Metropolitan News-Enterprise


Friday, June 13, 2014


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C.A. Upholds Judgment in Sexual Harrasment Suit

Justices Hold Five-Employee Requirement Inapplicable to Common Law Discharge Claim




An employee who was constructively discharged for complaining about sexual harassment can maintain a common law wrongful termination action, even if the employer has a workforce of fewer than five and is immune from most claims under the Fair Employment and Housing Act, the Fourth District Court of Appeal ruled yesterday.

Div. Three affirmed a $60,000 judgment against Konad USA Distribution, Inc. and its owner Dong Whang. Plaintiff Esther Kim said she had to leave the company, where she worked as an account manager from 2006 to 2010, because she could no longer handle the stress engendered by Whang’s constant questions about her sex life, comments about other women’s breasts and buttocks, staring at her in a suggestive manner, daily explicit comments, and ultimately unwanted touching.

Kim was in her early 20s at the time, while Whang was nearly 60. When Kim moved to LaHabra to be closer to work, she claimed, Whang offered to contribute $500 a month toward her rent for one year on condition she not tell his wife.

Kim eventually complained to the Department of Fair Employment and Housing and obtained a right-to-sue letter. Following a nonjury trial, Orange Superior Court Judge Gregory Munoz ruled in her favor on her claims for quid pro quo and hostile work environment sexual harassment in violation of FEHA and wrongful termination in violation of public policy.

Workforce Size Irrelevant

On appeal, the defense argued, among other things, that Kim failed to prove that Konad had at least five employees during the period in question, a prerequisite to recovery under FEHA. But the size of the defendant’s workforce was irrelevant, Justice Raymond Ikola wrote.

FEHA’s definition of “employer,” Ikola explained, makes clear that the five-employee minimum does not apply to claims of harassment based on sex or some other prohibited classification. Besides, he wrote, Kim pled and proved a claim of common law wrongful discharge based on public policy grounded both in FEHA and in the state Constitution’s ban on sex discrimination in employment.

“In sum, a wrongful termination against public policy common law tort based on sexual harassment can be brought against an employer of any size,” he wrote.

Ikola also rejected the defense argument that the plaintiff’s claims failed as a matter of law because she did not prove exhaustion of administrative remedies in her case in chief.

Exhaustion Undisputed

The defendant, Ikola explained, did not dispute on appeal that Kim, in fact, exhausted her administrative remedies and received a right to sue letter, as clearly shown in the record. The argument that proof of exhaustion must be proven at trial as a “jurisdictional prerequisite” is wrong, he said.

“Prior to submission of the case for decision, defendants did not request dismissal of the FEHA causes of action based on plaintiff’s failure to exhaust,” he said. “Defendants thereby forfeited any right they may have had (in the abstract) for a judgment of dismissal on the FEHA causes of action.”

The defendants, he said, could not “seek to have it both ways by claiming they can raise exhaustion at any time but the evidence of exhaustion should be limited to that submitted at trial.” If it is an issue of subject matter jurisdiction, he said, either the trial or the appellate court can rely on materials elsewhere in the record to determine whether exhaustion requirements were met.

In any event, Ikola went on to write, the defense apparently never asked the trial judge to apportion the judgment between the defendants or among the three causes of action, which also made it unnecessary to determine whether Whang, as distinguished from his company, was an “employer” and thus personally liable on the common law claim.

The case is Kim v. Konad USA Distribution, Inc., G048443.


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