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Sexual Harassment and Wrongful Termination Decision Affirmed

Posted by Eric Kingsley | Jul 08, 2014 | 0 Comments

Appellate Court Affirms Judgment in the Case of Kim v. Konrad USA Distribution

Following a bench trial in 2013, the court awarded plaintiff Esther Kim $60,000 against her former employer, defendant Konad USA Distribution, Inc. (Konad), and her former boss, defendant Dong Whang. The defendants appealed, citing the alleged failure of plaintiff to meet certain “jurisdictional” prerequisites (e.g., exhaustion of administrative remedies, proving Konad had five employees) in her sexual harassment and wrongful termination claims. The Appellate Court of the Fourth District affirmed the trial court's judgment.    (CA4/3 G048443 6/12/14)

The plaintiff, Esther Kim, started working for Konad in 2006 as an account manager. Her main duties were to process orders by phone and emails. Konad's small business involved the distribution and sales of nail art kits and grossed about two million dollars in 2012.  Mr. and Mrs. Whang were actively involved in the operation of the business and Dong Whang was the CEO and sole shareholder.

In 2007, the plaintiff moved to La Habra to be closer to her job and it was about this time that Dong Whang commenced a pattern of sexually harassing Ms. Kim. According to court documents, over the next several years, Defendant Whang would regularly make comments to the plaintiff concerning sexual matters. He questioned her about her sexual activities and commented on her body. At work their desks were across from each other and he would leer ather almost on a daily basis and stare at her breasts and legs.

There were other unsolicited sex-laden utterances that occurred daily and eventually evolved into unwanted touching of Plaintiff's body by Whang. Ms. Kim finally found the hostile environment so stressful that she wrote to Whang on November 12, 2010, that she would not be returning to work. Ms. Kim claims that Whang had fired her by telling her to ‘take her last paycheck and go and make a lot of love with her boyfriend.'

Sexual harassment

Case History  (excerpted from court documents)
In July 2011, the plaintiff filed a civil action against Konad and Whang. Plaintiff's complaint included four causes of action relevant to this appeal: (1) sexual harassment (quid pro quo); (2) sexual harassment (hostile work environment); (3) retaliation; and (4) wrongful termination in violation of public policy. The first three causes of action were pleaded under the California Fair Employment and Housing Act (FEHA; Gov. Code, §12900 et seq.). The fourth cause of action was not pleaded as a FEHA claim, but rather as a common law tort.

Defendants answered the complaint in December 2011. The answer included an affirmative defense that plaintiff had failed to exhaust her administrative remedies as required by Government Code section 12960. Defendants did not demur to the complaint, file a motion for summary judgment, or file any other pretrial motion to dispose of any of
plaintiff's causes of action and the trial commenced in February 2013.

Defense counsel's opening statement focused on the merits of the contentions at issue. Defense counsel did not claim plaintiff had failed to exhaust her administrative remedies under FEHA or that the court lacked jurisdiction to decide the causes of action pleaded in the complaint for any other reason. The record does not disclose the existence of any motions filed or argued during the trial by defendants to dismiss plaintiff's FEHA claims based on a failure to exhaust administrative remedies or an insufficient number of employees. Further, Defense counsel's closing argument did not mention jurisdictional issues or the exhaustion of administrative remedies.

At the close of plaintiff's case-in-chief, defendants moved for judgment pursuant to Code of Civil Procedure section 631.8. This motion was based on an alleged lack of evidence sufficient to support the substantive elements of plaintiff's causes of action. There was no mention of a lack of jurisdiction, a lack of exhaustion of administrative remedies, or a failure to prove Konad had five employees in the argument pertaining to this oral motion. The court granted the motion as to the third cause of action (retaliation pursuant to FEHA), but denied the motion as to the other three relevant causes of action (sexual harassment–quid pro quo, sexual harassment–hostile work environment, and wrongful termination in violation of public policy).

After the close of evidence and argument, the court took the case under submission on February 20, 2013. The court issued a proposed statement of decision and judgment on February 27. Defendants objected to the statement of decision, including on the grounds that the court lacked jurisdiction because of the number of Konad's employees and plaintiff's alleged failure to exhaust administrative remedies.

The court filed an essentially unchanged statement of decision and judgment on March 15, 2013. The statement of decision indicated plaintiff carried her burden of proof with regard to all three remaining causes of action. The judgment awarded the plaintiff $60,000; the award is in a single lump sum and is not differentiated by cause of action, defendant, or type of damage.

On March 19, 2013, defendants filed “supplemental” objections to the statement of decision, further exploring their contention that the court lacked jurisdiction because plaintiff did not prove she had exhausted her administrative remedies under FEHA by filing administrative complaints naming both defendants and raising the claims relied on in this litigation.

On April 17, 2013, defendants moved to set aside and vacate the judgment as void pursuant to Code of Civil Procedure section 473, subdivision (d), based on their various jurisdictional arguments (i.e., failure to exhaust administrative remedies, failure to prove filing of adequate administrative complaints, failure to prove five employees worked at Konad during the relevant time period). Plaintiff opposed the motion on several grounds, including waiver by defendants. Plaintiff also appended copies of documents showing she had in fact complied with jurisdictional prerequisites, including verified administrative complaints separately filed in January 2011 against both Konad and Whang. The allegations in these administrative complaints included termination, harassment, constructive discharge, retaliation, and failure to prevent harassment. This conduct was alleged to have occurred because of plaintiff's sex and marital status. Plaintiff specifically wrote that “the reasons for my discrimination were based upon my sex as a female. I suffered sexual discrimination and harassment and retaliation. In addition, I was constructively terminated because of my sex.”

The court denied the motion to set aside the judgment. The court rejected the notion that a FEHA complaint must be introduced into evidence to provide the court with jurisdiction to rule in a FEHA case. The court also noted that the introduction of (the right to sue letter) was evidence of exhaustion.

FEHA Exhaustion of Administrative Remedies
The Appellate Court went on to explain Exhaustion of Administrative Remedies. “FEHA creates an administrative agency, the DFEH, whose task it is to receive, investigate and conciliate complaints of unlawful employment discrimination. Any person claiming to be aggrieved by an alleged unlawful practice may file with the department a verified complaint, in writing, that shall state the name and address of the person, employer, labor organization, or employment agency alleged to have committed the unlawful practice complained of, and that shall set forth the particulars thereof and contain other information as may be required by the department.”

“If, following receipt of a complaint, the DFEH fails to resolve the case or to file an accusation against the employer within 150 days, it must notify the employee in writing of his or her right to file a civil action under the FEHA. This notification is commonly referred to as a ‘right to sue' letter.” As happened here, the employee can also request and obtain an immediate right-to-sue letter by filing an online administrative complaint, waiving a DFEH investigation. The administrative complaint need not be signed if it is filed electronically for purposes of obtaining an immediate right-to-sue letter; by submitting the complaint, the complainant is verifying its truth (to the best of her knowledge) under penalty of perjury.

“Before filing a civil action alleging FEHA violations, an employee must exhaust his or her administrative remedies with DFEH.” Exhaustion includes the timely filing of administrative complaints addressing the claims and parties at issue, as well as the procurement of right-to-sue letters. Courts have referred to this requirement as a “jurisdictional prerequisite.” Moreover, it is “plaintiff's burden to plead and prove timely exhaustion of administrative remedies, such as filing a sufficient complaint with [DFEH] and obtaining a right-to-sue letter.”

The defendants took the road less traveled and waited until after the case was submitted for decision to raise their contentions about exhaustion of administrative remedies. In their briefs, defendants misleadingly claim plaintiff “failed to exhaust her administrative remedies.” By our review of the record, the only reasonable inference is that plaintiff did exhaust her administrative remedies. She submitted verified complaints to DFEH, naming both defendants and covering the claims asserted in the lawsuit. Plaintiff received right-to-sue letters referencing her administrative complaints. Defendants simply ignore these documents in their appellate briefs. Defendants do not attempt to argue the government records submitted by plaintiff were inadmissible under the Evidence Code. Instead, defendants' argument (implicitly at least) is that we are obligated to limit our review to evidence admitted at trial, thereby ignoring the fact that plaintiff really did exhaust her administrative remedies.

The Appellate Court concluded, “There is clear evidence in the record that plaintiff timely submitted verified administrative complaints against both defendants on all the claims pursued at trial and received right-to-sue letters for both defendants. For this reason, we would affirm the judgment even if we were to conclude that exhaustion of administrative remedies is a necessary precondition to the exercise of subject matter jurisdiction by California courts in FEHA cases.

Questions about Employment Law in California? 

To discuss sexual harassment, wrongful termination, or any other employment laws in further detail, feel free to contact leading California employment lawyers at Kingsley & Kingsley. Take advantage of a free initial consultation to discuss your case by calling us toll-free at (888) 500-8469 or clicking here to contact us.

About the Author

Eric Kingsley

In practice since 1996, the firm's lawyer and co-founder, Eric B. Kingsley, has litigated complex cases and written numerous appeals in state and federal courts on behalf of the California law firm Kingsley & Kingsley, including More than 150 collective actions. Mr. Kingsley focuses his practice ...


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