Opinion
B192834.
8-5-2008
CINDY SIMONIAN, Plaintiff and Appellant, v. FEDERAL EXPRESS CORPORATION, Defendant and Respondent.
Law Offices of Walter H. Root and Walter H. Root for Plaintiff and Appellant. Federal Express Corporation and David S. Wilson III for Defendant and Respondent.
Not to be Published
Appellant Cindy Simonian sued her employer, respondent Federal Express Corporation, for discrimination based on sex and sexual orientation, retaliation and constructive discharge. The jury returned a verdict in favor of respondent. On appeal, appellant contends that the trial court erred by: (1) ruling that her sexual orientation claims based on incidents prior to 2001 were time-barred; (2) precluding admission of certain of her exhibits at trial; (3) failing to compel respondent to produce further responses and documents to her document demands; and (4) "forcing" her to allege a "weak" constructive discharge claim. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Appellants Administrative Complaints
Appellant, who is a lesbian, began her career with respondent in 1980 as a part-time courier. In 1991, she was promoted to the position of senior manager of a San Diego station, where she remained until her resignation on September 19, 2005. Appellant testified that in 1996 she aspired to be promoted to the next management level of managing director (MD), which required that a candidate be nominated for promotion by an MD or officer. Appellant alleged that she sought, but was refused, nominations for MD positions in 1998, 2000 and 2001. Specifically, she claimed that she was passed over for promotion to the Palm Desert MD position on June 1, 1998; the Palm Desert, Golden State and Coastal MD positions on November 1, 2000; and the Southern California MD position on March 1, 2001. These positions were filled by heterosexual males.
Later in 2001, the MD to whom appellant reported offered to nominate her for four separate MD positions, one in Northern California and three out of state. Appellant declined the offers, and another lesbian employee was awarded the Northern California position. Appellant was then nominated for an MD position in Southern California in March 2002, the Harbor District MD position. She accepted the nomination and interviewed for the position, which was ultimately awarded on March 11, 2002 to the heterosexual male who had finished as runner-up to the female MD in Northern California. On April 16, 2002, appellant filed a complaint with the California Department of Fair Employment and Housing (DFEH), alleging that she had been denied the promotion on March 11, 2002 because of her sex.
Appellant testified that in May 2002, a month after she filed her first DFEH complaint, she had a conversation with her former MD, Michael Snyder, who told her that the vice-president of the western region, Michael Pigors, had stated that he would never hire appellant, whom Pigors referred to as a "f____ing dyke," and that Pigors had told Snyder in 1994 that he would never promote appellant because he did not approve of her lifestyle. Appellant testified that until she had this conversation with Snyder, she was unaware that Pigors knew of her sexual orientation.
Ten months after this conversation, on February 10, 2003, appellant filed another complaint with the DFEH, alleging discrimination on the basis of both sex and sexual orientation, including the failures to promote going back to 1998, and retaliation.
Appellant cites only to her own trial testimony describing her administrative complaints, and not to the complaints themselves. Because respondent does not dispute appellants descriptions, we adopt them here.
Appellants Civil Complaints, Respondents Summary Judgment Motions and Motions in Limine
Appellant filed her original complaint against respondent in April 2003, alleging claims for sex and sexual orientation discrimination and retaliation. In November 2004, she filed a first amended complaint, adding allegations of unlawful conduct occurring after the initial complaint was filed. Respondent then filed a motion for summary judgment on the ground, among others, that the one-year statute of limitations barred her claims based on promotional decisions occurring before April 16, 2001. Appellant opposed the motion, relying on her May 2002 conversation with Snyder. Judge Judith C. Chirlin denied the motion, but suggested that the statute of limitations issue be raised by motion in limine.
Appellants additional claim for violation of the California Equal Pay Act was eventually dismissed before trial.
Respondent again raised the statute of limitations issue in two motions in limine (motion in limine Nos. 9 & 25). In connection with the motions, respondent submitted a handwritten diary entry by appellant, dated November 5, 1998, in which she stated that Snyder told her on that date that Pigors was biased against her and that he would never hire her. Appellant eventually filed three briefs in opposition to the motions in limine. She argued that her claims should be equitably tolled until May 2002, when she first became aware of Pigorss comments, and took the position that there was nothing in her 1998 notes about sexual orientation discrimination, only sex discrimination. The case was reassigned to Judge Robert H. OBrien, who ultimately ruled that while claims based on promotional decisions outside the limitations period were not actionable, evidence of those decisions was still admissible.
In the meantime, appellant filed a second amended complaint on September 26, 2005, adding a cause of action for constructive discharge based on her decision to resign from her employment with respondent on September 19, 2005. She also added claims of wrongdoing alleged to have occurred since the filing of her first amended complaint. Respondents motion for summary adjudication of appellants constructive discharge claim was denied.
Trial Dates and Discovery
The trial was originally set for March 7, 2005, resulting in a discovery cutoff date of February 7, 2005. (Code Civ. Proc., § 2024.020.) The trial date was then continued to July 5, 2005, to September 12, 2005 and finally to March 1, 2006.
Twenty days before the September trial date, appellant served respondent with a trial subpoena duces tecum listing 40 categories of documents to be produced at trial. Respondent moved to quash the subpoena, but eventually agreed to produce several categories of documents. The trial court sustained respondents objections to the remaining categories.
After appellant filed her second amended complaint in September 2005, adding the constructive discharge cause of action and new allegations of events occurring after the filing of her prior complaint, the trial court reopened discovery until December 15, 2005, limited to the new allegations and the new cause of action. Appellant then served respondent with discovery seeking production of the 22 remaining categories of documents that had not been produced in response to the trial subpoena duces tecum, but limited to those documents generated after the date of her first amended complaint. When respondent refused to produce the demanded documents, appellant sought an order compelling production, which was denied.
Exhibit Lists
The parties exchanged and filed their exhibit lists on August 25, 2005. On August 30, 2005, appellant filed an amended exhibit list, identifying 618 exhibits. At a hearing on September 22, 2005, Judge OBrien warned the parties that only those exhibits identified on the parties exhibit lists and physically exchanged by the parties would be admitted at trial. After the trial date was continued to March 1, 2006, Judge OBrien advised the parties that if they had additional exhibits or witnesses, they were to make an ex parte motion to amend their exhibit and witness lists.
On the second day of trial, appellant sought to introduce 17 exhibits not previously identified on her exhibit list or formally exchanged with respondent. When Judge OBrien asked why appellant had not filed a motion to amend her exhibit list, her attorney responded: "No excuse, your Honor. Busy, did not think of it." The trial court ruled that the exhibits were not admissible, but that the information contained in the exhibits could be presented through oral testimony.
The Verdict
The case was tried over six weeks to a jury, which returned a special verdict in favor of respondent. This appeal followed.
DISCUSSION
I. Claims Based on Promotional Decisions Made in 1998, 2000 and 2001 Were
Time-barred.
Appellant contends that the trial court erred in finding that her claims of sexual orientation discrimination based on the failures to promote her to MD positions in 1998, 2000 and 2001 were barred by the statute of limitations. She argues that the limitations period should have been equitably tolled or, alternatively, that respondent should have been estopped from relying on the statute, because it was not until May 2002 that she learned that the selecting official for these positions, Michael Pigors, had stated that he would never hire her based on her sexual orientation. Respondent disputes that appellant first learned of Pigors animus toward her sexual orientation in May 2002, pointing to her November 5, 1998 diary entry.
The parties dispute the standard of review, with appellant claiming that it is de novo and respondent claiming that it is abuse of discretion. We agree with appellant that our standard of review is de novo. We do not need to resolve the disputed factual issue of when appellant discovered she was the subject of sexual orientation discrimination because, as discussed below, the doctrines of equitable tolling and estoppel have no application here. The resolution of the statute of limitations issue here requires interpretation of the controlling statutes and their application to the undisputed date appellant filed her second administrative claim. As such, review is subject to the de novo standard. (Ghirardo v. Antonioli (1994) 8 Cal.4th 791, 799.)
Appellant has not cited the applicable statutes. But we note that the California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.) makes it unlawful for an employer, "because of the . . . sex . . . or sexual orientation of any person . . . to discriminate against the person . . . in terms, conditions, or privileges of employment." (Gov. Code, § 12940, subd. (a).) Before a person may file a civil complaint alleging a violation of this statute, he or she must first file an administrative claim with the DFEH. (Gov. Code, § 12960.) The administrative claim must be filed with the DFEH no more than "one year from the date upon which the alleged unlawful practice or refusal to cooperate occurred." (Gov. Code, § 12960, subd. (d).) As relevant here, this one-year time frame may be extended up to 90 days, "following the expiration of that year, if a person . . . first obtained knowledge of the facts of the alleged unlawful practice after the expiration of one year from the date of their occurrence." (Gov. Code, § 12960, subd. (d)(1).) "`The timely filing of an administrative complaint is a prerequisite to the bringing of a civil action for damages under the FEHA." (Williams v. City of Belvedere (1999) 72 Cal.App.4th 84, 90 (Williams).)
The other three extensions involve learning the identity of an employer or the identity of a person liable for the alleged violation, or attaining the age of majority. (Gov. Code, § 12960, subd. (d)(2)-(4).)
Appellants first DFEH complaint, filed on April 16, 2002, alleged discrimination on the basis of sex arising out of a single promotion denial on March 11, 2002. She filed a second DFEH complaint on February 10, 2003, alleging that she had been denied earlier promotions in 1998, 2000 and 2001 on the basis of sex and sexual orientation discrimination. Each of these promotion denials occurred more than one year and 90 days from the filing of her second complaint. Appellant does not dispute that her second DFEH complaint challenging acts from 1998, 2000 and 2001 on the basis of sexual orientation discrimination was untimely filed. Rather, she argues that the statutory deadlines should be equitably tolled during the time she was unaware that she was the subject of sexual orientation discrimination. Following Williams, supra, 72 Cal.App.4th 84, we disagree.
Although it does not appear that the parties discussed this case below, we review a trial courts ruling, not its reasons, and affirm even if the trial courts reasoning was incorrect. (J.B. Aguerre, Inc. v. American Guarantee & Liability Ins. Co. (1997) 59 Cal.App.4th 6, 15-16.)
In Williams, the plaintiff applied for a position with a police department and was informed by letter that he had not been selected. He learned 16 months later that racial discrimination may have played a part in the decision not to hire him, and he filed an administrative claim with the DFEH less than one month later. (Williams, supra, 72 Cal.App.4th at pp. 87-88.) The trial court directed the verdict in favor of the defendant because the plaintiff had failed to timely file an administrative claim. (Id. at pp. 88-89.) In affirming, the appellate court declined to exercise its equitable powers to rule that the limitations period was tolled during the period the plaintiff was unaware that he was the subject of discrimination. The court reasoned that the Legislature, in Government Code section 12960, subdivision (d), had already addressed the issue of how to treat the limitations period when a plaintiff first learns that an adverse employment action was potentially discriminatory more than one year later. The Williams court stated: "Thus the Legislature anticipated there may be situations where a person does not learn he was the subject of discrimination until after the one-year period has passed, and it provided a remedy when that occurs: an extension `not to exceed 90 days. Since the Legislature has provided a remedy for the problem Williams has identified, we decline to formulate a different remedy. We recognize the harshness of this statutory scheme which provides no relief for the claimant who remains ignorant of the existence of a claim until after the statutory deadline for filing the claim has passed. We are constrained, however, to leave this issue of policy to the Legislature. `Once the Legislature has evidenced an intent to comprehensively define the contours of a particular field . . . such complex policy determinations must plainly remain beyond the reach of our equitable jurisdiction. [Citation.]" (Williams, supra, at p. 93.)
Government Code section 12960 specifically allows the late filing of a complaint with the DFEH under certain specific circumstances. In the instance when the discovery of the alleged unlawful practice occurs after the expiration of one year from the occurrence of the unlawful act, the claimant is allowed an additional 90 days from the expiration of that year to file a complaint. Had the Legislature intended to create a more flexible time line for filing a complaint with the DFEH, it would have expressly included a provision to that effect, instead of limiting the extension to 90 days. Because section 12960 provides no other exception to the filing period based upon the late discovery of alleged discrimination, we conclude that none was intended. "We presume the Legislature included all the exceptions it intended to create." (Geertz v. Ausonio (1992) 4 Cal.App.4th 1363, 1370.) Thus, appellants equitable tolling argument has no application here. For the same reasons, the equitable doctrine of estoppel has no application here.
II. No Abuse of Discretion in Excluding Exhibits Not on Exhibit List.
Appellant contends that the trial court erred by refusing to admit 17 various documents totaling approximately 158 pages that she sought to admit on the second day of trial, because they had not been previously identified on her trial exhibit list.
"`"Broadly speaking, an appellate court reviews any ruling by a trial court as to the admissibility of evidence for abuse of discretion." [Citation.] The courts `"discretion is only abused where there is a clear showing [it] exceeded the bounds of reason, all of the circumstances being considered."" (Saxena v. Goffney (2008) 159 Cal.App.4th 316, 332.) "Even where a trial court improperly excludes evidence, the error does not require reversal of the judgment unless the error resulted in a miscarriage of justice. (Cal. Const., art. VI, § 13.)" (Ibid.) "The complaining party has the burden to demonstrate it is reasonably probable a more favorable result would have been reached absent the error. [Citations.]" (Ibid.) We find no abuse of discretion.
Appellant asserts that nothing in the California Rules of Court or the Los Angeles County Court Rules invites a sanction as severe as exclusion for failure to amend a trial exhibit list after there has been a postponement of trial. Relying on Los Angeles County Court Rule 7.12(h) that a final status conference can take place no more than 10 days before trial begins, appellant raises the novel theory that the trial court, at most, should have ordered that the 17 exhibits could not be used for a period of 10 to 15 days, in light of the 40-day trial estimate. But appellant never presented this theory to the trial court, and we therefore give it no consideration on appeal. (In re Marriage of Eben-King & King (2000) 80 Cal.App.4th 92, 117.)
Appellant blames the trial court for not setting a deadline for adding exhibits to the exhibit list after the trial was continued from September 2005 to March 2006. But the trial court made clear to the parties that exhibits not on the exhibit list would be precluded at trial and instructed the parties to make an ex parte motion if they wanted to add exhibits. Appellants attorney admitted that he simply forgot to do so. This omission cannot be blamed on the trial court. It was not the courts responsibility to set a deadline. Rather, it was appellants responsibility to seek to add exhibits to the exhibit list.
Appellant also suggests that respondent would not have been prejudiced by admission of the exhibits. She points out that respondent was familiar with the exhibits because they were used in connection with depositions taken during the reopened discovery period and were submitted by her in opposition to respondents motion for summary adjudication of her constructive discharge claim. But appellant misses the point. As respondent notes, and appellant does not dispute, all of the proffered exhibits were in appellants possession at the time she filed her original exhibit list. By not including the exhibits on her original exhibit list or taking any steps to amend her exhibit list, appellant effectively communicated that she did not intend to rely on those exhibits at trial. A party should be able to prepare its case based on the exhibits the opposing party indicates it will use, and should not be put to the task of redefining its strategy after trial begins.
Furthermore, it does not appear that appellant suffered any prejudice from exclusion of the exhibits. Even appellant concedes in her reply brief that not all of the exhibits would have tipped the verdict in her favor. But she argues that three of the exhibits (778 to 780) might have. Exhibit 778 consisted of appellants written protest of her June 2004 performance review and her request that her MD take steps to ensure that other stations were not miscoding employee hours to falsely inflate their productivity numbers. We find no prejudice because appellant herself testified about this exhibit. Exhibit 779 was a formal discrimination complaint by appellant. Again, appellant testified about the complaint. Exhibit 780 was a statistical survey showing a reduction in hours attributed to unmonitored ramp functions at stations other than the one managed by appellant, following the discovery that deliberate miscoding had falsely enhanced the productivity numbers of other stations. But the jury heard testimony that the hours coded to ramp activities decreased at the other stations after a senior manager was caught miscoding those hours. Thus, appellant failed to meet her burden of demonstrating prejudicial error.
Our review of appellants testimony suggests that exhibits 778 and 779 were admitted under different numbers (exhibit 778 as plaintiffs exhibit 35 and exhibit 779 as defendants exhibit 1247). The parties do not explain this. Even if we are mistaken, appellants own testimony about the exhibits she has described in her briefs eliminated any prejudicial error.
III. Contention of Error in Failing to Compel Further Discovery Responses and
Production of Documents Waived.
Appellant contends that the trial court abused its discretion in refusing to compel production of further responses and documents in response to the 22 categories of document demands she served during the reopened discovery period.
Of these 22 categories, appellants brief focuses on only seven categories. To this end, she asserts that the documents described in demand Nos. 48 to 51 and 54 were "vital" to her Equal Pay Act claim because they would have shown how much her male counterparts made in comparison to her; that the documents described in demand No. 68 would have shown the dismal re-audit results of a station managed by a male colleague who had won an award near the time of the audit; and that the documents described in demand No. 69 would have constituted evidence that her MD disciplined her under false pretenses. Appellant cites generally to her pleading entitled "Separate Statement of Document Demands, Responses, and Reasons for Compelling Further Responses, in Support of Ex Parte Application for Orders Compelling FedEx to Produce Documents, Provide a Further Written Response Under Oath, and Pay a Monetary Sanction for Misuse of the Discovery Process." She argues that each of the document demands at issue was legitimate and necessary and that the trial courts refusal to compel further responses and production was a manifest abuse of discretion necessitating reversal of the judgment. Appellant provides no further analysis, nor any legal authority to support her argument.
It is not the role of the appellate court to make appellants arguments for her. An appellant may not simply cite to her pleadings below without making any reasoned argument on appeal as to why the trial courts ruling was incorrect. A judgment or order of the lower court is presumed correct, and error must be affirmatively shown. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) Nor is it an appellate courts role to construct theories or arguments that would rebut that presumption or otherwise undermine the judgment. (People v. Stanley (1995) 10 Cal.4th 764, 793.) Likewise, we need not consider an argument for which no authority is furnished. (Dabney v. Dabney (2002) 104 Cal.App.4th 379, 384; Heiner v. Kmart Corp. (2000) 84 Cal.App.4th 335, 350-351.) Accordingly, we conclude that appellant has waived her contention that the trial court abused its discretion in failing to compel respondent to provide further discovery.
IV. The Trial Court Did Not "Force" Appellant to Allege a Constructive
Discharge Claim.
In her final contention, appellant claims that the trial court "forced" her to pursue a "weak" constructive discharge claim against her wishes. She simultaneously argues that this action by the trial court was both prejudicial and not prejudicial error.
As set forth above, appellant resigned from her employment with respondent on September 19, 2005. The following day, she moved the court for leave to file a second amended complaint. Her proposed second amended complaint did not contain a cause of action for constructive discharge. At the hearing on the motion for leave to amend, a brief exchange on the constructive discharge claim took place among the parties and the court. Respondent began by raising its concerns that appellant would file a new lawsuit alleging constructive discharge after the resolution of the present case and that she would attempt to claim damages at trial without having to prove a constructive discharge claim. Relying on Cloud v. Casey (1999) 76 Cal.App.4th 895, appellants attorney countered that "front pay" damages are not limited to constructive discharge claims but are recoverable on "failure to promote" claims. The court responded that appellant would only be entitled to 100 percent front pay if her resignation was not voluntary. Respondents attorney agreed. Appellants attorney then stated: "Based on your Honors comments, well add a constructive discharge claim as they [respondent] have urged us to do."
The trial court did not encourage, much less force, appellant to allege a constructive discharge claim. Appellant made the strategic decision to add the claim, after little resistance, and she cannot blame the court for her own litigation strategy. Moreover, appellant does not demonstrate how she was prejudiced by amending her complaint. She simply asserts that being forced to pursue such a "weak" claim "undoubtedly affected the jurys perception of the strength of her other claims," and points to the fact that the constructive discharge claim was the first cause of action addressed on the special verdict form. But appellant never objected to the special verdict form prepared by the court. And if she believed her constructive discharge claim was so weak, she had the option to forgo the claim, present her best case to the jury and appeal from any ruling on damages she believed was incorrect. By voluntarily adding the claim, appellant invited the error of which she complains. "`Where a party by his conduct induces the commission of error, he is estopped from asserting it as a ground for reversal on appeal. [Citation.] . . . . At bottom, the doctrine rests on the purpose of the principle, which is to prevent a party from misleading the trial court and then profiting there from in the appellate court. [Citations.]" (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 403.)
DISPOSITION
The judgment is affirmed. Respondent is entitled to its costs on appeal.
We concur:
BOREN, P. J.
ASHMANN-GERST, J.