Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. RCV090942. Martin A. Hildreth, Judge. (Retired judge of the former San Bernardino County Municipal Court District, West Valley Division, sitting under assignment by the Chief Justice pursuant to Cal. Const., art. VI, § 6.)
Law Offices of Carroll A. McCortney and Carrol A. McCortney for Plaintiff and Appellant.
Sheppard, Mullin, Richter & Hampton, Charles F. Barker and Ross A. Boughton for Defendants and Respondents.
OPINION
Gaut, J.
Plaintiff Silvia Cervantes (plaintiff) sued her former employer, Sport Chalet, Inc. (Sport Chalet), and her supervisor, Robert Pounds, for sexual harassment and retaliation in violation of the Fair Employment and Housing Act (FEHA, Gov. Code, §§ 12900 et seq.). A jury rejected plaintiff’s claims, and plaintiff appeals the defense judgment.
Unless otherwise noted, all statutory references are to the Government Code.
Plaintiff contends there was insufficient evidence to support the jury’s special verdict findings. We conclude there was sufficient evidence to support the jury’s findings that Pounds did not sexually harass plaintiff within the meaning of FEHA and plaintiff did not report any such conduct to Sport Chalet. Accordingly, we affirm the judgment.
1. Statement of Facts
Plaintiff was employed in September 2003, by Sport Chalet as a receiving clerk at Sport Chalet’s distribution center in Ontario. Her supervisor, Wagner DeLima, reported to Robert Pounds, the inbounds receiving manager. Robert Pounds reported to Steve Belardi, the director of distribution.
As a receiving clerk, plaintiff worked in the receiving department, referred to as the “detailed receipt” or “DTR department.” There were 15 to 20 employees in the department. Receiving clerks checked all goods received, entered them into a computerized system, priced the items, and put them on a conveyor belt transporting the items to stock or to be shipped to Sport Chalet’s retail stores.
In August 2004, plaintiff was promoted to the position of “Lead Person” (Lead). As a Lead, she was responsible for training new employees, supervising and assisting other receiving clerks, and performing the normal daily functions of a receiving clerk. She also worked in the “bulk” department, which received larger, bulkier items that could not go on the conveyor belt.
Pounds worked in an office by the building entrance. Plaintiff communicated with him on a daily basis when there were problems with orders. After plaintiff became a Lead and her contact with Pounds increased, she and Pounds became platonic friends and discussed personal as well as business matters.
Pounds testified that a couple times after work he and plaintiff went to a local restaurant for drinks with other Sport Chalet employees. They never went for drinks with just each other. Most of the time 12 to 15 employees went. On one occasion plaintiff or another Sport Chalet employee invited him to go for drinks. On another occasion, in late 2004 or early 2005, Pounds asked plaintiff if she wanted to go for a drink with some other employees, as they had in the past. He might have texted her when he asked her.
Pounds denied ever asking plaintiff out on a date. He acknowledged he had asked out on a date two other Sport Chalet employees, Shelly Barrick, formerly known as Shelly Mesa (Barrick), and Anna Marie Salazar. On at least one occasion plaintiff offered to bring Pounds lunch. Pounds denied ever making any sexually suggestive remarks to her.
Sport Chalet employee, Teresa Martinez, provided Sport Chalet’s human resources manager LaDona Orcutt with a written statement, dated March 8, 2005, stating that Salazar approached Martinez on January 3, 2005, and told her that Pounds had invited her to his home and asked Salazar for her phone number. Salazar appeared uncomfortable with the situation and with Pounds continually asking her what she was doing during the weekend. Salazar asked Martinez and another woman to accompany her during her work break and after work so that Pounds would not approach her. Martinez told Salazar to report the problem to human resources but Salazar said she feared losing her job. This is why Martinez reported it.
Salazar provided Orcutt with a written statement, dated March 9, 2005, stating that Pounds had asked if he could come over to her house for a drink. Salazar told him she had made other plans. Later, Pounds asked Salazar again what she was doing during the weekend. He also requested her phone number and offered to give her his. Salazar felt uncomfortable around Pounds at work and sexually harassed.
On March 16, 2005, plaintiff and Barrick complained to Orcutt about Pounds’s conduct. Orcutt requested plaintiff and Barrick to put their complaints in writing and be as complete and detailed as possible. Plaintiff’s written complaint stated that although she worked with Pounds, their relationship was more of a friendship than of a manager/Lead relationship. While on the job, they had long conversations about their personal lives. Pounds would often compliment plaintiff. A couple of times plaintiff and Pounds went out with coworkers for drinks at a local restaurant. On one occasion Pounds sent plaintiff a text message asking her to go out for a drink. Plaintiff did not call back, and the next day she told him she could not go out for drinks with him. Until plaintiff spoke to her supervisor and explained the situation, there were rumors for a couple weeks that plaintiff and Pounds were dating.
At trial plaintiff testified that Pounds had made sexually harassing statements to her, including asking her out on dates two or three times and asking her what her breast size was. Plaintiff told Pounds she would not go on a date with him because she did not want to jeopardize her marriage. Nevertheless, Pounds continued asking her to go on a date with him. Plaintiff claimed she, Barrick and Salazar together complained to Wagner DeLima in November or December 2004, about Pounds’s conduct. Pounds’s conduct did not change. As a consequence, a couple of weeks later plaintiff complained to DeLima again.
Plaintiff testified she started hearing rumors at work that she and Pounds were dating, which was untrue. This made her uncomfortable. She discussed it with Pounds, who said he had also heard the rumors. Plaintiff also mentioned her concern about the rumors to DeLima. Eventually, plaintiff complained to Orcutt about Pounds’s conduct.
Orcutt testified that plaintiff did not complain to Orcutt about anything other than what was in her written statement. Plaintiff stated during her deposition that her statement contained her complete account of Pounds’s inappropriate conduct. However, later in plaintiff’s deposition, she changed her testimony and stated that Pounds asked her what her breast size was. Plaintiff said she did not mention this incident to Orcutt or include it in her written statement because she was embarrassed about the incident. Plaintiff testified at trial that she told Barrick about the incident but Barrick testified plaintiff never mentioned it to her. Barrick testified that plaintiff never told her that Pounds had made any sexually explicit comments to plaintiff.
Plaintiff testified that, after she submitted her written statement to Orcutt on March 16, 2005, Pounds did not commit any additional sexually harassing acts.
During the trial, the jury was shown a portion of plaintiff’s videotaped deposition, during which she stated that Pounds first harassed her around November 2004, and the last time was in February 2005. Plaintiff claimed she had left out of her written statement Pounds’s comment on her breast size because it was embarrassing. She did not leave out of her statement anything else.
On March 16, 2005, Barrick also provided Orcutt with a written statement. She complained that Pounds had asked her out on a date. Barrick had become friends with him at work and a couple of times had gone with him and a group of other employees out for drinks after work. On one occasion, Pounds asked Barrick to go with him to a New Year’s Eve party. Barrick agreed but then did not go. After that, Pounds’s attitude toward her changed. He was more distant but polite when they crossed paths.
Pounds testified that he had asked Barrick and Salazar to go on dates but had not asked plaintiff to go on a date. Pounds claimed he had only asked plaintiff to go out for drinks after work with a group of coworkers. It was noted during the trial that during Pounds’s deposition, he was asked, “Did you ever ask her [plaintiff] to go out on a date with you or to go anywhere with you on a personal basis during these cell phone conversations?” Pounds answered, “Possibly.” Pounds explained during his trial testimony that when he stated this, he meant that he had asked plaintiff to go for drinks at a local restaurant after work with a group of Sport Chalet employees.
In March 2005, Sport Chalet employees at the Ontario distribution center attended a sexual harassment workshop. After Pounds attended the workshop, he met with Belardi on March 18, 2005, and was shown a memo from Belardi to Pounds, dated March 16, 2005, stating that unnamed Sport Chalet employees at the Ontario distribution center had complained about Pounds’s conduct, including Pounds asking them on dates, requesting their personal phone numbers, and meeting them after work for drinks at local restaurants. The employees claimed Pounds’s advances were unwelcome and they told him this. Afterwards, Pounds treated them less favorably, causing them to lose focus on their work.
Belardi stated in the memo that the employee complaints were verified by witnesses and corroborated with written statements. Pounds’s conduct was against company policy and showed that Pounds had used poor judgment as a manager. Pounds was told in the memo to stop immediately this inappropriate behavior and that if he retaliated against any employee, he would be disciplined, which could include termination.
Pounds testified that he was not told who had complained about his conduct but assumed Barrick and Salazar had done so because they were the only ones he had asked out on dates. He did not believe plaintiff had complained because he had not asked her on a date.
Belardi testified he did not consider Pounds’s conduct described in Barrick, Salazar, Martinez, and plaintiff’s written complaints as sexual harassment because Pounds had not touched the women in a suggestive or sexual manner, although there had been some unwanted advances. Belardi concluded Pounds’s acts were insufficient to constitute sexual harassment.
On March 21, 2005, plaintiff received a favorable job performance evaluation. Her performance as a Lead was rated as “very good,” which was just below the highest rating of “outstanding.” Her written evaluation stated she had received a raise and would be considered for a promotion to a supervisory position in the coming months. The evaluation was signed by Pounds and Belardi.
On April 20, 2005, a Sport Chalet employee, Alma Baeza, whom plaintiff supervised and who was a friend of plaintiff’s, incorrectly received ordered goods. One box of goods was short one item and another box of goods of the same type of merchandise had one extra item. Plaintiff did not report the error to inventory control, as required under company procedures. Plaintiff testified she did not do so because she assumed the two boxes of goods would be placed in stock in the same container and therefore the error did not matter.
Inventory control employee Scott Hardin discovered and investigated the error. Hardin and the inventory control manager, Mike Miles, filled out a report form stating that plaintiff had erred in not notifying inventory control of the error. Pounds was not involved in writing up plaintiff for the error. Miles notified Pounds of the error and gave him the censure report. The next day Miles, Pounds, Orcutt and Belardi met and discussed the incident. They decided to impose a three-day suspension on plaintiff, rather than terminate her because she had been a good employee. They believed plaintiff had committed serious misconduct because it appeared that plaintiff had attempted to cover up Baeza’s error. The error would not have been discovered had Hardin not overheard Baeza and plaintiff discussing the error.
After the meeting, Pounds and Miles met with plaintiff and gave her Miles and Hardin’s written report informing her that she was being disciplined for failing to report to inventory control Baeza’s error. Plaintiff testified that she believed Miles was correct in writing her up for the error.
Three weeks later, inventory control employees, including Barrick, discovered that on May 9 and 10, 2005, plaintiff had made two receiving errors. On May 11, Miles brought Pounds two reports in which plaintiff was written up for making the errors. Pounds and Orcutt met with plaintiff on May 11 and discussed the two censure reports.
As to the error on May 10, 2005, plaintiff was supposed to be supervising and training another employee, “Benita.” Benita made an error while plaintiff was gone. While Benita was being trained, she was not supposed to touch the merchandise while plaintiff was away from her side. Plaintiff was held responsible for Benita’s error because she was a Lead and was supposed to ensure that errors were not made by trainees. Plaintiff should have been there supervising Benita and would have caught the error had she been present.
On May 11, Pounds, Orcutt and Belardi discussed plaintiff’s job performance, including the April cover-up, the two May write-ups, and plaintiff’s excessive cell phone usage. Two weeks earlier, Orcutt had received complaints that plaintiff was excessively using her cell phone while on the job. Orcutt had verbally disciplined plaintiff for this. The three agreed to demote plaintiff from a Lead to an associate receiving clerk. Wagner, plaintiff’s supervisor, did not participate in the discussion because the decision was made at the manager level due to plaintiff having already committed other violations.
After Pounds, Orcutt and Belardi decided to demote plaintiff, Pounds and Orcutt met with plaintiff on May 11. She was shown the two May write-ups and told she was being demoted because of her poor leadership and excessive cell phone calls. The April cover-up incident was also mentioned.
Shortly after plaintiff was told she was demoted, she called and said she would not be reporting back to work, and quit.
2. Sufficiency of the Evidence
Plaintiff commenced this action by filing a complaint against defendants, alleging hostile work environment harassment and retaliation in violation of section 12970. Following a jury trial, the jury returned defense verdicts on both causes of action.
We assume this based on the appellate briefs, jury instructions, and special verdict. Plaintiff has failed to include in the clerk’s transcript a copy of the pleadings or a copy of the complete register of actions.
Plaintiff contends that, during the trial, she introduced irrefutable evidence supporting her claims of both hostile environment harassment and retaliation. She thus claims the jury erroneously found that (1) she was not subjected to unwanted sexual harassment; and (2) she did not complain to Sport Chalet about sexual advances made to her by Pounds.
Based on the special verdicts findings, the trial court entered a defense judgment. Plaintiff filed a motion for new trial, which the trial court denied.
A. Standard of Review
When the sufficiency of evidence is challenged on appeal, this court views the facts in the light most favorable to the trier of fact’s determination, drawing all reasonable inferences in its support. This court does not reweigh the evidence, resolve conflicts in the evidence, or reevaluate the credibility of witnesses. (Nestle v. City of Santa Monica (1972) 6 Cal.3d 920, 925.) Furthermore, generally the direct testimony of a single witness is sufficient to support a finding on a factual issue. (In re Marriage of Stallworth (1987) 192 Cal.App.3d 742, 757; Evid. Code, § 411.) Thus, if the jury in the instant case concluded Pounds was a credible witness and believed his testimony, his testimony was sufficient to support the jury’s findings, even if it conflicted with that of other witnesses.
We further note that plaintiff has not addressed the evidence as a whole in urging this court to conclude there was insufficient evidence to support the judgment, thereby impeding our mandate to decide the matter based on the totality of the evidence.
B. Sufficiency of Evidence of Hostile Work Environment
Plaintiff argues the jury erred in finding she was not subjected to unwanted harassing conduct because of her sex. Specifically, she argues Pounds’s and Belardi’s testimony and Belardi’s memo reprimanding Pounds for inappropriate acts unequivocally established that Pounds had made “unwanted sexual advances.” Plaintiff argues that Pounds subjected plaintiff to sexual harassment by asking her out on dates and the solicitation was unwelcome.
Plaintiff acknowledges there was evidence she likewise invited Pounds to join an office gathering at a neighborhood restaurant, that she brought lunch to Pounds on one occasion, and that they frequently discussed their personal lives, but she claims such evidence does not refute that Pounds’s solicitations were unwelcome or that she complained to Sport Chalet about the conduct. Plaintiff notes there was also evidence of sexual harassment complaints made by other employees against Pounds, and he admitted committing the conduct.
Even though there may have been evidence supporting plaintiff’s contentions, there was also substantial evidence supporting the jury’s findings of nonliability. On appeal we do not reweigh the evidence or evaluate the credibility of witnesses. As long as there is substantial evidence supporting the verdict denying plaintiffs’ claims, we will affirm the judgment. Such is the case here.
FEHA (§§ 12900 et seq.) prohibits an employer from harassing an employee on the basis of sex. It also “holds an employer liable for harassment of an employee by another employee if the employer knew or should have known of the harassment and failed to take immediate and appropriate corrective action, requires the employer to take all reasonable steps to prevent harassment from occurring, and prohibits retaliation against any person opposing any forbidden practice.” (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 605-606 (Fisher).)
Here, there is ample evidence supporting the jury finding that Pounds did not harass plaintiff within the meaning of harassment under FEHA. “Sexual harassment is a form of sex discrimination. [Citations.] There are two actionable types of sexual harassment: 1. Quid pro quo harassment. This form of harassment occurs when a term of employment is conditioned upon unwelcome sexual advances. [Citation.] 2. The creation of a hostile work environment for the employee because of that employee’s sex. [Citation.]” (Accardi v. Superior Court (1993) 17 Cal.App.4th 341, 348 (Accardi).) The latter may have nothing to do with sexual advances. (Ibid.) Plaintiff acknowledges that she is not claiming the first type of discrimination. She is only claiming hostile work environment sexual harassment.
The elements of a prima facie case of a hostile work environment are: “(1) plaintiff belongs to a protected group; (2) plaintiff was subject to unwelcome sexual harassment; (3) the harassment complained of was based on sex; (4) the harassment complained of was sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment; and (5) respondeat superior.” (Fisher, supra, 214 Cal.App.3d at p. 608.)
In the instant case, plaintiff challenges the jury’s special verdict finding that plaintiff failed to prove the second element. The jury found plaintiff was not subjected to unwanted harassing conduct because of her sex.
As to the second element, the trial court instructed the jury that “Harassing conduct may include the following:
“a. Verbal harassment, such as obscene language, demeaning comments, slurs; or
“b. Physical harassment, such as unwanted touching, assault, or physical interference with normal work or movement; or
“c. Visual harassment, such as offensive posters, objects, cartoons, or drawings; or
“d. Unwanted sexual advances.”
Under section 12940, subdivision (j)(4)(C), “‘harassment’ because of sex includes sexual harassment [and] gender harassment,...”
Here, plaintiff argues the following evidence indisputably established that Pounds committed harassing conduct under FEHA: (1) Pounds asked plaintiff out on a date; (2) Pounds asked plaintiff what her breast size was; and (3) Pounds sent plaintiff a text message requesting her to go out for drinks with him. Plaintiff acknowledged during her trial testimony that after she submitted her written statement to Orcutt on March 16, 2005, there were no additional sexually harassing acts or words by Pounds.
Even though there may have been evidence supporting plaintiff’s sexual harassment allegations, there was also evidence refuting them. With regard to plaintiff’s allegation that Pounds asked plaintiff out on one or more dates, there is substantial evidence to the contrary. Pounds testified he never asked plaintiff out on a date, although he acknowledged he had asked Barrick and Salazar out on dates. Generally, “‘testimony of a single witness is sufficient to uphold a judgment even if it is contradicted by other evidence, inconsistent or false as to other portions. [Citations.]’ [Citation.]” (In re Robert V. (1982) 132 Cal.App.3d 815, 821; see also Evid. Code, § 411.) As the trial court instructed the jury, “the testimony of a single witness is enough to prove a fact.”
While there is evidence that Pounds asked plaintiff to go out for drinks on a couple of occasions, this was in the context of a group of fellow employees going out together after work to a local restaurant to socialize. There was no evidence of Pounds seeking any sort of intimate encounter with plaintiff or there being any sexual overtones. As plaintiff acknowledged, she and Pounds had developed a mutual, platonic friendship as a result of interacting with each other at work on a daily basis. They often discussed with each other their personal circumstances, as well as work-related matters.
There was no evidence that Pounds made any unwanted sexual advances toward plaintiff in connection with after-work employee gatherings. The fact that he invited plaintiff by text messaging her on one occasion has little if any added significance. It was merely a means of informing plaintiff that he and a group of employees were going out for drinks and asking her if she wanted to go too. Similarly, plaintiff had on another occasion asked Pounds if he wanted to go with coworkers for drinks after work.
There was ample evidence from which the jury could reasonably find that when Pounds asked plaintiff if she wanted to go for drinks with a group of coemployees, he was not asking plaintiff out on a “date” or making any sort of sexual advance.
In addition, plaintiff did not state in her written statement regarding Pounds’s conduct submitted to Orcutt that plaintiff ever asked her out on a date or made any sexual advances towards her. Also, Barrick testified that plaintiff never told her Pounds asked her on a date.
Plaintiff’s contention that her sexual harassment claim is supported by evidence that Pounds commented on her breast is also refuted. In addition to Barrick’s testimony, Pounds testified he never made any such comment or any other sexually suggestive or explicit comments to plaintiff.
Furthermore, Orcutt told plaintiff to state her complaints against Pounds fully and in detail in her written complaint. Plaintiff made no mention of Pounds commenting on her breast. Orcutt testified that when plaintiff complained to Orcutt about Pounds, plaintiff stated she was concerned about there being false rumors that she was dating Pounds.
Plaintiff also initially stated during her deposition that her written statement contained her complete account of Pounds’s inappropriate conduct. However, later on during plaintiff’s deposition, she requested to change her testimony and stated that Pounds had asked her her breast size. Plaintiff claimed she did not mention this to Orcutt or include it in her written statement because she was embarrassed about the incident. Plaintiff claimed she told Barrick about the incident but Barrick testified plaintiff never mentioned it to her. Barrick testified that plaintiff had never said that Pounds had made any sexually explicit comments to plaintiff.
Plaintiff argues that a finding of sexual harassment was unequivocally established by evidence that (1) Pounds was censured for committing sexually harassing conduct; (2) Belardi acknowledged in his written statement censuring Pounds that Pounds had committed inappropriate, unwanted sexual advances, including “asking for dates and personal phone numbers to meeting for drinks at local restaurants after hours”; (3) Barrick, Martinez, Salazar, and plaintiff provided written statements complaining about Pounds’s conduct; (4) Pounds acknowledged that he had committed the conduct stated in Belardi’s censure memo.
While Belardi censured Pounds for inappropriate acts, this is not conclusive evidence that Pounds sexually harassed plaintiff. As reflected in Belardi’s March 16, 2005, censure memo, Belardi reprimanded Pounds based on complaints made by unidentified employees. Such complaints, according to the memo, ranged from Pounds asking for dates and personal phone numbers to meeting for drinks at local restaurants after hours. The memo does not state that plaintiff made any such complaints or that she was the object of such conduct.
To the contrary, there is evidence, as discussed above, Pounds did not ask plaintiff out on a date. Rather, he asked others out, and this is corroborated by Barrick, Martinez, and Salazar’s written complaints and testimony. With regard to Pounds meeting for drinks after work, there is undisputed evidence that this was a group event with no evidence of any sexual overtones, sexual advances or other inappropriate behavior by Pounds as regards plaintiff. There is nothing in Belardi’s censure memo that establishes that Pounds subjected plaintiff to sexual harassment. It is unclear from the memo who made the complaints and whether plaintiff was the object of the allegedly inappropriate action. Furthermore, the fact that Belardi concluded Pounds had committed inappropriate action does not establish that he committed sexual harassment under FEHA.
Plaintiff cites Accardi, supra, 17 Cal.App.4th at pages 350-351, for the proposition that a complaint alleging sexual harassment must not be read too narrowly and that harassing conduct is not limited to that specified in the jury instruction. It includes any objectionable conduct that would not have occurred but for the victim’s gender.
In Accardi the court held that the plaintiff established sexually harassing conduct in violation of section 12940 based on considerable conduct that included employees “making statements that her [police] baton was only useful to perform sex acts,” “spreading rumors that she had slept with superior officers in order to receive favorable assignments,” “admitting to her that there were double standards and telling her she must live with them,” “allowing derogatory and condescending remarks to be made about her, and women in general,” and “making sexual advances to her.” (Accardi, supra, 17 Cal.App.4th at pp. 346-347.)
The court in Accardi explained that sexual harassment claims based on a “hostile work environment” merely require “intimidation and hostility for the purpose of interfering with an individual’s work performance,” and need not include “unwelcome sexual advances.” (Accardi, supra, 17 Cal.App.4th at p. 348.) Nonetheless, the Accardi court noted that a claim for hostile work environment must still allege that gender was a “substantial factor” in the harassment; that is, “‘if the plaintiff “had been a man she would not have been treated in the same manner.”’” (Ibid.)
In the instant case, the jury found plaintiff was not subjected to unwanted harassing conduct because of her sex. There was substantial evidence supporting this finding, including evidence that the acts plaintiff claimed constituted sexual harassment did not occur or that gender was a substantial factor. Plaintiff thus did not unequivocally establish that Pounds sexually harassed her.
C. Sufficiency of Evidence of Retaliation
The court engages in a three-step process when determining whether a claim for retaliation in employment has merit. First, the employee must demonstrate three elements: (1) that the employee engaged in protected activity; (2) that the employee was thereafter subjected to adverse employment action; and (3) that there was a causal link between the protected activity and the adverse action. (Flait v. North American Watch Corp. (1992) 3 Cal.App.4th 467, 476.) Second, if this burden is met, the employer must then articulate a legitimate nonretaliatory reason for the adverse employment action. (Sada v. Robert F. Kennedy Medical Center (1997) 56 Cal.App.4th 138, 155.) Third, after the employer produces a legitimate business justification, the employee must produce substantial responsive evidence that demonstrates that the employer’s reason for the adverse employment action was untrue or pretextual, or evidence that the employer acted with a retaliatory animus, or a combination of the two, such that a reasonable trier of fact could conclude the employer engaged in unlawful retaliation. (Horn v. Cushman & Wakefield Western (1999) 72 Cal.App.4th 798, 806-807; Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1004-1005.)
Here, plaintiff claims she was demoted and constructively terminated in retaliation for complaining that Pounds was sexually harassing her. Plaintiff argues that the jury’s special verdict finding that she did not complain to Sport Chalet about Pounds’s sexual advances was contrary to the evidence presented.
While there may have been some evidence supporting a finding that plaintiff complained, there was substantial evidence to the contrary. Although plaintiff testified she complained to DeLima and Orcutt that Pounds had made sexual comments and advances toward her, there also was evidence refuting this.
Plaintiff testified she complained to DeLima, Orcutt, and Barrick that Pounds asked her her breast size and asked her to go out on a date. Orcutt and Barrick, however, testified plaintiff did not complain about this to them. Orcutt testified that plaintiff only complained about what was in plaintiff’s written statement, which did not mention that Pounds had made any sexual comments or advances or had asked her out on a date. Plaintiff only complained that he asked her to go out for drinks with a group of employees, and there were false rumors that she and Pounds were dating.
As to DeLima’s testimony that plaintiff complained to him that Pounds was sexually harassing her, there was evidence implicating his credibility as a witness. DeLima acknowledged he was a friend of plaintiff, and had been suspended at Sport Chalet and ultimately fired for sexual harassment. Although he was told his termination was due to inadequate job performance, DeLima said he believed he was actually terminated because of sexual harassment charges made against him.
The totality of the evidence supported the jury’s findings that Pounds did not make any unwelcomed sexual advances toward plaintiff or sexually harass her, even though he asked her to go with a group of employees out for drinks once or twice. The jury also could have reasonably found that DeLima and plaintiff were not credible witnesses, particularly since they were friends and were disgruntled employees whose employment at Sport Chalet had been terminated. The jury therefore could disregard their testimony as not credible and rely on Pounds and other witness’s contradictory testimony. “Since our function is not to reweigh the evidence or to judge the credibility of witnesses” (Electronic Equipment Express, Inc. v. Donald H. Seiler & Co. (1981) 122 Cal.App.3d 834, 849), we conclude that the evidence, though contradicted and susceptible of a contrary finding, was sufficient to sustain the jury’s findings. (Ibid.).
3. Disposition
The judgment is affirmed. Defendants are awarded their costs on appeal.
We concur: Hollenhorst, Acting P. J., McKinster, J.