Mokler v. County of Orange
November 26, 2007, Fourth District, Div. Three
Cite as 2007 SOS 6845

Employee victim of Retaliatory Termination for Whistle Blowing

Pamela Mokler was hired by the County of Orange in November 2000 to stand as their Office on Aging (OoA)'s executive director. OoA is an advocate agency of the County for elderly citizens.

Her first supervisor, William Baker, the County's directory of Community Services Agency consistently rated Mokler's job performance as "exceptional."

Vicki Landrus was appointed as interim director of the Community Services after Baker's retirement. Later, Landrus informed Mokler that the Office of Aging would undergo some restructuring.

Mokler expressed her belief that doing the planned restructuring on the OoA would violate the County's contract with the California Department of Aging (CDA) and the federal and state law.

Concerned about the warnings, Mokler was instructed by her supervisor, both written and verbal not to alert the CDA of the changes. Even with the instruction, Mokler informed the CDA about the changes being planned. Subsequently, the County fired Mokler.

During her employment with the OoA, Mokler also encountered several unpleasant interactions with Supervisor Norby, a board member. During her interaction with Norby in 2003, for three separate instances in five consecutive months, Mokler felt that she was insulted, offended and harassed by his comments and physical contact. She had reported the encounters with Norby to her former supervisor, Baker.

Mokler sued the County in the Superior Court of Orange County for the following charges:

• Breach of Contract


• Wrongful termination


• unlawful retaliation under the California's Whistle blowing statute, Labor Code section 1102.5, subdivision (b)


• Gender-based "hostile work environment" claim under FEHA

The trial court dismissed the first two claims. It held that Mokler failed to exhaust her internal administrative procedural right to remedies.

Mokler proceeded to trial on the two remaining cases against the County and individual County employee, the claims for unlawful retaliation and hostile work environment.

The jury returned a special verdict in favor of Mokler on the said cases:

• It found that Mokler presented prima facie evidence that the County terminated her in retaliation for being a whistleblower. She was awarded economic and non-economic damages


• The jury also sustained the harassment claim. It found that Norby created a "hostile work environment" for Mokler though she did not suffer any damages during her contact with him.

The trial court denied the JNOV (Judgment notwithstanding verdict) motion on both cases, filed by the defendants, along with jury misconduct, excessive damages and insufficient evidences.

Ultimately, the trial court, after weighing the records concluded that the non-economic damages award were excessive. It also ordered a new trial against the County concerning the damages for unlawful retaliation.

The defendants appealed the denial of their JNOV motion while Mokler appealed the partial new trial order. All appeals were discussed in the Court of Appeal of the State of California, Fourth Appellate District, Division Three .

The Court of Appeal order held the following:

• Affirmed in part the verdict on unlawful retaliation holding that the County's sudden change of Mokler's job performance evaluation immediately after the whistle blowing incident constituted substantial evidence that the reasons indicated for firing her were just a pretext in order to justify their retaliatory termination.


• Reversed the trial court judgment concerning the hostile working environment claim holding that "to be actionable, the sexual harassment must be sufficiently severe or pervasive as to alter the conditions of employment and create an abusive work environment" Fisher v. San Pedro Peninsula Hospital, 214 Cal.App.3d 590 (1989). Court concluded that the one incident of brief touching together with two incidents of boorish comments did not constitute sufficiently severe or pervasive to alter Mokler's work environment.