Case Number: BC513172    Hearing Date: July 22, 2014    Dept: 34

SUBJECT: Motion for leave to amend

Moving Party: Plaintiff Susie Yuen Hee Ko (“plaintiff”)

Resp. Party: Defendant Midway International Inc. (“defendant”)

Plaintiff’s motion for leave to file a second amended complaint is DENIED.

BACKGROUND:

Plaintiff Susie Yeun Hee Ko commenced this action on 6/25/13. Plaintiff filed a first amended complaint on 5/9/14 against defendant for: (1) age discrimination (FEHA); (2) sex discrimination (FEHA); (3) age harassment (FEHA); (4) retaliation; (5) failure to prevent discrimination and harassment; and (6) wrongful termination in violation of public policy. Plaintiff alleges she was harassed and forced to apologize to other employees. Plaintiff alleges that other employees used offensive language with and in reference to her. Plaintiff alleges that defendant engaged in retaliatory and discriminatory conduct against her.

ANALYSIS:

Plaintiff seeks leave to file a second amended complaint. Plaintiff seeks to add claims that she was discriminated against and harassed because of her national origin.

Substantive analysis

California Code of Civil Procedure section 473, subd. (a)(1) states: “The court may . . . , in its discretion, . . . allow, upon any terms as may be just, an amendment to any pleading or proceeding.” Although granting the motion is entirely within the Court’s discretion, denial is rarely justified:

If the motion to amend is timely made and the granting of the motion will not prejudice the opposing party, it is error to refuse permission to amend and where the refusal also results in a party being deprived of the right to assert a meritorious cause of action or a meritorious defense, it is not only error, but an abuse of discretion.

(Morgan v. Sup. Ct. (1959) 172 Cal.App.2d 527, 530.)

To the extent that defendant attacks the sufficiency of the proposed amended allegations, this argument is not well taken. The Court is “bound to apply a policy of great liberality in permitting amendments to the complaint ‘at any stage of the proceedings, up to and including trial,’ absent prejudice to the adverse party.” (Weil & Brown, Cal. Prac. Guide: Civ. Proc. Before Trial (The Rutter Group 2013) ¶ 6:652 [quoting Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 761][emphasis in original].) A court ordinarily will not consider the validity of the proposed amended pleading in deciding whether to grant leave to amend, and grounds for demurrer or motion to strike are premature. (Id., ¶ 6:644.) If the allegations in the proposed FAC are insufficient or without merit, defendant may challenge them with a demurrer or motion for summary judgment. (See Atkinson v. Elk Corp. (2006) 109 Cal.App.4th 739, 760 [“the better course of action would have been to allow . . . [plaintiff] to amend the complaint and then let the parties test its legal sufficiency in other appropriate proceedings.”].)

Further, the allegations that the company had one set of rules for Korean employees and another set of rules for non-Korean employees – if proven – would appear to give rise to a claim for national origin discrimination.

However, the Court has discretion to deny leave to amend “where the pleading is deficient as a matter of law and the defect could not be cured by further appropriate amendment.” (Weil & Brown, ¶¶ 6:444-6:464.1 [italics in original].) In the opposition, defendant argues that the proposed claims as to national origin discrimination and harassment fail as a matter of law because plaintiff did not exhaust administrative remedies as to these claims and it is now too late to do so.

Before filing suit on a statutory employment discrimination claim under state or federal law, the aggrieved employee must have exhausted his or her administrative remedy. Basically, this means that the employee must have filed a timely and sufficient charge with the appropriate administrative agency and obtained a “right-to-sue” letter from that agency. . . . Failure to do so may bar any civil action on the employee’s claim.

(Chin, et al., Cal. Prac. Guide: Employment Litigation (The Rutter Group 2013) ¶ 16:3 [hereinafter “Chin”].)

[T]he rule of exhaustion of administrative remedies is well established in California jurisprudence, and should apply to [plaintiff’s] action. “In brief, the rule is that where an administrative remedy is provided by statute, relief must be sought from the administrative body and this remedy exhausted before the courts will act.” [Citation.] The rule “is not a matter of judicial discretion, but is a fundamental rule of procedure … binding upon all courts.” [Citation.] We have emphasized that “Exhaustion of administrative remedies is ‘a jurisdictional prerequisite to resort to the courts.’ [Citation].” [Citation.]

(Campbell v. Regents of Univ. of Calif. (2005) 35 Cal.4th 311, 321.) “Failure to exhaust the appropriate administrative remedy bars a lawsuit on the claim. Under the FEHA, it is regarded as a ‘jurisdictional’ defect . . . .” (Chin, ¶ 16:26 [italics in original].)

A plaintiff must file a DFEH complaint within one year of the date the alleged unlawful practice occurred, or within 90 days after the one year period where the employee first discovered the facts after the one-year period. (Chin, ¶ 16:260 [citing Gov. Code, § 12960(d)].) The 90-day period runs from the expiration of the one-year period and not from the date when the act was discovered. (Ibid.)

It does not appear that Plaintiff can rely on the relation-back doctrine because the new allegations are not based on the same operative facts as the previous pleadings. (See Rodriguez v. Airborne Express (9th Cir. 2001) 265 F.3d 890, 899-900.) The original charge mentioned only age and sex discrimination, and did not raise claims based on national origin. (See FAC, Exh. A.) Therefore, the national origin discrimination claim does not relate back. (See Rodriguez, 265 F.3d at pp. 899-900 [claim for disability discrimination did not relate back to original claim which mentioned only race discrimination].)

Plaintiff was terminated from her employment on 9/14/12. (See FAC ¶ 18.) This is the latest date that the proposed national origin discrimination or harassment could have occurred. Therefore, the latest possible date for plaintiff to have filed a DFEH complaint alleging misconduct based on her national origin was 12/13/13 (one year + 90 days). Plaintiff fails to show that she filed such a complaint or that she has successfully amended her original DFEH complaint to include these allegations.

Plaintiff’s motion for leave to amend is DENIED.

SUBJECT: Motion for summary judgment or adjudication

Moving Party: Defendant Midway International Inc. (“defendant”)

Resp. Party: Plaintiff Susie Yuen Kee Ko (“plaintiff”)

Defendant’s motion for summary judgment or adjudication is DENIED.

Defendant’s objections to the declaration of Susie Yeun Hee Ko:

Objection
1 OVERRULED
2 OVERRULED
3 OVERRULED
4 OVERRULED
5 SUSTAINED
6 OVERRULED
7 OVERRULED
8 OVERRULED
9 OVERRULED
10 OVERRULED
11 OVERRULED
12 OVERRULED
13 OVERRULED
14 OVERRULED
15 SUSTAINED
16 OVERRULED
17 OVERRULED
18 OVERRULED
19 OVERRULED
20 OVERRULED
21 OVERRULED
22 SUSTAINED
23 OVERRULED
24 OVERRULED
25 OVERRULED
26 OVERRULED
27 OVERRULED
28 OVERRULED
29 OVERRULED
30 OVERRULED
31 OVERRULED
32 OVERRULED
33 OVERRULED
34 OVERRULED
35 OVERRULED
36 SUSTAINED
37 OVERRULED
38 OVERRULED
39 OVERRULED
40 SUSTAINED
41 OVERRULED
42 OVERRULED
43 OVERRULED
44 OVERRULED
45 OVERRULED
46 OVERRULED
47 OVERRULED
48 OVERRULED
49 OVERRULED
50 OVERRULED
51 OVERRULED
52 OVERRULED
53 OVERRULED
54 OVERRULED
55 OVERRULED
56 OVERRULED
57 OVERRULED
58 OVERRULED
59 OVERRULED
60 OVERRULED
61 OVERRULED
62 OVERRULED
63 OVERRULED
64 OVERRULED
65 OVERRULED
66 OVERRULED
67 OVERRULED
68 OVERRULED
69 OVERRULED
70 OVERRULED
71 OVERRULED
72 OVERRULED
73 OVERRULED
74 OVERRULED

Defendant’s Objections to the Declaration of Joan Yoon:

Objection
75 OVERRULED
76 OVERRULED
77 OVERRULED
78 OVERRULED
79 OVERRULED
80 OVERRULED
81 OVERRULED
82 OVERRULED
83 OVERRULED
84 OVERRULED
85 OVERRULED
86 OVERRULED
87 OVERRULED
88 OVERRULED
89 OVERRULED
90 OVERRULED
91 OVERRULED
92 OVERRULED
93 OVERRULED

Defendant’s Objections to the Declaration of Stella Park:

Objection
94 OVERRULED
95 OVERRULED

Defendant’s Objections to Exh. E: Skye Hong’s Deposition Transcript:

Objection
96 OVERRULED

Defendant’s Objections to Exh. F: Brian Oh’s Deposition Transcript:

Objection
97 OVERRULED

PRELIMINARY COMMENTS:

Defendant has filed 97 objections to the three declarations submitted by plaintiff. Defendant’s “Proposed Order Regarding Defendant Midway International, Inc’s Objections” is 58 pages long. Plaintiff Susie Yeun Hee Ko filed an 8-page declaration. Defendant has filed objections to 135 out of the 150 substantive sentences – and 185 out of 209 lines of substantive text – in the declaration. The Court is required to consider and rule on every objection. (See, e.g., Nazir v. United Airlines, Inc., (2009) 178 Cal.App.4th 243, 249 [The Reply to the Motion for Summary judgment contained “324 pages of evidentiary objections, consisting of 764 specific objections, 325 of which were directed to portions of plaintiff’s declaration, many of which objections were frivolous.”])

The Court finds this “object-at-all-cost” tactic to be borderline sanctionable.

It appears to the court, that the partner in charge of this matter simply directed an associate who has been practicing less than nine months to find as many objections as possible, without considering the cost to the court, the cost to the client, or the possible benefit to the defendant of such blunderbuss objections. (If indeed this is what occurred, the fault lies not with the associate who was no doubt only doing what he was instructed to do; the fault is with the partner for either giving these instructions, or not vetting the work done before submitting it to the Court.) As in Nazir, many of the objections are frivolous. For example, defendant objected to the following statements in declarations submitted by plaintiff:

· “I went to Mr. Chung, CEO, asking him why I had to go to a lower ranking person to obtain authorization and why I was the only senior manager that was required to receive authorization from a junior manager on a sales transaction.” (Objection 7 – Lack of Personal Knowledge.)

· “I was told [by my supervisor] if I did not write and sign such a letter, I would be terminated.” (Objection 13 – Hearsay.)

· “She even threatened to kill me.” (Objection 17 – Hearsay.)

· “As a senior sales manager with many years of sales experience, I received a lot of returns for Escara wigs.” (Objection 21 – Irrelevant, Lacks Foundation.)

· “Since it was a product review meeting about Escara products, I shared my experience with the product.” (Objection 24 – Lacks Foundation.)

· “On September 14, 2012, after the incident concerning Sunny Synn, I was called in by Mr. Kim and after I explained to Mr. Kim and Mr. Park what happened, I was told to prepare a written statement and bring it to them.” (Objections 29 and 67 – Hearsay.)

· “During both interviews, I told EEOC and Midway’s attorney about the facts I saw.” (Objection 64 – Irrelevant, Confusing, Lack of Foundation.)

· “I disagreed with the content of the written statement made by Woody Jung. It is untrue.” (Objection 70 – Irrelevant, Lack of Foundation, Best Evidence.)

· “President Chung told me to follow whatever instructions Joseph Kim gave to me.” (Objection 71 – Hearsay, Lack of Foundation.)

· “During the time I worked at Midway, I witnessed that Susie Ko maintained a good relationship with other employees at Midway, I never witnessed that she was disrespectful to any employees or superiors at any time.” (Objection 76 – Improper Opinion, Lack of Personal Knowledge, Lack of Foundation.)

· “On a Friday and early 2011, Susie Ko was wearing a cardigan because it was a casual Friday. Director Skye Hong commented concerning Susie’s outfit that, “looking from behind, you look like a 20-year-old girl, but looking at the front, you look like a 50-year-old woman,” and “although you carry a brand-name bag, you will not look any younger.” The comment was discriminatory and derogatory. I was present at the time and heard the derogatory comments made by director Skye Hong.” (Objection 89 – Irrelevant, Improper Lay Opinion, Lack of Personal Knowledge, Legal Conclusion, Hearsay.)

· “Midway’s sales department was a male-dominated department.” (Objection 90 – Improper Lay Opinion.)

· “During the time I worked at Midway, I never witnessed Susie Ko getting into a fight with other employees. I never witnessed or heard Susie Ko yelling or screaming at customers. I never witnessed or heard Susie Ko being disrespectful to other employees were superiors.” (Objection 92 – Irrelevant, Improper Lay Opinion.)

Defendant even objected to a statement that “During the course of my employment, I suffered sexual harassment from my immediate supervisor.” The grounds for this objection included, inter alia, the fact that the statement was “unduly prejudicial.” (See Objection 78.)

The Court has spent more than two hours analyzing these objections. The associate must have spent at least 10 hours developing these objections. The client surely was billed over $3,000 for these objections. These blunderbuss objections are, simply put, a waste of everyone’s time and money.

The Court hopes that, prior to filing such a set of objections in the future, counsel will make a conscious decision whether objecting to virtually every sentence in the opposing party’s declarations is professionally necessary, strategically needed or tactically wise.

BACKGROUND:

Plaintiff Susie Yeun Hee Ko commenced this action on 6/25/13. Plaintiff filed a first amended complaint on 5/9/14 against defendant for: (1) age discrimination (FEHA); (2) sex discrimination (FEHA); (3) age harassment (FEHA); (4) retaliation; (5) failure to prevent discrimination and harassment; and (6) wrongful termination in violation of public policy. Plaintiff alleges she was harassed and forced to apologize to other employees. Plaintiff alleges that other employees used offensive language with and in reference to her. Plaintiff alleges that defendant engaged in retaliatory and discriminatory conduct against her.

ANALYSIS:

Defendant seeks summary judgment, or in the alternative summary adjudication of plaintiff’s six causes of action.

First and Second Causes of Action for Age and Sex Discrimination

Defendant argues that these causes of action fail because defendant had a legitimate, non-discriminatory reason to terminate plaintiff and plaintiff has no evidence of discriminatory motive.

The following analysis applies to claims for discrimination:

State and federal law both analyze … discrimination claims under a three step framework. First, the plaintiff bears the initial burden of establishing a prima facie case of discrimination. The employer then must offer a legitimate nondiscriminatory reason for the adverse employment decision. Finally, the plaintiff bears the burden of proving the employer’s proffered reason was pretextual. [Citations.]

(Brundage v. Hahn (1997) 57 Cal.App.4th 228, 236.) To make a prima facie showing of a cause of action for workplace discrimination, plaintiff must provide facts showing that: (1) plaintiff was a member of a protected class; (2) she was qualified for the position sought, or was performing competently in the position held; (3) she suffered an adverse employment action; and (4) some other circumstance suggests discriminatory motive. (Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 355.)

For the first two causes of action, defendant does not argue that plaintiff cannot make a prima facie showing of discrimination; instead, defendant’s sole argument is that it had a legitimate, non-discriminatory reason for terminating plaintiff.

On 9/12/12, plaintiff attended one of defendant’s product review meetings. (DMF 4-5.) During the meeting, plaintiff discussed her experience with the product and color description issues. (DMF/PMF 6.) Plaintiff disputes defendant’s assertion that she verbally interrupted Sunny Shin, defendant’s Research and Development Director, during the meeting, and the cited deposition testimony does not establish that she interrupted Shin. (See DMF/PMF 7.) Plaintiff testified that she raised her voice to Shin as they were exiting the meeting, but plaintiff now disputes this. (DMF/PMF 8.) Plaintiff attempted to keep talking to Shin as they left the meeting, but then Shin walked away. (DMF/PMF 12.) Defendant argues that this conduct constituted insubordination under defendant’s employee handbook, which prohibits any failure or refusal to obey orders from supervisors or management and the use of abusive or threatening language to supervisors or management. (DMF 13-14.)

Plaintiff does not dispute that she was involved in incidents with other employees prior to the disagreement with Shin. Plaintiff had made comments to another employee about her wardrobe while at work. (See DMF/PMF 15-17.) As a result, plaintiff was required to write an apology letter. (DMF/PMF 18.) In August 2009, plaintiff was involved in another incident with the same employee regarding the use of a computer. (DMF/PMF 19-21.) During the incident, the other employee yelled and swore at plaintiff, and the two got into a verbal altercation. (DMF/PMF 22.) Plaintiff declares that she did not yell at the other employee. (PMF 23.) Thereafter, the other employee was terminated and plaintiff received a one-week suspension without pay. (DMF/PMF 25.)

Defendant asserts that it requires employees to use proper, formal titles in the workplace and that plaintiff failed to do so with regard to her supervisor, Brian Oh. (DMF 26-29, 31.) Plaintiff disputes that this was insubordination, and declares that she and Oh were close friends and that Oh addressed plaintiff without title. (PMF 28-29.) Plaintiff stated that her co-workers did not use titles when addressing each other, and that she addressed employees how they wanted to be addressed. (PMF 30.)

Defendant asserts that plaintiff elbowed other employees and tapped them on the back, but in the cited testimony plaintiff does not state that she engaged in such conduct. (See DMF/PMF 32.) Plaintiff did admit to touching Oh, but declares that she was only responding to him touching her. (DMF/PMF 33.) Plaintiff was counseled not to touch other employees, not to speak rudely and disrespectfully to customers, and not to violate the policy against fraternization. (DMF/PMF 34-37.) Plaintiff states that the anti-fraternization policy was not equally enforced and she did not believe that she was violating the policy by having lunch with other employers. (DMF/PMF 37.) While plaintiff testified that she was counseled as to other rules, such as those against playing favorites or regarding getting along with other employees, but the evidence does not establish that the counseling resulted from plaintiff violating these rules. (DMF/PMF 38-39.)
It is undisputed that plaintiff was issued a final warning that she would be terminated if her behavior did not improve. (DMF/PMF 40-41.) Defendant asserts that plaintiff ignored this warning when she engaged in the disagreement with Shin. (DMF 42.) At a meeting to discuss the incident with Shin, plaintiff was terminated. (DMF 45.)

The cited evidence does not establish that plaintiff engaged in insubordination during the incident with Shin. At most, the evidence suggests that plaintiff had a verbal disagreement with Shin; there is no evidence that she refused to follow an order from Shin or that she used any abusive or threatening language during the disagreement. Plaintiff presents evidence that, when she voiced her disagreement to Shin, it was Shin who used offensive language. (See PAMF 294-295, 305.) Though there is evidence of other incidents involving plaintiff, defendant does not clearly show that these incidents were the reasons for plaintiff’s termination. There is a triable issue of fact as to whether defendant’s purported reason for terminating plaintiff is “unworthy of credence.”

Plaintiff also presents evidence which suggests that defendant may have been motivated by discriminatory animus. Plaintiff points to the fact that, during the decade prior to plaintiff’s termination, defendant never had more than three female employees in the sales department, despite the fact that the department had 30 to 40 employees. (PAMF 308.) She points out that female employees held lower positions, received unequal treatment, were assigned less desirable accounts, and were forced to be assistants to male associates. (PAMF 309.) Plaintiff was the only female sales manager and, unlike the three male sales managers, she was not a team leader. (PAMF 310.) Plaintiff was the only senior sales manager who had to get authorization for sales from a junior (male) sales manager. (PAMF 311.) Plaintiff declares that Joseph Kim, defendants COO, implied that plaintiff was too old to go on a business trip. (PAMF 313.) Plaintiff states that Skye Hong, Director of Sales, declined to send her on a business trip, even though male sales persons routinely did so, because he knew of a female sales person from another company who had an affair while on a business trip. (PAMF 314.) Plaintiff presents evidence that Hong made comments to plaintiff about her age. (PAMF 315-319.)

Defendant appears to assert that it did not have a discriminatory animus because, after she was terminated, defendant hired two female employees to join the sales department, one of whom was forty-seven years old. (DMF 46-47.) Plaintiff presents evidence that only one female was hired, and that this female did not have the same responsibilities as plaintiff. (See PMF 46-47.) Defendant fails to provide evidence showing that any female employees hired after plaintiff’s termination worked at the same level as plaintiff. Therefore, this evidence, by itself, does not defeat plaintiff’s claim of discriminatory animus.

The Court finds that there are triable issues of fact as to whether defendant had a legitimate, non-discriminatory reason for terminating plaintiff that was not pretextual. Accordingly, defendant’s request for summary adjudication of the first and second causes of action is DENIED.

Third Cause of Action for Harassment

Defendant argues that plaintiff’s harassment claim fails because plaintiff was not subject to harassment, and even assuming that plaintiff’s allegations of age-related comments are true, such comments were not sufficiently severe or pervasive to alter the conditions of plaintiff’s employment.

The essential elements of a cause of action for hostile work environment harassment are: (1) plaintiff was an employee; (2) plaintiff was subjected to unwanted harassing conduct because she was or was believed to be a member of a protected group; (3) the harassing conduct was severe or pervasive; (4) a reasonable member of the protected group in plaintiff’s circumstances would have considered the work environment to be hostile or abusive; (5) plaintiff considered the work environment to be hostile or abusive; (6) the individual defendant participated in, assisted, or encouraged the harassing conduct; (7) plaintiff was harmed; and (8) the conduct was a substantial factor in causing plaintiff’s harm. (CACI No. 2522A; Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 608.) “To prevail on a hostile work environment claim under California’s FEHA, an employee must show that the harassing conduct was ‘severe enough or sufficiently pervasive to alter the conditions of employment and create a work environment that qualifies as hostile or abusive to employees because of their [protected statuts].’ [Citation.]” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1043.)

[T]he existence of a hostile work environment depends upon ‘the totality of the circumstances.’ [Citation.]” [Citation.] ” ‘[W]hether an environment is “hostile” or “abusive” can be determined only by looking at all the circumstances. These may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.’ [Citation.]” [Citation.]

(Fuentes v. AutoZone, Inc. (2011) 200 Cal.App.4th 1221, 1227.)

An employer may be liable for the harassment where the harassing conduct was by a supervisor, or where the harassing conduct was by a co-worker and the employer (or its agents or supervisors) knew or should have known of the conduct and failed to take immediate and appropriate corrective action. (Gov. Code, § 12940, subd. (j)(1).)

The evidence shows that during a meeting in 2011 or 2012, Hong told the sales employees to wear age-appropriate clothing. (DMF/PMF 50.) Plaintiff believed this comment was directed to her. (DMF/PMF 51.) Plaintiff also asserts that Hong once called her an “old hag” in response to plaintiff expressing her tiredness after a trade show, and another employee overheard this comment. (DMF/PMF 52-53; PAMF 318.) Plaintiff admitted that there was no Korean translation for “old hag” and that Hong was instead calling her an “elderly lady,” but that the way Hong said this suggested the connotation of “old hag.” (DMF/PMF 55-56.) Plaintiff provides evidence that Hong made another comment about plaintiff not wearing age-appropriate clothing. (DMF/PMF 316-317.) This evidence is sufficient to raise a triable issue of fact as to whether the conduct of Hong was sufficient to constitute hostile work environment harassment.

Defendant’s request for summary adjudication of the third cause of action is DENIED.

Fourth Cause of Action for Retaliation

Defendant argues that this claim fails because plaintiff did not complain about harassment or discrimination, and there is no causal link between a protected activity and her termination.

To establish a cause of action for retaliation under FEHA, a plaintiff must show: “(1) he or she engaged in a ‘protected activity,’ (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer’s action.” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.) “The causal link may be established by an inference derived from circumstantial evidence, ‘such as the employer’s knowledge that the [employee] engaged in protected activities and the proximity in time between the protected action and allegedly retaliatory employment decision.'” (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 615.)

Plaintiff does not dispute that she never directly complained to any supervisory employees about Hong’s, Kim’s, or any other managerial employee’s comments about her age or gender. (DMF/PMF 61-64.) Plaintiff once went to defendant’s president to raise concerns about the fact that she had to report to a more junior level male employee, but it is undisputed that she did not express her belief that the requirement was because of her age or gender. (DMF/PMF 65-67.) Plaintiff did complain to another female employee, Josephine Cho, after returning from the trip wherein Hong called her an “old hag.” (PAMF 319.) Cho thereafter made a report to defendant’s management. (PAMF 320.) Subsequently, Kim called plaintiff and told her that Cho made the report, and plaintiff told Kim what had happened. (PAMF 321.) Plaintiff was then called in and was informed that defendant confirmed with Hong and another employee that Hong did not make the comments in the way that plaintiff had stated. (PAMF 323.) Plaintiff declares that she did not directly make complaints to supervisory employees because they were the ones making the comments about plaintiff’s age and gender. (PAMF 335.)

The evidence regarding plaintiff’s discussions with Kim as to Hong’s purported statements are sufficient to raise a triable issue of fact as to whether plaintiff opposed the harassment or made a complaint. (See Gov. Code, § 12940(h).) Though it was Cho who filed the official report, the evidence suggests that plaintiff did speak with Kim and bring the purported harassment to his attention.

Defendant’s request for summary adjudication of the fourth cause of action is DENIED.

Fifth Cause of Action for Failure to Prevent Discrimination and Harassment

Defendant agues that this claim fails because there was no such discrimination or harassment and, even if there were, defendant had no reason to know about it and thus did not fail to take necessary steps.

Failure to prevent discrimination or harassment is a separate basis for liability under the FEHA. (See Gov. Code, § 12940, subd. (k).) To support a cause of action for failure to take reasonable steps to prevent discrimination or harassment, plaintiff must prove: (1) she was subjected to unlawful discrimination or harassment; (2) the employer failed to take reasonable steps to prevent the discrimination or harassment; and (3) the employer’s failure was a substantial factor in causing the plaintiff harm. (CACI No. 2527.)

The Court rejects the argument that there was no discrimination or harassment and that defendant had no reason to know about it. As stated above, there are triable issues as to whether plaintiff experienced discrimination or harassment, and whether she made defendant aware of the harassment.

Defendant’s request for summary adjudication of the fifth cause of action is DENIED.

Sixth Cause of Action for Wrongful Termination

Defendant argues that the sixth cause of action fails because plaintiff never reported or complained about any alleged harassment or discrimination.

The elements of a cause of action for wrongful employment termination are: (1) Plaintiff’s employment was actually or constructively terminated; (2) termination violates a policy that is delineated in either constitutional or statutory provisions, public in the sense that it inures to the benefit of the public, well established at the time of discharge, and substantial and fundamental; and (3) plaintiff was damaged. (Barbee v. Household Automotive Finance Corp. (2003) 113 Cal.App.4th 525, 533.) “A discharge that violates the FEHA may also be ground for a tort action … based on violation of the fundamental public policy expressed in the FEHA against age discrimination.” (Chin, supra, ¶ 8:861.)

As discussed above, there are triable issues of fact as to plaintiff’s discrimination, harassment, and retaliation claims based on the FEHA. Therefore, there is also a triable issue of fact as to the sixth cause of action because these claims could support a wrongful termination claim.

Accordingly, defendant’s request for summary adjudication of the sixth cause of action is DENIED.