Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County, John P. Shook, Judge. Reversed with directions.
Law Offices of Federico Castelan Sayre, Federico C. Sayre, Ronald Z. Gomez and Leon C. Summer for Plaintiff and Appellant.
Fox Rothschild, David F. Faustman and Cristina Olivella for Defendants and Respondents.
OPINION
MALLANO, P. J.
An employee was told by her manager that she should quit her job because she was a woman and that, if she refused, she would “suffer the consequences.” She refused. Around 10 months later, she was discharged for allegedly violating the company’s attendance policy. No such violation seems to have occurred.
The employee filed an action against the company and two of her superiors, alleging causes of action under the Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.) for sex discrimination and sexual harassment, as well as a common law cause of action for wrongful termination of employment in violation of public policy. Defendants successfully moved for summary judgment.
Defendants argue that the employee did not satisfy the elements of a traditional prima facie case (see McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, 802 [93 S.Ct. 1817, 1824] (McDonnell Douglas)) — such as proving that the employer treated men more favorably than women — and she therefore failed to create a presumption of discriminatory intent. Consequently, so the argument goes, defendants were not required to offer a legitimate, nondiscriminatory reason for the termination, and the lawsuit is at an end.
We conclude that where an employee offers direct evidence of discrimination, the purpose of the traditional prima facie case has been served — a presumption of discriminatory intent has been created — and the elements of the traditional prima facie case need not be proved. The employer must then offer a legitimate, nondiscriminatory reason for its action. Here, it failed to do so. Accordingly, we reverse as to the discrimination claim against the employer.
I
BACKGROUND
In reviewing a summary judgment, we accept as true the facts and reasonable inferences supported by the moving parties’ undisputed evidence and the opposing party’s evidence, whether disputed or not. (See Raghavan v. Boeing Co. (2005) 133 Cal.App.4th 1120, 1125, 1132.) In other words, the evidence of the opposing party is accepted as true notwithstanding the evidence submitted by the moving party. (Buxbaum v. Aetna Life & Casualty Co. (2002) 103 Cal.App.4th 434, 441.)
Plaintiff Gladys Mendoza began her employment with defendant Longs Drug Stores California, Inc. (Longs), in May 1998 as a cashier. She was promoted to assistant bookkeeper, to manager in training, and to department manager at the Beverly Hills store.
At some point, defendant Vince De Crisce became Longs’s district manager. Upon assuming that position, De Crisce promoted Mendoza to assistant store manager based on the recommendation of his immediate predecessor and the manager of the store. Because the Beverly Hills store was small, Mendoza did not receive any training to be an assistant manager. In addition, De Crisce, without explanation, insisted that Mendoza be excluded from regularly scheduled meetings of the assistant store managers.
In April 2004, an investigation determined that the manager at the Beverly Hills store, Leroy Jones, had stolen company funds. De Crisce also accused Mendoza of theft, of being Jones’s accomplice, and of failing to notify De Crisce of the situation. Mendoza denied all accusations. Nevertheless, De Crisce issued a “Corrective Notification Form” on April 20, 2004, criticizing Mendoza for failing to discover Jones’s misconduct.
Cale Vinzant was brought in as the new store manager. That did not stop De Crisce from continuing to criticize Mendoza’s performance. Vinzant — having been personally rebuffed by De Crisce in attempting to include Mendoza in the assistant store manager meetings — created an “action plan” to assist Mendoza in improving her skills.
In September 2004, Mendoza requested that she be transferred to the Palms store and reassigned to the position of department manager, hoping to avoid the “hounding” by De Crisce. When De Crisce declined to pay Mendoza what she wanted in the new position, she withdrew her transfer request.
On October 6, 2004, De Crisce called Mendoza at work, asking why she no longer wanted to be transferred. He told her that Vinzant had complained to him about her performance and had said she was not doing a good job. Mendoza replied that she had heard nothing of the sort from Vinzant. De Crisce then said Mendoza had to step down from her position because she was a woman. Mendoza got so upset she hung up the phone. De Crisce called back, angry that Mendoza had hung up. He repeated that Mendoza had to step down because she was a woman and added that if she refused, she would “suffer the consequences.”
The next day, Thursday, October 7, 2004, Mendoza called in sick and talked to Vinzant. He said he had never told De Crisce she was not doing a good job. Mendoza was so nervous as a result of De Crisce’s statements that she went to see her doctor twice, for chest pain, back pain, inability to sleep, and anxiety. The doctor prescribed Naprosyn and Paxil. Mendoza took four days off from work. She contacted Longs’s human resources department by telephone and e-mail, informing the company that she had missed four days — October 7, 9, 10, and 14 — because of De Crisce’s “harassing” telephone calls.
When Mendoza returned to work, Vinzant told her De Crisce had sent him a “final” Corrective Notification Form and instructed him — by telephone and in writing — to “plug in” as many examples as possible of Mendoza’s deficient performance. Vinzant told De Crisce that there was no “probable cause” to issue the form and wrote a note to that effect on it. He also wrote that the form had been generated by De Crisce “without probable cause.” De Crisce told Vinzant that Mendoza “needs to go” on five or six occasions. These events concerned Vinzant, so he contacted Norv Rivera in Longs’s human resources department and described De Crisce’s comments. Rivera said he would take care of it.
Vinzant received a subsequent call from De Crisce, threatening him with termination if he did not “take care of firing or writing up” Mendoza. Vinzant replied that De Crisce had to do what he had to do, and then contacted Rivera about De Crisce’s threat. At his deposition, Vinzant testified that Mendoza’s performance as an assistant manager was “fine,” he had “no complaints” about her, and he had so informed De Crisce.
De Crisce transferred Mendoza to the Beverly Connection store, where defendant Kris Olewine was the manager. Olewine began to issue “write ups” and Corrective Notification Forms about Mendoza’s alleged job deficiencies. Mendoza provided Olewine with a list of areas in which she needed training but did not receive any meaningful response.
On one occasion, Mendoza told Olewine that her “attendance tracking record” showed too many absences, including days she missed after receiving De Crisce’s telephone calls. In response, Olewine said she would adjust the attendance record by deleting those absences.
In July 2005, before leaving for a preplanned vacation, Mendoza was told by Olewine to prepare the work schedule for the following week. Mendoza completed the schedule, indicating she would come in at 11:00 a.m. the day after her vacation. When Mendoza returned to work on Monday, July 18, 2005, at 10:30 a.m., Olewine told her she was late. Mendoza replied that she was 30 minutes early. Olewine explained that, while Mendoza was on vacation, Olewine had changed the schedule, giving Mendoza an earlier start time, and had been unable to let her know because Mendoza’s telephone was not working. Mendoza picked up the nearest telephone, dialed her number, and proved to Olewine that the number was working.
On July 21, 2005, Olewine informed Mendoza that she was being suspended for poor attendance and should come back to the store on July 27, 2005.
On July 27, Mendoza appeared as instructed. While sitting in the office next to Olewine’s, Mendoza heard Olewine talking to De Crisce on the telephone. Olewine said, “Hello, Vince,” followed by words to the effect, “Are you sure you want me to do this, are you sure?” When the telephone call ended, Mendoza was directed into Olewine’s office and was terminated for violating Longs’s attendance policy. According to Longs, Mendoza violated the policy by coming to work late after her vacation. The human resources department approved the termination.
Mendoza was familiar with the attendance policy. She had enforced it against subordinate employees. The policy was based on a 10-point system. An employee received one point for an absence and half a point for being tardy (five or more minutes late). Absences due to illness or other medical reasons resulted in points even if a doctor’s note was submitted. An exception was made, however, for work-related injuries, namely, no points were given. The policy stated that “[t]ermination will result when a regular employee accumulates 10 points in a 12-month period.”
On May 12, 2005, Olewine issued a Corrective Notification Form, indicating that Mendoza had accumulated 11 points under the attendance policy and that “[a]ny further absence or tardy will result in a final warning and lead to termination.” On May 27, 2005, Olewine issued another corrective notification, giving Mendoza a “final warning” about compliance with the attendance policy. Mendoza wrote on the form that she had received some points for absences caused by De Crisce’s harassment. On July 21, 2005, Mendoza received her last corrective notification, indicating she now had 11½ points as a result of being tardy after returning from her vacation. As stated, Mendoza was terminated on July 27, 2005, for violating the attendance policy.
Of the 11½ points tallied by Longs, two points were attributable to Mendoza’s absences following De Crisce’s telephone calls, which caused her to experience chest pain, back pain, insomnia, and anxiety. Those absences arguably fell within the exception for work-related injuries. Thus, the evidence would support a finding that Mendoza had 9½ points, which included the half point she received for being tardy after her vacation.
On February 15, 2006, Mendoza filed this action against Longs, De Crisce, and Olewine (defendants), alleging sex discrimination and sexual harassment under the FEHA and a common law claim for wrongful termination in violation of public policy. An answer was filed.
On November 1, 2006, defendants filed a motion for summary judgment or, in the alternative, for summary adjudication of several issues. Mendoza filed opposition, including a declaration from a human resources “expert.” Defendants filed objections to the declaration.
The motion was heard on January 26, 2007. By order filed that day, the trial court granted summary judgment, notwithstanding its ruling in favor of Mendoza on some of the subsidiary issues. The court concluded: (1) Mendoza did not raise a triable issue as to the discrimination claim; (2) triable issues existed as to whether Mendoza had violated Longs’s attendance policy; (3) De Crisce and Olewine could not be held personally liable under the FEHA for discrimination; (4) the harassment claim was barred by the statute of limitations; (5) the alleged harassment was sufficiently severe or pervasive to constitute a hostile work environment; (6) Mendoza exhausted her administrative remedies on the harassment claim; and (7) Olewine was not liable for sexual harassment. The trial court also sustained the objections to the “expert’s” declaration.
Judgment was entered accordingly. Mendoza appealed.
II
DISCUSSION
Mendoza contends that she produced sufficient evidence of discrimination, the harassment claim is not barred by the statute of limitations, and Longs and De Crisce can be held liable for Olewine’s acts of harassment — as De Crisce’s agent — even though Olewine had no discriminatory intent. Mendoza does not challenge the summary judgment granted Olewine. We agree with Mendoza’s contentions and reverse.
A. Standard of Review
A motion for summary judgment must be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).)
“‘“A defendant seeking summary judgment has met the burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action cannot be established [or that there is a complete defense to that cause of action]. . . . In reviewing the propriety of a summary judgment, the appellate court independently reviews the record that was before the trial court. . . . We must determine whether the facts as shown by the parties give rise to a triable issue of material fact. . . . [T]he moving party’s affidavits are strictly construed while those of the opposing party are liberally construed.”’” (Raghavan v. Boeing Co., supra, 133 Cal.App.4th at p. 1132.)
B. Sex Discrimination Claim
Mendoza produced direct evidence of discrimination, thereby satisfying her burden to establish a presumption of discriminatory intent and shifting the burden to Longs to offer evidence of a legitimate, nondiscriminatory reason for her termination. Longs failed to produce adequate evidence in that regard, such that the trial court erred in summarily adjudicating the discrimination claim.
1. Prima Facie Case
“In most disparate treatment employment discrimination cases, the plaintiff will lack direct evidence of the employer’s discriminatory intent . . . . ‘Consequently certain rules regarding the allocation of burdens and order or presentation of proof have developed in order to achieve a fair determination of “the elusive factual question of intentional discrimination.” . . . A three-part analysis was mandated by the Supreme Court in the case of McDonnell Douglas[, supra,] 411 U.S. 792: (1) The complainant must establish a prima facie case of discrimination; (2) the employer must offer a legitimate reason for his actions; (3) the complainant must prove that this reason was a pretext to mask an illegal motive.’” (Clark v. Claremont University Center (1992) 6 Cal.App.4th 639, 662, citations omitted, italics added.)
Under McDonnell Douglas, a traditional prima facie case consists of the following elements in a sex discrimination suit: (1) the plaintiff is a member of a protected class (for example, female), (2) she was performing competently in the position she held, (3) she was terminated, and (4) the employer acted with a discriminatory motive, as evidenced by, for example, replacing her with a man or treating men more favorably than women. (See Guz v. Bechtel National Inc. (2000) 24 Cal.4th 317, 355; Lettieri v. Equant Inc. (4th Cir. 2007) 478 F.3d 640, 646; Merillat v. Metal Spinners, Inc. (7th Cir. 2006) 470 F.3d 685, 688–689.) Longs maintains that, as a matter of law, Mendoza cannot satisfy all of these elements.
“The importance of McDonnell Douglas lies, not in its specification of the discrete elements of proof there required, but in its recognition of the general principle that any . . . plaintiff must carry the initial burden of offering evidence adequate to create an inference that an employment decision was based on a discriminatory criterion illegal under the Act.” (Teamsters v. United States (1977) 431 U.S. 324, 358 [97 S.Ct. 1843, 1866], italics added.) “[A] plaintiff’s prima facie burden is minimal.” (Caldwell v. Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 197.)
“[T]he McDonnell Douglas test is inapplicable where the plaintiff presents direct evidence of discrimination. . . . The shifting burdens of proof set forth in McDonnell Douglas are designed to assure that the ‘plaintiff [has] his day in court despite the unavailability of direct evidence.’” (Trans World Airlines, Inc. v. Thurston (1985) 469 U.S. 111, 121 [105 S.Ct. 613, 621–622], citation omitted, italics added.) “[I]f a plaintiff is able to produce direct evidence of discrimination, he may prevail without proving all the elements of a prima facie case.” (Swierkiewicz v. Sorema N. A. (2002) 534 U.S. 506, 511 [122 S.Ct. 992, 997].) “[T]he precise requirements of a prima facie case can vary depending on the context and were ‘never intended to be rigid, mechanized, or ritualistic.’” (Id. at p. 512.) In short, “‘[t]he prima facie case may be based either on a presumption arising from the factors such as those set forth in McDonnell Douglas, or by more direct evidence of discriminatory intent.’” (Godwin v. Hunt Wesson, Inc. (9th Cir. 1998) 150 F.3d 1217, 1220, italics added; accord, Sada v. Robert F. Kennedy Medical Center (1997) 56 Cal.App.4th 138, 151, fn. 7.)
“Direct evidence is evidence of conduct or statements by persons involved in the decisionmaking process that is sufficient for a factfinder to find that a discriminatory attitude was more likely than not a motivating factor in the employer’s decision.” (Kerns v. Capital Graphics, Inc. (8th Cir. 1999) 178 F.3d 1011, 1017; accord, Costello v. St. Francis Hosp. (E.D.N.Y. 2003) 258 F.Supp.2d 144, 151.)
Here, Mendoza produced direct evidence of discrimination: De Crisce’s statement — made twice — that Mendoza should quit her job because she was a woman and his threat — made in the second telephone call — that, if she did not quit, she would suffer the consequences. Accordingly, a presumption of discrimination exists, and Mendoza need not satisfy the traditional elements of the McDonnell Douglas prima facie case.
Longs counters that De Crisce was not involved in the termination decision, so the direct evidence lacks a causal link to Mendoza’s discharge. We disagree. De Crisce told Mendoza she would “suffer the consequences” if she did not quit. Thereafter, he was involved in an ongoing effort to terminate Mendoza and carried out his threat. De Crisce continued to criticize Mendoza’s performance; he would not let her attend assistant store manager meetings; he pressured Vinzant to “fire” her but Vinzant refused, saying Mendoza’s performance was good; De Crisce then transferred Mendoza to Olewine’s store; Olewine began to “write up” Mendoza for alleged performance deficiencies; and immediately before Olewine terminated Mendoza, she spoke with De Crisce, who — the evidence suggests — told her he was sure he wanted Mendoza terminated.
Longs also seeks to characterize De Crisce’s sexist statements as “stray” remarks, that is, comments so vague or off the mark that they do not support a presumption of discriminatory intent. The law is to the contrary.
We rejected a similar argument in Sada v. Robert F. Kennedy Medical Center, supra, 56 Cal.App.4th 138, a case involving a failure to hire. There, the interviewer had said at some point before the interview, “‘Hispanics spend 20 to 30 years in this country and do not bother to learn English, but they sure can find those public offices where they can get food stamps and all kinds of public assistance.’” (Id. at p. 145.) We described the interview itself as follows: “During the interview, Brendia[, the interviewer,] spoke favorably of Sada’s[, the applicant’s,] performance and complimented her ability to complete assignments. At one point, Brendia asked Sada, ‘Where are you from?’ and Sada said that she was from Mexico. Brendia responded by saying twice, ‘I would never have known,’ and then asked, ‘How come you don’t have an accent?’ . . . Brendia also inquired about Sada’s work experience during the 1990-1991 time frame. Sada stated that she had been working at hospitals in the United States and commuting to her home in Mexico. Upon hearing this information, Brendia’s eyes ‘popped open.’ She stared for a little while and then said, ‘Well why don’t you just go back to Mexico and work there?’ Sada replied that she did not want to work in Mexico. She attempted to explain that the only work she had done in Mexico was missionary work, but Brendia interrupted her, saying, ‘We’re going to have to end this.’ Brendia told Sada that she was not eligible for the job.” (Id. at pp. 145–146.)
In Sada, the trial court granted summary judgment for the employer. We reversed, expressly rejecting the employer’s contention that the interviewer’s derogatory comments about Hispanics and her statements to the job applicant were isolated or stray remarks. (Sada v. Robert F. Kennedy Medical Center, supra, 56 Cal.App.4th at p. 154, fn. 15.)
The courts often define stray remarks by what they are not: “[F]or comments in the workplace to provide sufficient evidence of discrimination, they must be ‘1) related [to the protected class of persons of which the plaintiff is a member]; 2) proximate in time to the [complained-of adverse employment decision]; 3) made by an individual with authority over the employment decision at issue; and 4) related to the employment decision at issue.’” (Rubinstein v. Administrators of Tulane Educ. Fund (5th Cir. 2000) 218 F.3d 392, 401, bracketed material added in Rubenstein.) “If the comments do not meet these criteria, they are merely ‘stray remarks’ without probative value when offered either in connection with the plaintiff’s prima facie case or to demonstrate pretext.” (Martin v. Kroger Co. (S.D.Tex. 1999) 65 F.Supp.2d 516, 549, affd. mem. (5th Cir. 2000) 224 F.3d 765.)
The evidence shows that De Crisce’s statements satisfy these criteria: The statements were made about women by an individual with authority to terminate employees, and they were made directly to a female employee who was eventually terminated. Although De Crisce’s statements were made around 10 months before Mendoza’s discharge, the attendance policy was based on points accumulated over a period of 12 months, so he could not terminate her immediately. And during the 10-month period, he continued his vendetta against Mendoza, including a failed attempt to discharge her through Vinzant and a successful effort to do so through Olewine. This is sufficient to satisfy the temporal proximity criterion.
Further, Longs invokes the principle that “‘where the same actor is responsible for both the hiring and the firing of a discrimination plaintiff, and both actions occur within a short period of time, a strong inference arises that there was no discriminatory motive.’” (Horn v. Cushman & Wakefield Western, Inc. (1999) 72 Cal.App.4th 798, 809; accord, West v. Bechtel Corp. (2002) 96 Cal.App.4th 966, 980–981.) There are two problems with Longs’s position. First, even though De Crisce promoted Mendoza to assistant store manager, it is not clear how much of the decision was his. He had just been promoted to district manager, and the recommendation to promote Mendoza was made by De Crisce’s immediate predecessor and the store manager. Second, the “strong inference” created by this principle cannot — on summary judgment — overcome the direct evidence of blatant sexism that came from De Crisce’s own mouth.
2. Longs’s Proffered Reason for Termination
The burden of production now shifts to Longs to offer evidence of a legitimate, nondiscriminatory reason for Mendoza’s termination. The attendance policy required 10 points to warrant termination. But the evidence supports a finding that Mendoza had no more than 9½ points. And the final half point — for allegedly being tardy after returning from vacation — is, according to Longs, the “but for” cause of the termination decision. Yet the way in which that half point was added — Olewine changed Mendoza’s start time without notice while Mendoza was on vacation — appears to be an underhanded move of desperation to rush Mendoza out the door and smacks of pretext.
Longs points out that “[a]n employer who fires an employee under the mistaken but honest impression that the employee violated a work rule is not liable for discriminatory conduct.” (Damon v. Fleming Supermarkets of Florida, Inc. (11th Cir. 1999) 196 F.3d 1354, 1363, fn. 3; accord, Medley v. Polk Co. (10th Cir. 2001) 260 F.3d 1202, 1208.) While a correct statement of the law, this rule does not apply here. Mendoza repeatedly informed the human resources department — by e-mail and orally —and also told Olewine, that her point total under the attendance policy should not include any points for the absences caused by De Crisce’s telephone calls. Those absences were attributable to a work-related injury. But Longs never followed through on the information. In these circumstances, Longs’s mathematical error cannot be characterized as an “honest mistake.”
Because Longs has not offered adequate evidence of a legitimate, nondiscriminatory reason for Mendoza’s termination, the trial court erred in summarily adjudicating the sex discrimination claim against the company. We reach this conclusion without deciding whether the declaration of Mendoza’s human resources “expert” was admissible. The facts of this case are sufficiently straightforward that neither we nor the trier of fact needs an expert to explain the weaknesses in Longs’s arguments or the significance of the undisputed facts.
C. Sexual Harassment Claim
Under the FEHA, “No complaint may be filed [with the Department of Fair Employment and Housing (DFEH)] after the expiration of one year from the date upon which the alleged unlawful practice . . . occurred . . . .” (Gov. Code, § 12960, subd. (d).) Longs argues that the only acts of harassment were De Crisce’s telephone calls — which were made on October 6, 2004 — more than one year before Mendoza filed her administrative complaint on November 3, 2005.
We agree with Mendoza, however, that the harassment did not stop then. To take just one example, after Vinzant refused to serve as De Crisce’s pawn, De Crisce transferred Mendoza to Olewine’s store. While there is no evidence that Olewine acted with a discriminatory motive, she was the “cat’s paw” for De Crisce’s unlawful plan. (See Reeves v. Safeway Stores, Inc. (2004) 121 Cal.App.4th 95, 108–110, 113–116.) Vinzant testified that Mendoza’s performance was good, but Olewine began “writing up” — harassing — Mendoza for deficient performance, albeit for reasons other than Mendoza’s gender. Nevertheless, under the cat’s paw theory of liability, “it is not enough [for an employer] to show that one actor acted for lawful reasons[, Olewine,] when that actor may be found to have operated as a mere instrumentality or conduit for [another, De Crisce,] who acted out of discriminatory or retaliatory animus, and whose actions were a but-for cause of the challenged employment action. If a supervisor makes another his tool for carrying out a discriminatory action, the original actor’s purpose will be imputed to the tool, or through the tool to their common employer.” (Id. at p. 113.)
Under the continuing violation doctrine, an employer may be liable for actions that occur before the one-year period if the acts are “(1) sufficiently similar in kind . . .; (2) have occurred with reasonable frequency; [and] (3) . . . have not acquired a degree of permanence.” (Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798, 823; accord, Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1059.) Of course, “similar kinds of unlawful employer conduct, such as acts of harassment . . ., may take a number of different forms.” (Ibid.) Here, we cannot say that the continuing violation doctrine is inapplicable as a matter of law. All of the acts of harassment, whether committed by De Crisce or by Olewine as his cat’s paw, were related to De Crisce’s sexist comments and his threat to make Mendoza “suffer the consequences.” Because acts of harassment occurred during the one-year period, Longs can be liable for harassment that predated the one-year period. In addition, a supervisor can be held liable for sexual harassment, so De Crisce remains a defendant on the harassment claim and may be subject for, by way of example, his sexist telephone calls. (See Gov. Code, § 12940, subd. (j)(1), (3).)
D. Wrongful Termination of Employment
To the extent that Mendoza’s FEHA claims may be pursued, she may also maintain her common law claim for wrongful termination of employment in violation of public policy. (See Stevenson v. Superior Court (1997) 16 Cal.4th 880, 894–897; cf. Le Bourgeois v. Fireplace Manufacturers, Inc. (1998) 68 Cal.App.4th 1049, 1060, fn. 14.) She may not, however, include any individual defendants on that claim. (See Phillips v. Gemini Moving Specialists (1998) 63 Cal.App.4th 563, 575.)
III
DISPOSITION
The judgment is reversed. On remand, the trial court shall reinstate the causes of action under the Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.) for sex discrimination and sexual harassment against defendant Longs Drug Stores California, Inc. (Longs), and the common law cause of action for wrongful termination of employment in violation of public policy against Longs. In addition, the cause of action under the FEHA for sexual harassment shall be reinstated against defendant Vince De Crisce. Plaintiff is entitled to costs on appeal.
We concur: ROTHSCHILD, J., NEIDORF, J.
Retired Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.