Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. 2002-067063
Pollak, J.
Defendant City of Hayward (the city) appeals from a judgment entered in favor of plaintiff Margaret Dufresne, a former building inspector for the city, on her complaint for sexual harassment. The city contends the trial court erred in concluding that the continuing violations doctrine allowed the jury to base liability on conduct that occurred more than one year prior to the filing of her claim with the California Department of Fair Employment and Housing (the DFEH). The city also argues that the court erred in admitting evidence that the city accepted liability in workers’ compensation proceedings arising out of the same alleged harassment. Finally, the city argues that the court erred in allowing two of plaintiff’s witnesses, one of whom was an expert, to testify that in his opinion harassment had occurred. We affirm.
Factual and Procedural History
In October 2002, plaintiff filed a complaint against the city alleging causes of action for harassment under Government Code section 12940, subdivision (j), and retaliation under section 12940, subdivision (h) and Labor Code section 1102.5. Shortly thereafter she filed a first amended complaint that added the allegations that from the time that she was hired in 1989 until she went on disability leave in April 2001, she was subjected to “repeated and continuous acts of harassment and intimidation by her fellow male Building Inspectors . . . .” The complaint alleges that plaintiff filed a charge of discrimination against the city with the DFEH on September 28, 2001 and was issued a notice of her right to bring a civil action on October 1, 2001.
All statutory references are to the Government Code unless otherwise noted.
Prior to trial, the city made a “motion in limine to exclude any and all claims, evidence and/or facts regarding events that occurred prior to September 27, 2000, which is one year prior to the date plaintiff filed her charge with the DFEH.” The city argued that the admissibility of the evidence should be determined prior to trial to avoid the extreme prejudice that would result if the evidence was presented to the jury and later determined to be inadmissible. The court recognized the potential for prejudice but denied the motion, concluding that the admissibility of the evidence would be considered as it was presented.
The following evidence was presented at trial:
Plaintiff was hired by the city in 1989 and became a building inspector in 1990. At the time she was the only female building inspector in the inspection division.
When plaintiff first started working in the building department, she received a cold reception and was made to feel like she did not belong there. Her male colleagues subjected her to taunts and demeaning comments about her job performance and her appearance. They commented that her questions were “stupid” and that “only a girl would ask something like that.” They would snicker and make faces when she spoke during meetings. They ostracized her and refused to discuss work issues with her. Her male coworkers scrutinized her work in an effort to find errors they could report to their supervisors. Dennis Belrose, for example, took pictures of construction at a project plaintiff already approved and interfered with the project to such an extent that the contractor complained to the city. On another occasion, Belrose entered property without permission to photograph an over-sized plumbing fixture plaintiff had approved and displayed the picture around the office in an effort to embarrass her.
In November 1991, plaintiff was conducting an inspection when she found a pair of bloody women’s underwear and a bra in the back of her truck. She suspected that her coworkers had placed the soiled underwear in her truck and that they were harassing her because of her gender. She reported the incident to her supervisor. Although plaintiff did not want anyone to know about the incident, her supervisor asked the city attorney’s office to investigate.
Hayward Police Officer Phil Ribera conducted an investigation of the November 1991 incident as well as 14 or 15 additional incidents involving plaintiff, including claims by Belrose and others that plaintiff was making mistakes at work, that she had received an improper gratuity from a developer, and that she was harassing the coworkers. Ribera’s written investigation report concluded that there appeared “to be a pattern of ongoing, on-the-job harassment of Margaret Dufresne by some of her coworkers.” The report continued, “It is my opinion that the forms that the harassment has taken have been obvious enough and have occurred over a long enough period of time that harsh corrective action should have been taken with those responsible long before now. [¶] . . . [¶] It should also be noted that neither of the other two combination inspectors complained of harassment . . . . It was not said, but was implied, that the fact that Dufresne is a female could be the reason that she . . . was targeted.” In response to Ribera’s report, Director of Community and Economic Development Sylvia Ehrenthal sent notices to both plaintiff and the building department staff informing them of the investigation and reminding them of the city’s policy against gender harassment. The notice advised the staff that there “appears to be a pattern of ongoing on-the job-harassment of [plaintiff] by some of her coworkers” and warned that “[f]urther investigation of specific incidents of harassment may lead to disciplinary action.” Ehrenthal’s note to plaintiff expressed “regret over the inappropriate and unfair treatment [she had] received from some coworkers” and promised that she and the city building official would “do everything within [their] power to assure that there is no repetition of discriminatory or harassing activity against [her].”
Belrose, Larry Hulse and others crumpled their copies of the memos in plaintiff’s presence and threw them into the garbage. When plaintiff reported the incident to Ehrenthal, she told her to “hang in there” and that things would get better. Nonetheless, plaintiff’s male coworkers continued to unfairly and publicly criticize her work over the next several years. They also continued to ostracize her. On one occasion they left a restaurant when she entered, and on other occasions they would refuse to invite her to lunch. They would not allow her to sit with them at seminars, claiming that empty seats were already taken. Once Hulse, Belrose and others intentionally left plaintiff stranded at a job site after refusing to let her join them for lunch. Sometime in 1994 or 1995, Belrose asked plaintiff where she got her “butch haircut” and another employee said “it’s not going to help. You’ll never be a guy.” When plaintiff complained to her supervisors, she was told again to “hang in there” and that she was a “trail blazer.”
Similar conduct continued throughout 1996, 1997 and 1998. Once, when plaintiff was bending over a table to look at some plans, Belrose shouted, “Hey, you better be careful about bending over like that, you might get poked. . . . [Y]ou know, if you tried it you might like it.” The male inspectors continued to treat her as if she did not exist and questioned contractors about whether she had properly inspected their projects. On one occasion Belrose improperly stopped work on a construction site that plaintiff had inspected and on another occasion Hulse announced over the building department radio that one of plaintiff’s inspections had been voided because plaintiff had made a mistake. When plaintiff complained to her supervisor, he advised her to “let it go in one ear, out the other [and not to] pay attention.”
Prior to 1999, plaintiff had been distributing overflow work assignments to the other inspectors. In 1999, however, she asked Hulse to assign the inspections because some of her male coworkers were not doing the work she assigned to them. In response, Hulse assigned all the extra work to plaintiff. When she asked a coworker for help, he responded, “Why? I thought you wanted to be Wonder Woman.” Hulse continued to assign her more work than the other inspectors until she stopped working for the city in 2001.
In 2000, Belrose became ill and took a leave of absence. Prior to leaving, he called plaintiff a “damn dyke.” When he returned to the office in late 2000 or early 2001, he apologized to plaintiff for his mistreatment of her. Belrose died before he could be deposed in this case.
In mid-2000, Hillary Herman was hired as the Deputy Building Official. Although plaintiff was initially supportive of her hiring, in part because she was a woman, plaintiff later opposed her employment when she learned that Herman allegedly was not qualified for the job because certain certifications had expired. After plaintiff spoke out against Herman, Ehrenthal began treating her differently.
Between April and August 2000, Jim Scales, who had been hired in 1999, filed a number of complaints with Ehrenthal accusing plaintiff of unprofessional conduct. Among other things, he complained that she stands on her desk and yells across the office to converse with others; she says negative things about her coworkers and their job performance; and accused him of getting preferential treatment from his wife, who also worked for the city. Scales also accused plaintiff at a department meeting of improperly allowing a restaurant to open prior to completion of the final inspection, even though he knew the allegation was not true. As a result of his complaints, Scales met with Ehrenthal and Herman in November. He told them he was afraid of plaintiff and that she was a compulsive liar.
In December, Hulse complained to Herman that he had overheard plaintiff telling someone that she was going to buy for a reduced price a house in a tract that she was inspecting. At about the same time, the building department received a few cases of wine as a holiday gift from a building owner. After the city attorney determined that the gift must be returned, Herman directed the staff, including plaintiff, to collect the bottles of wine so that they could be returned. Plaintiff, however, contacted the property owner and offered to pay for the wine so that it could be distributed to the staff. On December 29, Herman met with plaintiff and advised her that her conduct was unacceptable and that she had overstepped her authority by offering to purchase and distribute the wine. Herman also told plaintiff she had a tendency to “speak and act without forethought” and that her actions and statements have often been inappropriate. She mentioned the home buying incident reported by Hulse as an example of unprofessional conduct. She warned plaintiff that she would no longer accept such behavior. Herman later clarified to plaintiff that their “discussion of the home buying incident was not designed to reprimand you or question your integrity. It was used as an example of how your unprofessional offhand comments and inappropriate conversations can be construed by others to indicate improper or inappropriate behavior or activity.”
Over the next few months, Hulse continued to overload plaintiff with work. When plaintiff complained to Herman about her workload, she reassigned some of the work, but also reprimanded plaintiff for using too much overtime to complete her assignments. Plaintiff was stressed and could not sleep. The increasing hostility in the department was affecting her ability to work. In March, plaintiff sent a final letter to Herman asking her, Ehrenthal, and Scales to stop harassing her.
On April 3, 2001, plaintiff filed a claim for workers’ compensation describing “prolonged discrimination and harassment.” Plaintiff began seeing a psychologist and was prescribed medication but left the office on June 17, after feeling dizzy and disorientated. Plaintiff never returned to work.
At the close of plaintiff’s case, the city moved for a nonsuit. One of plaintiff’s claims was dismissed voluntarily and others were dismissed by the court, leaving only a claim for harassment against the city, Scales and Hulse, and a claim for retaliation against the city and Ehrenthal.
The jury returned a verdict in favor of plaintiff, awarding her $472,389 on her harassment claim against the city. The jury found in favor of the city and the individual defendants on all of plaintiff’s remaining claims. The city filed a timely notice of appeal.
The special verdict form reflects the jury’s award of $272,389.10 in economic and $200,000.00 in noneconomic damages. The parties stipulated to the amount of noneconomic damages, which included an offset pursuant to section 3600, subdivision (b), for the workers’ compensation benefits paid by the city.
Discussion
1. Continuing Violations Doctrine
Many of the events plaintiff relies on to support her harassment claim occurred more than one year prior to the filing of her complaint with the DFEH in September 2001. The city asserts that the one-year statute of limitations under the Fair Employment and Housing Act (FEHA) precludes its liability for any conduct occurring prior to September 2000.
Government Code section 12960, subdivision (b) provides: “No complaint may be filed after the expiration of one year from the date upon which the alleged unlawful practice . . . occurred . . . .” Contrary to plaintiff’s assertion, the city did not waive its claim that her action is barred by this statute of limitations. The record is replete with instances of the city asserting the statute of limitations defense, including in its answer to the complaint, its trial brief and in motions in limine to exclude evidence.
Where applicable, the continuing violations doctrine provides an equitable exception to the one-year statute of limitations for FEHA actions. (Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798, 823-824 (Richards).) “[T]he continuing violation doctrine comes into play when an employee raises a claim based on conduct that occurred in part outside the limitations period.” (Id. at p. 812.) In Richards, the court articulated the standard for determining when the continuing violation doctrine applies. The court stated that “an employer’s series of unlawful actions in a case of . . . harassment, should be viewed as a single, actionable course of conduct if (1) the actions are sufficiently similar in kind; (2) they occur with sufficient frequency; and (3) they have not acquired a degree of ‘permanence’ so that employees are on notice that further efforts at informal conciliation with the employer to obtain accommodation or end harassment would be futile.” (Id. at p. 802.) The city contends that plaintiff’s evidence failed to satisfy both the similarity and permanence prongs of this test.
Our standard of review is primarily a substantial evidence standard. (Richards, supra, 26 Cal.4th at p. 802, fn. 2 [“Since the issue before us, at least in part, is whether there was sufficient evidence for the trial court to have concluded that Richards's claims were timely, the facts are set forth in the light most favorable to her, unless specified otherwise”].) To the extent that this appeal presents both questions of law and fact, we give deference to the trial court's factual decisions and review questions of law under a nondeferential standard. (Green v. Par Pools Inc. (2003) 111 Cal.App.4th 620, 627.)
The city argues that any harassment suffered by plaintiff prior to September 2000 was not sufficiently similar to the alleged harassment she suffered during the limitations period. It characterizes plaintiff’s pre-September 2000 claims as involving “gender harassment alleged against male coworkers” and her post-September 2000 claims as involving “retaliation claims against various supervisors.” This characterization, however, is too narrow and is inconsistent with the observation in Richards that “ ‘[i]n order to carry out the purpose of the FEHA to safeguard the employee's right to hold employment without experiencing discrimination, the limitations period set out in the FEHA should be interpreted so as to promote the resolution of potentially meritorious claims on the merits.’ ” (Richards, supra, 26 Cal.4th at p. 819.)
The objectionable pre-limitations period conduct unquestionably involved sexual harassment by plaintiff’s male coworkers. The question is whether harassment occurred within the limitations period that is sufficiently similar to the earlier conduct to treat all of the acts as a single course of conduct. In Richards, the court suggested a flexible approach to determining this question. (Richards, supra, 26 Cal.4th at pp. 821-822.) The court warned that harassment “may have many facets and take a number of different forms” and an instance of harassment “that in isolation may seem trivial can assume greater significance and constitute a greater injury when viewed as one of a series of such [incidents].” (Richards, supra, 26 Cal.4th at pp. 822; see also Draper v. Coeur Rochester, Inc. (9th Cir.1998) 147 F.3d 1104, 1109 [“Discriminatory behavior comes in all shapes and sizes, and what might be an innocuous occurrence in some circumstances may, in the context of a pattern of discriminatory harassment, take on an altogether different character, causing a worker to feel demeaned, humiliated, or intimidated on account of her gender”].)
Plaintiff describes the harassment to which she was subjected during the limitations period as follows: Her male coworkers “continued to treat her as if she didn’t exist” and she “continued to avoid training seminars” to avoid them. She “continued to be overloaded with work.” Finally, and perhaps most significantly, she testified that her male coworkers continued to make unfounded complaints to her supervisor about her conduct. The evidence shows that three employees—Belrose, Hulse and Scales—made repeated complaints about plaintiff’s personal and professional conduct throughout her employment with the city. From essentially the time plaintiff was hired until Belrose went out on disability in 2000, Belrose engaged in an ongoing campaign of investigating, photographing and reporting alleged errors in her building inspections. His gender-based comments strongly suggest that he subjected plaintiff to increased scrutiny because she was a woman. Hulse, who was a senior building inspector throughout plaintiff’s tenure with the city, similarly made unfounded complaints about plaintiff’s work. Hulse was also responsible for assigning plaintiff excessive inspections to complete and was the employee who announced over the radio that he had voided one of plaintiff’s inspections because she had made a mistake and later accused plaintiff of trying to buy a house at a reduced price in a development she was inspecting. Scales, who began working for the city in 1999, continued the campaign by filing numerous complaints against plaintiff for unprofessional conduct. Scales complained that plaintiff was a compulsive liar, a gossip, disruptive and opinionated. When plaintiff asked him to stop filing complaints against her, he claimed she was harassing him. While the nature of the complaints may have shifted from allegations about the quality of her work to allegations about her personality and professionalism, a reasonable person could conclude that all of the complaints were part of a single course of conduct designed to embarrass and humiliate plaintiff because she is a woman.
The more difficult question is whether the harassment acquired a degree of permanence at some point prior to the filing of her charge with the DFEH. “Permanence” means “that an employer’s statements and actions make clear to a reasonable employee that any further efforts at informal conciliation to obtain reasonable accommodation or end harassment will be futile.” (Richards, supra, 26 Cal.4th at p. 823.)
The city suggests that plaintiff knew or should have known by the spring of 2000 at the latest that further efforts at conciliation would be futile. The city relies on plaintiff’s statement that by March of 2000 it had become “fairly obvious to [her] that the harassment and discrimination that [she] had been experiencing through the years was not going to be resolved and that [she] was going to have to take it beyond management.” Consistent with this sentiment, in March 2000, plaintiff requested a copy of the 1992 Ribera report. Plaintiff acknowledged that although Ehrenthal had initially encouraged her to “hang in there,” by the spring of 2000, Ehrenthal’s treatment of her had changed and she appeared out to “get her.” Plaintiff argues that although she felt that her immediate supervisors were no longer responsive, she continued to believe that the city’s upper management might be helpful. In May 2000 she wrote to Jesus Armas, the city manager, requesting his assistance. In January 2001, she followed up her letter with a phone call and met with Armas. At the meeting Armas initially indicated that he thought the harassment was only plaintiff’s perception, but he agreed to have “someone from the outside” look into her claims. In April 2001, plaintiff met with Sanford Groves, the assistant city manager. Groves observed that plaintiff was “very unhappy” and promised that he would look into her concerns. It was not until July 2001, when Groves told her he would not take any further action while her workers’ compensation claim was being investigated, that she lost hope that the city would resolve the situation. Plaintiff’s testimony, the assurances by Groves and Armas that they would investigate her complaints, and the city’s failure to definitively reject her claims provide substantial evidence to support the court’s implicit determination that a reasonable person would not have believed that further informal efforts at conciliation were futile until after July 2001. (See Richards, supra, 26 Cal.4th at pp. 823-824 [“an employer who is confronted with an employee seeking . . . relief from disability harassment may assert control over its legal relationship with the employee either by accommodating the employee’s requests, or by making clear to the employee in a definitive manner that it will not be granting any such requests, thereby commencing the running of the statute of limitations”].) Accordingly, the trial court properly concluded that the continuing violations doctrine was applicable in this case.
The city’s additional arguments that the court erred by failing to instruct the jury with regard to the pre-limitations period acts of harassment and that the “limitations period harassment claims standing alone do not support the verdict” are premised on the assumption that the continuing violations doctrine was inapplicable. Having concluded that the limitations period was properly expanded to allow for liability based on conduct occurring prior to September 2001, we need not reach these additional arguments.
2. Workers’ Compensation Evidence
Plaintiff’s workers’ compensation claim for “stress, depression, anxiety [and] paranoia due to prolonged discrimination [and] harassment” was filed on April 3, 2001. The city accepted liability without a hearing on June 27, 2001, and began paying benefits shortly thereafter. In September 2002, the city filed an amended answer with the Workers’ Compensation Appeals Board contesting the issue of permanent disability. Later, the city confirmed that the amended answer was intended to conform the pleadings to the facts of the case “includ[ing] the fact that the employer has been furnishing benefits in this case all along, and that industrial causation and the nature and extent of injury are no longer at issue.” Subsequently, the parties filed a stipulation, which was approved by the workers’ compensation judge, in which they agreed “there is no issue of apportionment or good faith personnel action defense.”
During the course of the trial, significant evidence was admitted regarding the workers’ compensation proceedings. Prior to admission of this evidence, counsel and the court engaged in a lengthy discussion regarding the admissibility and effect of the positions taken by the city in those proceedings. Plaintiff argued that because the city, after completing a full investigation, knowingly and intelligently waived all defenses to her claim and accepted liability, the city was judicially estopped from asserting a contrary position in the civil action. Her position was, as the trial court noted, essentially the same as asking for a directed verdict on injury and causation, leaving only the factual issue of the nature and extent of her injuries for the jury. The city disagreed. It argued that because workers compensation proceedings are “no fault” proceedings, the city’s acceptance of liability for her workers’ compensation claim was not necessarily inconsistent with its denial of liability in the present action. The city suggested that it “could have accepted responsibility for the injuries and the fact that it happened on the job without binding themselves to what the causation was . . . . [¶] [For example] [o]ne possible scenario is that the [plaintiff] herself, because of her own particular circumstances, worked herself up to the point where she had the injuries that were described there. That occurred when she was at work because she couldn’t get along with her coworkers for reasons that had nothing to do with discrimination. And so . . . acceptance of responsibility by the workers’ comp people could be accepting responsibility for . . . the injury, and the fact that it happened on the job without any inference whatsoever to what the factual basis was of that.”
The court rejected plaintiff’s request that the city be precluded from denying liability and causation on the basis of judicial estoppel, but concluded that evidence of what transpired in the workers’ compensation proceedings was admissible and that the jury would be required to decide whether the acceptance of liability in those proceedings was an admission of causation. The court stated that the city would be permitted to present the testimony of its attorney regarding his intent in waiving the city’s defenses and accepting liability for the workers’ compensation claim.
Consistent with the court’s ruling, plaintiff introduced testimony by Richard Scott, the third-party workers’ compensation investigator assigned to plaintiff’s case, that he interviewed two of plaintiff’s supervisors, Ehrenthal and Henry Attri, as part of his investigation. Ehrenthal told him that plaintiff’s harassment claims with regard to the 1991 incident had been “substantiated” and that “the City of Hayward had done what it could to try to rectify the problems of sexual harassment involving [plaintiff].” Attri told him that he believed plaintiff “continued to be mistreated and harassed by her male counterparts and by management and that management had failed to properly support her.” Attri told him that plaintiff’s coworkers were out to get her because she was female. Plaintiff’s “male counterparts teased her occasionally. . . . They viewed building inspection as a man’s job, a rough job. The old timers did not see [plaintiff] being equal to them, although [she] had passed more examinations and had received more certificates than them.” The city’s workers’ compensation administrator testified that the city “accepted liability” for plaintiff’s claims and she read a letter into the record in which plaintiff was advised that “liability for your workers’ compensation injury has been accepted.” Thomas Richard, the city’s workers’ compensation attorney, testified that the city initially opposed plaintiff’s claims, but subsequently withdrew its affirmative defenses to her claim. After investigating the claim, the city determined that “[t]he issue of permanent disability [was] the only disputed issue.” Finally, plaintiff’s workers’ compensation doctor testified that he indicated in his report that plaintiff’s injuries were work-related because the city had “picked up liability for the case.”
Plaintiff’s attorney argued in closing that the city’s response to her workers’ compensation claim was a “significant feature” to the question of causation. He explained that while the city had the opportunity to deny her claim, it did not do so. “What the city did is they admitted in the workers’ compensation case that [plaintiff] sustained an injury at work as a result of prolonged harassment and discrimination. That’s an admission on their part.” The attorney continued, “Now, I know that they’ve come into this trial and they’ve tried to argue that no, no, no, we didn’t make any kind of admission. Or no, we want to argue it. But the fact of the matter is that back in 2001, and again in 2002, and again in 2003, the city knowingly admitted and accepted [plaintiff’s] workers’ compensation claim. And so that is strong evidence that—I think binding evidence on the city that the harassing conduct that [plaintiff] complained of was a substantial factor, if not the sole factor that caused harm to [plaintiff].” In response, the city argued that the evidence regarding the workers’ compensation proceeding was a waste of time. He explained that workers’ compensation proceedings are “a whole different animal. [¶] Workers’ compensation is no fault. It is all designed to help the employee get back on their feet, get what they need to go forward.” He denied that the city made any admissions in that proceeding that are relevant to the present action and suggested that plaintiff’s “attempts to use the workers’ compensation proceedings and the workers’ compensation doctors to try to get you to think that somehow [the issue of causation] has already been resolved is just a red herring.”
Following closing arguments, plaintiff renewed her judicial estoppel motion and the court again denied the motion. The court reiterated that the evidence was admitted so that the jury could decide “whether taking the position the city took in the workers’ compensation case constituted an admission in this case” and that the jury could “find liability based on that admission if [it] chose to do so.” The jury was not given any specific instruction with regard to the significance of the workers’ compensation evidence.
The city argues that the court erred in admitting evidence that it accepted responsibility for plaintiff’s injury in the workers’ compensation proceeding and in allowing the jury to determine whether that acceptance was an admission of liability for purposes of the present action. Alternatively, the city argues that even if some of the evidence was admissible, the court’s “failure to judiciously tailor or instruct on the use of such evidence, resulted in a miscarriage of justice.”
“California’s workers’ compensation scheme was developed early in the 20th century as a result of the inadequacy of the common law that often denied injured workers any recovery for work-related injuries. [Citations.] [¶] The workers’ compensation law applies to employee injuries ‘arising out of and in the course of the employment’ when the statutorily specified ‘conditions of compensation concur.’ [Citation.] Generally, it is the exclusive remedy for such injuries. [Citations.] But some claims, including those based on sexual or racial discrimination or other conduct contrary to fundamental public policy, are not subject to the exclusivity provisions of the workers’ compensation law. [Citation.] Thus, such claims may be the subject of both workers' compensation proceedings and civil actions. [Citation.] . . . [¶] Liability under the workers’ compensation law is founded in neither tort nor contract law. [Citation.] Instead, it is liability without fault [citations], to ensure that injured workers are quickly provided benefits to relieve the effects of the industrial injury [citation]. Thus, informal rules of pleading apply to such proceedings [citation], and workers may be represented by individuals other than attorneys [citation]. Also, all workers' compensation statutes are to be liberally construed in favor of the injured worker.” (Claxton v. Waters (2004) 34 Cal.th 367, 372-373.)
The city acknowledges that evidence of workers’ compensation proceedings is sometimes admissible in a subsequent civil action. It asserts, however, that because worker’s compensation liability is “no fault”, its acceptance of liability for plaintiff’s workers’ compensation claim was not an admission of liability as a matter of law. This argument requires closer analysis of the workers’ compensation provisions regarding stress-related or other psychiatric injuries. Under Labor Code section 3208.3, an employee seeking compensation for a psychiatric injury must “demonstrate by a preponderance of the evidence that actual events of employment were predominant as to all causes combined of the psychiatric injury.” In Verga v. Workers’ Comp. Appeals Bd. (2008) 159 Cal.App.4th 174, 184 (Verga), the court held that this section requires “the employee to establish ‘objective evidence of harassment, persecution or other basis for the alleged psychiatric injury.’ ” The court explained that “[p]rior to enactment of the statute, this court held in Albertson’s, Inc. v. Workers' Comp. Appeals Bd. (1982) 131 Cal.App.3d 308 . . . that an employee’s claim of a cumulative injury to her psyche ‘may be founded upon an honest misperception of job harassment which interacts with a preexisting psychiatric condition so as to cause job stress.’ [Citation.] Thus, an employee was entitled to workers’ compensation benefits if the employee suffered a psychiatric injury based on a subjective misperception that his or her employment was stressful. [Citation.] “All that [was] required [was] the employment be one of the contributing causes without which the injury would not have occurred. [Citation.]’ [Citation.] [¶] Section 3208.3, subdivision (b)(1) ‘was intended to overrule [Albertson’s ]’ [citation] by imposing ‘more stringent requirements for [psychological injuries] than the subjective standard set forth in [Albertson’s].’ ” (Verga, supra, at p. 786.) “The intent of the statute was ‘to establish a new and higher threshold of compensability for psychiatric injury’ [citation] so that such requests will ‘be evaluated strictly’ [citation] in order to ‘limit claims for psychiatric benefits due to their proliferation and their potential for fraud and abuse.’ ” (Id. at p. 185.)
In Verga, the plaintiff filed a workers’ compensation claim alleging that she had suffered an injury to her psyche as the result of abusive behavior by her supervisor. (Verga, supra, 159 Cal.App.4th at pp. 178-179.) Following an evidentiary hearing, the workers’ compensation judge denied her claim. The workers’ compensation judge and later the workers’ compensation appeal board [WCAB] concluded that Verga’s “false” and “unfounded” perception that she was harassed was not an “actual event of employment.” (Id. at p. 182.) They concluded that Verga “ ‘brought upon herself the disdain of her co-workers [and] [t]hat disdain is not an actual event of employment.’ ” (Ibid.) On appeal, Verga contended that it did “not matter whether the events of her employment occurred as she recalls or as found by the WCAB. Either way, . . . they were actual events of employment that caused her stress and resulting psychological injury. In her view, the WCAB improperly introduced an element of fault into the no-fault workers’ compensation system by finding that Verga cannot recover compensation because the workplace events that caused her psychological trauma were in response to her own bad behavior.” (Id. at p. 183.) The court rejected this argument, concluding that “the disdainful reactions of co-workers to Verga’s abusive conduct were neither ‘actual events of employment’ nor the ‘predominant cause’ of her psychological injuries.” (Id. at p. 189.)
Thus, when the city in this case admitted that plaintiff’s workers’ compensation claim was compensable, it was necessarily acknowledging that plaintiff had presented sufficient objective evidence of harassment and that the harassment was the predominate cause of her injury. The city’s acceptance of responsibility in the workers’ compensation proceedings is inconsistent with its argument at trial that plaintiff’s injuries were caused by her own inability to take criticism and a mistaken perception of harassment. The trial court did not err in allowing this evidence to be presented to the jury.
Had the city wished to settle plaintiff’s workers’ compensation claim and at the same time avoid making such an admission, the city could have drafted such an agreement. (Eskenazi, Cal. Civ. Prac. Workers’ Compensation (Oct. 2008) § 7:2 [“A compromise and release agreement is similar to a release in settlement of a personal injury action”].) Paragraph 9 of the standard form for compromise and release (Form 15) promulgated by the WCAB provides as follows “The parties wish to settle these matters to avoid the costs, hazards and delays of further litigation, and agree that a serious dispute exists as to . . . [¶] . . . [¶] injury AOE/COE” and other issues. No such release was executed when the city accepted liability for plaintiff’s workers’ compensation claim.
We need not decide whether plaintiff was correct that the city should have been estopped to deny causation in the civil action.
Kelly v. Trans Globe Travel Bureau, Inc. (1976) 60 Cal.App.3d 195, 202-203 (Kelly), relied on by the city, is not to the contrary. In that case the court recognized that an adjudication by the WCAB may be the basis for application of the doctrine of collateral estoppel. The court warned, however, “The adverse effect of the potential of collateral estoppel upon the economic balance of civil litigation is particularly undesirable in workers’ compensation proceedings. The policy of the workers’' compensation law is to secure the quick and, where possible, certain resolution of questions of coverage. Any doctrine which encourages delay in final resolution by the exercise of procedural and appellate steps is counter to the policy. The workers’ compensation law, in stark contrast to the system of other personal injury litigation, is one of simplified procedure to reduce the call of legal expense upon the societal fund available for compensation for injury so that the maximum possible portion of the fund is available to compensate loss rather than the cost of determining controversies. The possibility of collateral estoppel consequences of a workers’ compensation determination with its effect upon the economic balance of the controversy is counter to that policy also.” (Ibid.) Kelly did not, however, involve a claim of sexual harassment. The question of whether a plaintiff’s physical injury occurred in the scope of employment was not subject to the heightened requirements for compensability established by section 3208.3 and recognized in Verga. Moreover, Kelly considered only the issue of collateral estoppel, not, as in this case, whether the position taken by the employer in the workers’ compensation proceedings can be introduced as an admission in a subsequent civil action.
3. Other Evidentiary Objections
The city contends that the trial court erred in overruling its objections to testimony by two of plaintiff’s witnesses. First, it argues that the court should have struck certain testimony of Barry Shapiro, plaintiff’s workplace harassment expert. When asked whether he had formed an opinion “with regard to the city’s preparation of the work place for the introduction of the first female building inspector,” Shapiro answered, “My first conclusion is that management at the highest level in the building division failed to . . . anticipate and properly assess the extent and the pernicious effect of gender hostility and discrimination in the building division, especially among building inspectors towards a new building inspector.” He also stated, “Management at the highest levels in the building division failed to adequately prepare its supervisory and management personnel to recognize the many forms that gender prejudice takes [and] [w]hen gender prejudice becomes employment discrimination.” Finally, Shapiro opined that management “failed to meet their responsibilities at the highest levels when they didn’t prepare management and supervisory personnel on how to meet the city’s obligations and duties of care to protect employees from discrimination.” His opinion was based in part on Ehrenthal’s statements that “she never understood how one could prevent something like discrimination or harassment” and on the lack of training programs offered by the city. The city objected to Shapiro’s conclusions and moved to strike his testimony. The court ruled that the testimony was permissible because Shapiro was addressing the predicate issues of how an employer should prevent or respond to sexual harassment. The court made clear that Shapiro would not be allowed to testify to the ultimate issue of whether plaintiff was harassed or whether the city responded properly to her harassment claim, and he did not do so.
At oral argument, counsel for the city misstated the record. Shapiro never testified that other employees tortured plaintiff. Rather, speaking generally that “sometimes people didn’t make a distinction between sex harassment and sexual harassment,” Shapiro stated he did not “think they were aware of the fact that picking on, at the extreme, torturing a member of their work force on the basis of a protected category was harassment and discrimination.” In all events, the court sustained the city’s objection to the “torture part” of the answer and the city made no motion to strike the answer or request for a jury admonition. The city did move to strike the answer to the next question, which was: The city “failed to meet their responsibilities at the highest levels when they didn’t prepare management and supervisory personnel on how to meet the city’s obligations and duties of care to protect employees from discrimination.” At that point the jury was excused and the court engaged in an extended discussion with counsel concerning the proper limitations on the opinions that Shapiro could express. During the discussion, counsel for the city “agreed[d] that Mr. Shapiro could testify that based on what Ms. Ehrenthal said, she didn’t do anything to train people before Ms. Dufresne got there. And I think that, given his testimony about his training, is a proper opinion.” Following the court’s clarification about the proper limits of the testimony, no further motion to strike was directed to this testimony, nor was there any suggestion that Shapiro’s testimony did not remain within the court’s guidelines.
Under Evidence Code section 801, the testimony of an expert witness “in the form of an opinion is limited to such an opinion as is: [¶] (a) Related to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact; and [¶] (b) Based on matter (including his special knowledge, skill, experience, training, and education) perceived by or personally known to the witness or made known to him at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates, unless an expert is precluded by law from using such matter as a basis for his opinion.” In Kotla v. Regents of University of California (2004) 115 Cal.App.4th 283, 291, the court held that testimony by an expert witness that certain facts were “indicators” that an employee’s termination was retaliatory was inadmissible under Evidence Code section 801 because it would not assist the jury and would supplant the jury's role as fact finder. The court noted, however, that it was not fashioning a “general rule here precluding the use of human resources experts in employment cases. We are concerned solely with [the expert’s] testimony that the facts in evidence were indicators of or had a tendency to show retaliation. Expert testimony on predicate issues within the expertise of a human resources expert is clearly permissible. For example, evidence showing (or negating) that an employee's discharge was grossly disproportionate to punishments meted out to similarly situated employees, or that the employer significantly deviated from its ordinary personnel procedures in the aggrieved employee’s case, might well be relevant to support (or negate) an inference of retaliation. Opinion testimony on these subjects by a qualified expert on human resources management might well assist the jury in its factfinding.” (Id. at p. 294, fn. 6.) Shapiro’s testimony tended to show that the city’s sexual harassment training and preparation was insufficient. Unlike the situation in Kotla, the court precluded Shapiro from testifying that plaintiff actually suffered harassment in the workplace. The trial court did not abuse its discretion in permitting this testimony. (Id. at p. 291 [“A trial court’s decision to admit expert testimony ‘will not be disturbed on appeal unless a manifest abuse of discretion is shown’ ”].)
The city also contends that Ribera’s testimony that he found “a pattern of on-going, on-the-job harassment of [plaintiff] by some of her coworkers” and that “harsh corrective action should have been taken” were improper opinions by a lay witness and should have been excluded. However, the city did not object to this testimony. When the issue was raised prior to closing argument, the court clarified that because Ribera’s report was not admitted for the truth of its conclusions but to show that the city was on notice of the potential harassment, plaintiff could not argue that the jury could find liability based on Ribera’s conclusion, and plaintiff did not do so. Plaintiff was permitted to argue only that based on the conclusions in the report, the city should have looked further into the claims of harassment. We find no abuse of discretion in the trial court’s ruling.
Disposition
The judgment is affirmed. Plaintiff is to recover her costs on appeal.
We concur: McGuiness, P. J., Siggins, J