Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Appeal from a judgment of the Superior Court of Orange County, Corey S. Cramin, Judge, Super. Ct. No. 04CC02268
Law Offices of Steven R. Young, Jim P. Mahacek, Callahan & Blaine, Tae J. Im, James R. Rouse and Solange E. Ritchie for Defendants and Appellants Islamic Society of Orange County and Refat Abodia.
The Law Office of John Derrick and John Derrick for Defendant and Appellant Fazal Mirza.
Connor, Fletcher & Williams, Edmond M. Connor, Matthew J. Fletcher, Michael R. Williams, Douglas A. Hedenkamp and Keith A. Yeomans for Plaintiff and Respondent.
OPINION
SILLS, P. J.
Dr. Zakiyyah Muhammad sued the Islamic Society of Orange County (the ISOC) for unlawful discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964 arising out of the circumstances culminating in her termination as the principal of its Islamic school. She also sued the ISOC and one of its directors, Dr. Fazal Mirza, for fraud and intentional infliction of emotional distress; she sued the ISOC’s treasurer, Refat Abodia, for conspiracy to commit fraud. A jury found in favor of Muhammad on most of her claims; it also found all defendants acted with malice and awarded punitive damages. The defendants appeal, contending there is insufficient evidence to uphold the judgment and that it was infected by prejudicial expert testimony on cultural biases against women.
We find the evidence supports the judgment for unlawful retaliation against the ISOC and for fraud against ISOC and Mirza. Because we affirm on these grounds, we need not decide whether the evidence supports the judgment against the ISOC for unlawful discrimination or against the ISOC and Mirza for intentional infliction of emotional distress. (Roberts v. Ford Aerospace & Communications Corp. (1990) 224 Cal.App.3d 793, 799.) We find the evidence does not support the judgment for conspiracy to commit fraud against Abodia and reverse that portion of the judgment.
FACTS
The facts are taken from the evidence produced at trial, which lasted over 35 court days, and are presented in the light most favorable to the judgment. (Whiteley v. Philip Morris, Inc. (2004) 117 Cal.App.4th 635, 642, fn. 3.)
The ISOC is an organization of Muslims in Orange County who have agreed to practice their faith together. The ISOC operates a mosque and the Orange Crescent School (the School) on its campus in Garden Grove. Founded by the ISOC in 1983, the School provides an Islamic education to children in kindergarten through eighth grade.
The ISOC is governed by a seventeen-member board of directors called the Majlis-e-Shura (Majlis). The executive committee of the Majlis (Executive Committee) makes most of the decisions, subject to the approval of the larger board. The School is overseen by the School Board, whose members are appointed by the School Board president, subject to the approval of the Majlis. The School Board president is a member of the Majlis and sits on the Executive Committee. The president has the authority to hire and terminate employees of the School with the approval of the Executive Committee.
Dr. Zakiyyah Muhammad, an African-American woman, was born in Maryland in 1945. After college, where she earned a bachelor of science degree in education, she moved to New York. She converted to Islam and taught at the University of Islam from 1970 to 1975. In 1976, she became the principal of that school. The University of Islam ceased to exist and she became principal of the new Islamic school in New York, the Clara Muhammad School. Subsequently, she was hired as the director of education for all the Clara Muhammad Schools in the United States.
Muhammad received a master’s degree and a doctorate in education from Columbia University. In the mid-eighties, she moved to California, where she worked as a researcher, consultant, and writer in the field of Islamic education. She was invited to give the commencement address at the School in 1996, and afterwards several of the School’s officials approached her about becoming the principal. At that time, Muhammad “was not interested in being a principal again” and turned down the offer. She visited the School again two years later, however, and the offer was reiterated. This time, she reconsidered and decided “it may be a good idea.” School officials indicated they “were interested in the school functioning more appropriately in the American environment and better preparing the youngsters to participate in the American environment.” The School had a good reputation for providing a wholesome environment, “but it was not perceived as a quality school. It was lacking a lot of infrastructure, a lot of internal organizational rules, regs, and the quality of teachers was really a concern.” Another concern was “that the parents were really running the school . . . .”
Muhammad accepted the offer and was hired as the School’s principal in 1998. The School Board voted to hire her, but Muhammad found out later the vote was not unanimous. “[T]here were many members who were concerned and voted against me being the principal. They were concerned whether or not, as an African-American, if I could function in that environment because there were no African-American youngsters in the School.” Another board member told her he did not vote for her because “he didn’t think that the School was ready for an African-American.”
Muhammad was initially hired for a one-year term. At the end of that term, the School Board “said they were pleased with the work we were doing, the way the school was developing, and please come back.” She received a contract for a two-year term, through the 2000-2001 school year, then signed another two-year contract, through the 2002-2003 school year. During that five-year time period, Muhammad implemented changes in the School that led to accreditation from the Western Association of Schools and Colleges, raised the academic achievement of the students, focused on the professional development of the teachers, and received “a wall full of awards and plaques and commendations from the community, the parents, the Board, and students and teachers of Orange Crescent School.” Each year, Muhammad received a salary increase and a bonus based on the year’s achievements.
In May 2003, the School Board president, Rubina Chaudhary, asked Muhammad in private if she wanted to return as principal for the next term. Muhammad said yes, so Chaudhary proposed her return at a School Board meeting. All the members agreed, and Chaudhary made an offer to Muhammad on behalf of the Board for a two year contract. Muhammad accepted the offer at the meeting. Subsequently, her new salary of $65,000, representing an annual increase of $5,000, was written into the budget. In June, the board approved Muhammad’s bonus for the 2002-2003 school year after deciding she had met the qualifying goals: “I have to make certain that there’s harmony among the faculty, I have to make certain that the professional development of teachers is improving, and most importantly that the student achievement is still going up.”
In the meantime, Chaudhary, who was the first female School Board president, ran for a second term against Dr. Habib La Khan. The election was held at the meeting of the Majlis on June 15, 2003. The first vote was by a show of hands, which was the normal way of voting, and Chaudhary was leading. Then Javed Nawaz, who had just been elected as the vice-chairperson of the Majlis, suggested taking another vote by secret ballot. They did so, and the result was a tie. La Khan stepped aside to allow Chaudhary to become the School Board president for the coming year. At that point, “there was a very vocal demonstration by certain men at that meeting,” whom Chaudhary described as parents who had been critical of her during the year. Then, Dr. Fazal Mirza and another man approached her and asked her to “step aside for the good of the society.” After she was unable to convince the rest of the Majlis to break the tie, she stepped aside. Mirza was immediately nominated for the position of School Board president and was elected unopposed.
Mirza was born in India in 1935. He moved as a refugee to Pakistan in 1947 and lived there for 16 years. In 1963, he left Pakistan and worked as a doctor in the Middle East and Africa. He came to the United States in 1975 and became a citizen in 1981. He is a licensed psychiatrist. Mizra was one of the founding members of the ISOC.
Muhammad and Mizra met at a transitional meeting of the School Board. Shortly thereafter, a couple who were members of the ISOC invited both of them to breakfast so “the new president of the board and the principal [could] get off to a good start . . . .” Muhammad left the breakfast feeling “uncomfortable” and “awkward.” “We didn’t make eye contact, we didn’t really directly converse with each other in a very comfortable way.” Mirza began coming by the School each day and giving her assignments that kept her working late into the evening.
Mirza’s term as School Board president began on July 1, 2003, which was the day Muhammad’s four-week vacation was to begin. On that day, he demanded teacher evaluations from the previous year. Muhammad had formal evaluations only for six teachers who had been terminated, not for the entire staff. This was because she had not had a vice principal or secretary to help her with the time-consuming formal evaluation process during the preceding year. Muhammad told Mirza it would be difficult to provide the formal evaluations within 48 hours, as he demanded, because the teachers were required to participate in the process and they had left for the summer. She showed Mirza files she had for each teacher containing her notes and other information gathered from the daily reports throughout the year, but he insisted the evaluations be formal. Muhammad “told him that I would make an effort to get the evaluations done” despite the fact that she had many other tasks and appointments to complete before she could leave on vacation.
On July 2, Muhammad sent an email to Chaudhary, Mirza, and Refat Abodia, the School’s treasurer, detailing some unfinished business that she felt could not wait until August. In the email, Muhammad said, “If the [School] Board wants me to continue as Principal, I will need to negotiate a contract precipitated by the events that occurred at the end of the year and the upcoming Accreditation.” Muhammad testified she “was referring to the fact that Dr. Mirza was coming in, giving me assignments to do, I was staying there late in the evening. Also the fact that it was just a busy, busy time. Nobody ever would think that . . . she’s tired, she’s been here since . . . 7:00 in the morning, on the weekend, late at night. [¶] So I was really putting my foot down and saying enough is enough, and I would hope that someone would appreciate that I had boundaries also.” She knew she had already been given a two-year contract extension. “So it wasn’t that I didn’t think I was going to be the principal. I’m just simply saying, if you want me to continue, you really need to work with me and . . . give me what I need to effectively operate and respect my time.”
Later that day, Muhammad sent another email regarding additional unfinished business items and included two paragraphs about her contract: “Regarding my contract, at this point, if I am asked to return I see the need for a contractual commitment that I will have the human resources necessary (teachers and office staff) to appropriately administrate [the School]. I have been asking for help for 5 years and got nothing but excuses and I will not ever put myself in that position again. [¶] Additionally, there needs to be clarity with regards to my job description and time commitments. I have always acknowledged that the Principal’s work schedule is extensive, but we need to discuss time commitments and if they are excessive, reciprocity.” Muhammad testified she meant, “If you expect me to be the principal of the school, please consider that I can no longer function like this . . . . The school was running effectively because I was putting in the enormous amount of work, weekends, nights, but I was not prepared to do that anymore.”
Mirza came to Muhammad’s office on July 3 to get the evaluations, but she had not finished them. Mirza was “very upset, pointed his finger, very tense, said ‘You said you would have them ready and I want them.’” She finished the evaluations on the evening of the Fourth of July after working for more than 12 hours that day. Muhammad started her vacation on July 5. During her vacation, Mirza called her twice and asked her to prepare two additional reports, which she prepared without complaint. During the summer, Mirza appointed new members to the School Board, which resulted in an all-male board. Previously, the School Board had three females and two males.
Muhammad returned to the School at the beginning of August 2003 to prepare for the opening, assuming she was going to continue as the principal. She prepared a notebook for Mirza and Abodia, which included “the mission statement, the philosophy, the school roster to date. It wasn’t complete, but to date the teachers, their telephone extensions, the classrooms, how many students we had registered by that time, the total number of faculty and so forth, and the school calendar was included.” At a meeting of the three of them, Muhammad presented the notebook. “We discussed the school, I shared with them some of the immediate concerns of the school, I gave them preliminary information so they could see where we were. It had the school events that we were going to have for the year. [¶] And we began to talk about the school, where we were going to go.” After about an hour of discussion, Mirza stood up and said, “I am not impressed.” Surprised, Muhammad said “Excuse me?” Mirza “repeated the statement and looked at me in a very glaring way . . . . [¶] And I felt uncomfortable and felt he was talking to me personally, this person, not the book, not the work, nothing about the report. He said I’m not impressed, and I felt he was talking to me about me.” Abodia said nothing, and the meeting was concluded.
The teachers returned to the School on August 18 for a two-week orientation and preparation period before the opening on September 2. The teachers were scheduled to meet with Mirza and the Board on their first day back to sign their contracts. Shabnum Husain, who was functioning as a volunteer vice-principal in the Fall of 2003, explained, “The way the system works, the outgoing board gives a contract to the teachers and the principal [at the end of the school year], the whole school is put in place and then when the new board comes in, they sign those contracts. All they have to do is just sign those contracts. But the teacher contracts were not signed at that meeting. Instead, Mirza met with the teachers individually and questioned each one “about what they did every single minute . . . .” The teachers found this demoralizing because their contracts had not yet been signed. “The president, of course, has the right to want to know what they do, but they felt that his questioning was suggesting something else.”
During the month of August 2003, Mirza suggested to Husain “that if I became the principal of [the School], all the problems would be solved.” A few weeks later, near the end of August, Haitham Bundakji, a Majlis member, formally asked her to accept the position of principal. Husain declined because she “knew that I was not qualified to be a principal of such a big school, and I could not do what [Muhammad] had already done for the school, and I could not keep up the growth of the school with the same standards as [Muhammad] had done.”
As the orientation period continued, Mirza presented the strategic plan and goals for the School to the Executive Committee without discussing them with Muhammad. On August 20, Muhammad was asked to come in to an ongoing School Board meeting. In front of the Board, Mirza told her he had visited two public schools and “determined that teachers should have one, no more than two preparation periods per week.” Mirza told her “the teachers were going to teach 30 periods and that they had too many preparation periods.” This was not discussed with her beforehand, and she strongly disagreed. Mirza had given the board members the impression that the teachers at the School “were not working to full capacity.” The board members “grilled” her, “and I had to really try to calm myself and calm the board members and explain to them about preparation periods and instructional periods.” The board ultimately accepted her explanation and agreed that 30 periods were too much; it authorized 25 periods.
Muhammad was unable to talk to Mirza directly about her concerns over the preparation for the School opening because he treated her with disdain. “Dr. Mirza treated me as though I was invisible, as though I had no value. I had worked five years at the school, had built up capital with the accomplishments that we had made, the excellent status of the school. [¶] But with him, it was as though I just had no capital, I had no value, I was just at the bottom of the rung with him and he interacted with me and treated me that way with such disdain as though I just didn’t exist. [¶] His body language, his – he either didn’t make eye contact or he made searing eye contact, with his finger, it was just demoralizing the way that he would treat me.”
Instead, Muhammad spoke with Siddiqi about her concerns because “he was the religious director, he was of sound judgment, he knew me and my work at the school, he knows my character and he knows Dr. Mirza and I thought he was the appropriate person.” At Siddiqi’s suggestion, Muhammad sent him an email detailing her concerns. The email said that the events of the first week of teacher orientation had “left the faculty and myself exhausted and humiliated wondering what in the world is going on.” She complained that Mirza repeatedly pulled her out of orientation meetings, thereby undermining her goals for preparation. She also complained that the teachers expected to sign contracts when they returned on August 18, but they had not yet received them. “There are still doubts as to whether they will be hired and at what pay scale.” Muhammad was upset that Mirza “insinuated that I am responsible for a leisurely work environment where teachers do not work to capacity, have too much down time . . . ..”
Siddiqi showed the email to Mirza and the other Executive Committee members and set up a meeting with them and Muhammad on August 25. Mirza was offended by the email and was “hostile, . . . angry . . ., very upset.” The other men there said “perhaps I was being emotional, that perhaps my language was too strong . . . .” Although the “core issues” were not resolved, Siddiqi tried to “patch things up” and urged them to “move on” to open the School.
The next day, on August 26, Muhammad was again called into a School Board meeting and told, for the first time, that there was a deficit in the budget. The Board asked her to give the names of teachers that could be let go. “So I gave the names of some teachers even though they had been promised jobs and this was less than two weeks before school was to open . . . .” At the board’s direction, Muhammad spoke to those teachers that afternoon and “told them they didn’t have a job.” The fired teachers went to the other teachers and convinced them to “do something or you’re not going to have any either because whatever contracts we signed earlier are not going to be held up.” The teachers then demanded a meeting with the School Board.
At this meeting, on August 29, all the faculty, School Board members, and Muhammad crowded into Mirza’s office. Although the purpose of the meeting was to discuss the teachers’ contracts, Mirza raised the issue of petty cash. Speaking directly to Muhammad, he remarked that the proper levels of petty cash were not being maintained. Muhammad told him she was not responsible for petty cash, and “he just blew up. He tore into me and he pointed his finger at me. . . . [H]is face was contorted and he went after me . . . .” Mirza told her, “‘You’re responsible for everything in the school, you are the principal, you are incompetent, you know nothing, you are not doing your job.” Several teachers stood up and remonstrated with Mirza for being disrespectful and inappropriate; Muhammad left the room in tears.
Muhammad wrote a memo to the Executive Committee and the members of the Majlis detailing what had happened earlier that day and asking for a hearing before the entire Majlis. She made 17 copies of the memo; she handed one to Sheikh Najjar, the Majlis chairman, but he intercepted the others and did not distribute them.
The Executive Committee held an emergency meeting on August 31 to discuss Muhammad’s memo. They decided that Najjar, Siddiqi, Bundajki and Mirza should meet with Muhammad, “address the issues raised in her letter, and have her retract the entire letter.” The minutes reflect Mirza told the Committee that Muhammad had declined to sign her contract; he later admitted she did not receive a copy of her contract until September 2.
On September 2, two days before the School opened, Najjar, Siddiqi, and Mirza met with Muhammad. The men again told her she was being emotional and overreacting. “He’s a nice man, we know him, we’ve known him for 20 years.” Mirza admitted he said the things at the August 29 meeting “but did not say it was done as brutal as it was and that if he offended me, he did apologize . . . .” Muhammad asked Mirza to apologize in front of the faculty that she had to supervise and all of the board members [at the upcoming faculty meeting], “so that we can have some cohesion and some harmony as we go forward to get the school moving and he said he would agree to do that.”
As Muhammad left the meeting, Siddiqi handed Muhammad her contract and asked her to sign it. When she reviewed it later that day, she noticed the contract was different from her previous one: The term had been changed from two years to one, her salary was reduced from $65,000 to $60,000, and she was put on three months probation, during which time she could be terminated at any time without cause.
The School opened two days later, on September 4. When Muhammad told Siddiqi that her contract had been changed, he advised her to ask Mirza in writing to explain the changes. She did so in a memo dated September 9, but received no response. She also gave a memo to Mirza the day before the faculty meeting, scheduled for September 9, reminding him that he had promised to attend and apologize to her, but he did not attend. Also on September 9, Muhammad wrote and delivered a memo to the full Majlis requesting an open hearing. She made 17 copies of the memo; she handed one copy to Bundakji and the others to the ISOC secretary, asking her to distribute them to the other Majlis members.
On September 11, Siddiqi met with Mirza and told him that none of the changes to Muhammad’s contract were necessary and “we should just stick with the old contract.” Mirza replied that as the president of the School Board, he would decide what to do. However, he did not respond to any of Muhammad’s memos, nor did he speak to her about her contract.
The ISOC secretary called Muhammad on September 12 to tell her the request for a full hearing had been granted and she would get another call when the hearing was scheduled. On September 14, however, the Executive Committee met and discussed Muhammad’s situation. The minutes reflect that “Dr. Mirza shared certain communications addressed to the members of the ‘Executive Committee’ and members of the ‘Majlis E Shura’ of ISOC by Dr. Zakiyyah. Most attendees complained that they had not received some (or all) of the letters addressed to them.” After two hours of discussion, the Executive Committee unanimously passed a resolution: “In the best interest of [the School] and after obtaining legal advice, the . . . President may terminate contract negotiations with Dr. Zakiyyah Muhammad. The . . . President may seek help of any or all of Executive Members in this regard if he so chooses.” Mirza testified he did not propose the resolution, but he could not remember who did. He admitted there were no actual negotiations going on because he had never responded to Muhammad’s requests to discuss certain terms in the contract. He also admitted the School Board had not authorized him to terminate contract negotiations. “The authority to terminate is with the executive committee of the society, and they agreed school board has no authority to terminate or hire.”
Fareed Farukhi, an Executive Committee member who was present on September 14, testified he voted to terminate Muhammad because Mirza said he had tried to negotiate the contract with her and it hadn’t worked out. He was also under the impression that “Mirza and his full board had voted to let her go before that.” His decision to let her go was based on Mirza’s recommendation. Farukhi also testified Mirza “may have mentioned something to [the] effect” that he “did not like the way [Muhammad] was standing up to him and questioning his authority.”
When Siddiqi heard at noon prayer that day that the Executive Committee was thinking about terminating Muhammad, he told Najjar she should get a hearing and that Mirza should write down his complaints about her and give her an opportunity to respond. Najjar assured him everything would be done properly and that “nothing would happen until they met with [him].” Siddiqi found out later that the Executive Committee had already made its decision to terminate Muhammad without a hearing.
On September 16, Mirza and Abodia came to Muhammad’s office and gave her a letter, which said, “The Orange Crescent School has decided not to enter into a contract with you.” Muhammad was “stunned” and said, “Excuse me? What is this?” Mirza replied, “You see what this is. You are finished.” When she protested, he told her to “pack your things and leave immediately.” Muhammad continued to protest, and Mirza said, “If you don’t leave immediately, I’ll call someone to help you leave.” Muhammad took that as a threat to call the police. Mirza immediately made a telephone call and said, “She’s not leaving. Should I call someone?” He then made another call and spoke in Urdu, a Pakistani language. Muhammad sat down at her desk, and Mirza and the others sat at a table. Muhammad testified, “I was just sitting there waiting for the police to come and take me out.” After awhile, Mirza and Abodia left. Then the custodian came in and told her he had to get her keys to the School. She gave him the keys. He then offered to move her car closer to her office so she could put her things in the car.
Fifteen minutes later, Mirza came back with Nawaz and Farukhi. Farukhi said, “I’m really sorry that this happened. You know we like you, we appreciate you, we love you very much, but the chemistry between you and Dr. Mirza just didn’t work.” Nawaz said, “No, no, no, don’t discuss the chemistry.” They left and teachers came asking what had happened. Siddiqi came in and expressed his shock and dismay. Muhammad then “just packed up my five years and just put them in the car. [¶] The custodian came back and helped me put my plants and books and things in the car and I went and I left.”
The next day, the School Board met, and Mirza told them for the first time about Muhammad’s termination. The minutes reflect: “All effort was made to bring Dr. Zakiyyah to cooperate with the new Board, but she insisted that Dr. Mirza should [a]pologize [to] her in[]front Of the Teachers, Faculty[,] staff, and the Board. Last Sunday she wrote Another letter to Dr. Siddiqui and the Shura Comm[un]ity asking for more Discussion.”
Some people in the ISOC, Siddiqi among them, wanted the Majlis to overrule the Executive Committee, reinstate Muhammad, and apologize to her. Siddiqi suggested arbitration to both Muhammad and the ISOC on September 19. Muhammad felt like that would be the right thing to do, but “emotionally I just needed a minute. And I said, ‘Fine, but I’ll have to get back to you’ or something to that effect.” The ISOC, however, refused to arbitrate.
The Majlis met on September 21. Mirza and Abodia presented “Eight Steps for Not Entreing a Contract with the Principle.” [sic] The reasons were (1) “stands in the way of Attaining our common goal of Education,” (2) “mishandle[s] the power of authority,” (3) “creates Financial Burdens upon [the School Board],” (4) “provide[s] untrue information to the [School Board] & Dr. Siddiqi,” (5) “Job Performance,” (6) “Unprofessional Demeanor with Parents,” (7) “Discrimination among teachers,” and (8) “Education programs ‘Blue Ribbon’.” At the bottom of the page was an “ayat,” a quote from the Qur’an, invoking the curse of Allah on anyone who lies. Chaudhary agreed that “the purpose of this ayat [was] to say, let’s get together, put everything out on the table, gather together, and anybody who lies will be cursed by Allah.” Chaudhary believed that none of the eight points were true, and none of them were presented before Muhammad was terminated. Mirza told the group that blue ribbon schools were for lower echelon, inner city, lower performing schools. Chaudhary stood up and corrected Mirza, explaining that the blue ribbon program is a designation for a high-performing, top-notch school. There are no minutes from this meeting in the record.
After the September 21 meeting, the three female members of the Majlis and two of the male members wrote a letter asking for a meeting to discuss Muhammad’s termination. The letter pointed out that the Executive Committee was accountable to the Majlis; Chaudhary testified the Executive Committee would not discuss Muhammad’s termination because “they felt that it was within the rights of the executive committee to make that decision.” The Executive Committee responded to the letter by saying they were confident they were “conducting the affairs of our Majlis and School in accordance with the laws of Islam, the local and Federal laws of our country as well as in accordance with the By Laws of ISOC.” They asked the concerned members to avoid talking to Muhammad.
The concerned members themselves scheduled a meeting of the Majlis for October 19 to discuss Muhammad’s termination. At the meeting, it came out that Muhammad’s request for a hearing in front of the Majlis was never received by the members. They asked the Executive Committee to investigate why this was so. At the next meeting a week later, the group was told that Najjar had directed the secretary not to distribute the copies but to hold on to them until the next meeting. Muhammad was terminated before the next meeting was held. Also at the October 19 meeting, a special committee was formed to resolve the problem with Muhammad.
The Majlis met again on November 9. The special committee presented a proposal to seek a peaceful resolution of Muhammad’s claims against the ISOC. The proposal was to offer Muhammad to return to her previous position as principal, with an employment agreement consistent with her old contract, i.e., a two-year term and no probationary period; change her supervisor from the School Board and its president (Mirza) to the special committee and its chairman; give Muhammad a lump sum of $5,000, to be raised privately from ISOC members and parents in exchange for a release of all claims; identify Mirza’s concerns about Muhammad’s performance so the special committee and Muhammad can address these concerns.
The Executive Committee considered the proposal and met on November 13. Nawaz proposed changes, which were to reduce Muhammad’s term to one year and require her to be supervised by Mirza and the School Board as set forth in the ISOC bylaws and the School handbook. The Executive Committee agreed to the revised proposal, with the exception of Mirza. The proposal was faxed to the ISOC’s attorney that night.
The next day, the Executive Committee convened again because Najjar had received letters from the Department of Fair Employment and Housing (DFEH) addressed to the ISOC officers, School Board officers, and some individual names regarding Muhammad’s complaints. Nawaz had told their attorney to “hold on to the proposal” after he learned about the DFEH letters. They placed a conference call to their attorney, who told them there was “no harm in pursuing the proposal.” They decided to wait, however, because Nawaz felt it was not fair to proceed without consulting the individuals who received the DFEH letters.
The Majlis met again on November 23. Farukhi presented a different proposal: to offer Muhammad a new position of Director of Education for curriculum development and teacher training, reporting directly to the Executive Committee. The proposal was for a one-year contract, no day-to-day responsibility for the School, and a salary of $60,000 per year plus medical insurance. The proposal was voted down. The Majlis then discussed the proposal that the Executive Committee adopted and faxed to the ISOC attorney on November 13. Bundakji commented that Muhammad “may be hard on some teachers, when she comes back.” Ismail Majoo commented “she could be a controlling figure when returned.” Among other things, Nawaz worried that “male members [would not] feel comfortable to participate in future OCS School Boards and Boards of Education.”
The Majlis voted on the proposal, and it was approved by ten members. The Executive Committee members who had previously voted for the proposal (all but Mirza) either voted against it or abstained. Both Farukhi and Nawaz indicated they changed their support because Muhammad filed the DFEH charges. The proposal was never transmitted to Muhammad’s attorney, however, because it did not pass by 12 votes as required by the ISOC bylaws. On November 30, the Majlis voted to offer Muhammad the Director of Education position. Muhammad rejected the proposal because it was a figurehead position with no day-to-day responsibility for the School.
On January 1, 2004, Mirza called an Executive Committee meeting. He recommended that the principal’s job be offered to Nehad Ahmed, a “light-skinned” woman who had been working half-time as the School’s vice-principal. The Committee agreed, and Mirza offered Ahmed a two-year contract at $50,000 per year with a 12-month severance package if her contract was prematurely terminated. Such a severance package had never been offered before, and Ahmed did not request it. Neither did she request a two-year contract.
Muhammad filed her complaint in the Orange County Superior Court on January 20. The Executive Committee met on January 25 to discuss the lawsuit; Najjar, Mirza, Faruhki, and Chaudhary were present. The Majlis met immediately thereafter. Although Chaudhary prepared minutes of both meetings and placed them in the official minute book, these minutes were not there when the book was produced during discovery. Chaudhary produced her copy of the minutes and her handwritten notes on the witness stand.
Chaudhary’s minutes reflect that during the Executive Committee meeting, they discussed the “need to plan what to do now.” One of the three men commented, “Our job is to protect the society regardless of who is wrong.” Chaudhary’s handwritten notes taken during the Majlis meeting reflected that Farukhi said “It is now what is in the best interest of ISOC.” Later on, Wahab said, “Why are you now asking all to lie now – after months of discussion – 5 members made decisions – now ask all to be quiet.” These comments were left out of the official minutes.
Muhammad’s complaint alleged causes of action for: (1) unlawful discrimination based on race under 42 U.S.C. section 1981 against the Society and the School; (2) unlawful discrimination based on race, gender, and retaliation under 42 U.S.C. section 2000e et seq. (Title VII) against the Society and the School; (3) intentional infliction of emotional distress against the Society, the School and Mirza; (4) fraudulent concealment of the intent to dishonor the promise of a two-year contract with salary increase and bonus against the Society, the School and Mirza; (5) conspiracy to defraud against the Society, the School, Mirza and Abodia; and (6) negligence in failing to investigate and take action in response to her complaints about the treatment she received against the Society and the School.
The case was tried before a jury. After deliberating but before it delivered its verdict, the jury sent the court a note signed by the foreman: “We, the jury, feel it is important for all parties involved in this litigation to know, and understand, that we do not consider Islam to be on trial. We have been given the duty and responsibility of reaching a verdict through earnest deliberation upon completion of the evidence. However, both sides in this matter have also evidenced a sincere commitment to faith and the education of children – both honorable and very American. It is a great burden you have given us, which was yours to give and became ours to carry. We have been empowered to deliver a verdict, but we are powerless to deliver peace and understanding. You must seek that elsewhere.”
The jury found in favor of Muhammad and against the Society on her Title VII claim “for discrimination on the basis of race, color, national origin, gender, or sex.” It found in favor of Muhammad and against the Society on her Title VII claim for retaliation. It found in favor of Muhammad and against the Society and Mirza for fraudulent concealment. It found in favor of Muhammad and against Abodia for conspiracy to commit fraudulent concealment. In found in favor of Muhammad and against the Society and Mirza for intentional infliction of emotional distress. It found in favor of Muhammad and against the Society for negligence. On the racial discrimination claim under 42 U.S.C. section 1981, the jury found in favor of the Society and against Muhammad.
Muhammad was awarded damages as follows: lost earnings of $150,000; lost earning capacity of $280,000; medical expenses of $38,000; past and future pain and suffering and emotional distress of $190,000. It found all parties acted with malice and awarded punitive damages of $65,000 against the ISOC, $60,000 against Mirza, and $5,000 against Abodia. The court awarded Muhammad attorney fees of $1,545,688.70, expert fees of $87,981, and costs in the amount of $99,406.69.
DISCUSSION
Title VII
Title VII of the Civil Rights Act of 1964 (referred to as “the Act” or “Title VII”) prohibits an employer from discriminating against an employee on the basis of his or her race, color, religion, sex, or national origin. (42 U.S.C. § 2000e-2, subd. (a)(1).) “[A]n unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice.” (42 U.S.C. § 2000e-2, subd. (m).) The Act also provides: “It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment . . . because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.” (42 U.S.C. § 2000e-3, subd. (a).)
The jury found the ISOC violated both the discrimination and retaliation provisions of the Act. The ISOC contends the judgment must be reversed on both grounds because it is not an “employer” under the Act. We disagree.
The Act defines an employer as follows: “The term ‘employer’ means a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year . . . .” (42 U.S.C. § 2000e(b).) “The term ‘industry affecting commerce’ means any activity, business, or industry in commerce or in which a labor dispute would hinder or obstruct commerce or the free flow of commerce . . . .” (42 U.S.C. § 2000e(h).) “Commerce” is defined as “trade, traffic, commerce, transportation, transmission, or communication among the several States; or between a State and any place outside thereof; . . . or between points in the same State but through a point outside thereof.” (42 U.S.C. § 2000e(h).)
In the context of Title VII cases, the “jurisdictional obstacle” posed by the definition of an industry affecting commerce is not very formidable. (E.E.O.C. v. Ratliff (9th Cir. 1990) 906 F.2d 1314, 1316.) “If the defendant uses items that have moved through interstate commerce at some point in their lives, [citation] or serves persons from out of state, [citation] or engages in activity that, even if purely local, would alter the relationships of an interstate market, [citation] the ‘affects commerce’ requirement is satisfied.” (Ibid.)
The ISOC argues Muhammad had the burden to establish Title VII jurisdiction at trial and failed because she introduced no evidence to show that the ISOC is an industry affecting commerce. But Muhammad’s burden arose only if the ISOC challenged Title VII jurisdiction at trial. (E.E.O.C. v. Ratliff, supra, 906 F.2d at p. 1317.) The ISOC did not. Had it done so, it is likely Muhammad could have met her burden. “[I]t is [rare] for the ‘affects commerce’ requirement to pose a bar to suit. As one treatise notes, ‘it is difficult to imagine any activity, business or industry employing 15 or more employees that would not in some degree affect commerce among the states.’ A. Larson & L.K. Larson, Employment Discrimination § 5.31, at 2-40 (1987).” (E.E.O.C. v. Ratliff, supra, 906 F.2d at p. 1317.)
The ISOC contends Title VII exempts religious organizations from its reach: “This subchapter shall not apply to . . . a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities.” (42 U.S.C. § 2000e-1(a).) But the statutory exemption does not exempt religious institutions from liability for all discrimination, just discrimination based on religion. “[The provision] merely indicates that such institutions may choose to employ members of their own religion without fear of being charged with religious discrimination.” (Boyd v. Harding Academy of Memphis (6th Cir. 1996) 88 F.3d 410, 413; Kelly v. Methodist Hospital of Southern Cal. (2000) 22 Cal.4th 1108, 1119-1120.)
The ISOC next argues it is exempt from Title VII because of “an ‘ecclesiastical’ or ‘ministerial’ exception, developed by case law, which precludes the application of Title VII to the employment relationship between certain individuals and religious institutions.” (Miller v. Bay View United Methodist Church, Inc. (E.D. Wisc. 2001) 141 F.Supp.2d 1174, 1180.) The basis of the ministerial exception is the idea that the legislation should not govern the relationship between a church and its ministers or those with functionally equivalent duties. “The test . . . is whether the employee’s duties ‘“‘go to the heart of the church’s function in the manner of a minister or a seminary teacher.’”’ [Citation.] In order to be considered ‘“clergy,”’ an employee’s primary duties must ‘“‘“consist of teaching, spreading the faith, church governance, supervision of a religious order, or supervision or participation in a religious ritual and worship . . . .”’”’ [Citation.]” (Hope Internat. University v. Superior Court (2004) 119 Cal.App.4th 719, 734.)
The applicability of the ministerial exception in the educational context is dependent on the specific employee’s duties, which is an inherently factual determination. The ISOC did not raise this argument in the trial court, so whether Muhammad’s duties were primarily religious or secular was not litigated. It is too late for the ISOC to raise the argument now. (Bardis v. Oates (2006) 119 Cal.App.4th 1, 13, fn. 6.)
Retaliation
The ISOC contends the judgment for retaliation under Title VII cannot stand. While it concedes Muhammad engaged in a protected activity when she filed the DFEH claim (Strother v. So. Cal. Permanente Medical Group (9th Cir. 1996) 79 F.3d 859, 868), it argues the ISOC did nothing that could be construed as a retaliatory act after the filing. We disagree. The evidence supports the jury’s conclusion that Muhammad suffered adverse employment action when the ISOC decided not to extend her the previously approved settlement offer to reinstate her as principal.
The primary objective of Title VII is to prevent employers from discriminating against employees because of their “race, color, religion, sex, or national origin.” (42 U.S.C. § 2000e-2(a).) “The anti-retaliation provision seeks to secure that primary objective by preventing an employer from interfering (through retaliation) with an employee’s efforts to secure or advance enforcement of the Act’s basic guarantees.” (Burlington Northern & Santa Fe Ry. Co. v. White (2006) 548 U.S. ___ [126 S.Ct. 2405, 2412].)
In order to establish a retaliation claim, a plaintiff must prove a prima facie case, which requires her to show: “1) that she was engaging in a protected activity, 2) that she suffered an adverse employment decision, and 3) that there was a causal link between the protected activity and the adverse employment decision.” (Ruggles v. Cal. Polytechnic State Univ. (9th Cir. 1986) 797 F.2d 782, 785.) Muhammad has carried her burden on all three elements.
The anti-retaliatory provisions of Title VII apply equally to current and former employees. “[Former employees] are by no means beyond the reach of employers who wish to stifle their complaints. . . . A narrow construction of the term ‘employee’ would . . . permit the employer to penalize a complaining former employee with impunity yet bar the employer from taking adverse action against any current employee who has filed a charge, even if the complaints address the same type of discrimination.” (Verprinsky v. Fluor Daniel, Inc. (7th Cir. 1996) 87 F.3d 881, 890; see also Robinson v. Shell Oil Co. (1997) 519 U.S. 337 [117 S.Ct. 843].)
Posttermination retaliatory acts can include acts that the employer had “every right to take.” “Title VII is designed to protect employees from employer actions that but for Title VII would not be illegal. To limit Title VII to employer actions that are already sanctionable would obviate the need to have Title VII in the first place.” (Shafer v. Dallas County Hospital Dist. (N.D. Tex. 1997) 1997 WL 667933, slip p. 4, fn. 8.) Thus, the act of filing a lawsuit or withdrawing a settlement offer, both perfectly legal, can be a violation of Title VII if “undertaken with retaliatory intent.” (Id. at p. 5.)
The ISOC, through its Executive Committee, approved a settlement proposal to Muhammad on November 13, 2007. The proposal included Muhammad’s reinstatement as principal under a one-year contract with no probationary period, and a $5,000 payment in exchange for a release of claims. The proposal was faxed to the ISOC attorney that day. The next day, the Executive Committee discovered that Muhammad had filed a DFEH claim, and the ISOC president told its attorney not to send the proposal. Subsequently, the Executive Committee members withdrew their support for the reinstatement proposal; two of them testified they did so because Muhammad had filed the DFEH claim. Others were unable to identify a reason for changing their votes. This evidence is sufficient to support an inference, which the jury apparently drew, that the motivation for withholding the reinstatement proposal was Muhammad’s act of filing the DFEH claim.
The ISOC contends its decision to offer Muhammad the Director of Education position instead of reinstatement as the principal was not retaliatory but was a “reasonable defensive measure,” citing U.S. v. New York City Transit Authority (2d Cir. 1996) 97 F.3d 672. In New York City Transit Authority, the United States Equal Employment Opportunity Commission (the EEOC) challenged the policy of the New York City Transit Authority that assigned employee discrimination complaints to its legal department if the complaint was “the subject of (1) litigation against the Transit Authority or (2) a charge filed with a city, state, or federal anti-discrimination agency.” (Id. at p. 674.) Employee discrimination complaints that did not fall into the above categories were assigned to the Transit Authority’s Equal Employment Opportunity Division and handled “through informal settlement and mediation proceedings.” (Ibid.) The EEOC claimed the policy amounted to retaliation “‘because it deprived employees, who exercised their rights under Title VII, of an opportunity that was available to other employees,’” i.e., having their complaints processed through the “‘internal complaint procedure.’” (Id. at p. 677.)
The court found the Transit Authority’s “decision about how to handle claims lodged against it as an employer” was simply a choice of defensive measures available to it. (U.S. v. New York City Transit Authority, supra, 97 F.3d at p. 678.) “[A]n employer may retain legal counsel to deal with discrimination claims and take other steps reasonably designed to prepare for and assist in the defense. An employer has latitude in deciding how to handle and respond to discrimination claims, notwithstanding the fact that different strategies and approaches in different cases and classes of cases will result in differences in treatment. Reasonable defensive measures do not violate the anti-retaliation provision of Title VII, even though such steps are adverse to the charging employee and result in differential treatment.” (Id. at p. 677.)
It is difficult to understand how the ISOC could have reached the conclusion that withholding the first proposal and substituting a less desirable one would assist it in its defense against Muhammad’s discrimination claim. The “reasonable defensive measures” rule will only protect employer actions which are legitimately, reasonably designed to do so. The record contains statements by various members of the Executive Committee indicating that they withdrew their support for the reinstatement proposal solely because of the DFEH claim. The jury could easily have found that the reinstatement proposal was withheld in reaction to Muhammad’s DFEH filing and was meant to punish her for taking that step, which constitutes a clear violation of Title VII’s anti-retaliation provision.
The ISOC’s final attack on the jury’s finding of retaliation under Title VII is that Muhammad failed to prove resultant damage. The ISOC points out that Muhammad and her experts testified she suffered from a major depression disorder because of her termination and was unemployable as a principal. Thus, the ISOC reasons, had it extended the reinstatement proposal to her, she would not have been able to accept it.
The testimony was that Muhammad was depressed, embarrassed and angry because she felt she had been unjustly cut off from the community of the School where she had been for five years. A great deal of her sense of worth and self-esteem was tied up in her work; additionally, the manner in which she was terminated and the subsequent lawsuit caused her to be estranged from the Muslim community, thus depriving her of a significant source of emotional support. These circumstances and resultant feelings caused Muhammad to suffer depression which impaired her ability to function. It strains credulity for the ISOC to argue that Muhammad’s condition, which it caused, should serve as justification for its retaliatory act. Had Muhammad been reinstated as principal, many of the stressors causing her condition would have been removed, and her condition would likely have improved.
Cultural Testimony
To support her claim of discrimination under Title VII, Muhammad called Riffat Hassan, who was qualified as an expert witness on Muslim cultural beliefs and attitudes. The ISOC characterizes Hassan’s testimony as “cultural stereotyping” and argues it is irrelevant, prejudicial, and violative of its rights to due process and equal protection.
Hassan testified there is a “very strong patriarchal bias” in the interpretation and teachings of the Qur’an, and “according to patriarchal assumptions it is regarded as self-evident that women are inferior to men and men are superior to women. I have observed it [in] every single Muslim society that I have read about or researched on or been associated with.” She testified that the “overwhelming majority of people are patriarchal in their thinking.”
She described the process of “Islamization,” as one that started “shortly after the Iranian revolution of ’79 and traveled to many countries, Pakistan, Malaysia, Sudan, Algeria, and other [Muslim] countries as well. It ended up in its most extreme form in Afghanistan under the Taliban.” This process resulted in laws designed to erode human rights, especially of women: “[T]ake women out of public space, women should not have the right to be educated, and so on . . . . So that’s the first. [¶] The second is imposition of punishment on people. And again the primary target is women.” Hassan acknowledged that Islamization laws are not promulgated in the United States, but she testified that “Muslim communities, many of whose members are immigrants, tend to exhibit and have the same attitudes that you find in Muslim countries.”
Hassan explained that “westernization is equated in Muslim minds first and foremost with the colonialization of Muslim countries by Western countries; and secondly, it is associated in Muslim minds with the influx of modern Western culture into Muslim societies.” An “average Muslim” equates “westernization” with “an emancipated Muslim woman. . . . [¶] . . . [A]nything that is seen as westernized is regarded with suspicion and with dislike.”
Hassan testified that Muslim societies are very traditional, and traditional societies tend to divide public space, which belongs to men, from private space, i.e., the home, which belongs to women. “The presence of a woman in public space is . . . something that fundamentally . . . jeopardizes the Islamic order of things . . . . [¶] . . . [W]hen [a woman] comes out into public space, she should then behave to make herself as inconspicuous as possible not only in terms of how she dresses, but how she conducts herself. She should be obedient, subservient, submissive. When she walks, her footsteps should not be heard, she should not speak in a loud voice. All of these things are part of this mindset.”
Hassan testified the view of gender equality in Islam is influenced by a particular verse of the Qur’an, which says “men are appointed or men are . . . ‘qawwamun’ with regards to women. And the discussion is, what does this word mean? There’s books written on this word. . . . [I]t’s translated all the way from men are rulers over women, or men are in charge of women, or men are managers of women, all the way to . . . men are bread winners or men are supposed to give women economic support . . . . [¶] . . . [T]he moment the issue of gender equality is raised in any Muslim discourse, doesn’t matter whether it’s in Pakistan or it’s in the United States, immediately mainstream Muslims are going to say no, no, no, men cannot be equal to women because. And the first verse they cite is this one . . . .” Other reasons against gender equality found in the Qur’an are that women are less than men in prayer because they cannot pray during menstruation, women are deficient in reason, and “when righteous men die, they will be rewarded by these beautiful women in paradise; no such luck for Muslim women and so on. There are nine points actually that are cited immediately to say that no, gender equality is not possible in Islam.”
Hassan testified that South Asian Muslims, i.e., Indians and Pakistanis, are influenced by the Hindu caste system. “If somebody is outside of the caste system . . . then they are outcasts . . . .” The caste system has “something to do with color,” so lighter skinned people are regarded more highly than darker skinned people. Also in the South Asian culture is the importance of preserving male honor. “[I]f a woman is seen as behaving inappropriately, particularly in a sexual context, this is supposed to . . . jeopardize and compromise the honor of men. In that sense honor belongs only to men and not to women. . . . [¶] Therefore, the behavior of women, particularly in a sexual context, is very carefully watched and monitored because the honor of men is irreplaceable and it’s worth more than the lives of women. And this is of course the whole thing behind why women are killed to preserve male honor.”
Hassan testified that Pakistan “remains very highly feudal,” which results in a mindset that people use power to oppress those less powerful than they. Like a servant, a woman does not have the right to retaliate against a male yelling at her, nor does she have the right to ask for an apology from him. “If you’re a good woman, you suffer and you remain silent.” In Muslim culture generally, older persons are given special deference. “[A]n elder is an elder, so it doesn’t matter if the elder is demented or the elder is . . . totally out of line or totally wrong. But just because the elder is an elder, on account of that . . . you do not speak out against the elder.”
On cross-examination, Hassan agreed that “general cultural attitudes don’t apply to each and every person that comes from that region,” but she believes that most Pakistanis believe that women are inferior to men. She explained that “all the five major religions of the world developed in patriarchal cultures,” but have gone through different historical processes so that many adherents have transcended the patriarchalism. But she opined, “[I]f you compare, say, Muslims in general with Christians in general and Jews in general, that . . . Muslim communities in general are far more patriarchal today than the Jewish communities and the Christian communities are.”
Hassan testified she had never met Mirza. Although she remembered some facts about his background, she explained, “I’m here as a cultural expert, Mr. Potter, not an expert on Dr. Mirza’s life and chronology of events.” She acknowledged she had testified that “Pakistani belief is that the son is a blessing and a daughter is a curse,” but she explained, “I was talking about general mainstream attitudes.” When Mr. Potter asked Hassan if she knew whether “Dr. Mirza looked at his daughter and said it was a curse when she was born,” Hassan replied: “Mr. Potter, let me explain something. I’m talking about cultural attitudes. . . . The cultural attitudes of course have to be qualified with regards to a person’s education, a person’s background, and a lot of other things. . . . [T]here are certain attitudes in every society that are unarticulated. [¶] It’s not the case that every time a female child is born people get up, the father or the uncle gets up and says, you know, this is terrible. But there’s a certain attitude that when a son is born, it’s considered to be a much more joyous event than when a daughter is born. So I was commenting on the general cultural attitude, and I was not talking about Dr. Mirza or his family or his relationship with his daughters.”
Similarly, when Potter pointed out that Mirza was not in Pakistan in 1979 when the Islamization laws were passed, Hassan replied, “I wasn’t attributing Islamization laws to Dr. Mirza. I said they were enacted by General Ziaulhaq.” She continued, “I was talking about a phenomenon that started in the 70’s which has had very strong impact on Muslims worldwide. And again I wasn’t talking about Dr. Mirza specifically, because I do not know Dr. Mirza and I do not know what his attitudes are, but I was making a general statement because I’m here to testify on cultural matters. [¶] And based on my research and my reading and my lived experience, I’m testifying to the best of my knowledge about what is my best judgment on these matters. So . . . it’s irrelevant to me whether he was there or he was not there.”
On redirect examination, Hassan testified she has seen many examples of men bonding together and exhibiting autocratic and authoritarian behavior towards women in Muslim communities in the United States. “Particularly I think with regards to women where people from different ethnic origins who in a sense otherwise would remain separate, like Arabs separate from the South Asians, or the Pakistanis separate from the Indians, etcetera.”
During closing argument, Muhammad’s counsel posed questions to the jury: “What’s driving them? What’s driving them are these feelings of honor and loyalty. And this woman, how dare she ask for [a hearing] because women don’t do this, they don’t speak up, they don’t criticize, they don’t have rights, they are not allowed to go in front of the Majlis and they sure as heck don’t deserve an apology for what I did to her. [¶] . . . [¶] Was this a big surprise that this woman was treated this way by the Muslim men? Was it a big surprise to you? Do you think we told you something you didn’t maybe already know . . . [?]”
Expert testimony is properly admitted on cultural issues if it is relevant and not unfairly prejudicial. (Dang Vang v. Vang Xiong X. Toyed (9th Cir. 1991) 944 F.2d 476, 481.) The defendants argue Hassan’s testimony was irrelevant because it has no probative value. We disagree. A Title VII claim can be based on a showing that an adverse employment decision was based on gender stereotyping. (Price Waterhouse v. Hopkins (1989) 490 U.S. 228 [109 S.Ct. 1775].) Evidence of gender stereotyping can be presented in the form of expert testimony. (Id. at pp. 255-256.) Relevant evidence is that which has “any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Evid. Code, § 210.) Hassan’s testimony met this test.
The defendants next argue Hassan’s testimony was more prejudicial than probative and should have been excluded on that ground. Evidence Code section 352 provides, “The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” The trial court is given broad control over the admissibility of evidence, and we review its rulings in that regard only for an abuse of discretion. (Dart Industries, Inc. v. Commercial Union Ins. Co. (2002) 28 Cal.4th 1059, 1078.)
Cases have allowed expert testimony on cultural issues if the expert is well-qualified and unless it “appeal[s] to bias, guilt by association and even xenophobia.” (Jinro Am., Inc. v. Secure Invs., Inc. (9th Cir. 2001) 266 F.3d 993, 1008.) In Dang Vang v. Vang Xiong X. Toyed, supra, 944 F.2d 476, the plaintiffs were female Hmong refugees from Laos who claimed they were both raped by Xiong, an employee of the Washington State Employment Security office. Both plaintiffs acceded to Xiong’s demands to accompany him to a motel, and one plaintiff maintained contact with him while he continued to rape her on multiple occasions. Eventually, the plaintiffs each revealed the rapes to her husband, and both filed actions under 42 U.S.C. § 1983.
The trial court allowed the testimony of an epidemiologist, who “explained that Hmong women are generally submissive, and are raised to respect and obey men. He described the role of Hmong women in marriage; their attitudes towards sex, discussion of sex, and extramarital affairs. Most significantly, [the expert] explained that upon fleeing from Laos, Hmong refugees were reliant on government officials for their needs and would not survive in the United States without government assistance. Because of this reliance on government assistance, the Hmong have developed an awe of persons in government positions.” (Dang Vang v. Vang Xiong X. Toyed, supra, 944 F.2d at p. 481.) The expert was not allowed to express his opinion on the specifics of the case, “such as whether there was a rape or why these particular plaintiffs did not report the rape.” (Ibid.)
The appellate court found the trial court did not abuse its discretion in admitting the testimony because it was relevant “to assist the trier of fact to understand certain behavior of the parties here that might otherwise be confusing, and to explain the cause, effect and nature of long term Hmong reliance on governmental agencies for support. (Dang Vang v. Vang Xiong X. Toyed, supra, 944 F.2d at pp. 481-482, fn. omitted.) For example, plaintiffs continued to have contact with Xiong after he raped them. [The expert’s] testimony regarding the place of Hmong women in that culture was helpful in understanding plaintiffs’ actions after Xiong’s attacks.” (Id. at p. 481, fn. 3.) Because the testimony was limited to a general explanation of the role of women in Hmong culture, it was not unduly prejudicial to Xiong. (Id. at p. 482.)
In Bains v. Cambra (9th Cir. 2000) 204 F.3d 964, Bains petitioned for habeas corpus relief after being convicted of first degree murder in a California state court. Bains’ family was of the Sikh faith, and they arranged for Bains’ sister to marry Shergill, also of the Sikh faith. The two were married in India, then returned to the United States and had a son. Subsequently, the marriage broke up and they were divorced. The Bains family made several threatening statements to Shergill and about Shergill to others, suggesting he might be killed if he remarried. After returning from a trip to India, Shergill was murdered by a hired killer. Bains was tried and convicted of first degree murder with the attendant special circumstance that the murder had been committed after lying in wait.
Bains alleged violations of his due process, equal protection, Sixth Amendment, and Fifth Amendment rights in his habeas petition. One of the alleged errors involved the admission of testimony about the beliefs and customs of the Sikh community regarding marriage and divorce. “These witnesses explained that Sikh families take the institution of marriage very seriously and feel very strongly that a husband must comply with his half of the marriage contract, especially since if a husband leaves his wife, his wife is considered ‘damaged goods’ and an ‘unmarketable commodity,’ thereby causing the families of both spouses great hardship. [¶] . . . [A]n expert in the Sikh religion and its practices . . . testified that in the Sikh community, when a husband in an arranged marriage unilaterally decides to divorce his wife, the family of his wife, especially its male members, would attempt to bring the pair back together, and if the attempt at reconciliation failed, would attempt to exact ‘violent revenge or retribution’ in order to save face. [He] also testified that ‘such escalation was not predictable or inevitable’ and that ‘Sikhs are no more violent than anyone else.’” (Bains v. Cambra, supra, 204 F.3d at p. 970.)
The court found the evidence was properly admitted to offer a potential motive and to show Bains’ intent to murder Shergill. In closing argument, however, the prosecutor “emphasized these generalizations about followers of the Sikh faith and stated, among other things, ‘If you do certain conduct with respect to a Sikh person’s female family member, look out. You can expect violence.’” (Bains v. Cambra, supra, 204 F.3d at p. 970.) The prosecutor also argued Bains was “‘playing [the] game by Sikh rules’” not United States laws. (Ibid.) The court found this argument “invited the jury to give in to their prejudices and to buy into the various stereotypes that the prosecutor was promoting” and violated the due process and equal protection rights of a criminal defendant. It found the purpose of the argument was to show “that all Sikh persons (and thus Bains by extension) are irresistibly predisposed to violence when a family member has been dishonored . . . and also are completely unable to assimilate to and to abide by the laws of the United States . . . .” (Id. at pp. 974-975.)
Jinro Am., Inc. v. Secure Invs., Inc., supra, 266 F.3d 993, involved an arrangement for the international sale of frozen chicken. Jinro, a Korean company, entered into a chicken trading agreement with the defendant, and claimed the defendant defaulted. The defendant claimed the agreement was a sham designed to cover up a highly speculative investment plan illegal under Korean laws and the defendant was supposed to provide the cover for Jinro. The court bifurcated the trial to address the sham contract allegation first, and the jury found it was a sham. On appeal, Jinro contended the trial was “prejudicially infected by ethnically biased, ‘xenophobic’ expert testimony.” The appellate court agreed. (Id. at p. 996.)
The expert was the general manager of a detective agency in Korea. He had no formal training or education in business or as a cultural expert; rather, his qualifications were “that he had ‘served five tours of duty in Korea,’ lived there for about 12 years and was married to a Korean woman.” (Jinro Am., Inc. v. Secure Invs., Inc., supra, 266 F.3d at p. 1001.) He testified that it was “common knowledge” that Korean businessmen engaged in widespread attempts to evade currency laws, and that the Korean business community was riddled with corruption and fraud. “[B]ecause of the culture, dealing with Korean businessmen can end up with some pretty sorry results if you haven’t safeguarded yourself.” (Id. at p. 1003.) The expert based his conclusions on newspaper articles and unspecified information from his office staff. “By the end of his testimony, [the expert] had cited no research or study, nor any empirical data, and had made only generalized, anecdotal references to his personal experience.” (Id. at p. 1004.)
Here, Hassan was eminently well qualified as a cultural expert. Her testimony was about broad general cultural stereotypes of which the average juror might not be aware. As in Bains and Dang Vang, these cultural stereotypes could shed light on a party’s potential motive or help to explain otherwise confusing facts. On the other hand, Hassan’s testimony could have suggested that all Muslim men are “irresistibly predisposed” to gender discrimination when confronted with a well-educated, outspoken woman. (Bains v. Cambria, supra, 204 F.3d at p. 970.) Furthermore, as in Bains, Muhammad’s counsel emphasized these generalizations and invited the jurors to give in to their prejudices. (Ibid.)
Assuming, without deciding, that Hassan’s testimony was more prejudicial than probative, we find it is not reasonably probable that a result more favorable to the ISOC would have been reached in the absence of the error. (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 800.) The testimony primarily impacted the cause of action for discrimination, which we do not reach, and had less effect on those for retaliation and fraudulent concealment. The jury was instructed that it did not have to accept an expert’s opinion, believe his or her testimony, or use the testimony as a basis for its opinion. The foreman’s note to the court indicated that the members of the jury were aware of the dangers of cultural generalizations and prejudice and resisted them. If an error occurred, it did not result in a miscarriage of justice. (Id. at p. 801.)
Fraudulent Concealment
The defendants argue the judgment against the ISOC and Mirza for fraudulent concealment and against Abodia for conspiracy to commit fraudulent concealment cannot stand. They claim this cause of action was merely an attempt to recover tort damages for wrongful termination of employment, which is allowed only if it violates some well-established public policy articulated in a statute or constitutional provision. We disagree.
The elements of a cause of action for fraudulent concealment are: “(1) the defendant must have concealed or suppressed a material fact, (2) the defendant must have been under a duty to disclose the fact to the plaintiff, (3) the defendant must have intentionally concealed or suppressed the fact with the intent to defraud the plaintiff, (4) the plaintiff must have been unaware of the fact and would not have acted as he did if he had known of the concealed or suppressed fact, and (5) as a result of the concealment or suppression of the fact, the plaintiff must have sustained damage.” (Marketing West, Inc. v. Sanyo Fisher (USA) Corp. (1992) 6 Cal.App.4th 603, 612-613.) Muhammad contends the defendants induced her to return to the School and prepare for the opening of the 2003-2004 school year, while harboring secret intentions not to honor the promise made by the outgoing School Board to give her a two-year contract with a salary increase and a bonus. She contends she relied on the promise to her detriment because by the time she discovered the fraud, she was unable to pursue other employment opportunities.
Citing Hunter v. Up-Right, Inc. (1993) 6 Cal.4th 1174, the defendants argue that terminated employees are limited to contract damages unless the termination violated public policy. In Hunter, the employer tricked the plaintiff employee into resigning from his job; the employee sued for fraud and deceit, as well as for breach of contract. The Supreme Court found “[t]he misrepresentation transformed what would otherwise have been a resignation into a constructive termination. As the jury found that [the employer] lacked good cause to dismiss [the employee], the constructive termination was wrongful. Thus, [the employer] simply employed a falsehood to do what it otherwise could have accomplished directly. It cannot be said that [the employee] relied to his detriment on the misrepresentation in suffering constructive dismissal. Thus, the fraud claim here is without substance.” (Hunter v. Up-Right, Inc., supra, 6 Cal.4th at p. 1184.)
Subsequently, the Supreme Court explained that “[o]ur decision in Hunter was not meant to alter fundamentally the law of fraud or to suggest it necessarily applies differently in the employment context than in other contexts.” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 641.) In Lazar, the plaintiff alleged he was induced to leave secure employment and move across the country to work for the defendant by the defendant’s promises that it was financially secure and would employ the plaintiff so long as he performed his job and achieved goals. The defendant knew its “financial outlook was pessimistic” and planned to treat the plaintiff “as if he were an ‘at will’ employee, subject to termination without cause.” (Id. at p. 636.) Although the plaintiff “performed his job . . . in an exemplary manner,” he was terminated after two years, resulting in his loss of “past and future income and employment benefits” and contact with his previous employment market. (Id. at pp. 636-637.)
The court found the plaintiff had “adequately state[d] a cause of action for promissory fraud as traditionally understood.” (Lazar v. Superior Court, supra, 12 Cal.4th at p. 639.) The situation differed from Hunter because there “‘the result of [the employer]’s misrepresentation is indistinguishable from an ordinary constructive wrongful termination.’” (Id. at p. 642.) The misrepresentation made by the employer in Lazar was “not made in the course of [the plaintiff]’s termination, but, rather, is separate from his termination. The damage [the plaintiff] alleges does not, moreover, ‘result from [the] termination itself’ (Hunter, supra, 6 Cal.4th at p. 1178, italics added), but from [the employer]’s misrepresentations (which allegedly came to light only at the time of termination).” (Lazar v. Superior Court, supra, 12 Cal.4th at p. 643.)
Muhammad’s claim of fraudulent concealment is not that the defendants concealed facts in order to get her to quit; it is that they concealed their intent to withhold her promised contract to induce her to keep working longer than she would have had they told her the truth, to her detriment. This is a fraud claim, not a claim for wrongful termination. And there is substantial evidence in the record to support the jury’s conclusion that Muhammad proved each element of the fraud: Muhammad returned in August 2003, having no reason to suspect that the new School Board would not follow the customary procedure of affirming the contract offered by the old Board. During the orientation period, Mirza prepared draft contracts for Muhammad that substantially varied the terms of the old Board’s offer and a member of the Executive Committee offered her job to another. By the time Muhammad was aware of the defendants’ intention, it was too far into the school year for her to pursue new employment as a principal, which resulted in her lost earnings and emotional distress. Contrary to the defendants’ assertions, recovery of damages for emotional distress is proper in a fraud action where economic loss is also proved. (Sprague v. Equifax, Inc. (1985) 166 Cal.App.3d 1012, 1030-1031; see also Civ. Code, § 3333.)
Mirza contends he cannot be liable for fraudulent concealment of his intent not to give Muhammad the promised contract because it was the Executive Committee’s decision, not his, to make. This argument belies the record. Mirza was the driving force behind the efforts to reduce Muhammad’s contract rights and ultimately to withdraw the offer of a contract altogether. As a member of the Executive Committee, the Majlis, and as president of the School Board, Mirza acted as the ISOC’s agent, resulting in the ISOC’s liability. But the ISOC’s liability does not relieve Mirza from the responsibility for his own behavior. Directors are jointly liable with the corporation and may be joined as defendants if they personally directed or participated in the tortious conduct. (Wyatt v. Union Mortgage Co. (1979) 24 Cal.3d 773, 785.)
Abodia, on the other hand, cannot be held personally liable for conspiracy to commit fraudulent concealment. “As long as two or more persons agree to perform a wrongful act, the law places civil liability for the resulting damage on all of them, regardless of whether they actually commit the tort themselves.” (Wyatt v. Union Mortgage Co., supra, 24 Cal.3d at p. 784.) A conspirator will be liable if he “concurred in the tortious scheme with knowledge of its unlawful purpose.” (Ibid.) There is no evidence that Abodia was aware of Mirza’s unlawful purpose; he was merely present at several encounters between them. This is insufficient to uphold individual liability as a conspirator.
DISPOSITION
The judgment against Abodia is reversed. In all other respects, the judgment is affirmed. In the interest of justice, each party shall bear its own costs on appeal.
WE CONCUR: RYLAARSDAM, J., MOORE, J.