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Filed 3/7/03
CERTIFIED FOR PARTIAL PUBLICATION*


IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE


ELYSA J. YANOWITZ,


Plaintiff and Appellant,

A095474
v.

L'OREAL USA, INC.,
(San Francisco County
Super. Ct. No. 304908)

Defendant and Respondent.



Plaintiff Elysa Yanowitz was a regional sales manager for defendant L'Oreal
USA, Inc. (L'Oreal), a cosmetics and fragrance company. A male L'Oreal executive
ordered Yanowitz to fire a female employee in her region because the executive found
the employee insufficiently attractive. Yanowitz was asked to get him someone "hot"
instead. She asked for a better reason. The executive and another executive, who was
Yanowitz's immediate supervisor, subjected her to heightened scrutiny and increasingly
hostile evaluations over the ensuing months. Within four months, Yanowitz went on
stress leave, and her position was eventually filled.

Yanowitz brought suit under the Fair Employment and Housing Act, charging
L'Oreal with unlawful retaliation, and presented evidence that, if believed, would
demonstrate the conduct described. The trial court granted summary judgment, finding
that Yanowitz had not engaged in any protected activity. We reverse.

*
Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is
certified for publication with the exception of parts IV and V.

1


A male executive's order to fire a female employee because she fails to meet the
executive's standards for sexual attractiveness is an act of sex discrimination when no
similar standards are applied to men. A lower-level manager's refusal to carry out that
order is protected activity, and an employer may not retaliate against her for that refusal.
We remand for further proceedings on Yanowitz's retaliation claim.
FACTUAL AND PROCEDURAL BACKGROUND

This is an appeal from a grant of summary judgment. Accordingly, we must
accept as true the facts shown by plaintiff's evidence, granting her the benefit of all
reasonable inferences. (Hersant v. Department of Social Services (1997) 57 Cal.App.4th
997, 1001 (Hersant).)

Elysa Yanowitz joined L'Oreal's predecessor in 1981.1 She was promoted from
sales representative to regional sales manager for Northern California and the Pacific
Northwest in 1986. At one time or another, Yanowitz's region included stores in
California, Oregon, Washington, Idaho, Alaska, Hawaii, Arizona, Utah, Colorado, Texas,
and Minnesota. Yanowitz was responsible for managing L'Oreal's sales force and
dealing with accounts, i.e., department and specialty stores that sold L'Oreal's fragrances.

During her first 10 years as a regional sales manager, Yanowitz's performance
was consistently reviewed as "Above Expectation" and in some instances fell just short
of "Outstanding," the highest possible rating. In early 1997, Yanowitz was named
L'Oreal's Regional Sales Manager of the Year for her performance during 1996. She
received a Cartier watch and a congratulatory note complimenting her on her ability to
inspire team spirit and her demonstration of leadership, loyalty, and motivation.
Yanowitz
worked
in the company's European Designer Fragrance Division. In the
fall of 1997, that division and the Ralph Lauren Fragrance Division merged. While some
regional sales managers were laid off, L'Oreal retained Yanowitz and increased her

1
L'Oreal USA, Inc. was formerly known as Cosmair, Inc. For simplicity, we refer
to defendant as "L'Oreal" throughout.

2

responsibilities. Yanowitz assumed responsibility for marketing Ralph Lauren fragrances
in her region, as well as managing L'Oreal's Ralph Lauren sales force.

Shortly after the restructure, John (Jack) Wiswall, general manager for the new
Designer Fragrance Division, and Yanowitz toured the Ralph Lauren installation at a
Macy's store in San Jose. After the tour, Wiswall told Yanowitz there needed to be a
change because the female sales associate was "not good looking enough." Wiswall
instructed Yanowitz to have the sales associate fired, and directed her to "[g]et me
somebody hot," or words to that effect.

On a return trip to the store, Wiswall discovered that the sales associate had not
been dismissed. He reiterated to Yanowitz that he wanted the associate fired and
complained that she had not done so. He passed "a young attractive blonde girl, very
sexy," on his way out, turned to Yanowitz, and told her, "God damn it, get me one that
looks like that." The sales associate, in contrast, was dark-skinned. Yanowitz asked
Wiswall for an adequate justification before she would fire the associate.

Yanowitz never carried out Wiswall's order. Wiswall asked her whether the
associate had been dismissed on several subsequent occasions. Yanowitz again asked
Wiswall to provide adequate justification for dismissing her. Yanowitz never complained
to the Human Resources Department (Human Resources), nor did she tell Wiswall that
his order was discriminatory; he was her boss, and she did not want to inflame him.

In March 1998, Yanowitz learned that the sales associate was among the top
sellers of men's fragrances in the Macy's West chain. Also in March 1998, a member of
Yanowitz's sales force learned that Wiswall had issues with Yanowitz and now wanted to
get rid of her.

Richard (Dick) Roderick, the vice president in charge of designer fragrances, was
Yanowitz's immediate supervisor and reported directly to Wiswall. Roderick and
Wiswall were in New York, while Yanowitz was based in San Francisco. In April 1998,
Roderick began soliciting negative information about Yanowitz from her subordinates.
Roderick called Christine DeGracia, who reported to Yanowitz, and asked her about any
"frustrations" she had with Yanowitz. When DeGracia said she had had some, Roderick

3

asked her to hold her thoughts so that the matter could be discussed with Human
Resources. Roderick and the division head for Human Resources, Jane Sears, then called
DeGracia back to discuss those issues. Roderick asked DeGracia if any others were
having problems with Yanowitz; DeGracia did not provide any names. Two weeks later,
Roderick called DeGracia again and told her it was urgent that she help him get people to
come forward with their problems about Yanowitz. In early June 1998, Roderick again
asked DeGracia to notify him of negative incidents involving Yanowitz.

On May 13, 1998, Roderick summoned Yanowitz to New York. He opened the
meeting by asking whether she thought she had been brought in to be fired, then
criticized Yanowitz for her "dictatorial" management style. He closed the meeting by
saying, "It would be a shame to end an eighteen-year career this way." During May and
June 1998, Roderick and Wiswall obtained Yanowitz's travel and expense reports and
audited them.

In June 1998, Yanowitz met with Wiswall, Roderick, and various account
executives and regional sales managers responsible for the Macy's account. Wiswall
screamed at Yanowitz, told her he was "sick and tired of all the fuckups" on the Macy's
account, and said that Yanowitz could not get it right.

On June 22, 1998, Yanowitz wrote Roderick, advising him that her Macy's West
team was disturbed about certain issues. Wiswall, who had been copied, wrote a note to
Roderick on Yanowitz's memo: "Dick--She is writing everything! Are you!!!???" One
week after Wiswall's note, Roderick prepared three memos to Human Resources
documenting the meeting with Yanowitz on May 13, 1998, a conversation with DeGracia
on June 4, 1998, and a visit to Yanowitz's market in early June 1998. These memos were
critical of Yanowitz; the memo concerning the May 13 meeting criticized Yanowitz for
being too assertive.

On July 16, 1998, Roderick prepared a more elaborate memorandum and delivered
it to Yanowitz. The memorandum criticized Yanowitz's handling of a Polo Sport
promotion, a Picasso promotion, coordination of advertising with others, handling of the
Sacramento market, and the length of a March 1998 business trip to Hawaii. Roderick

4

closed, "I have yet to see evidence that you took [the May 13] conversation seriously and
made the necessary style modifications. [] Elysa, I am quite surprised that a person with
so many years of experience and so many years with Cosmair could become so
ineffective so quickly. [] Our business is changing daily and we all must learn to adapt
to those changes or we will fail as individuals and as a company. Your changes must
start immediately. [] I expect a reply to this memo within one week of receipt."

Yanowitz viewed the memorandum as an expression of intent to develop
pretextual grounds and then terminate her. She suggested the parties meet to discuss a
severance package, but also indicated that she wanted to prepare her written response to
the July 16, 1998, memorandum first.

Carol Giustino, the Human Resources director, set up a meeting for July 22 and
rejected Yanowitz's request that the meeting be postponed. Giustino also denied
Yanowitz's request to have her attorney-husband present. During the meeting, Roderick
and Giustino questioned Yanowitz about the accusations in the July 16 memorandum
without reading her written response. Yanowitz broke down in tears. During the
meeting, Roderick imposed a new travel schedule on Yanowitz, a schedule that regulated
precisely how often she should visit each market in her territory. Two days after the
meeting, Yanowitz went out on disability leave due to stress. She did not return, and
L'Oreal replaced her in November 1998.

Yanowitz filed a discrimination charge with the Department of Fair Employment
and Housing (DFEH) on June 25, 1999. She alleged that L'Oreal had discriminated
against her on the basis of sex, age (Yanowitz was 53), and religion (Yanowitz is Jewish).
She also alleged that L'Oreal had retaliated against her for refusing to fire the female
employee Wiswall considered unattractive.

After receiving a right-to-sue letter, Yanowitz sued L'Oreal. The first amended
complaint, filed on September 13, 1999, included claims for age and religious
discrimination and retaliation under the Fair Employment and Housing Act (FEHA),
violation of the Unfair Competition Law (UCL), and breach of the covenant of good faith

5

and fair dealing. The second amended complaint, filed July 21, 2000, added a cause of
action for negligent infliction of emotional distress.

L'Oreal filed two separate motions for summary adjudication. The first
challenged Yanowitz's FEHA and emotional distress claims, which each arose from
L'Oreal's conduct toward Yanowitz in 1998. The second challenged Yanowitz's UCL
and good faith and fair dealing claims, which each arose from an unrelated L'Oreal
practice of selling product to distributors other than its primary distributors, high-end
department stores and specialty stores. Each motion was ultimately granted, and
judgment was entered on April 25, 2001.2

Yanowitz has timely appealed.
DISCUSSION
I.
Summary Judgment

A "motion for summary judgment shall be granted if all the papers submitted
show that there is no triable issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law." (Code Civ. Proc., 437c, subd. (c).) A
defendant moving for summary adjudication of a cause of action must show either that
one or more elements of the cause of action cannot be established or that there is a
complete defense. "[A]ll that the defendant need do is to show that the plaintiff cannot
establish at least one element of the cause of action . . . . [T]he defendant need not
himself conclusively negate any such element . . . ." (Aguilar v. Atlantic Richfield Co.
(2001) 25 Cal.4th 826, 853, fn. omitted.) If that burden is met, the burden shifts to the
plaintiff to show the existence of a triable issue of fact with respect to that cause of action
or defense. (Code Civ. Proc., 437c, subd. (p)(2); Silva v. Lucky Stores, Inc. (1998) 65
Cal.App.4th 256, 261.)

2
Originally, Yanowitz prevailed on a single theory underlying her UCL claim.
However, she dismissed that portion of her suit with prejudice so that a final, appealable
judgment could be entered.

6


We review a summary judgment motion de novo to determine whether there is a
triable issue as to any material fact and whether the moving party is entitled to judgment
as a matter of law. (Galanty v. Paul Revere Life Ins. Co. (2000) 23 Cal.4th 368, 374;
Rodeo Sanitary Dist. v. Board of Supervisors (1999) 71 Cal.App.4th 1443, 1446; Code
Civ. Proc., 437c, subd. (c).) We are not bound by the trial court's stated reasons or
rationales. (Horn v. Cushman & Wakefield Western, Inc. (1999) 72 Cal.App.4th 798, 805
(Horn).) "In practical effect, we assume the role of a trial court and apply the same rules
and standards which govern a trial court's determination of a motion for summary
judgment." (Lenane v. Continental Maritime of San Diego, Inc. (1998) 61 Cal.App.4th
1073, 1079.) Thus, we apply the same three-step analysis used by the trial court: "We
identify the issues framed by the pleadings, determine whether the moving party has
negated the opponent's claims, and determine whether the opposition has demonstrated
the existence of a triable, material factual issue. [Citation.]" (Silva v. Lucky Stores, Inc.,
supra, 65 Cal.App.4th at p. 261.)

"In reviewing a motion for summary judgment, we accept as undisputed fact only
those portions of the moving party's evidence that are uncontradicted by the opposing
party. In other words, the facts alleged in the evidence of the party opposing summary
judgment and the reasonable inferences that can be drawn therefrom are accepted as
true." (Hersant, supra, 57 Cal.App.4th at p. 1001.) Summary judgment is a drastic
remedy to be used sparingly, and any doubts about the propriety of summary judgment
are to be resolved in favor of the opposing party. (Kulesa v. Castleberry (1996) 47
Cal.App.4th 103, 112; WYDA Associates v. Merner (1996) 42 Cal.App.4th 1702, 1709.)
II.
Unlawful Retaliation Under FEHA

Yanowitz has not appealed the summary adjudication of her sex, age and religious
discrimination claims. We consider only her claim for unlawful retaliation.

Government Code section 12940, subdivision (g), makes it an unlawful
employment practice for any employer to "discharge, expel, or otherwise discriminate
against any person because the person has opposed any practices forbidden under this

7

[Act] or because the person has filed a complaint, testified, or assisted in any proceeding
under this [Act]."

The general summary judgment standard of review is modified for an FEHA
retaliation claim. In employment discrimination and retaliation cases, California courts
have adopted the burdens and order of proof developed by the United States Supreme
Court in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, 802-805 for
evaluating claims under title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e et
seq.) (Title VII). (Sada v. Robert F. Kennedy Medical Center (1997) 56 Cal.App.4th
138, 155-156 (Sada).) Evaluating an employee retaliation case for purposes of summary
judgment requires a three-step process. The burden of proof shifts at each step of the
process. (Id. at pp. 149-151, 155.)

First, the employee must make out a prima facie case of retaliation. (Sada, supra,
56 Cal.App.4th at p. 155.) This requires proof of three elements: the employee "must
show that [she] engaged in a protected activity, [the] employer subjected [her] to adverse
employment action, and there is a causal link between the protected activity and the
employer's action." (Flait v. North American Watch Corp. (1992) 3 Cal.App.4th 467,
476 (Flait).) Second, if the employee meets this burden, the burden shifts to the
employer to articulate a legitimate nonretaliatory reason for any adverse employment
action. (Sada, supra, 56 Cal.App.4th at p. 155.) Finally, after the employer produces a
legitimate business justification, the employee must produce substantial responsive
evidence that demonstrates the employer's reason for the adverse employment action was
untrue or pretextual, or evidence that the employer acted with a retaliatory animus, or a
combination of the two, such that a reasonable trier of fact could conclude the employer
engaged in unlawful retaliation. (See Horn, supra, 72 Cal.App.4th at pp. 806-807;
Hersant, supra, 57 Cal.App.4th at pp. 1004-1005.)

This burden-shifting approach offers an employer two ways to obtain summary
judgment: either by showing a failure of a part of the employee's prima facie case, or by
presenting unrebutted evidence of a nonpretextual justification for its actions. "If the
employer presents admissible evidence either that one or more of plaintiff's prima facie

8

elements is lacking, or that the adverse employment action was based on legitimate,
nondiscriminatory factors, the employer will be entitled to summary judgment unless the
plaintiff produces admissible evidence which raises a triable issue of fact material to the
defendant's showing." (Caldwell v. Paramount Unified School Dist. (1995) 41
Cal.App.4th 189, 203.)

On appeal, L'Oreal has chosen both approaches, attacking each prong of
Yanowitz's prima facie case as well as her showing of pretext. We consider these
arguments in turn.
A.
Protected Activity

Evidence before the trial court established the following facts, undisputed by
either side. In the fall of 1997, Jack Wiswall, Yanowitz's superior, ordered Yanowitz to
have a female sales associate at a Macy's West store in her region fired. As justification,
Wiswall explained that the associate "was not good looking enough." The associate had
dark skin; Wiswall preferred fair-skinned blondes. Wiswall told Yanowitz, "Get me
somebody hot," or words to that effect. Yanowitz did not carry out Wiswall's order.
When Wiswall asked her whether the associate had been dismissed on subsequent
occasions, Yanowitz requested adequate justification for firing her. Yanowitz did not
complain to Human Resources, nor did she tell Wiswall that his order was
discriminatory.

The trial court found that on these facts, Yanowitz had failed to establish she
engaged in any protected activity. On appeal, L'Oreal argues that Yanowitz's actions are
not protected because physical appearance is not a protected category under FEHA and
because Yanowitz failed to expressly complain.

L'Oreal's argument misframes the first issue. The issue is not whether physical
appearance is a protected category. Though protection against discrimination on this
basis has been suggested,3 the FEHA does not proscribe discrimination on the basis of

3
See, e.g., Note, Facial Discrimination: Extending Handicap Law to Employment
Discrimination on the Basis of Physical Appearance (1987) 100 Harv. L.Rev. 2035.

9

appearance.4 While courts have interpreted another antidiscrimination statute, the Unruh
Act, to proscribe discrimination on many bases not expressed in the statute (Harris v.
Capital Growth Investors XIV (1991) 52 Cal.3d 1142, 1155)--including physical
appearance (In re Cox (1970) 3 Cal.3d 205, 217-218)--no such latitude exists with
regard to the FEHA (Esberg v. Union Oil Co. (2002) 28 Cal.4th 262, 268-270). We are
not free to read into the FEHA a category not included by the Legislature, and we do not
address whether Wiswall's order was prohibited physical appearance discrimination.
Instead, the issue is one of sex discrimination: May a male executive insist that a female
subordinate be terminated because she is not sexually appealing to him, when no similar
orders are issued with respect to male employees?

Sex discrimination in the workplace comes in many guises. In a most basic form,
it involves outright exclusion of women, solely by reason of their sex. Even where
women have gained access to the workplace, sex discrimination may persist in other
forms, for example, through identification of particular jobs as "man-only" or "woman-
only" jobs, through perpetuation of a glass ceiling that ensures women will only rise so
high on the corporate ladder, or through the unwritten establishment of two sets of rules
for success: for men, based on performance, and for women, based on appearance.

The notion that an employer may not insist on only attractive women employees
has long been established. In Wilson v. Southwest Airlines Co. (N.D.Tex. 1981) 517
F.Supp. 292 (Wilson),5 for example, Southwest Airlines defended its policy that only
attractive women could be hired as flight attendants and ticket agents. Southwest argued
that female sex appeal was a bona fide occupational qualification (BFOQ) under Title VII
because it wanted to project a "sexy image and fulfill its public promise to take

4
The FEHA does proscribe weight discrimination in those circumstances where
excess weight can be shown to constitute a disability or handicap. (Cassista v.
Community Foods, Inc. (1993) 5 Cal.4th 1050, 1065.) That proscription is not at issue in
this case.
5
Given the similarity between Title VII and the FEHA, California courts often rely
on federal authority in the area of employment discrimination law. (See Reno v. Baird
(1998) 18 Cal.4th 640, 647.)

10

passengers skyward with `love.' " (Wilson, supra, 517 F.Supp. at p. 293.) Because
Southwest was not in a business where "vicarious sex entertainment is the primary
service provided," the district court rejected Southwest's defense. (Id. at p. 302.)

Nor is it permissible to hire both men and women, but then subject women to more
severe and burdensome appearance standards. (Frank v. United Airlines, Inc. (9th Cir.
2000) 216 F.3d 845, 854-855 (Frank); Gerdom v. Continental Airlines, Inc. (9th Cir.
1982) 692 F.2d 602, 608 (en banc); Association of Flight Attendants v. Ozark Air Lines
(N.D.Ill. 1979) 470 F.Supp. 1132, 1135; Laffey v. Northwest Airlines, Inc. (D.C.D.C.
1973) 366 F.Supp. 763, 790.) The federal courts have consistently recognized that "[a]
sex-differentiated appearance standard that imposes unequal burdens on men and women
is disparate treatment that must be justified as a BFOQ." (Frank, supra, 216 F.3d at
p. 855.) In Frank, plaintiffs challenged an employer's weight regulations, regulations
that applied to male and female employees but imposed significantly greater burdens on
women, requiring them to be comparatively much thinner. (Id. at p. 854.) The Ninth
Circuit reversed a grant of summary judgment under both Title VII and the FEHA
because of the employer's disparate treatment of its male and female employees'
appearance. (Id. at p. 855 & fn. 10.)

Just as an employer may not impose broad rules that regulate men and women
differently based on their appearance or sexual desirability, so an employer may not
discriminate against specific individuals on these bases. For example, in Priest v. Rotary
(N.D.Cal. 1986) 634 F.Supp. 571, an employer demoted a cocktail waitress who refused
to wear sexually suggestive attire. The court recognized this as unlawful sex
discrimination. (Id. at p. 581.) Similarly, in E.E.O.C. v. Sage Rlty. Corp. (S.D.N.Y.
1981) 507 F.Supp. 599, the employer insisted that a female office building lobby
attendant wear a sexually revealing uniform. When the employee refused, she was
dismissed. The court concluded that the employee was required to wear the revealing
uniform because she was a woman, and that she had made out a prima facie case of sex
discrimination. (Id. at pp. 607-608.)

11


We find Wiswall's actions analogous. An explicit order to fire a female employee
for failing to meet a male executive's personal standards for sexual desirability is sex
discrimination. Yanowitz's evidence permits the inference that Wiswall would not have
ordered the employee fired if she had been a man, simply because a man's physical
attractiveness would not have been an issue. Moreover, we note that Yanowitz did not
have to prove that Wiswall's order was discriminatory; she needed only to show a good
faith, reasonable belief that it was. (Flait, supra, 3 Cal.App.4th at p. 477.) She did so
here.

L'Oreal argues that several federal courts have reached a contrary conclusion.
(Malarkey v. Texaco, Inc. (2d Cir. 1983) 704 F.2d 674, 675 (Malarkey); Alam v. Reno
Hilton Corp. (D.Nev. 1993) 819 F.Supp. 905, 913 (Alam).) We do not find these cases
helpful. In Malarkey, plaintiff alleged that she was discriminated against on the basis of
sex because the employer evaluated women according to their appearance, not their
performance. The district court dismissed the complaint absent evidence of the standards
that were applied to men, and the Court of Appeal affirmed without any analysis.
(Malarkey, supra, 704 F.2d at p. 675.) Given Malarkey's lack of analysis, we find it of
little assistance. Moreover, Yanowitz has provided evidence that she was never asked, by
Wiswall or anyone else at L'Oreal, to dismiss men for being insufficiently "hot." Alam
relied on Malarkey to reject a discrimination claim based on an employer's selectively
choosing "Barbie doll" types for certain positions. (Alam, supra, 819 F.Supp. at pp. 912-
913.) Both men and women were hired; plaintiffs complained that attractive men and
women were hired over unattractive men and women. (Ibid.) Alam thus involved a pure
physical appearance discrimination claim, rather than a sex discrimination claim.

L'Oreal argues that Yanowitz's claim still must fail because Yanowitz failed to
alert L'Oreal that its actions were discriminatory. L'Oreal relies on various cases holding
that an unarticulated belief that discrimination has occurred does not constitute protected
activity. (See, e.g., Allen v. Denver Public School Bd. (10th Cir. 1991) 928 F.2d 978,
985; Booker v. Brown & Williamson Tobacco Co., Inc. (6th Cir. 1989) 879 F.2d 1304,
1313; Garcia-Paz v. Swift Textiles, Inc. (D.Kan. 1995) 873 F.Supp. 547, 559-560;

12

Aldridge v. Tougaloo College (S.D.Miss. 1994) 847 F.Supp. 480, 484-485.) These cases
deal with retaliation for filing a grievance or otherwise complaining in a manner that fails
to alert the employer to the employee's belief that discrimination has occurred. Without
notice, the employer has no opportunity to investigate and take remedial action against
the perpetrator, if necessary, nor any reason to suspect that the employee's complaints
should be insulated from discipline. In the context of grievances, federal courts properly
have imposed a notice requirement.

That requirement does not apply to this case, which is not a grievance case. Here,
an employer directed an employee to engage in discriminatory conduct, conduct for
which the employer has offered no legitimate business purpose. The refusal to carry out
a discriminatory order is protected whether or not the employee explains to the employer
the unlawfulness of the conduct. (See McDonnell v. Cisneros (7th Cir. 1996) 84 F.3d
256, 262 [under Title VII, "passive resistance" through refusal to carry out unlawful
order is protected activity]; EEOC Compliance Manual Section 8, `Retaliation,' p. 8-5
(1998) ["Refusal to obey an order constitutes protected opposition if the individual
reasonably believes that the order requires him or her to carry out unlawful employment
discrimination"].) The refusal to obey such an order is the very conduct the FEHA seeks
to encourage. (Gov. Code, 12920 ["It is hereby declared as the public policy of this
state that it is necessary to protect and safeguard the right and opportunity of all persons
to seek, obtain, and hold employment without discrimination or abridgement on account
of race, religious creed, color, national origin, ancestry, physical disability, mental
disability, medical condition, marital status, sex, age, or sexual orientation"].)

Part of the rationale behind this distinction between grievances and refusals to
discriminate lies in the concept of constructive notice. Employers, like any citizen, are
charged with knowledge of the law. An employer issuing an unlawful order may fairly
be charged with notice that the order is unlawful; it is not the employee's burden to
educate the employer. Accepting Yanowitz's evidence as true, we are not presented with
a case in which the order given was lawful, but was refused because of a good faith and
reasonable (albeit mistaken) belief that it violated the law. In such a case, an employer

13

would have no constructive notice, and the burden would be on the employee to articulate
that she believed the order was unlawful before any protection against retaliation would
attach. Similarly, when an employee files a grievance, the burden is on the employee to
specify what it is she is complaining about, whether it be concerns over discrimination or
generic unfairness. The employer cannot be presumed to know that any given complaint
arises out of concerns over discrimination.

On these facts, we find no notice barrier for a second reason as well: Yanowitz's
objections gave L'Oreal actual notice. "Both the state and federal statutes are designed to
foster open communication between an employer and its employees regarding perceived
misconduct, encouraging employees to call their employers' attention to unlawful
practices of which the employer might be unaware and which might result in litigation if
not voluntarily changed." (Flait, supra, 3 Cal.App.4th at p. 476.) This notification
function is satisfied where, as here, the discriminatory order comes from the employer's
high-level executive, and the employee tells the executive that he must provide a better
justification. Under FEHA, as under Title VII, the knowledge of managerial-level
employees is imputed to the employer under traditional agency principles. (See
Birschtein v. New United Motor Manufacturing, Inc. (2001) 92 Cal.App.4th 994, 1007
(Birschtein).) This is not a case in which L'Oreal management was unaware of the
unlawful practice.

L'Oreal contended at oral argument that Yanowitz should have objected more
vigorously to Wiswall, or complained to the Human Resources manager of her division--
who it conceded reported to Wiswall. Such a complaint would have been futile. Wiswall
already knew of the discriminatory order, because he issued it, and when Yanowitz asked
Wiswall for a better justification before she would carry out his order, Wiswall persisted.
In essence, this argument seeks to place on the employee the burden of educating
management about the discriminatory nature of its actions. According to L'Oreal, if an
employee fails to confront her employer and instead passively refuses to engage in
discrimination, the employer may retaliate against her without incurring liability. We do
not read the FEHA to allow such retaliation. The FEHA affords remedies to those who

14

are subjected to discrimination, it provides recourse against those who engage in
discrimination, and it offers protection to those who refuse to carry out discrimination.
The FEHA imposed on Yanowitz a duty not to subject others to discrimination, and she
fulfilled that duty. L'Oreal cannot punish Yanowitz for refusing to carry out Wiswall's
order.
B.
Adverse Action

L'Oreal argues that Yanowitz was not subjected to any "adverse action" because
L'Oreal did not materially alter the terms of her employment. The trial court agreed. On
appeal, the parties disagree over the scope of L'Oreal's conduct that may be used to show
an adverse action. L'Oreal contends that Yanowitz is limited by the doctrine of
administrative exhaustion and the statute of limitations to actions taken in July 1998. The
parties also disagree about what constitutes an adverse action under the FEHA. We
consider each of these issues in turn.
1.
Administrative Exhaustion

Yanowitz filed a DFEH charge on June 25, 1999. In that charge, she contended
that L'Oreal had discriminated against her on the basis of age, sex, and religion, and
retaliated against her for protesting sexual discrimination. She listed the dates of the acts
as July 16 and July 22, 1998. No space on the form allowed room to expand on the
details of these allegations.

L'Oreal argues that Yanowitz's showing of an adverse action should be confined
to the July 16 Roderick memorandum and the July 22 meeting because these are the only
dates given on the DFEH charge. According to L'Oreal, Yanowitz has failed to exhaust
her administrative remedies as to all other earlier conduct. This is a misapplication of the
FEHA exhaustion doctrine.

A cause of action asserting employment practices in violation of the FEHA will
only lie if the plaintiff has exhausted the FEHA's administrative remedies. (Martin v.
Lockheed Missiles & Space Co. (1994) 29 Cal.App.4th 1718, 1724; Accardi v. Superior
Court (1993) 17 Cal.App.4th 341, 349.) Before suing, the claimant must file an

15

administrative complaint with the DFEH (Gov. Code, 12960) and obtain the DFEH's
notice of right to sue (id., 12965, subd. (b)). (Martin v. Lockheed Missiles & Space
Co., supra, 29 Cal.App.4th at p. 1724.) To effectively exhaust remedies, the
administrative complaint must have been filed within one year after the alleged unlawful
employment practice occurred. (Gov. Code, 12960.) " `[T]he failure to exhaust an
administrative remedy is a jurisdictional, not a procedural, defect,' and . . . failure to
exhaust administrative remedies is a ground for a defense summary judgment." (Martin
v. Lockheed Missiles & Space Co., supra, 29 Cal.App.4th at p. 1724.)

One test of the "scope" of an administrative complaint for purposes of exhaustion
is whether " `an investigation of what was charged in the [administrative complaint]
would necessarily uncover' " the additional incidents alleged in the civil action.
(Soldinger v. Northwest Airlines, Inc. (1996) 51 Cal.App.4th 345, 381 (Soldinger),
quoting Okoli v. Lockheed Technical Operations Co. (1995) 36 Cal.App.4th 1607, 1615.)
The purpose underlying the administrative charge requirement is to " `trigger the
investigatory and conciliatory procedures of the' " responsible administrative agency.
(Okoli v. Lockheed Technical Operations Co., supra, 36 Cal.App.4th at p. 1615.) If the
investigation of what was charged would lead to discovery of other uncharged incidents,
that purpose has been served and the other incidents can be included in a subsequent civil
suit. (Ibid.)

Soldinger demonstrates this principle. There, an employee filed a charge alleging
religious discrimination in April 1991, received a right-to-sue letter in April 1991, and
filed suit in April 1992. In June 1993, she filed a second charge, alleging "retaliation for
`filing a previous charge of discrimination,' " and received a second right-to-sue letter.
She subsequently amended her complaint to add a retaliation cause of action and alleged
acts of retaliation dating back to March 1992. (Soldinger, supra, 51 Cal.App.4th at
p. 380.) The employer argued that the employee had failed to exhaust her administrative
remedies because her administrative charge did not include every act of retaliation
alleged in the amended lawsuit. (Id. at pp. 381-382.) The court rejected this argument.
It held that a DFEH investigation of the charge of retaliation inevitably would have

16

revealed the acts included in the amended complaint, which had all occurred or were
ongoing as of the filing of the second charge. Therefore, the second charge adequately
exhausted all acts allegedly supporting the employee's retaliation claim. (Ibid.)

Soldinger is directly on point. Though Yanowitz's charge did not identify every
individual act of retaliation, it asserted that L'Oreal had retaliated against her "for failure
to bring about [the] termination of [a] female employee not considered physically
attractive by corporate General Manager." An investigation of this charge would have
addressed the various acts through July 1998 that Yanowitz contends constituted
retaliation. Her charge fulfilled the purposes underlying the exhaustion requirement, and
Yanowitz is not barred from relying on L'Oreal's course of conduct in the spring and
summer of 1998.
2.
Statute of Limitations for Continuing Course of
Conduct

In the alternative, L'Oreal argues that Yanowitz is barred from basing her
retaliation claim on incidents more than one year before her June 25, 1999, DFEH
charge. Subject to certain exceptions, under the FEHA, an administrative complaint must
be filed with the DFEH within one year from the date of the occurrence of the alleged
unlawful practice or within 90 days thereafter if the plaintiff first discovered the facts of
the unlawful practice after expiration of the one-year period. (Gov. Code, 12960; see
Williams v. City of Belvedere (1999) 72 Cal.App.4th 84, 90.) We reject this argument
because Yanowitz's evidence permits the inference that L'Oreal's conduct was part of a
continuous course of retaliatory conduct.

The continuing violation doctrine "allows liability for unlawful employer conduct
occurring outside the statute of limitations if it is sufficiently connected to unlawful
conduct within the limitations period." (Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th
798, 802 (Richards).) In Richards, a case involving disability claims under the FEHA,
the California Supreme Court held that an employer's series of unlawful actions in such a
case "should be viewed as a single, actionable course of conduct if (1) the actions are
sufficiently similar in kind; (2) they occur with sufficient frequency; and (3) they have

17

not acquired a degree of `permanence' so that employees are on notice that further efforts
at informal conciliation with the employer to obtain accommodation or end harassment
would be futile." (Ibid.) Recently, Division Four of this court used the Richards
formulation to evaluate the timeliness of sexual harassment and retaliation claims, noting
that Richards was equally applicable in other "FEHA workplace discrimination
litigation." (Birschtein, supra, 92 Cal.App.4th at pp. 1004-1005.)6

Applying this test at the summary adjudication stage, we hold that a reasonable
jury could conclude that the criticisms Yanowitz received, the memos that were written
about her, and the inquiries to subordinates seeking negative feedback were all part of a
single course of conduct designed to punish her for her inaction on Wiswall's request. A
jury could conclude that these actions were similar in kind, closely connected temporally,
and had not culminated in a permanent act--such as dismissal--that would have put
Yanowitz on notice that further conciliatory efforts would be futile. (See Valdez v. City
of Los Angeles (1991) 231 Cal.App.3d 1043, 1050-1051 [summary judgment
inappropriate where application of continuing violation doctrine hinges on factual
issues].) Consequently, Yanowitz is not barred from relying on pre-June 25, 1998, acts at
this stage when trying to prove adverse action.
3.
Definition of "Adverse Action"

We turn to the definition of what constitutes an adverse action under the FEHA.
There is a paucity of authority. The FEHA does not define the kind of adverse
employment action required for a retaliation claim. Only two published cases have
addressed the question. (Thomas v. Department of Corrections (2000) 77 Cal.App.4th

6
L'Oreal relies on National R.R. Passenger Corp. v. Morgan (2002) 536 U.S. 101,
the United States Supreme Court's most recent pronouncement on the continuing
violation doctrine under Title VII. This is an FEHA case, and the California Supreme
Court set out the continuing violation doctrine under the FEHA just last year in Richards,
supra, 26 Cal.4th 748. The rule that we will look to federal precedent under Title VII for
guidance on FEHA questions only applies in the absence of controlling state authority.
Because Richards governs this case, we need not decide what result might obtain under
National R.R. Passenger Corp. v. Morgan.

18

507, 510-512 (Thomas); Akers v. County of San Diego (2002) 95 Cal.App.4th 1441,
1454-1455 (Akers).) Given the absence of state authority, each looked to the federal
circuits' analysis of the issue under Title VII for guidance. We begin our analysis there
as well.

The federal circuits have split into at least three camps. Two circuits, the Fifth and
Eighth, take the most restrictive view: only "ultimate employment decisions," such as
firing, demotion, or a reduction in pay, are adverse actions sufficient to support a
retaliation claim. (Ledergerber v. Stangler (8th Cir. 1997) 122 F.3d 1142, 1144; Mattern
v. Eastman Kodak Co. (5th Cir. 1997) 104 F.3d 702, 707.) Thomas and Akers each
rejected this approach, and we agree. "The legislative purpose underlying FEHA's
prohibition against retaliation is to prevent employers from deterring employees from
asserting good faith discrimination complaints, and the use of intermediate retaliatory
actions may certainly have this effect." (Akers, supra, 95 Cal.App.4th at p. 1455.) An
employer seeking to chill its workers from asserting antidiscrimination rights or
supporting those who do has at its disposal a host of ways to inflict adversity. The
FEHA's goals are compromised as much when an employer accomplishes a death by a
thousand paper cuts as when it achieves its ends with a single blow.

The remaining circuits extend the prohibition on adverse action to intermediate
actions. They conclude that Title VII's protection against retaliatory discrimination can
extend to a wide range of adverse actions that fall short of ultimate employment
decisions. (See, e.g., Wyatt v. City of Boston (1st Cir. 1994) 35 F.3d 13, 15-16 [actions
other than discharge are covered by Title VII's antiretaliation provision, including
disadvantageous transfers or assignments, refusals to promote, unwarranted negative job
evaluations and toleration of harassment by other employees]; Johnson v. Palma (2d Cir.
1991) 931 F.2d 203, 208-210 [prohibiting use of grievance mechanism violates
antiretaliation law]; Mondzelewski v. Pathmark Stores, Inc. (3d Cir. 1998) 162 F.3d 778,
787-789 [holding under parallel antiretaliation provision that small change in working
hours may violate law]; Von Gunten v. Maryland (4th Cir. 2001) 243 F.3d 858, 865-866,
fn. 4 [rejecting ultimate employment decision test]; Morris v. Oldham County Fiscal

19

Court (6th Cir. 2000) 201 F.3d 784, 791-793 [supervisor harassment not involving
tangible employment action may state claim]; Collins v. State of Ill. (7th Cir. 1987) 830
F.2d 692, 702-704 [loss of phone and office accompanied by loss of status, clouding of
job responsibilities, and diminution in authority demonstrate adverse job action]; Knox v.
Ind. (7th Cir. 1996) 93 F.3d 1327, 1334-1335 (Knox) [coworker harassment and vicious
gossip sufficient to support retaliation verdict]; Brooks v. City of San Mateo (9th Cir.
2000) 229 F.3d 917, 929 (Brooks) [range of actions short of ultimate employment
decisions may support retaliation claim]; Berry v. Stevinson Chevrolet (10th Cir. 1996)
74 F.3d 980, 986 [instigation of false criminal charges can support Title VII retaliation
claim]; Wideman v. Wal-Mart Stores, Inc. (11th Cir. 1998) 141 F.3d 1453, 1455-1456
[written reprimands, solicitation of negative comments by coworkers, and one-day
suspension constitute adverse actions]; Passer v. American Chemical Soc. (D.C. Cir.
1991) 935 F.2d 322, 330-331 [canceling of public event honoring employee constitutes
adverse action].)

Within this general consensus, a second split appears. Some circuits in the
majority require that the adverse action materially affect the terms and conditions of
employment. (E.g., Torres v. Pisano (2d Cir. 1997) 116 F.3d 625, 640; Hollins v.
Atlantic Co., Inc. (6th Cir. 1999) 188 F.3d 652, 662; Ribando v. United Airlines, Inc. (7th
Cir. 1999) 200 F.3d 507, 510-511; Brown v. Brody (D.C. Cir. 1999) 199 F.3d 446, 457.)
Others have explicitly or implicitly rejected this requirement and found actions retaliatory
and prohibited even when those actions do not materially affect the terms and conditions
of employment. (E.g., Ray v. Henderson (9th Cir. 2000) 217 F.3d 1234, 1242 (Ray)
[expressly rejecting materiality requirement]; Jeffries v. State of Kan. (10th Cir. 1998)
147 F.3d 1220, 1232 [expressly rejecting materiality requirement]; Wideman v. Wal-Mart
Stores, Inc., supra, 141 F.3d at p. 1456 [adopting case-by-case approach without setting
minimum threshold]; Passer v. American Chemical Soc., supra, 935 F.2d at p. 331
[cancellation of symposium honoring retiring employee actionable].)

In lieu of a materiality test, the EEOC and Ninth Circuit have articulated a
deterrence test. Under the deterrence test, "an action is cognizable as an adverse

20

employment action if it is reasonably likely to deter employees from engaging in
protected activity." (Ray, supra, 217 F.3d at p. 1243.) This definition has its roots in the
EEOC's Compliance Manual. "The EEOC has interpreted `adverse employment action'
to mean `any adverse treatment that is based on a retaliatory motive and is reasonably
likely to deter the charging party or others from engaging in protected activity.' EEOC
Compliance Manual Section 8, `Retaliation,' 8008 (1998). Although EEOC Guidelines
are not binding on the courts, they `constitute a body of experience and informed
judgment to which courts and litigants may properly resort for guidance.' Meritor
Savings Bank v. Vinson [(1986) 477 U.S. 57, 65]." (Ray, supra, 217 F.3d at pp. 1242-
1243.) The Ray court found the EEOC test consistent with the Ninth Circuit's prior
holdings as well as those of the First, Seventh, and Tenth Circuits. (Id. at 1243.)

Thomas, supra, 77 Cal.App.4th 507, was the first California case to address the
definition of adverse action under the FEHA. In Thomas, an African-American
corrections officer alleged retaliation consisting of refusal to allow medical treatment for
medical conditions occurring at work, intimidation of employees whose deposition she
sought in connection with her judicial proceeding, a series of undeserved negative job
evaluations which resulted in a punitive job change and negative reports in her personnel
file, and failure of her employer to deliver her paycheck on a timely basis for her shift
differential and for overtime. (Id. at pp. 509-510.) After canvassing the then-available
federal authority, the Thomas court adopted the requirement that an adverse action be
materially adverse. (Id. at pp. 510-511.) It analyzed the employee's complaints "to
determine if they result[ed] in a material change in the terms of her employment,
impair[ed] her employment in some cognizable manner, or show[ed] some other
employment injury." (Id. at p. 511.)

A second Fourth District case, Akers, supra, 95 Cal.App.4th 1441, essentially
followed Thomas. Akers involved a retaliation claim by a deputy district attorney whose
lawyer submitted a letter to her supervisor on her behalf, charging that she had been
transferred from the domestic violence unit for sex-based, pregnancy-based, and political
reasons. (Id. at p. 1447.) After receiving the letter, her employer allegedly conducted a

21

slanted investigation and, when she contested its conclusions, threatened that she would
never return to the domestic violence unit and gave her a negative performance
evaluation. (Id. at pp. 1448-1449.) Five months later, she expressed interest in a transfer
to the elder abuse unit, but did not receive the transfer. (Id. at p. 1451.) Three months
thereafter, Akers took a leave of absence, and she eventually resigned without returning.
She then filed suit. (Ibid.) A jury awarded Akers $250,000, which was later reduced to
$150,000. (Id. at pp. 1452-1453.)

Akers aptly considered "the `countervailing concerns' in defining an adverse
employment action: `On the one hand, we worry that employers will be paralyzed into
inaction once an employee has lodged a [discrimination] complaint . . . , making such a
complaint tantamount to a "get out of jail free" card for employees engaged in job
misconduct. On the other hand, we are concerned about the chilling effect on employee
complaints resulting from an employer's retaliatory actions.' [Brooks, supra,] 229 F.3d
[at p.] 928.)." (Akers, supra, 95 Cal.App.4th at p. 1455.) In an attempt to balance these
concerns, Akers defined an adverse action thusly: "[A]n action constitutes actionable
retaliation only if it had a substantial and material adverse effect on the terms and
conditions of the plaintiff's employment." (Ibid.)

Applying its test to the facts presented, the Akers court concluded that "a mere oral
or written criticism of an employee or a transfer into a comparable position does not meet
the definition of an adverse employment action under FEHA." (Akers, supra, 95
Cal.App.4th at p. 1457.) It dismissed Brooks, a Ninth Circuit case which followed Ray,
supra, 217 F.3d 1234 and applied Ray's test, in a one-sentence footnote: "To the extent
the Ninth Circuit Court of Appeals has reached an opposite conclusion under Title VII
(Brooks, supra, 229 F.3d at p. 928), we find this view unpersuasive." (Akers, at p. 1457,
fn. 4.) Akers nevertheless affirmed the trial court judgment, presumably on the basis that
the employer's threats and refusal to grant a transfer to the elder abuse unit showed a
material change in Akers's employment. (Id. at p. 1457.)

Thomas was decided before Ray and did not have the benefit of the Ninth Circuit's
analysis. Akers was decided after Ray but did not cite or discuss the EEOC's definition

22

or explain its disagreement with Brooks. For these reasons, we do not find them
dispositive in deciding whether to apply the materiality test or the deterrence test. We
find potential problems with the application of a materiality test. For one, no clear
benchmarks exist for measuring what is "substantial" or "material." For another, this
limitation establishes an arbitrary threshold untethered to what Akers recognizes as the
core concern underlying the FEHA and Title VII antiretaliation provisions: the need to
prevent employers from chilling protected activity. (See Akers, supra, 95 Cal.App.4th at
p. 1455.)

In contrast, the deterrence test creates a standard directly tied to the purpose
behind the FEHA's and Title VII's antiretaliation provisions: that which is reasonably
likely to chill protected activity is prohibited. It also allows consideration of a range of
retaliatory actions rather than focusing a jury solely on the "terms and conditions" of
employment. The quality of one's work experience can be powerfully influenced by the
quality of one's relations with supervisors, peers, and subordinates. A supervisor who
increases scrutiny and criticism, or ignores the harassment of an employee by coworkers,
or undermines relations with an employee's subordinates may be effectively retaliating.
(E.g., Dortz v. City of New York (S.D.N.Y. 1995) 904 F.Supp. 127, 156 [criticism from
above and undermining relations with subordinates]; Birschtein, supra, 92 Cal.App.4th at
p. 1006 [ignoring harassment from peers].) These methods may succeed in deterring
future opposition even without altering the express terms or parameters of one's job
description. "The law deliberately does not take a `laundry list' approach to retaliation,
because unfortunately its forms are as varied as the human imagination will permit."
(Knox, supra, 93 F.3d at p. 1334.)

There is also a sound statutory basis for preferring the deterrence test. The FEHA,
like Title VII, proscribes retaliation more broadly than discrimination. The general
prohibition against discrimination extends only to discrimination "against the person in
compensation or in terms, conditions, or privileges of employment." (Gov. Code,
12940, subd. (a).) In contrast, the prohibition against retaliation states simply that an
employer may not "discriminate" against an employee who opposes discrimination.

23

(Gov. Code, 12940, subd. (h).) The FEHA does not limit its prohibition against
retaliation to discrimination in the terms and conditions of employment. Consequently,
we see no reason to define prohibited retaliatory actions according to whether they
materially affect the terms and conditions of employment.

Finally, the deterrence test preserves a threshold on the kind of adverse action
sufficient to support a retaliation claim. Both Akers and Thomas expressed concern that
the FEHA was never intended to remedy "any possible slight resulting from the filing of
a discrimination complaint." (Akers, supra, 95 Cal.App.4th at p. 1455; see Thomas,
supra, 77 Cal.App.4th at p. 511.) We agree. Adverse actions that cause displeasure or
dissatisfaction, but would be insufficient to deter employees from engaging in protected
activity, are not actionable. (Ray, supra, 217 F.3d at p. 1243.) Under Ray, "only non-
trivial employment actions that would deter reasonable employees from complaining
about [discrimination] will constitute actionable retaliation." (Brooks, supra, 229 F.3d at
p. 928.) The deterrence test does not give license to litigate every minor grievance.

The deterrence test is not necessarily an easier or more difficult test to satisfy than
other tests. It refocuses the inquiry on the concerns underlying antiretaliation laws,
whereas "the severity of an action's ultimate impact (such as loss of pay or status) `goes
to the issue of damages, not liability.' " (Ray, supra, 217 F.3d at 1243.) "[T]he EEOC
test focuses on the deterrent effects" of an employer's acts. (Ibid.) This focus
"effectuates the letter and the purpose" of antiretaliation statutes. (Ibid.)

For these reasons, we believe the deterrence test offers the better approach for
analyzing adverse actions. We hold that under the FEHA, an adverse action is one that is
reasonably likely to deter employees from engaging in protected activity.
4.
Application of the Deterrence Test to Yanowitz's
Allegations

Having determined the proper test for evaluating adverse actions and the scope of
conduct at issue, we now apply the deterrence test to Yanowitz's evidence. Under the
deterrence test, we conclude that Yanowitz's showing was sufficient to survive summary
adjudication.

24


We evaluate L'Oreal's actions objectively. The "inquiry as to whether an
employment action is adverse requires a case-by-case determination based upon objective
evidence. [Citation.]" (Thomas, supra, 77 Cal.App.4th at pp. 510-511; see Vasquez v.
County of Los Angeles (9th Cir. 2002) 307 F.3d 884, 891 (Vasquez) ["the proper inquiry
is to view the action objectively [and] to determine whether a reasonable person in the
same situation would view the action as disadvantageous"].)

Vasquez adopted an objective test for evaluating adverse actions in the
discrimination context. (Vasquez, supra, 307 F.3d at p. 891.) Oddly, Vasquez appeared
to read Ray as supporting a partially subjective test in the retaliation context. (Vasquez,
at p. 896.) We do not read Ray's test as subjective; Ray held that "an action is cognizable
as an adverse employment action if it is reasonably likely to deter employees from
engaging in protected activity." (Ray, supra, 217 F.3d at p. 1243.) This reasonable
likelihood inquiry is an objective one. Similarly, nothing in the EEOC Compliance
Manual, from which the deterrence test is drawn, suggests that the test is a subjective one.
(See EEOC Compliance Manual, 8, "Retaliation," at p. 8-14 [analyzing examples of
potential retaliation under objective standard].) To be clear, the deterrence test we apply
asks objectively whether a reasonable employee would be deterred from engaging in
protected activity by the employer's conduct.

Viewing the record in the light most favorable to Yanowitz (Hersant, supra, 57
Cal.App.4th at p. 1001), her evidence shows that she had performed well at L'Oreal. In
the spring of 1998, Roderick and Wiswall began seeking out negative information about
her, both from her subordinates and from her written reports. They used this information
to criticize her in person and in front of peers, to prepare written memos severely
criticizing her performance, to restrict her latitude in deciding how to oversee her
territory, and to demand that she improve immediately, or else. They refused to review
her response to their charges.

For purposes of evaluating whether this evidence carries Yanowitz's initial burden
of showing an adverse action as part of her prima facie case, we credit for the moment
Yanowitz's contention that the foregoing actions were unjustified. Would these actions

25

deter a reasonable employee from engaging in protected activity? We conclude that they
would. Months of unwarranted criticism of a previously honored employee, an implied
threat of termination, contacts with subordinates that could have the effect of
undermining a manager's effectiveness, and new regulation of the manner in which a
manager oversaw her territory would discourage a reasonable manager from disobeying
future unlawful orders. As in Akers, this was more than mere criticism. Taking into
account the totality of the circumstances, a jury could find that the handwriting was on
the wall and Yanowitz's chances of career advancement were finished as a consequence
of her refusal to carry out her supervisor's order.

We do not hold that the alleged conduct occurred, or that it was unjustified by
bona fide concerns that might yet be proven at trial. We hold only that, at the summary
adjudication stage, Yanowitz's evidence was sufficient to make out the adverse action
element of her prima facie case. "[W]hether a properly instructed jury would conclude
plaintiff's evidence was sufficient as a matter of fact . . . remains an open question."
(Birschtein, supra, 92 Cal.App.4th at p. 1006.)
C.
Causal Nexus Between Adverse Action and Protected Activity

For the first time on appeal, L'Oreal challenges Yanowitz's showing of a causal
connection between her refusal to fire a subordinate and her treatment from April to July
1998. Before the trial court, L'Oreal challenged only the other two prongs of Yanowitz's
prima facie case, her showing of protected activity and adverse action.

We may not affirm the trial court's ruling on this basis. An appellate court
ordinarily must sustain a summary judgment if the trial court's opinion is right upon any
applicable theory of law. (Folberg v. Clara G. R. Kinney Co. (1980) 104 Cal.App.3d
136, 140.) However, "the basis for a summary judgment is the absence of triable fact
issues [citation], and if a point is not argued below by the moving party and the record
does not establish that the opposing party could not have shown a triable fact issue had
the point been raised, the appellate court cannot determine whether the trial court's
decision was `right' upon that point. [Citation.]" (Ibid.) L'Oreal's moving papers did

26

not put into dispute the issue of causation, "and we cannot conclude from the record that
[Yanowitz] could not have shown a triable fact issue as to" this question. (Id. at p. 141.)
Yanowitz "had no reason to present . . . evidence [on this question]. `A party opposing a
motion for summary judgment cannot be required to marshal facts in opposition to the
motion [that] refute claims wholly unrelated to the issues raised by the moving papers.'
[Citation.]" (Ibid.) Accordingly, we cannot speculate what evidence Yanowitz might
have on this point, and we will not consider whether the evidence submitted in opposition
would have been sufficient to prove a causal nexus between the alleged protected activity
and adverse action.
D.
Pretext

In its moving papers, L'Oreal argued truth as its justification for its actions:
specifically, that Yanowitz's performance was declining, that she had made mistakes, and
that all criticism of her was warranted. This justification was sufficient to carry
L'Oreal's burden, and to shift the burden to Yanowitz to show that the proffered
justification was pretextual.

We consider whether Yanowitz has produced "substantial responsive evidence"
that L'Oreal's criticisms were motivated by a retaliatory animus. (Horn, supra, 72
Cal.App.4th at pp. 806-807; Hersant, supra, 57 Cal.App.4th at pp. 1004-1005; West v.
Bechtel Corp. (2002) 96 Cal.App.4th 966, 978.) This showing may be made through
direct evidence or circumstantial evidence. (Colarossi v. Coty USA Inc. (2002) 97
Cal.App.4th 1142, 1153; Morgan v. Regents of University of California (2000) 88
Cal.App.4th 52, 68-69 (Morgan).) Even a " `very little' " amount of direct evidence will
suffice to defeat a summary judgment motion. (Morgan, at p. 69.) In the alternative,
pretext "may also be inferred from the timing of the company's [adverse action], by the
identity of the person making the decision, and by the . . . employee's job performance
before [the adverse action]." (Flait, supra, 3 Cal.App.4th at p. 479.)

Yanowitz points to one piece of direct evidence. According to DeGracia,
DeGracia spoke with Victoria Garrett, a L'Oreal executive at the New York office, in

27

March 1998. Garrett told DeGracia that Wiswall had "issues" with Yanowitz and wanted
to "get rid of" her. L'Oreal objected in writing to this evidence on hearsay grounds. The
trial court did not rule on the objection. On appeal, L'Oreal again argues that this
statement is inadmissible hearsay.

"[W]hen a trial judge fails to rule on summary judgment or adjudication
evidentiary objections, they are deemed waived." (City of Long Beach v. Farmers &
Merchants Bank (2000) 81 Cal.App.4th 780, 784 (Long Beach); see also Sharon P. v.
Arman, Ltd. (1999) 21 Cal.4th 1181, 1186, fn. 1; Arnold v. Dow Chemical Co. (2001) 91
Cal.App.4th 698, 706, fn. 3.) The court in Long Beach carved out one exception to this
general rule that if a party objects to evidence but fails to obtain a ruling, any objection is
deemed waived, and for purposes of appeal, the objectionable evidence must be
considered. (Long Beach, at pp. 783-784.) Although the defense counsel in Long Beach
failed to secure an evidentiary ruling, during the summary judgment hearing, "defense
counsel twice orally requested that the trial court rule on the written evidentiary
objections." (Id. at p. 784.) The court noted, "Part of the judicial function in assessing
the merits of a summary judgment or adjudication motion involves a determination as to
what evidence is admissible and that which is not." (Ibid.) In other words, it was the
trial court's obligation, and not defense counsel's obligation, to ensure that rulings on
evidentiary objections were made. The court concluded that defense counsel's written
evidentiary objections were preserved for appellate review because "[f]rankly, in this
case, there was nothing further defense counsel could be expected to do in terms of
seeking rulings on the previously filed evidentiary objections . . . ." (Id. at pp. 784-785.)

That exception does not apply here. Defense counsel submitted a mass of written
evidentiary objections before the summary adjudication hearing. However, at the
hearing, he failed to raise any of these objections or request rulings. Consequently,
L'Oreal's objections were not preserved, and we may not consider them. (Code Civ.
Proc., 437c, subds. (b) & (c); Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th
666, 670, fn.1 ["Although many of the objections appear meritorious, for purposes of this

28

appeal we must view the objectionable evidence as having been admitted in evidence and
therefore as part of the record"].)

We therefore accept as true the assertion that, by March 1998, Wiswall wanted to
fire Yanowitz over unspecified issues. The timing of this statement is significant.
Yanowitz's evidence shows that Wiswall's repeated requests to fire the female employee
he found unattractive came in the months preceding this statement. Yanowitz was only a
year removed from winning Regional Sales Manager of the Year. In contrast, no
performance-related concerns warranting dismissal had surfaced. L'Oreal points to some
1997 concerns from Roderick that Yanowitz was opinionated, talkative, and a poor
listener. Even so, Roderick still believed "Elysa does a terrific job as a regional [sales]
manager . . . ." At most, these concerns raise an issue of fact concerning the quality of
Yanowitz's performance and the legitimacy of L'Oreal's later criticisms.

The circumstantial factors identified by Flait, supra, 3 Cal.App.4th 467, 478,
support a conclusion of pretext as well. L'Oreal's actions toward Yanowitz followed on
the heels of Yanowitz's failure to carry out Wiswall's order. The source of the adverse
actions was Wiswall himself and his immediate subordinate, Roderick. Prior to the
spring of 1998, Yanowitz's performance had been consistently strong over the course of
nearly two decades.

Yanowitz has submitted evidence that Roderick and Wiswall actively sought
negative input and subjected her performance to heightened scrutiny. (See Colarossi v.
Coty US Inc., supra, 97 Cal.App.4th at p. 1154 [sudden heightened scrutiny of
employee's record-keeping suggested retaliatory motive].) Yanowitz submitted evidence
that many of the charges in the Roderick July 16 memorandum were untrue. (See Sada,
supra, 56 Cal.App.4th at p. 156 [denial of claimed employee errors created triable issue
of pretext].) L'Oreal's refusal to review Yanowitz's written response at the July 22,
1998, meeting supports her contention that L'Oreal was interested in creating a paper trail
to fire her, not working out differences over her performance. Finally, Yanowitz
submitted evidence that her successor was not subjected to the same travel schedule
imposed on her at the July 22 meeting.

29


From this evidence, Yanowitz has raised a triable issue of fact over whether
Roderick's and Wiswall's concerns and criticisms were bona fide, or were part of a
charade designed to create grounds for termination. A reasonable jury could conclude,
based on the evidence, that it was implausible Yanowitz would have lost effectiveness so
quickly, that criticism of Yanowitz over matters such as her "dictatorial" style would
never have been leveled at a man in a similar situation, and that the pattern of criticisms
was pretextual and designed to create grounds for achieving Wiswall's desired dismissal.
We offer no views on the merits; we note only that Yanowitz's evidence, granting her the
benefit of all reasonable inferences, creates a triable issue of fact over L'Oreal's motives
for its actions toward her. 7
III.
Negligent Infliction of Emotional Distress

The trial court granted summary adjudication on Yanowitz's emotional distress
claim, concluding that it was barred by workers' compensation exclusivity. We disagree,
but affirm on an alternate ground raised by L'Oreal.

Workers' compensation exclusivity rests on the notion that, as the quid pro quo for
swift and certain payment on a no-fault basis, workers cede the possibly greater recovery
that might arise from a range of fault-based tort claims. (Fermino v. Fedco, Inc. (1994) 7
Cal.4th 701, 709-710; see Lab. Code, 3600.) However, exclusivity only extends to
conduct which is part of the normal risks of the employment relationship. (Fretland v.
County of Humboldt (1999) 69 Cal.App.4th 1478, 1492; see Livitsanos v. Superior Court
(1992) 2 Cal.4th 744, 756.) Unlawful discrimination is not one of those risks, and so
workers' compensation exclusivity does not bar emotional distress claims founded on

7
On September 3, 2002, Yanowitz filed a request for judicial notice. We deferred
ruling on the request so that we could consider it along with the merits of the appeal.
Having now considered Yanowitz's request, we deny it. Yanowitz has asked this court to
take judicial notice of a Title VII complaint filed by an unrelated party against Polo
Ralph Lauren Corporation in federal court in New York. We decline to take judicial
notice of the complaint and its exhibits because they have no bearing on the issues before
us. (See Mangini v. R.J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063.)

30

discrimination. (Fretland, supra, 69 Cal.App.4th at p. 1492.) We see no reason to
distinguish between an FEHA discrimination claim and an FEHA retaliation claim; in
each case, the conduct involved is not part of the normal risks attendant to the
employment relationship. Thus, because Yanowitz's FEHA retaliation claim survives
summary adjudication, workers' compensation exclusivity does not bar her derivative
emotional distress claim based on that retaliation.

However, we may affirm on any basis supported in the trial court record.
Yanowitz's emotional distress claim fails on the merits. The cause of action for negligent
infliction of emotional distress is simply a subspecies of negligence and requires proof of
the same elements as any negligence claim. (Burgess v. Superior Court (1992) 2 Cal.4th
1064, 1072; Semore v. Pool (1990) 217 Cal.App.3d 1087, 1105.) As L'Oreal correctly
argues, " `An employer's supervisory conduct is inherently "intentional." ' " (Semore v.
Pool, supra, at p. 1105, quoting Cole v. Fair Oaks Fire Protection Dist. (1987) 43 Cal.3d
148, 160.) Such conduct will not support a claim for negligent infliction of emotional
distress. (Semore v. Pool, supra, at p. 1005.) Put another way, an employee cannot avoid
the stringent requirements of an intentional infliction of emotional distress claim,
including proof of "outrageous conduct" that "exceed[s] all bounds usually tolerated by a
decent society" (Cole v. Fair Oaks Fire Protection Dist., supra, at p. 155, fn. 7), by
contending that the employer's intentional supervisory acts directed at the employee were
negligent. Both before the trial court and on appeal, Yanowitz has recited only
intentional acts by L'Oreal. We affirm the trial court's summary adjudication of this
claim.
IV.
Unfair Competition*

L'Oreal distributes the bulk of its product through high-end retailers such as Saks
Fifth Avenue, Nordstrom's, and Bloomingdale's. This is not its exclusive method of
distribution. It also distributes product to "resellers," who are then free to resell L'Oreal

*
See footnote, ante, page 1.

31

product to outlets less consonant with L'Oreal's brand image. Yanowitz contends that
the practice of distributing product through this alternate channel is an unfair and
fraudulent business practice.

California's Unfair Competition Law (UCL) prohibits "unfair competition," which
is defined to include "any unlawful, unfair or fraudulent business act or practice . . . . "
(Bus. & Prof. Code, 17200.) Yanowitz contends that L'Oreal's sales to resellers are
both unfair and fraudulent because they reduce the bonus compensation that would
otherwise go to L'Oreal's California sales force, and because they create competition
against the high-end retailers who principally distribute L'Oreal fragrances.

The trial court granted summary adjudication. It concluded that Yanowitz's unfair
business practice theory failed because Yanowitz had adduced no evidence of any harm
from the practice, and it concluded that her fraudulent business practice theory failed
because L'Oreal's conduct was not likely to result in any deception. We agree.
Summary adjudication on this claim was proper.8
A.
Unfairness

The broad scope of the UCL was intended to give courts authority to enjoin any
new scheme " `which on its face violates the fundamental rules of honesty and fair
dealing . . . .' " (Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co.
(1999) 20 Cal.4th 163, 181 (Cel-Tech).) "Although the unfair competition law's scope is
sweeping, it is not unlimited. Courts may not simply impose their own notions of the day
as to what is fair or unfair." (Id. at p. 182.) The Cel-Tech court defined unfairness as
"conduct that threatens an incipient violation of an antitrust law, or violates the policy or
spirit of one of those laws . . . ." (Id. at p. 187.)
However,
Cel-Tech involved an action brought by a competitor, and expressly

8
In the trial court, Yanowitz alleged that a second practice, L'Oreal's payment of
salary contributions to certain retailers, also violated the UCL. The trial court denied
summary adjudication on this claim. Yanowitz voluntarily dismissed this claim and has
abandoned it on appeal, and we do not consider it.

32

confined its test to cases involving injury to competitors, as opposed to injury to
consumers. (Cel-Tech, supra, 20 Cal.4th at p. 187, fn. 12.) It remains an open question
what test should apply to actions other than those brought by competitors. (See generally
Gregory v. Albertson's, Inc. (2002) 104 Cal.App.4th 845, 851-854.) Before Cel-Tech,
some courts followed the broad test set out by People v. Casa Blanca Convalescent
Homes, Inc. (1984) 159 Cal.App.3d 509 (Casa Blanca), which stated: "We conclude an
`unfair' business practice occurs when it offends an established public policy or when the
practice is immoral, unethical, oppressive, unscrupulous or substantially injurious to
consumers. [Citation.]" (Id. at p. 530.) In Cel-Tech, the Supreme Court disapproved the
Casa Blanca definition as being "too amorphous" and as providing "too little guidance to
courts and businesses." (Cel-Tech, supra, 20 Cal.4th at pp. 184-185.) Nevertheless, at
least two courts have concluded that the Casa Blanca test survives Cel-Tech, at least for
consumer actions. (Schnall v. Hertz Corp. (2000) 78 Cal.App.4th 1144, 1167 & fn. 15
(Schnall); South Bay Chevrolet v. General Motors Acceptance Corp. (1999) 72
Cal.App.4th 861, 887 & fn. 24 (South Bay Chevrolet).) Other courts followed, and have
continued to apply, a balancing test: " `The test of whether a business practice is unfair
"involves an examination of [that practice's] impact on its alleged victim, balanced
against the reasons, justifications and motives of the alleged wrongdoer. In brief, the
court must weigh the utility of the defendant's conduct against the gravity of the harm to
the alleged victim . . . ." ' [Citations.]" (South Bay Chevrolet, supra, 72 Cal.App.4th at p.
886; see Motors, Inc. v. Times Mirror Co. (1980) 102 Cal.App.3d 735, 740 [establishing
the balancing test].) Finally, a third test takes the principles of Cel-Tech--that claims of
unfairness should be defined in connection with legislatively declared policies--and
extends it to consumer claims by looking to the policies outlined in consumer protection
laws. (Schnall, supra, 78 Cal.App.4th at p. 1166; see Churchill Village, L.L.C. v.
General Elec. Co. (N.D. Cal. 2000) 169 F.Supp.2d 1119, 1130, fn. 10 [extending Cel-
Tech test to consumer action].) We need not decide which definition is appropriate,
because Yanowitz has failed to present evidence satisfying any test of unfairness.

33

As
Schnall, Cel-Tech, and a host of other cases recognize, the UCL is intended to
protect consumers, competitors, and the functioning of markets. The UCL "governs
`anti-competitive business practices' as well as injuries to consumers, and has as a major
purpose `the preservation of fair business competition.' [Citations.]" (Cel-Tech, supra,
20 Cal.4th at p. 180.) Yanowitz does not allege that consumers have been harmed by
diversion of product to resellers.9 Nor does she allege any harm to either L'Oreal's
competitors or to the fragrance market. Instead, she suggests that L'Oreal's employees
have been harmed, and that its distributors have been harmed. Yanowitz cites no cases,
nor have we found any, holding that harm to either of these groups might render a
business practice unfair under the UCL. However, we need not decide whether such
claims are cognizable under the UCL. Even if they are, Yanowitz has presented no
evidence demonstrating harm that could outweigh the legitimate business interests
proffered by L'Oreal.

Absent an exclusive contract or other binding commitment, L'Oreal is free to sell
its products to whichever distributors it chooses. It has chosen to create a primary
channel of distribution, high-end retailers, and a secondary channel of distribution,
resellers. L'Oreal proffers as reasons for that decision the twin goals of brand image
preservation and revenue maximization. These goals are common to virtually every
company that markets its products. We belabor the obvious by pointing out that these are
legitimate, lawful, and weighty interests.

Against L'Oreal's interest in deciding how best to market its products, Yanowitz
puts forward the high-end retailers' interest in not losing money as the result of
competition from outlets that purchase from resellers. This is not "harm" in any sense the
UCL recognizes. Yanowitz has introduced no evidence that distribution to resellers in

9
Indeed, one could reasonably infer that consumers actually benefit from this
practice, which may make product available at lower prices than would otherwise be the
case.

34

fact harmed L'Oreal's primary distributors, or that lost business by these distributors was
unfair, rather than legitimate competition by those who acquired product from resellers.

In the alternative, Yanowitz argues that sales personnel have seen their bonus
compensation reduced by the practice of reselling. We expressly leave open the question
whether and under what circumstances harm to a company's employees might give rise
to a UCL violation. Even assuming that it can, Yanowitz has failed to present evidence
of harm here. L'Oreal's bonus compensation program rewards sales force members for
hitting annual sales targets for the sale of specified "bonus" fragrances through the
primary distribution channel, high-end retailers. Yanowitz's claim of harm depends on
proving at least the following: (1) that resellers resell product to California;10 (2) that the
resold product includes one or more of the suite of five or so fragrances upon which
bonuses are based; (3) that the secondary distribution reduces sales through the primary
distribution channel; and (4) that that reduction reduces the bonuses received.

On the first two points, Yanowitz submitted anecdotal evidence of finding Drakkar
Noir, a bonus fragrance, at low-end distributors in California. She presented no evidence
that the source of this product was L'Oreal sales to resellers. On the third point,
Yanowitz submitted no evidence of the volume of bonus fragrances resold in California,
and thus no evidence of market impact. On the fourth point, L'Oreal submitted evidence
that it set each year's sales targets based on the previous year's sales through the primary
distribution channel. The economic consequences of this are apparent. This practice
would, in effect, eliminate any impact that reselling might have on bonuses. In some
years, an increase in reselling might make it more difficult to meet sales targets. In some
years, reduced reselling might actually make it easier. If the level of reselling were
constant from year to year, relative to sales through the primary distribution channel,
there would be no impact at all. Yanowitz submitted no evidence that reselling would in
fact drag down bonuses.

10
The UCL applies only to harm or misconduct within California's borders.
(Norwest Mortgage, Inc. v. Superior Court (1999) 72 Cal.App.4th 214, 222-227.)

35


Yanowitz has failed to present evidence of harm sufficient to outweigh L'Oreal's
legitimate business justifications for the practice of reselling. In the absence of evidence
of any harm, Yanowitz's claim fails the balancing test for unfairness. L'Oreal's conduct
does not run afoul of any legislative policies embodied in existing consumer protection
laws. Nor has Yanowitz presented evidence that its conduct is "immoral, unethical,
oppressive, unscrupulous or substantially injurious to consumers." (Casa Blanca, supra,
159 Cal.App.3d at p. 530.) The trial court correctly granted summary adjudication on
Yanowitz's UCL unfairness claim.
B.
Deception

The UCL also bars fraudulent business practices. (Bus. & Prof. Code, 17200.)
To state a claim for a fraudulent business practice, " `one need only show that "members
of the public are likely to be deceived." ' [Citation.]" (Rubin v. Green (1993) 4 Cal.4th
1187, 1200-1201.) Here, Yanowitz argues that L'Oreal's practice of selling product to
resellers deceived L'Oreal's primary distributors and sales force because the distributors
and sales force were not informed of the scope or existence of the practice. Yanowitz
complains of an omission, not a misrepresentation.

An omission can only deceive if the speaker is under some obligation to provide
the omitted information. Yanowitz presented no evidence of circumstances that would
obligate L'Oreal to discuss the practice with its sales force. Nor is there any evidence
that L'Oreal was under any obligation to advise its primary distributors of the terms or
extent of sales to resellers, any more than it was under an obligation to advise
Bloomingdale's of the terms of its dealings with Nordstrom's. Likewise, Yanowitz has
offered no evidence of circumstances that might obligate L'Oreal to disclose details of its
sales to resellers to employees not involved in those sales. In the absence of such
evidence, the trial court correctly granted summary adjudication.

36

V.
Good Faith and Fair Dealing*

California cases recognize that every contract includes an implied covenant that
neither party will do anything that will have the effect of destroying or injuring the right
of the other party to receive the fruits of the contract. (See, e.g., Locke v. Warner Bros.,
Inc. (1997) 57 Cal.App.4th 354, 363, quoting Kendall v. Ernest Pestana, Inc. (1985) 40
Cal.3d 488, 500.) Yanowitz sued for breach of this covenant, based on the allegation that
L'Oreal's practice of reselling deprived her of bonuses to which she was otherwise
entitled.

As discussed in part IV, ante, Yanowitz presented no evidence sufficient to raise a
genuine dispute over whether L'Oreal's reselling reduced anyone's bonuses, never mind
hers. In the absence of such evidence, the trial court correctly granted summary
adjudication.
DISPOSITION

The judgment is reversed on Yanowitz's FEHA claim for retaliation, and this case
is remanded for further proceedings on that claim. In all other respects, the judgment is
affirmed. Yanowitz shall recover her costs on appeal.








_________________________







Gemello, J.

We concur:

_________________________
Stevens, Acting P.J.

_________________________
Simons, J.





* See footnote, ante, page 1.

37

Trial
court:
San
Francisco County Superior Court
Trial
judge:
Hon.
Ronald Evans Quidachay





and
Hon.
A.
James
Robertson
II


Counsel for plaintiff
and
appellant: Herbert
W.Yanowitz

Counsel for defendant
and respondent:


Morgenstein & Jubelirer,
William
J.
Carroll,
David
H.
Bromfield












38

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