194 | 2024 Cal-Peculiarities ©2024 Seyfarth Shaw LLP www.seyfarth.com 311 See B. LINDEMANN, P. GROSSMAN & C. WEIRICH, EMPLOYMENT DISCRIMINATION LAW 27-49 to 27-60 (5th ed. 2012). 312 McDonald v. Antelope Valley Cmty. Coll. Dist., 45 Cal. 4th 88, 112-14 (2008) (voluntary pursuit of internal administrative remedy before filing FEHA complaint will toll running of statute of limitations on FEHA claim; nothing in FEHA stands as a bar to the usual rule that limitations periods are tolled while a party pursues an alternate remedy; tolling may apply even if the plaintiff voluntarily abandons the internal proceeding). 313 2 Cal. Code Regs. § 10007(e)(2). 314 Foroudi v. The Aerospace Corp., 57 Cal. App. 5th 992, 1004 (2020). 315 Alch v. Superior Ct. (Time Warner Entm’t), 122 Cal. App. 4th 339, 403 (2004) (age discrimination that violates FEHA also violates the UCL, Bus & Prof. Code § 17200); Herr v. Nestle U.S.A., Inc., 109 Cal. App. 4th 779, 789-90 (2003) (plaintiff entitled to injunction under section 17200 for age discrimination as it gives unfair competitive advantage; rejecting the employer’s contention that the UCL aims to protect consumers and competitors, not employees). 316 Alch v. Superior Ct. (Time Warner Entm’t), 122 Cal. App. 4th 339, 404 (2004) (trial court lacked authority to award back pay on an age discrimination theory under the UCL; prevailing plaintiffs generally limited to equitable remedies such as injunctive relief and restitution). 317 See generally B. LINDEMANN & D. KADUE, AGE DISCRIMINATION IN EMPLOYMENT LAW 538-39 (2003). 318 Reid v. Google, Inc., 155 Cal. App. 4th 1342 (2007), review granted. 319 Reid v. Google, Inc., 50 Cal. 4th 512 (2010). 320 See, e.g., Bradley v. Harcourt, Brace & Co., 104 F.3d 267, 270-71 (9th Cir. 1996); Horn v. Cushman & Wakefield W., Inc., 72 Cal. App. 4th 798, 809 (1999). 321 Horn v. Cushman & Wakefield W., Inc., 72 Cal. App. 4th 798, 809 (1999) (citing Proud v. Stone, 945 F.2d 796, 797 (4th Cir. 1991)). 322 Guz v. Bechtel Nat’l, Inc., 24 Cal. 4th 317, 354 (2000). 323 Harvey v. Sybase, Inc., 161 Cal. App. 4th 1547, 1561 (2008), review granted. The Supreme Court initially agreed to decide whether FEHA plaintiffs must “present correspondingly stronger evidence of bias if the person responsible for the termination had previously treated the plaintiff favorably.” But then the Supreme Court dismissed review. The ultimate result is that Harvey was depublished and cannot be cited as authority. 324 See also Nazir v. United Airlines, Inc., 178 Cal. App. 4th 243, 272, 273 (2009) (“no California case or statute has created a same actor presumption”; same-actor evidence should not have “some undue importance attached to it, for that could threaten to undermine the right to a jury trial by improperly easing the burden on employers in summary judgment”). 325 Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 388 (2008). 326 Pantoja v. Anton, 198 Cal. App. 4th 87, 92 (2011). 327 Id. 328 Meeks v. AutoZone, Inc., 24 Cal. App. 5th 855 (2018). 329 Evid. Code § 1106(a), (b): (a) In any civil action alleging conduct which constitutes sexual harassment, sexual assault, or sexual battery, opinion evidence, reputation evidence, and evidence of specific instances of the plaintiff’s sexual conduct, or any of that evidence, is not admissible by the defendant in order to prove consent by the plaintiff or the absence of injury to the plaintiff, unless the injury alleged by the plaintiff is in the nature of loss of consortium. (b) Subdivision (a) does not apply to evidence of the plaintiff’s sexual conduct with the alleged perpetrator. 330 Hatai v. Dep’t of Transp., 214 Cal. App. 4th 1287, 1297-98 (2013), disapproved of on other grounds Williams v. Chino Valley Indep. Fire Dist., 61 Cal. 4th 97 (2015) (upholding decision to admit evidence that supervisor discriminated against employees who were of the same national origin and race as plaintiff, but to exclude evidence that supervisor discriminated against employees of protected classes to which plaintiff did not belong). Another Court of Appeal decision took a favorable view of “me too” evidence. Johnson v. United Cerebral Palsy/Spastic Children’s Found., 173 Cal. App. 4th 740 (2009) (reversing summary judgment for employer in pregnancy discrimination case because of “me too” evidence of other women fired for being pregnant, as this evidence, the court opined, went to the employer’s motive, for purposes of casting doubt on the stated reasons for an adverse employment action). 331 Pinter-Brown v. Regents of Univ. of Cal., 48 Cal. App. 5th 55, 96 (2020) (rejecting “run of the mill propensity evidence” where no indication that other complainants or circumstances were similar to plaintiff).
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