary judgment

motion aimed at her claims under FEHA for retaliation and wrongful termination in

violation of public policy. She contends there are triable issues of fact regarding the

legitimacy of the Club's stated bases for her termination. We agree.

A. Legal Framework

In relevant part, FEHA makes it unlawful "[f]or any employer . . . to discharge . . .

or otherwise discriminate against any person because the person has opposed any

practices forbidden under this part . . . ." (§ 12940, subd. (h).) To state a claim of

retaliation under FEHA, a plaintiff must show: (1) she engaged in a protected activity,

(2) she was subjected to an adverse employment action, and (3) there is a causal link

between the protected activity and the adverse employment action. (Yanowitz v. L'Oreal

USA, Inc., supra, 36 Cal.4th at p. 1042.)

33
 "California has adopted the three-stage burden-shifting test established by the

United States Supreme Court" (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354

(Guz); McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792) and often referred to as

the McDonnell Douglas presumption. This approach requires the plaintiff "to establish a

prima facie case of [an unlawful employment practice]. . . . [¶] If the plaintiff meets this

burden, ' " 'the burden shifts to the defendant to [articulate a] legitimate

nondiscriminatory reason for its employment decision. . . .' . . ." ' . . . [¶] . . . [I]f the

defendant presents evidence showing a legitimate, nondiscriminatory reason, the burden

again shifts to the plaintiff to establish the defendant intentionally [engaged in an

unlawful employment practice] against him or her. [Citation.] The plaintiff may satisfy

this burden by proving the legitimate reasons offered by the defendant were false,

creating an inference that those reasons served as a pretext for [the unlawful employment

practice]." (Wills v. Superior Court (2011) 195 Cal.App.4th 143, 159-160.)

"A defendant's summary judgment motion ' "slightly modifies the order of

these . . . showings." ' [Citation.] Consequently, the [defendant] ha[s] the initial burden

to either (1) negate an essential element of [the plaintiff's] prima facie case [citation] or

(2) establish a legitimate, nondiscriminatory reason for [the adverse action]. [¶] '[T]o

avoid summary judgment [once the employer makes the foregoing showing], an

employee . . . must offer substantial evidence that the employer's stated

nondiscriminatory reason for the adverse action was untrue or pretextual, or evidence the

employer acted with a discriminatory animus, or a combination of the two, such that a

34
reasonable trier of fact could conclude the employer engaged in [an unlawful

employment practice].' " (Wills v. Superior Court, supra, 195 Cal.App.4th at p. 160.)

"In discrimination cases, proof of the employer's reasons for an adverse action

often depends on inferences rather than on direct evidence. . . . [E]ven though we may

expect a plaintiff to rely on inferences rather than direct evidence to create a factual

dispute on the question of motive, a material triable controversy is not established unless

the inference is reasonable. And an inference is reasonable if, and only if, it implies the

unlawful motive is more likely than defendant's proffered explanation." (Cucuzza v. City

of Santa Clara (2002) 104 Cal.App.4th 1031, 1038.) Also " '[s]peculation cannot be

regarded as substantial responsive evidence.' [Citation.] In order to raise an issue as to

the employer's credibility, the employee must set forth specific facts demonstrating '

"such weaknesses, implausibilities, inconsistencies, incoherences, or contradictions in the

employer's proffered legitimate reasons for its action that a reasonable factfinder could

rationally find them 'unworthy of credence.' " ' " (Ibid., italics omitted.)

B. Analysis

1. Retaliation

The parties agree that Dawson stated a prima facie case for retaliation—she took

the protected act of complaining about sexual harassment and filing a sexual harassment

lawsuit and was terminated shortly thereafter. Our starting point, then, is assessing

whether the Club met its burden of identifying a legitimate reason for terminating

Dawson.

35
 "Legitimate reasons" in this context are reasons that are "facially unrelated" to

prohibited retaliation, and which, if true, would thus preclude a finding of retaliation.

(Guz, supra, 24 Cal.4th at p. 358.) The employer's termination decision need not be

correct; rather, the employer need only prove it had an honest, good faith belief that

termination was warranted based on the facts as it understood them at the time. (Slatkin

v. University of Redlands (2001) 88 Cal.App.4th 1147, 1157.) However, "in an

appropriate case, an inference of dissembling may arise where the employer has given

shifting, contradictory, implausible, uninformed, or factually baseless justifications for its

actions." (Guz, supra, 24 Cal.4th at p. 363.) The Club's articulated reasons—Dawson's

attempt to reduce LeChance's wages, performance issues, and poor management of the

Memorial Day event—if true, are "facially unrelated" to Dawson's sexual harassment

complaints and lawsuit. Thus, the Club has met its burden.

The Club having met its burden, the McDonnell Douglas presumption

"disappears" and Dawson "bears the burden of persuasion with respect to all elements of

the cause of action, including the existence and causal role of . . . retaliatory animus."

(Mamou v. Trendwest Resorts, Inc. (2008) 165 Cal.App.4th 686, 715 (Mamou).) Dawson

can meet this burden by persuading the court that a retaliatory reason more likely

motivated her termination or by showing that the Club's proffered explanation is

"'unworthy of credence.'" (Clark v. Claremont University Center (1992) 6 Cal.App.4th

639, 664.) The court "can take account of manifest weaknesses in the cited reasons in

considering whether those reasons constituted the real motive for the employer's actions,

36
or have instead been asserted to mask a more sinister reality." (Mamou, supra, 165

Cal.App.4th at p. 715.)

We will dispose of the Club's performance-related justifications because the trial

court agreed with Dawson "that a triable issue as to pretext would exist if the only bases

offered for Plaintiff's termination were poor performance issues . . . ."14 Dawson

adduced evidence showing she was never counseled about her performance;15 she never

received any written disciplinary actions or negative performance feedback; although

after Dawson's termination Walder characterized her as "incompetent," he "raved" about

her performance after his corporate event at the Club; Dawson received a commendation

from the Club's board, signed by Walder, noting her personal contribution to the Club's

success, just months before her termination;16 the first mention of any performance-

related issues was in a June 1 e-mail from Walder to Dawson's counsel, sent one week

after she filed her lawsuit; despite her supposed performance issues, the Club offered

Dawson a new role that Walder initially characterized as a promotion; Walder told

Dawson, " 'I was going to offer you this position, but then I received your lawsuit' "; and

14 Even the Club now argues "[t]he primary basis for Dawson's termination . . . was
the retroactive reduction of an employee's pay." (Italics added.)

15 She acknowledged playing phone tag with Walder's secretary but was never
informed the secretary was frustrated with her.

16 The Club argues this "commendation is not based on any remarkable contributions
by Dawson" because "every employee gets a 'commendation' from the Board every year
on their anniversary." The trier of fact can decide whether to accept the Club's assertion
that it would issue a commendation to an employee whom a board member considered
incompetent 75 percent of the time.
37
Dawson produced an e-mail from Furlow giving her Memorial Day off and indicating he

and another coworker would cover the event that day. This evidence is more than

sufficient to create a triable issue of fact regarding whether Dawson's termination for

performance-related issues was mere pretext.

Dawson focuses primarily on the wage-reduction issue, contending she opposed

the Club's summary judgment motion with sufficient evidence to show the Club's

purported reliance on the wage-reduction issue is " 'unworthy of credence.' " (Clark v.

Claremont University Center, supra, 6 Cal.App.4th at p. 664.) The Club, quoting the

California Department of Industrial Relations' website, argues " '[d]ecreases in wage rates

can only be made prospectively and not retroactively where work was performed and

earned under a specified rate.' " However, Dawson testified in deposition that she

notified LeChance in advance that his pay rate would decrease by 50 cents per hour after

he began participating in the tip pool.17 Walder confirmed with LeChance that Dawson

had done so. Dawson also testified about her understanding that the PAR was merely a

recommendation that would not take effect until approved by her manager, as evidenced

17 The Club suggests its termination also rested on Dawson's failure to promptly
reduce LeChance's pay rate. Assuming a 40-hour work week, this oversight cost the club
$20 per week. The Club cites no evidence that a management oversight of this degree is
a terminable offense. Nor has the Club established that the " 'after-acquired evidence [of
Dawson's alleged incompetence] was of such severity that the employee in fact would
have been terminated on those grounds alone if the employer had known of it at the time
of the discharge.' " (Thompson v. Tracor Flight Systems, Inc. (2001) 86 Cal.App.4th
1156, 1173, quoting McKennon v. Nashville Banner Publishing Co. (1995) 513 U.S. 352,
362–363.)

38
by two approval signature lines on the PAR form.18 Walder called this explanation a

"falsity," even though he thought the form had only one signature line. All of this casts

some doubt on the correctness of the Club's purported basis for terminating Dawson, but

the Club did not have to be correct—it only had to have an honest, good faith belief that

it was correct. (Slatkin v. University of Redlands, supra, 88 Cal.App.4th at p. 1157.) As

we will now discuss, Dawson cites evidence that creates a triable issue of fact regarding

the honesty and good faith with which the Club—namely Walder—held that belief.

An examination of Reeves v. Safeway Stores (2004) 121 Cal.App.4th 95 (Reeves)

will put Dawson's evidence in perspective. Reeves was a grocery store employee who

complained to his store manager that female coworkers were being sexually harassed.

(Id. at p. 100.) The store manager "seemed resentful and sought to 'trivialize' the

complaints." (Ibid.) Reeves was later accused of pushing a female coworker so he could

reenter the store after business hours (his shift had just ended and he urgently needed to

use the bathroom). (Id. at pp. 101-102.) The store manager referred the pushing incident

to store security for an investigation, knowing that all his prior referrals to security had

resulted in terminations. (Id. at p. 117.) Security conducted its investigation and

recommended Reeves's termination to a district manager who was otherwise uninvolved

in the incident or investigation. (Id. at p. 104.) The district manager terminated Reeves

18 We are unmoved, as was the trial court, with Dawson's "no harm, no foul"
suggestion that she should not have been terminated because her attempted wage
reduction was caught before it ever went into effect. Simply because a potential crisis
was averted does not mean the Club could not have lost confidence in Dawson's
management ability (assuming the club honestly lost that confidence over the wage-
reduction issue—an issue for the trier of fact to decide).
39
based on a 15- to 20-minute conversation with the investigator. (Id. at pp. 104-105.)

Reeves sued for retaliation under FEHA, alleging he was terminated for complaining

about sexual harassment of his female coworkers. (Id. at p. 105.) The trial court granted

summary judgment for the employer, but the Court of Appeal reversed. (Ibid.)

The Court of Appeal explained summary judgment was inappropriate because,

although the grocery store had established the district manager was unbiased, Reeves had

presented sufficient evidence from which a jury could infer the store manager—who

initiated and participated in the investigation—was motivated by retaliatory animus.

(Reeves, supra, 121 Cal.App.4th at pp. 108-109.) The court illustrated its reasoning with

the following example: "A supervisor annoyed by a worker's complaints about sexual

harassment might decide to get rid of that worker by, for instance, fabricating a case of

misconduct, or exaggerating a minor instance of misconduct into one that will lead to

dismissal. Another manager, accepting the fabricated case at face value, may decide,

entirely without animus, to discharge the plaintiff. It would be absurd to say that the

plaintiff in such a case could not prove a causal connection between discriminatory

animus and his discharge." (Ibid.) The court concluded Reeves created a triable issue of

fact by presenting evidence of, among other things, the store manager's resentment of

Reeves's sexual harassment complaint; the adequacy of the manager's investigation of

that complaint, the "zeal and sincerity" of which a "jury could doubt"; the manager's

"show[ing] insensitivity, at best, to matters of gender"; the manager's substantial certainty

that his referral of the disciplinary investigation to security would result in termination

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(id. at pp. 117-118); and the security investigator's presentation of the results of his

investigation to the district manager "in a highly unbalanced way." (Id. at p. 120.)

Similar to Reeves, Dawson opposed the Club's summary judgment motion with

evidence from which a factfinder reasonably could infer that Walder harbored retaliatory

animus toward Dawson. Dawson adduced evidence showing Walder considered her

frustration with the "zeal and sincerity" of his live.com e-mail investigation to be

"inappropriate"; Walder considered Dawson's lawsuit against the Club to be retaliatory

and feared she was trying to hurt the club;19 Walder offered to hire an investigator to

look into Furlow's e-mails if Dawson dropped her lawsuit; Walder told Dawson, "I was

going to offer you this position, but then I received your lawsuit"; Walder characterized

the "Dawson" side of the live.com e-mail exchanges "much more inappropriate" and as

"her" "trying to get laid," thus "show[ing] insensitivity, at best, to matters of gender"

(Reeves, supra, 121 Cal.App.4th at p. 117); Walder never raised performance issues with

Dawson until he e-mailed her counsel just after Dawson filed her lawsuit; and the Club's

HR representative, Stotz, said she felt Dawson's termination was wrong.

19 The Club argues that Walder's deposition testimony "suggests that it was [another
board member], rather than Walder, who raised the concern of further litigation if
Dawson was terminated." We are not persuaded. Walder testified:

"Q.: So there was some discussion in the board that if you terminated [Dawson]
she was going to amend her lawsuit to claim wrongful termination?
"A: It was speculated, yes.
"Q: Who speculated that?
"A: I did, for one. [¶] . . .
"Q: And you saw that as retaliation.
"A: I did."
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 Dawson also adduced evidence from which a factfinder reasonably could conclude

Walder's retaliatory animus infected the termination process. Walder testified he

"provided the facts to the board"—"what the board learned about Ms. Dawson's case it

learned from [him]"; although Walder stated he consulted with the Club's corporate

counsel before terminating Dawson, Walder did not provide that counsel with any

documents and "everything [counsel] learned about the circumstances, he learned from

[Walder]"; and Walder recommended that the board terminate Dawson, a

recommendation that was followed by eight of the board's nine members.

The Club argues Walder exhibited no retaliatory animus "because after she filed

her lawsuit, Walder offered her a promotion" and extensively negotiated its terms just

prior to her termination. But even Walder acknowledged the new job was not a

promotion. In addition, a jury could find that at the same time Walder was negotiating

Dawson's new role, he was also building a case against her, as evidenced by his June 1 e-

mail to her counsel asserting performance issues.20

20 In at least this respect, this case is similar to Mamou, supra, 165 Cal.App.4th 686.
In Mamou, the plaintiff was terminated after he resisted his supervisor's efforts to weed
out employees who took sick leave. (Id. at pp. 696, 706.) The Court of Appeal reversed
a grant of summary judgment in favor of the employer, finding a triable issue of fact
existed regarding the employee's termination of the plaintiff on the "hyperbolic" and
"hypothetical" grounds of "theft." (Id. at p. 720.) The employer's theories of theft
evolved from stealing the company's trademarks to stealing the company's business
opportunities based on the employee's preparing to open a related, though not competing,
business using a name allegedly protected by the employer's trademarks. After
terminating the plaintiff for admittedly non-performance-related reasons, his manager
instructed another employee to " 'build[] a file relating to [the plaintiff's] performance
over the last six months.' " (Id. at p. 706.) Under the circumstances, the court concluded
there was "ample evidence" to support the conclusion that the employer's reasons for
42
 In sum, ample evidence would allow a trier of fact to conclude that the Club's

purported bases for terminating Dawson are unworthy of credence. Consequently, the

trial court erred by granting the Club's summary judgment motion as to Dawson's claim

for retaliation.

2. Wrongful termination in violation of public policy

The trial court ruled that because it "found that Plaintiff's cause of action for

retaliation lacks merit, the first cause of action for termination in violation of public

policy would also fail." Because we concluded the trial court erred by granting summary

judgment on Dawson's retaliation claim, we likewise conclude the trial court erred by

granting summary judgment on her claim for wrongful termination in violation of public

policy.

DISPOSITION

The June 3, 2013 judgment is reversed. The order granting summary adjudication

is vacated with respect to the Club, and the order granting summary judgment is vacated.

The trial court is directed to enter an order denying the motion for summary adjudication

terminating the plaintiff were pretextual, "beginning with the fact that [the employer]
never rested on a single coherent explanation for its firing of [the plaintiff], and that
several if not all of its explanations were, to put it mildly, questionable." (Id. at pp. 715-
716.)

43
as to the Club and an order denying the motion for summary judgment. Dawson is

entitled to her costs on appeal.

NARES, Acting P. J.

WE CONCUR:

McDONALD, J.

IRION, J.

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