Dominguez v. Washington Mutual Bank
In the Court of Appeal of the State of California
21 November 2008; Cite as 2008 SOS 6403

When Triable Fact Issues Exist in Sexual Orientation Discrimination

This is a case involving discrimination in employment based upon a person’s sexual orientation.

It appears that Dominguez, the plaintiff and appellant in this case, sued the Washington Mutual Bank (WaMu) and WaMu employee Javier Gutierrez for violating the Fair Employment and Housing Act (FEHA). She alleged that Gutierrez harassed and eventually fired her from her job because she was a lesbian.

Dominguez worked for WaMu as a temporary employee assigned to processing outgoing mail. After two weeks, her sexual orientation became known. Soon after, Gutierrez, then a co-worker, began making crude and offensive comments to Dominguez relating to her sexual orientation.

Instead of complaining to Dominguez and Gutierrez’s direct supervisor, Dominguez went to their direct supervisor’s supervisor, Shelly Ferrel, who happened to be lesbian also. Gutierrez stopped making offensive comments but began interfering with Dominguez’s work.

Dominguez again complained to Ferrel about Gutierrez’s conduct, telling the latter how Gutierrez interferes with her ability to do her job. She also complained to her immediate supervisor at least 12 times about the work interference issues but with no effect. Thereafter, Dominguez was assigned to work directly with Gutierrez.

Being an excellent worker with a great attitude, Dominguez applied to become a permanent WaMu employee. But two days later, she was fired because she was allegedly frequently late for work.

Subsequently, Dominguez filed an administrative complaint for sexual orientation discrimination with the state Department of Fair Employment and Housing (DFEHA). She got her right-to-sue letter and sued WaMu and Gutierrez. The complaint specifically provides three FEHA violations, to wit:

1. unlawfully firing an employee due to her sexual orientation
2. unlawfully firing an employee in retaliation for her opposition to any practices that violates FEHA, and
3. unlawfully harassing an employee providing services pursuant to a contract based on, among others, the employee’s sexual orientation

WaMu moved for a summary judgment which the trial court granted.

The trial court ruled that “Gutierrez’s misconduct as it related to Dominguez’s sexual orientation ended sometime in May 2002 when he stopped making his offensive comments. His conduct after that time—interfering with Dominguez’s work and whistling the offensive tune—was so different and unrelated in nature.”

The court found, that it did not extend the limitations period under the so-called continuing violation doctrine. The court also found that Dominguez had no evidence to rebut WaMu’s claim that it fired her for a legitimate, nondiscriminatory reason due to her tardiness.

On appeal, the Court of Appeal of the State of California ruled that there was evidence to show that triable fact issues exist in this case; that there was sufficient evidence that a FEHA violations occurred.

The Court ruled that “WaMu contends an inference of pretext cannot arise because there was too long a time gap between Dominguez’s complaint to Ferrel and the decision to fire her, and because it makes no sense to believe she was asked to apply for full-time work if she were the victim of discrimination. As our previous discussions show, there was little or no gap between Dominguez’s many complaints to Rough and the decision to fire her. As for Rough having asked Dominguez to apply for full-time work, it is arguable that Rough did so as cover for his decision to fire her, or that he did not have all the essential facts. At most, however, it raises a factual conflict that a trier of fact must resolve.”

The summary judgment entered for WaMu was therefore reversed by the Court of Appeal.