Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Alameda County Super. Ct. No. RG03101023
Ruvolo, P. J.
I.
INTRODUCTION
In this wrongful termination action, Delmont Waqia (Waqia) appeals following a jury verdict in favor of his former employer, the City of Oakland (the City). Waqia was terminated from the Oakland Fire Department (OFD) after he failed to report for work, following an extended period of paid administrative leave. Rather than reporting to work as ordered, Waqia went on a pilgrimage to Mecca. Waqia filed an action against the OFD and the City (collectively the City), alleging religious and gender discrimination, as well as retaliation. The trial court granted summary adjudication of the religious and gender discrimination causes of action. Trial proceeded solely on the retaliation claim, which was based on the theory that the City fired Waqia because he filed a claim with the California Department of Fair Employment and Housing (DFEH). That trial resulted in a defense verdict.
On appeal, Waqia contends that the trial court applied the wrong law and misapprehended the facts in summarily adjudicating his religious discrimination claim. He further argues that evidentiary error and attorney misconduct deprived him of a fair trial. We affirm.
II.
FACTUAL AND PROCEDURAL BACKGROUND
In 1993, Waqia was accused of sexually harassing Mary Keeton, a firefighter in the OFD. Several other female firefighters came forward and corroborated Keeton’s claims. The sexual harassment accusations against Waqia were internally investigated and sustained. Consequently, Waqia was demoted from lieutenant to firefighter.
Eventually, Waqia was promoted back to the rank of lieutenant in 1999. In anticipation of Waqia’s return as a lieutenant, the OFD announced that it would accommodate three female firefighters who did not want to work with Waqia. In the event that Waqia was assigned to a station where any of the women worked, the women were not required to work with him, and they could transfer to a different station.
In January 2002, Waqia was assigned to station 26 as an overtime relief officer. Barbara Burguano, one of the firefighters who had corroborated Keeton’s sexual harassment claims, was also assigned to station 26. After reporting to station 26, OFD Battalion Chief Eleanor Bolin-Chew called Waqia and asked him if he would mind transferring to station 27. Waqia assumed that the transfer request was due to the fact that Burguano worked at station 26. Waqia refused to transfer stations, and Bolin-Chew called OFD Deputy Chief Ernest Robinson. Robinson called Waqia, and gave him the option of transferring to station 27 or going home. Waqia chose the latter and subsequently filed a workers compensation claim due to an “adjustment disorder” that left him “feeling dejected and like an outcast.” Waqia’s workers’ compensation claim was granted, and he received approximately six weeks of therapy.
In March 2002, the OFD issued a memorandum stating that the 1993 sexual harassment matter involving Waqia was closed. As a result, no further efforts to reassign or transfer individuals based on that matter would be made.
On May 24, 2002, Waqia filed a complaint with the DFEH based on the January 2002 incident. In the complaint, Waqia alleged that he had been the victim of gender discrimination and a hostile work environment.
In July 2002, Waqia was arrested on a charge of committing a lewd act upon a child. He was released on bail, and placed on paid administrative leave while the charges were investigated. The charges were eventually dismissed in September 2002. During his administrative leave, there was considerable public outcry regarding Waqia, including negative comments by the National Organization of Women (NOW), and local newspapers. There was also dissension in the OFD regarding the prospect of Waqia’s return to duty.
By letter dated November 15, 2002, Waqia was ordered to return to work on November 24, 2002. The letter further directed Waqia to attend a meeting with OFD Chief Gerald Simon on November 20, 2002 (November 20 meeting) to discuss the transition back to his regular assignment. At the November 20 meeting, Waqia, a Muslim, told Chief Simon and OFD Deputy Chief Dan Farrell that he was making a religious trip to Mecca on November 29, 2002. Waqia explained that the pilgrimage he was making was an Umra, which can take place at any time during the year. There was no discussion regarding Waqia’s May 2002 DFEH complaint.
At the November 20 meeting, Farrell suggested that Waqia could trade shifts with other firefighters to accommodate his planned trip. Farrell did not view Waqia’s upcoming trip as a problem because the OFD had a “relatively liberal trading policy.” Waqia acknowledged that trading shifts would obviate the cancellation of his trip. However, according to Farrell, Waqia was not satisfied with the trade-shifting option due to the anticipated reluctance of other employees to trade shifts with him.
At his deposition, Waqia testified that he said, “ ‘Chief, it won’t be necessary for me to cancel my trip, because if I’m back to work before the 29th, I’ll get trades’ . . . .”
At the November 20 meeting, Waqia expressed concern about the negative press surrounding his arrest and suggested that retirement might be the best solution for all concerned. According to Farrell, the focus of the meeting became the possibility of Waqia’s retirement as an alternative to his return to work. The parties agreed that Waqia or his attorney would meet with someone from the city attorney’s office to discuss the matter further. It was further agreed that discussions would begin immediately, and if no reasonable result could be reached by 5:00 p.m. on November 25, 2002, Waqia would report for duty on November 27, 2002.
Waqia understood that if a retirement package could not be agreed upon he would be required to return to work. He knew that as an alternative to shift trading, he could use sick time, vacation, or request a leave of absence to cover his time off of work. He further acknowledged that the OFD had a set of official forms and procedures for requesting a vacation or a leave of absence.
Beginning on November 21, 2002, Oakland Deputy City Attorney April Ramsey attempted to contact Waqia’s counsel without success, leaving numerous voice mail messages over a three-day period. On November 26, 2002, a letter was hand delivered to Waqia, directing him to report to the training division on November 27, 2002, to resume full duty.
On the evening of November 26, 2002, Ramsey was able to speak with Waqia’s counsel for the first time. At the request of Waqia’s counsel, the parties agreed to postpone Waqia’s return date to December 2, 2002, to allow for further discussions about retirement on November 27, the day before Thanksgiving. However, the discussions on November 27 were unsuccessful. Waqia’s counsel assured Ramsey that Waqia would report for duty on December 2, 2002. There was no mention of any conflict between the December 2 return date and Waqia’s religious obligations.
On November 27, 2002, a letter was sent by facsimile to Waqia’s counsel, directing Waqia to report to the training division on December 2, 2002, to resume full duty. The letter further advised that if Waqia failed to report for work as directed, he would be considered absent without leave, and would be subject to discipline under civil service rules. Waqia’s counsel forwarded the letter to him by facsimile on November 27, 2002.
On November 28, 2002, Thanksgiving Day, while City offices, including the OFD, were closed, Waqia left a message on Chief Simon’s office phone regarding his imminent pilgrimage, which was set to commence the following day and extend through December 10, 2002. Although Waqia had Chief Simon’s cell phone number, he did not want to bother Chief Simon on Thanksgiving Day, while he was at home with his family.
On November 29, 2002, the day after Thanksgiving, when OFD offices were still closed, Waqia sent a letter by facsimile to the OFD, informing Chief Simon that he would not be reporting for work as ordered due to a “mandatory religious commitment.” In the letter, Waqia stated that he would report to work on December 10, 2002, and that he did not expect to be paid from December 2, 2002, until his return. He further stated that he did not expect to be considered absent without leave due to his religious commitment. Waqia left for Saudi Arabia at 12:30 p.m. on November 29, 2002.
When Waqia failed to report for duty as ordered, the OFD advised by him by letter dated December 2, 2004, that he was required to report to the training division on December 4, 2002. The letter further advised Waqia that if he failed to report for duty on December 4, 2002, the OFD would consider him as having abandoned his post, and it would be recommended that he be separated from City service.
Waqia failed to report for duty on December 4, 2002, and he was separated from employment, effective December 17, 2002.
In June 2003, Waqia filed a complaint against the City, alleging that the City acted in violation of the California Fair Employment and Housing Act. (Gov. Code, § 12900 et seq.; hereafter FEHA.) The complaint alleged three causes of action for unlawful employment practices in violation of section 12940: (1) retaliation; (2) discrimination based on religion; and (3) discrimination based on gender. The complaint alleged that the City fired Waqia because he filed a DFEH complaint and went on a religious pilgrimage instead of reporting for duty. The complaint further alleged that the termination was an integral part of the hostile work environment directed at Waqia because he was a male.
All further undesignated statutory references are to the Government Code, unless otherwise indicated.
In March 2005, the trial court granted the City’s motion for summary adjudication as to Waqia’s religious and gender discrimination claims. With respect to the religious discrimination claim, the trial court, citing Soldinger v. Northwest Airlines, Inc. (1996) 51 Cal.App.4th 345, 370 (Soldinger), determined that Waqia had established a prima facie case, and that the burden had shifted to the City to demonstrate that it had made good faith efforts to accommodate Waqia, or that no accommodation was possible without undue hardship. The trial court found that it was undisputed that the City had made good faith efforts to reasonably accommodate Waqia’s religious beliefs, by suggesting that Waqia could trade shifts with his co-workers, as well as by negotiating Waqia’s retirement as an option. After noting the well-settled rule of bilateral cooperation (see Soldinger, supra, 51 Cal.App.4th at p. 360; Brener v. Diagnostic Center Hospital (5th Cir. 1982) 671 F.2d 141, 145-146 (Brener), the trial court concluded that the record was “devoid of any evidence showing [Waqia] fulfilled his concomitant obligation to make a good faith effort to explore reasonable accommodation through shift trades, unpaid leave time, vacation time, or other possible options prior to his departure on his religious pilgrimage.” The trial court denied the City’s motion for summary adjudication of Waqia’s retaliation cause of action.
Waqia does not appeal the trial court’s ruling with respect to his gender discrimination claim.
Prior to the trial on the retaliation claim, Waqia moved to exclude any references to the 1993 sexual harassment charge and the 2002 arrest for child molestation. The trial court denied the motion to exclude evidence regarding the 1993 sexual harassment charges. With respect to the 2002 arrest, the trial court ruled that any evidence referencing the sexual nature of the offense would be precluded.
At trial, the City presented evidence regarding the 1993 sexual harassment claim against Waqia, as well as the surrounding circumstances of his 2002 arrest.
The jury returned a defense verdict and this appeal followed.
III.
DISCUSSION
A. The Trial Court Did not Err in Granting the City’s Motion for Summary Adjudication as to Waqia’s Religious Discrimination Cause of Action
Waqia argues that the trial court erred in its analysis of the law and facts in summarily adjudicating his religious discrimination claims. He further contends that the City is estopped to assert the defense of accommodation.
1. Standard of Review
A summary adjudication motion is subject to the same rules and procedures as a summary judgment motion. (Code Civ. Proc., § 437c, subd. (f)(2); Hansen Mechanical, Inc. v. Superior Court (1995) 40 Cal.App.4th 722, 726-727.) Accordingly, we review the trial court’s decision to grant summary adjudication de novo and decide independently whether the facts not subject to triable dispute warrant judgment for the moving party as a matter of law. (Intel v. Hamidi (2003) 30 Cal.4th 1342, 1348; Code Civ. Proc., § 437c, subd. (c).)
2. Applicable Law
It is an “unlawful employment practice . . . [¶] [f]or an employer, because of the . . . religious creed . . . of any person, . . . to discriminate against the person in compensation or in terms, conditions, or privileges of employment.” (§ 12940, subd. (a).)
Further, it is unlawful “[f]or an employer . . . to discharge a person from employment . . . or to discriminate against a person . . . because of a conflict between the person’s religious belief or observance and any employment requirement, unless the employer . . . demonstrates that it has explored any available reasonable alternative means of accommodating the religious belief or observance, including the possibilities of excusing the person from those duties that conflict with his or her religious belief or observance or permitting those duties to be performed at another time or by another person, but is unable to reasonably accommodate the religious belief or observance without undue hardship on the conduct of the business of the employer or other entity covered by this part. Religious belief or observance, as used in [section 12940], includes, but is not limited to, observance of a Sabbath or other religious holy day or days, and reasonable time necessary for travel prior and subsequent to a religious observance.” (§ 12940, subd. (l).)
As an initial matter, the parties dispute the applicability of the burden-shifting test first announced in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 (McDonnell Douglas). (See also Texas Dept. of Community Affairs v. Burdine (1981) 450 U.S. 248, 252-253.) The McDonnell Douglas test “established an allocation of the burden of production and an order for the presentation of proof in . . . discriminatory-treatment cases.” (St. Mary’s Honor Center v. Hicks (1993) 509 U.S. 502, 506, italics added, fn. omitted.) In such cases, McDonnell Douglas enables a plaintiff to show discrimination through indirect evidence in the now-familiar three-step process. First, the plaintiff must establish a prima facie case of discrimination. Second, if the plaintiff succeeds, a presumption of discrimination is created that the employer must then rebut by stating a legitimate nondiscriminatory reason for the adverse employment action. Third, if a legitimate nondiscriminatory reason is provided, the plaintiff has the chance to show that the stated reasons were not the true reasons for the dismissal, but were a mere pretext for discrimination. (See McDonnell Douglas, supra, 411 U.S. at pp. 802-804.) This burden-shifting test was first announced in a Title VII racial discrimination case, but has since been utilized in a variety of contexts, including religious discrimination cases. (See Bodett v. Coxcom, Inc. (9th Cir. 2004) 366 F.3d 736, 743 [applying McDonnell Douglas to claim of disparate treatment based on religion]; Peterson v. Hewlett-Packard Co. (9th Cir. 2004) 358 F.3d 599, 603 [same]; Tincher v. Wal-Mart Stores, Inc. (7th Cir. 1997) 118 F.3d 1125, 1129 [same].)
Although the McDonnell Douglas burden-shifting test can apply in certain religious discrimination cases, it is inapplicable to claims, such as here, which are based on an alleged failure to accommodate Waqia’s religious beliefs. “In evaluating an argument the employer failed to accommodate an employee’s religious beliefs, the employee must establish a prima facie case that he or she had a bona fide religious belief, of which the employer was aware, that conflicts with an employment requirement. [Citation.] No issues have been raised with regard to [Waqia’s] bona fide religious beliefs and it appears the parties concede these beliefs conflicted with an employment requirement.” (Soldinger, supra, 51 Cal.App.4th at p. 370.)
“Once the employee establishes a prima facie case, then the employer must establish it initiated good faith efforts to accommodate or no accommodation was possible without producing undue hardship. [Citations] [¶] Any reasonable accommodation is sufficient to meet an employer’s obligations. However, the employer need not adopt the most reasonable accommodation nor must the employer accept the remedy preferred by the employee. (Ansonia Board of Education v. Philbrook (1986) 479 U.S. 60, 68 . . . .) The reasonableness of the employer’s efforts to accommodate is determined on a case by case basis. What is reasonable for one employee may not be reasonable for another. (Smith v. Pyro Min. Co. (6th Cir. 1987) 827 F.2d 1081, 1085.) The obligation to search for an acceptable solution is bilateral. Employees also have the obligation to make a good faith effort to explore alternatives. (Brener[, supra,] 671 F.2d [at pp.] 145-146; Smith v. Pyro Min. Co., supra, at p. 1085.)” (Soldinger, supra, 51 Cal.App.4th at p. 370; italics added.)
“ ‘[O]nce it is determined that the employer has offered a reasonable accommodation, the employer need not show that each of the employee’s proposed accommodations would result in undue hardship.’ [Citation.] ‘[W]here the employer has already reasonably accommodated the employee’s religious needs, the . . . inquiry [ends].’ (Ansonia Board of Education v. Philbrook, supra, 479 U.S. at p. 68 . . . .)” (Soldinger, supra, 51 Cal.App.4th at p. 370.)
However, “[i]f the an employee proves a prima facie case and the employer fails to initiate an accommodation for the religious practices, the burden is then on the employer to prove it will incur an undue hardship if it accommodates that belief. [Citations.] ‘[T]he extent of undue hardship on the employer’s business is at issue only where the employer claims that it is unable to offer any reasonable accommodation without such hardship.’ (Ansonia Board of Education v. Philbrook, supra, 479 U.S. at pp. 68-69 . . . .) ‘[A]n accommodation causes “undue hardship” whenever that accommodation results in “more than a de minimis cost” to the employer.’ (Id. at p. 67 . . . .)” (Soldinger, supra, 51 Cal.App.4th at p. 371.)
3. The Trial Court Properly Analyzed the Law and Facts
Waqia contends that the trial court erred in its analysis of his religious rights because it followed the “wrong law” in summarily adjudicating his religious discrimination claim. He further claims that the trial court erred in its determination that the City made reasonable efforts to accommodate his religious beliefs and practices. Neither contention has any merit.
Preliminarily, we note that although the state and federal antidiscrimination legislation may differ in some particulars, their objectives are identical, and California courts routinely rely upon federal law to interpret analogous provisions of the FEHA. (Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1002, fn. 1; Clark v. Claremont University Center (1992) 6 Cal.App.4th 639, 662.)
Waqia claims that the trial court erroneously relied on Tiano v. Dillard Dept. Stores, Inc. (9th Cir. 1998) 139 F.3d 679, 682-683 (Tiano), which held that an employee had not established a prima facie case of religious discrimination where the timing of the religious pilgrimage was a personal preference and not a “temporal mandate” of a bona fide religious belief. There, a devout Roman Catholic who regularly attended church, and whose religion played a significant role in her life, was fired when she left her job for a 10-day pilgrimage to Yugoslavia to visit the site where the Virgin Mary reportedly appeared. (Id. at p. 680.) The employee testified that she had a “ ‘calling from God’ ” to attend this pilgrimage in October 1988. (Ibid.) However, no other evidence was presented that the employee was required to make the trip during this particular time. (Ibid.) Rejecting the employee’s claim of religious discrimination, the Ninth Circuit held that “she could not satisfy one crucial element of her prima facie case: conflict between her religious belief and employment duties. [Citation.]” (Id. at p. 683.)
Tiano, however, is alone in its ruling that a prima facie case of religious discrimination requires proof of a “temporal mandate” under the tenets of an employee’s religion. (See California Fair Employment & Housing Com. v. Gemini Aluminum Corp. (2004) 122 Cal.App.4th 1004, 1014 (Gemini).) In Gemini, the courtsquarely rejected the Tiano analysis, and held that “nothing in the [FEHA] obligates an employer to accommodate only those religious practices that are required by the tenets of the employee’s religion, or that amount to a ‘temporal mandate’ of the religion.” In so holding, the court explained: “The relevant inquiry is the sincerity, not the verity of the employee’s religious beliefs. [Citation.] ‘ “[T]o restrict the act to those practices which are mandated or prohibited by a tenet of the religion, would involve the court in determining not only what are the tenets of a particular religion, . . . but would frequently require the courts to decide whether a particular practice is or is not required by the tenets of the religion. . . . [S]uch a judicial determination [would] be irreconcilable with the warning issued by the Supreme Court in Fowler v. Rhode Island (1953) 345 U.S. 67, 70 []. “[I]t is no business of courts to say . . . what is a religious practice or activity.” [Citations.]’ (Heller v. EBB Auto Co. (9th Cir. 1993) 8 F.3d 1433, 1438.)” (Gemini, supra, 122 Cal.App.4th at pp. 1013-1014, fn. omitted.)
Although the City, in moving for summary adjudication, argued that the trial court should apply the Tiano analysis to Waqia’s religious discrimination claim, the trial court, contrary to Waqia’s contention, did not rely on Tiano. Rather, the trial court, citing Soldinger, supra, 51 Cal.App.4th 345, determined that Waqia had established a prima facie case of religious discrimination, by demonstrating that he had a bona fide religious belief of which the City was aware, that conflicted with an employment requirement. The trial court, nonetheless, granted the City’s motion on the grounds that Waqia had not fulfilled his duty to engage in bilateral cooperation to make a good faith effort to explore reasonable accommodation through shift trades, unpaid leave, vacation time, or other possible options before departing on his religious pilgrimage.
The gist of the City’s position was that because Waqia was not required to go on his Umra at any particular time, the decision to make this religious pilgrimage was merely a “personal preference” similar to that expressed by the employee in Tiano.
As discussed, there appears to be no dispute that Waqia established a prima facie case of religious discrimination. Thus, in this regard, neither Tiano nor Gemini, has any particular relevance to the question whether the City initiated good faith efforts to accommodate, and if so, whether Waqia failed to make a good faith effort to explore such accommodations.
Although the statutory burden to accommodate rests with the employer (Soldinger, supra, 51 Cal.App.4th at p. 370; Brener, supra, 671 F.2d at p. 146), “[a]n employee cannot shirk his duties to try to accommodate himself or to cooperate with his employer in reaching an accommodation by a mere recalcitrant citation of religious precepts. Nor can he thereby shift all responsibility for accommodation to his employer.” (Chrysler Corp. v. Mann (8th Cir. 1977) 561 F.2d 1282, 1285.) Rather, an employee has a concomitant duty to cooperate in the search for an acceptable reconciliation of his religious needs and the exigencies of his employer’s business. (Brener, supra, 671 F.2d at pp. 145-146; see also Ansonia Board of Education v. Philbrook, supra, 479 U.S. at p. 69; American Postal Wkrs. Union v. Postmaster General (9th Cir. 1986) 781 F.2d 772, 777.)
For example, in Chrysler Corp. v. Mann, supra, 561 F.2d 1282, the court ruled that a termination was not unlawful, where an employee refused to avail himself of his employer’s leave of absence procedure or to use his paid excused absences to satisfy his religious needs. (Id. at p. 1285.) Similarly, in United States v. City of Albuquerque (10th Cir. 1976) 545 F.2d 110, 113-115, the court upheld an employee’s discharge because he had declined to cooperate with the employer’s efforts to accommodate him. There, as here, the employee made no attempt to exchange shifts, choosing instead not to report for work. (Id. at pp. 112-114.)
The situation in Brener, supra, 671 F.2d 141, parallels the facts in this case. There, as here, the employer’s scheduling system permitted trading of shifts by employees. (Id. at p. 145.) However, the employee complained that the scheduling system was rendered inflexible by the reluctance of other employees to trade schedules with him. (Ibid.) The court held the employee failed to engage in bilateral cooperation in seeking a reconciliation of his religious needs. (Id. at pp. 145-146.) Rather, the employee made only haphazard efforts to arrange trades, waiting until either the last minute or until he was already away from work to contact anyone about trading shifts. (Id. at p. 145.) Under such circumstances, the court concluded the employee failed to satisfy his correlative duty to make a good faith effort to satisfy his needs through means offered by his employer. (Id. at p. 146.)
Brener, like the instant case, illustrates the impasse that can result from an employee’s failure to accommodate his own religious beliefs or to cooperate with the accommodation efforts of his employer. Here, a review of the record shows that the City tried to initially accommodate Waqia by offering the option of shift trades and by negotiating a retirement package. Waqia was fully aware that if the parties could not agree on his retirement package, he would be required to report to full duty. However, Waqia insists that the City’s efforts were not reasonable accommodations, in light of the time constraints of his impending trip.
Although the time frame for resolving the issue of Waqia’s retirement, or alternatively his return to full duty, was arguably short, Waqia’s conduct exacerbated the time constraints. In keeping with Waqia’s request to negotiate a retirement package, the City made repeated efforts to contact his attorney. However, Waqia’s counsel did not respond to these efforts. When the City was finally able to reach Waqia’s counsel, he requested that Waqia’s return date be postponed to December 2, 2002, to allow for additional retirement negotiations. Significantly, in settling on the December 2 return date, Waqia’s counsel made no mention of any conflict between that date and Waqia’s trip.
Additionally, Waqia did not attempt to contact the OFD until Thanksgiving Day, and then only left a message at Chief Simon’s office, rather than contacting him directly. He then waited another day, and faxed a letter to the OFD while City offices were closed, and unilaterally informed Chief Simon that he would not be returning to work as ordered.
At all relevant times, Waqia knew that if his return date conflicted with his trip, he could obtain shift trades or request vacation, sick time, or a leave of absence. Waqia, however, failed to fulfill his correlative duty to make a good faith attempt to explore any of these options, choosing instead not to report for work.
To the extent, Waqia contends that his November 29, 2002 letter constituted a request for a leave of absence, the record reflects that the OFD had a formal procedure for requesting a leave of absence and that Waqia was aware of such procedures.
Finally, Waqia argues, for the first time on appeal, that the City is barred either by contract or by estoppel to raise the defense of accommodation. The gist of Waqia’s position is that at the November 20 meeting, his supervisors, by their words and conduct, led him to believe that the OFD would not order him back to full duty without giving him enough time to shift trades or to apply for and be approved for leave. We deny Waqia’s request that we view the facts of this case “through the ‘glass’ of estoppel and/or contract,” as he failed to raise this issue below. (See Sloan v. Hiatt (1966) 245 Cal.App.2d 926, 933-934 [“ ‘As a general rule, a party who has an opportunity to plead an estoppel on which his cause of action or defense depends must do so, and failure in that respect constitutes a waiver of the estoppel.”]; Helmick v. Thomas (1960) 187 Cal.App.2d 395, 400-401 [estoppel and ratification theories not urged before the trial court may not be raised for the first time on appeal].)
In sum, the trial court did not err in summarily adjudicating Waqia’s claim of religious discrimination.
B. Waqia Received a Fair Trial
Waqia contends that the trial court erroneously denied his motion to exclude evidence regarding the 1993 sexual harassment claim against him. He further claims that defense counsel engaged in numerous instances of misconduct, by alluding to the sexual nature of his 2002 arrest and by engaging in personal attacks.
1. The Trial Court Properly Denied Waqia’s Motion in Limine to Exclude Evidence Regarding the 1993 Sexual Harassment Claim Against Him
Relevancy is the cornerstone of the admissibility of evidence. (People v. Ortiz (1979) 95 Cal.App.3d 926, 933.) Evidence Code section 210 defines “ ‘Relevant evidence’ ” as “evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.”
In contrast, “[a] collateral matter has been defined as ‘one that has no relevancy to prove or disprove any issue in the action.’ [Citation.] A matter collateral to an issue in the action may nevertheless be relevant to the credibility of a witness who presents evidence on an issue; always relevant for impeachment purposes are the witness’s capacity to observe and the existence or nonexistence of any fact testified to by the witness. (Evid. Code, § 780, subds. (c), (i); People v. Lang (1989) 49 Cal.3d 991, 1017 . . . .) As with all relevant evidence, however, the trial court retains discretion to admit or exclude evidence offered for impeachment. (Evid. Code, § 352; People v. Douglas (1990) 50 Cal.3d 468, 509 . . . .) A trial court’s exercise of discretion in admitting or excluding evidence is reviewable for abuse [citation], and will not be disturbed except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice. [Citation.]” (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)
Here, the trial court did not abuse its discretion in admitting evidence regarding the 1993 sexual harassment claim against Waqia. The relevant issue at trial was whether the City fired Waqia in retaliation for his having filed a DFEH claim, which alleged that he was the victim of gender discrimination and a hostile work environment. The gist of the DFEH complaint was that Waqia was discriminated against by the OFD because the female firefighters he allegedly sexually harassed did not want to work with him. The underlying sexual harassment claim was obviously relevant to his retaliation claim.
Waqia’s own evidence at trial underscores the relevancy of the prior sexual harassment claim. Specifically, Waqia presented evidence regarding a purported “agreement,” in which the City agreed that Waqia would not be required to transfer, if he were assigned to a fire station where either his accusers, or the women he sexually harassed were present. Waqia also insisted that he was the victim of a hostile work environment, when he was asked to leave station 26 in contravention of the “agreement.”
Nevertheless, on appeal, Waqia maintains that evidence regarding the prior sexual harassment should have been excluded under Evidence Code section 352 due to its “prejudicial effect.” We disagree.
“ ‘Prejudice’ as contemplated by section 352 is not so sweeping as to include any evidence the opponent finds inconvenient. Evidence is not prejudicial, as that term is used in a section 352 context, merely because it undermines the opponent’s position or shores up that of the proponent. The ability to do so is what makes evidence relevant. The code speaks in terms of undue prejudice. Unless the dangers of undue prejudice, confusion, or time consumption ‘ “substantially outweigh” ’ the probative value of relevant evidence, a section 352 objection should fail. (People v. Cudjo (1993) 6 Cal.4th 585, 609 . . . .) ‘ “The ‘prejudice’ referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues. In applying section 352, ‘prejudicial’ is not synonymous with ‘damaging.’ ” [Citation.]’ (People v. Karis (1988) 46 Cal.3d 612, 638 . . . .)” (Vorse v. Sarasy (1997) 53 Cal.App.4th 998, 1008.)
“The prejudice that section 352 ‘ “is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence.” [Citations.]’ “Rather, the statute uses the word in its etymological sense of ‘prejudging’ a person or cause on the basis of extraneous factors. [Citation.]” [Citation.]’ (People v. Zapien (1993) 4 Cal.4th 929, 958 . . . .) In other words, evidence should be excluded as unduly prejudicial when it is of such nature as to inflame the emotions of the jury, motivating them to use the information, not to logically evaluate the point upon which it is relevant, but to reward or punish one side because of the jurors’ emotional reaction. In such a circumstance, the evidence is unduly prejudicial because of the substantial likelihood the jury will use it for an illegitimate purpose.” (Vorse v. Sarasy, supra, 53 Cal.App.4th at p. 1009.)
Here, while the evidence regarding the prior sexual harassment claim against Waqia was arguably damaging to his cause, it was presented in a relatively straightforward manner, and was unlikely to inflame the emotions of the jury.
In sum, the evidence regarding the prior sexual harassment claim against Waqia was properly admitted as it was highly relevant to his theory of retaliation.
2. Waqia Has Failed to Establish Any Prejudicial Attorney Misconduct
Waqia claims that defense counsel repeatedly violated the in limine order, precluding reference to the sexual nature of his 2002 arrest. He contends that defense counsel violated the in limine order on at least 10 occasions, by eliciting testimony that insinuated that he had been arrested for a sexual offense. Waqia also asserts that defense counsel committed further misconduct by engaging in personal attacks and propounding inflammatory questions.
Preliminarily, Waqia concedes that neither defense counsel nor any defense witness, used the words “sex crime,” when referring to his 2002 arrest. However, citing Civil Code section 45a, he maintains that repeated references to the women’s organization, NOW, in conjunction with the surrounding circumstances of his arrest and subsequent administrative leave, clearly communicated to jury that he had been charged with a sex crime against a female. This contention is without merit. At most, the evidence regarding the involvement of NOW suggested that the arrest involved a female victim. This alone is insufficient to establish that he had been arrested for a sexual offense.
Civil Code section 45a, provides, in pertinent part, as follows: “A libel which is defamatory of the plaintiff without the necessity of explanatory matter, such an inducement or other extrinsic fact, is said to be libel on its face.”
However, even assuming arguendo that defense counsel violated the in limine order, a judgment may not be set aside in the absence of prejudicial error, i.e., error that results in a miscarriage of justice. (Cal. Const., art. VI, § 13; Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 800.) Whether error is prejudicial, and thus reversible, is determined the under the circumstances of each individual case. (Cassim v. Allstate Ins. Co., supra, at p. 800.) In a civil case, attorney misconduct is prejudicial error only if it is reasonably probable the appellant would have received a more favorable result in the absence of the error. (Id. at pp. 800-802.) “ ‘No form of civil trial error justifies reversal and retrial, . . . where in light of the entire record, there was no actual prejudice to the appealing party.’ [Citation.]” (Id. at p. 801, italics omitted.)
Here, Waqia’s sole claim at trial was that the City had fired him in retaliation for his having filed a DFEH complaint. “A claim under section 12940, subdivision (h), is established if the claimant shows a prima facie case of retaliation and, if the employer articulates a legitimate nonretaliatory explanation for its acts, the claimant shows that the proffered explanation is merely a pretext for unlawful discrimination. (Flait v. North American Watch Corp. (1992) 3 Cal.App.4th 467, 476 . . . .) The claimant establishes a prima facie case by showing that the employee ‘engaged in a protected activity, his employer subjected him to adverse employment action, and there is a causal link between the protected activity and the employer’s action. [Citations.]’ [Citation.]” (Gemini, supra, 122 Cal.App.4th at p. 1018, italics added.)
“A causal link may be established with evidence demonstrating that the employer was aware of the protected activity and the adverse action followed within a relatively short time. [Citation.]” (Gemini, supra, 122 Cal.App.4th at p. 1018.) Here, Waqia failed to demonstrate a causal link between the filing of his DFEH complaint and his termination nearly seven months later. Rather, there is ample evidence to support the determination that the City terminated Waqia for the reason stated, i.e., his failure to report for duty as ordered. Based on our review of the entire record, it is not reasonably probable Waqia would have received a more favorable result had defense counsel not elicited testimony regarding the surrounding circumstances of his 2002 arrest and subsequent administrative leave.
Waqia further suggests that defense counsel engaged in personal attacks and acted similarly to counsel in Stone v. Foster (1980) 106 Cal.App.3d 334. We disagree. In Stone v. Foster, supra, 106 Cal.App.3d 334, plaintiff’s counsel was on a mission from “the opening statement to closing argument . . . to portray defendant as an evil person.” (Id. at p. 353.) He introduced extensive evidence unrelated to the action portraying defendant as an avaricious doctor who took advantage of people without regard for the law or the constitutional rights of others. (Ibid.) On numerous occasions, the court had to caution counsel about his argumentative campaign to impugn not only the character of the defendant but his counsel and his witnesses too. (Ibid.) Such personal attacks constitute misconduct. (Id. at p. 355.) There was no such campaign here. Rather, the purported misconduct by defense counsel relates to references, either by argument or by eliciting testimony from witnesses, regarding the prior sexual harassment claim against Waqia. As discussed (see section III.B.1 infra), this evidence was relevant to Waqia’s retaliation claim. Accordingly, it was proper for counsel to comment and/or present evidence with respect to this matter.
Waqia also insists that defense counsel committed further misconduct by questioning him about an inflammatory subject, for which there was no proof. Specifically, Waqia contends that defense counsel committed misconduct by asking him on cross-examination whether he had repeatedly touched a female firefighter’s breasts without her permission and despite her requests to stop. The record reflects that defense counsel posed these questions after Waqia cavalierly denied that there had been a finding by the Civil Service Board that he had sexually harassed a female firefighter, conceding only that the OFD upheld the allegations. In the face of these evasive responses, defense counsel further questioned Waqia about the specifics of the sexual harassment allegations. This was the proper subject of cross-examination. (See Evid. Code, § 780; see also Bohn v. Gruyer (1931) 111 Cal.App. 386, 393 [“evasive” and “quibbling” testimony basis for impeachment].)
Finally, Waqia contends cumulative error requires reversal. However, inasmuch as we have rejected all of his claims of error, we perforce reject his claim of cumulative error.
IV.
DISPOSITION
The order granting summary adjudication of Waqia’s second and third causes of action is affirmed. The judgment is affirmed in its entirety. The City is entitled to its costs on appeal.
We concur: Sepulveda, J., Rivera, J.