Kabiling v. Lithia Motors CA2/2 ( 2021 )

Filed 10/6/21 Kabiling v. Lithia Motors CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
MAI KABILING, B305901
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC720430)
v.
LITHIA MOTORS, INC., et al.,
Defendants and
Respondents.
APPEAL from an order of the Superior Court of Los
Angeles County, William F. Fahey, Judge. Affirmed.
Lyon Law and Geoffrey C. Lyon for Plaintiff and Appellant.
WFBM and Kellie Christianson for Defendants and
Respondents.
******
Mai Kabiling (appellant) appeals from an order denying her
motion to vacate an arbitration award entered after a binding
arbitration proceeding on appellant’s claims for discrimination,
wrongful termination, and harassment against Lithia Motors,
Inc. (Lithia), and Ania Ryndak (collectively respondents).
Appellant has failed to set forth grounds for vacating the award
under Code of Civil Procedure section 1286.2.1 Therefore, we
affirm the order.
FACTUAL BACKGROUND
Appellant first began working at Downtown L.A. Motors
Mercedes Benz (DTLAMB) in 1985. Appellant’s position from
approximately 2007 until March 2018 was business office
manager. Appellant was employed under the direct supervision
of Ryndak. In approximately August 2017, DTLAMB was
purchased by Lithia. Like other DTLAMB employees, appellant
began her employment with Lithia on or about August 7, 2017.
Appellant’s employment was “at will.” Lithia reserved its right to
terminate employment at will and demote at will.
Lithia is a publicly traded company subject to multiple
mandates based on the Sarbanes-Oxley Act of 2002 (15 U.S.C.
§ 7201 et seq.). As such, business managers are responsible for
the accuracy of books and records. Business managers reported
directly to Lithia’s vice president of dealership, Jodi Rasor.
Lithia provided training to its business managers after the
acquisition.
1 All further statutory references are to the Code of Civil
Procedure unless otherwise noted.
2
Rasor had concerns about appellant’s ability to use the new
computer accounting programs. Appellant seemed to be
struggling to navigate the programs efficiently. Rasor, who
personally evaluated the financial statements, also had concerns
regarding the accuracy of the DTLAMB financial statements.
She noted an unexpected $60,000 adjustment in appellant’s
financial statements for December 2017.
Human resources director, Marilyn Dyson, testified that
prior to March 9, 2018, Ryndak contacted her regarding
appellant. Ryndak informed Dyson that appellant was not
keeping up with her work and Ryndak was looking for
suggestions as to what could be done. Dyson suggested that
Ryndak demote appellant or find another position for her within
the company. Dyson testified that Ryndak used the words
“retire” and “aging out” during the conversation. However,
severance was not discussed during their conversation. Dyson
focused on finding other suitable positions for appellant within
the company as she “had been there for so long [Dyson] couldn’t
even imagine letting her go.”
On Friday, March 9, 2018, Lithia arranged a meeting
between appellant and Ryndak to explain to appellant that they
were going to have to demote her. The decision to demote was
Rasor’s, not Ryndak’s. Ryndak offered appellant a choice of three
alternate positions within the company.
Appellant stated that she would like to take the weekend to
consider the options. Appellant never returned to DTLAMB.
Instead, she registered a complaint of discrimination. She
initiated a medical leave of absence, then obtained alternate
employment with a different car dealership.
3
During Lithia’s investigation of appellant’s complaint,
Ryndak provided information that the general manager wanted
appellant in a different position because appellant could not keep
up with the work, did not understand basic accounting, and did
not know the computer programs even after being taught.
Ryndak stated that appellant had been “constantly making
comments about retiring at the age of 62” and “all [Ryndak] said
to her was, ‘It’s not such a bad thing you are looking to retire
soon anyways.’” When appellant suggested she was being fired
because she was old, Ryndak responded “its not because you are
old, it’s because the requirements for the position have changed,
it has nothing to do with your age.” Ryndak admitted to saying,
“Do you really want to spend a lot of time learning at this stage of
your career?” Ryndak insisted that she did not say anything
wrong about age during the conversation, but she was informed
by the investigator that regardless of whether the employee
brings up age, it is not appropriate to discuss at work.
After appellant’s departure, Lithia hired Lisa Metcalf to
replace appellant in the business manager position. Metcalf was
54 at the time she took the job, which was approximately one
year younger than appellant.
Lithia had its employee relations department conduct a
thorough investigation of appellant’s complaint of age
discrimination. Lithia also kept in contact with appellant
regarding her leave of absence. Appellant never responded to
any of Lithia’s communications. Approximately four months
after her demotion meeting, appellant’s employment was
terminated for job abandonment.
4
PROCEDURAL HISTORY
Trial court proceedings
On September 4, 2018, appellant filed her complaint
against respondents. Appellant asserted causes of action for
termination in retaliation for opposing age harassment, disability
discrimination, medical leave retaliation, medical leave
discrimination, age discrimination, age harassment, wrongful
termination, and failure to stop discrimination and retaliation
under the California Fair Employment and Housing Act (FEHA)
(Gov. Code, § 12940 et seq.). Appellant also claimed
whistleblower retaliation and wrongful termination under Labor
Code section 1102.5.
On October 5, 2018, respondents answered the complaint.
The answer included an affirmative defense asserting that there
existed a binding arbitration agreement between the parties, the
terms of which required the matter to be submitted to an
arbitrator.
On November 5, 2018, respondents filed their motion to
compel binding arbitration. The motion was based on the
arbitration agreement signed by appellant on August 23, 2017,
shortly after appellant began working as an employee of Lithia.
By signing the agreement, appellant agreed that any “claim,
dispute, and/or controversy” that she may have against the
company “shall be submitted to and determined exclusively by
binding arbitration.” Appellant expressly agreed to the binding
arbitration provision and gave up her rights to a trial by jury.
On December 7, 2018, the trial court granted respondents’
motion to compel binding arbitration and stay the court action.
5
Arbitration
The arbitration hearing was held on November 18, 19, and
20, 2019. The arbitrator heard testimony from 10 witnesses and
received 69 exhibits into evidence. The arbitrator also heard
closing arguments and reviewed postarbitration briefing from
both sides.
On January 3, 2020, the arbitrator issued a comprehensive
written decision in favor of respondents on all of appellant’s
causes of action. The arbitrator found that Lithia was “an at-will
employer, and that it reserved not only its right to terminate
employment at will, but also to demote at will.” The written
decision described problems with appellant’s performance in the
role of business manager, including an unexpected $60,000
accounting discrepancy that threatened to compromise the
credibility of Lithia’s financial information. The arbitrator
further found that the decision to demote appellant was “wholly
Jodi Rasor’s decision, not Ania Ryndak’s.”
The arbitrator found that on Friday, March 9, 2018, Lithia
arranged a meeting between appellant and Ryndak to explain to
appellant that they were going to have to replace her in the role
of business manager. Ryndak told appellant that her salary
would continue through May 1, 2018, in order to give her time to
make adjustments to her finances and expenses. Ryndak offered
appellant her choice of three alternate positions within the
company. Appellant stated that she would like the weekend to
think it over, but never returned to DTLAMB. Instead of
choosing one of the three positions offered her, appellant filed a
complaint that she was being harassed and discriminated
against, and initiated a medical leave of absence. Appellant
received disability benefits through April 12, 2018, and obtained
6
work at a different dealership shortly thereafter. Approximately
four months after her demotion meeting, appellant’s employment
was terminated for job abandonment.
The arbitrator found that appellant’s age was not a
substantial motivating reason for Lithia’s decision to demote
appellant or terminate her employment. First, the individual
that Lithia hired to assume business manager duties upon
appellant’s departure was only one year younger than appellant.
Further, Lithia demoted appellant due to her poor performance.
The arbitrator specifically found that “[t]here are no facts that
would suggest that Rasor’s decision was based on anything other
than [appellant’s] inability to perform her duties.” Finally, Lithia
conducted a thorough investigation of appellant’s complaint and
appropriately kept in touch with appellant throughout her leave
of absence. In short, the arbitrator found that based on the facts
presented during the arbitration proceeding, appellant failed to
establish any of her causes of action against respondents.
Postarbitration proceedings
On January 17, 2020, respondents filed their motion to
confirm the arbitration award pursuant to sections 1285 and
1287.4.
On January 27, 2020, appellant filed her opposition to the
petition to confirm and cross-petition to vacate the arbitration
award (petition to vacate). In the petition to vacate, appellant
argued that the arbitration award violated a public policy statute
as a matter of law. Appellant additionally argued that the
arbitrator did not correctly decide the facts of the case and that
she was terminated or demoted for discriminatory reasons.
Further, appellant argued that the criticisms of appellant’s work
were false pretexts for discrimination. Finally, appellant argued
7
that the arbitrator erred in failing to perform a mixed-motive
analysis.
On February 25, 2020, the trial court issued a ruling
denying appellant’s petition to vacate. The court stated: “The
Court finds that [appellant] is seeking an improper do-over of the
arbitration.”
On March 16, 2020, the trial court entered an order
confirming the arbitration award as a judgment.
On April 22, 2020, appellant filed her notice of appeal from
the order after judgment.
DISCUSSION
I. Applicable law and standard of review
Unless there is a specific statutory ground to vacate or
correct an arbitration award, “it is the general rule that, with
narrow exceptions, an arbitrator’s decision cannot be reviewed for
errors of fact or law.” (Moncharsh v. Heily & Blase (1992) 3
Cal.4th 1, 11 (Moncharsh).) This is true even when those errors
appear on the face of the award or cause substantial injustice to
the parties. (Richey v. AutoNation, Inc. (2015) 60 Cal.4th 909,
916 (Richey).)
Judicial review of an arbitration award is limited to those
cases in which there is a statutory ground to vacate or correct the
award. (Moncharsh, supra, 3 Cal.4th at p. 27.) Section 1286.2
provides that a court shall vacate an arbitration award if the
court determines any of the following:
(1) The award was procured by corruption, fraud, or
other undue means.
(2) There was corruption in any of the arbitrators.
8
(3) The rights of the party were substantially prejudiced
by the misconduct of a neutral arbitrator.
(4) The arbitrators exceeded their powers and the award
cannot be corrected without affecting the merits of the decision
upon the controversy submitted.
(5) The rights of the party were substantially prejudiced
by the refusal of the arbitrators to postpone the hearing upon
sufficient cause being shown therefor or by the refusal of the
arbitrators to hear evidence material to the controversy or by
other conduct of the arbitrators contrary to the provisions of this
title.
(6) An arbitrator making the award either (A) failed to
disclose within the time required for disclosure a ground for
disqualification of which the arbitrator was then aware or (B)
was subject to disqualification upon grounds specified in section
1281.91 but failed upon receipt of timely demand do disqualify
himself or herself as required by that provision. However, this
provision does not apply to arbitration proceedings conducted
under a collective bargaining agreement between employers and
employees or between their respective representatives. (§ 1286.2,
subd. (a)(1)-(6).)2
“Arbitrators may exceed their powers by issuing an award
that violates a party’s unwaivable statutory rights or that
contravenes an explicit legislative expression of public policy.”
(Richey, supra, 60 Cal.4th at p. 916.) However, “‘“[a]rbitrators do
not ordinarily exceed their contractually created powers simply
2 Section 1286.6 provides for correction of an arbitration
award where there is an “obvious and easily correctable mistake
in the award.” (Moncharsh, supra, 3 Cal.4th at p. 13.) Section
1286.6 is not applicable in this case.
9
by reaching an erroneous conclusion on a contested issue of law
or fact, and arbitral awards may not ordinarily be vacated
because of such error . . . .”’” (Id. at p. 917.) Cases holding that
an arbitrator has issued an award in violation of a party’s
unwaivable statutory rights include, for example, the
misapplication of a tolling statute that deprived an individual of
a hearing on the merits of his FEHA claim. (Id. at p. 918, citing
Pearson Dental Supplies, Inc. v. Superior Court (2010) 48 Cal.4th
665, 670 (Pearson).) The Pearson court explained that when the
arbitration agreement at issue is “an adhesive arbitration
agreement that an employer imposes on the employee as a
condition of employment,” an arbitration of FEHA claims must be
held to certain minimum requirements. (Id. at p. 677.) Those
minimal requirements are “‘(1) the arbitration agreement may
not limit the damages normally available under the statute
[citation]; (2) there must be discovery “sufficient to adequately
arbitrate their statutory claim” [citation]; (3) there must be a
written arbitration decision and judicial review “‘sufficient to
ensure the arbitrators comply with the requirements of the
statute’” [citation]; and (4) the employer must “pay all types of
costs that are unique to arbitration” [citation].’” (Ibid.) In
Pearson, review of the arbitrator’s decision was justified under
the third requirement, mandating judicial review to ensure that
the arbitrator had complied with the requirements of FEHA.
The Pearson court declined to find all legal errors
reviewable in this context, instead expressly stating a narrow
rule that “when . . . an employee subject to a mandatory
employment arbitration agreement is unable to obtain a hearing
on the merits of his FEHA claims . . . because of an arbitration
award based on legal error, the trial court does not err in
10
vacating the award.” (Pearson, supra, 48 Cal.4th at pp. 679-680.)
The Pearson court pointed out that it was “difficult to imagine a
more paradigmatic example of when ‘granting finality to an
arbitrator’s decision would be inconsistent with the protection of
a party’s statutory rights’ [citation] than the present case, in
which, as a result of allowing the procedural error to stand, and
through no fault of the employee or his attorney, the employee
will be unable to receive a hearing on the merits of his FEHA
claims in any forum.” (Id. at p. 680.) The arbitrator whose legal
error has barred an employee from a hearing on the merits of his
FEHA claim has exceeded his or her powers within the meaning
of section 1286.2, subdivision (a)(4). (Pearson, at p. 680.)
However, when the parties have received a full hearing on
the merits, it is “‘within the power of the arbitrator to make a
mistake either legally or factually. When parties opt for the
forum of arbitration they agree to be bound by the decision of
that forum knowing that arbitrators, like judges, are fallible.’”
(Moncharsh, supra, 3 Cal.4th at p. 12.)
The question of whether an arbitrator exceeded his powers
(§ 1286.2, subd. (a)(4)), and whether an arbitration award should
be vacated on that basis, is generally reviewed de novo. (Richey,
supra, 60 Cal.4th at p. 918, fn. 1.)
II. The arbitrator’s decision did not contravene
unwaivable statutory rights or expressions of public
policy
Appellant does not cite section 1286.2 in either of her
briefs, nor does she discuss the legal framework for our review of
the arbitrator’s decision in this matter. Instead, appellant cites
cases observing the rule that an arbitrator exceeds his or her
powers if the arbitration award contravenes an unwaivable
11
statutory right or an explicit legislative expression of public
policy.3 However, appellant does not cite a case finding this rule
applicable where, as here, an arbitrator made a factual
determination after a full hearing that no harassment, retaliation
or discrimination occurred. An arbitrator does not contravene an
unwaivable statutory right or legislative expression of public
policy by making factual findings adverse to a party.
Ignoring the arbitrator’s factual findings, appellant asserts
that the arbitrator’s award must be vacated because it
contravenes FEHA and Labor Code policies against terminating
an employee for opposing age harassment and retaliation.
(Citing Gov. Code, §§ 12920, 12940, subd. (h); Lab. Code,
§ 1102.5.) Appellant insists that age harassment, discrimination
and retaliation are all prohibited by public policy statutes,
therefore the arbitrator’s decision in this matter was in excess of
his powers. Appellant recites many pages of factual support for
her position that her causes of action for discrimination,
harassment and retaliation should have prevailed.
Appellant fails to address the general rule that an
arbitrator’s decision cannot be reviewed for errors of fact or law.
(Moncharsh, supra, 3 Cal.4th at p. 11.) While appellant cites
numerous cases setting forth the rule that an arbitrator’s
decision cannot exceed his or her powers, appellant fails to
address the fundamental underlying problem with her appeal—
she takes the position that the arbitrator’s factual findings were
incorrect.
3 Ahdout v. Hekmatjah (2013) 213 Cal.App.4th 21, 33;
Jordan v. Department of Motor Vehicles (2002) 100 Cal.App.4th
431, 443-444; Ling v. P.F. Chang’s China Bistro, Inc. (2016) 245
Cal.App.4th 1242, 1252; Richey, supra, 60 Cal.4th at page 916.
12
We may not review the evidence underlying the arbitrator’s
factual determination that appellant failed to establish any of her
causes of action. The arbitrator found that appellant was an at-
will employee who was demoted based on her
“underperformance.” Appellant was offered alternative positions
at Lithia but never accepted any such position. In addition, she
was replaced by an individual only one year younger. These
final, binding factual findings do not support appellant’s position
that the arbitrator’s decision contravened an unwaivable
statutory right or public policy.
The arbitrator’s factual conclusion that respondents did not
violate any laws against discrimination, harassment, or
retaliation is binding and is not reviewable by this court.
(Moncharsh, supra, 3 Cal.4th at p. 11.) The arbitrator did not
exceed his power by reaching these factual conclusions after a full
hearing on the merits of appellant’s claims.
Appellant has failed to provide a ground for vacating the
arbitration award.
III. Contravention of an unwaivable statutory right or
public policy is a narrow exception inapplicable here
As set forth above, appellant has failed to provide authority
in which an arbitrator was held to have exceeded his or her
powers by rendering a decision on the facts that was adverse to
the employee. Below we address the cases cited by appellant to
illustrate the inapplicability of the exception appellant relies on
in this appeal.
In Department of Personnel Administration v. California
Correctional Peace Officers Assn. (2007) 152 Cal.App.4th 1193,
the dispute concerned a written collective bargaining
memorandum of understanding (MOU) between the parties. (Id.
13
at p. 1196.) Pursuant to the Ralph C. Dills Act (Gov. Code,
§ 3512 et seq.) the MOU had been submitted to the Legislature
for approval. (Department of Personnel Administration, at
p. 1197.) In resolving the dispute between the parties, the
arbitrator altered the terms of the MOU. (Id. at p. 1199.) Under
the circumstances of reforming the written MOU in a manner
that changed the provisions approved by the Legislature, the
arbitrator violated the Dills Act and the important public policy
of legislative oversight of employee contracts. Thus, the
arbitrator exceeded her powers, and the arbitration award was
properly vacated. (Department of Personnel Administration, at
p. 1203; see California Statewide Law Enforcement Assn. v.
California Department of Personnel Administration (2011) 192
Cal.App.4th 1, 16 [holding that “to the extent that the arbitrator’s
award mandates that the agreement be enforced without
unequivocal legislative approval, it violates public policy for the
same reasons as in [Department of Personnel Administration],
supra, 152 Cal.App.4th 1193”].)
In Ling v. P.F. Chang’s China Bistro, Inc., supra, 245
Cal.App.4th 1242, a former employee brought wage and hour
claims against her former employer. The arbitration award
granted attorney fees to the defendant employer although the
relevant statute contained an explicit legislative declaration that
employers not recover attorney fees in overtime actions. (Id. at
pp. 1254-1255.) The appellate court agreed with the trial court’s
determination that the arbitration award had to be vacated,
stating that “an employee’s statutory claims are arbitrable under
mandatory employment arbitration agreements provided the
employee does not surrender unwaivable statutory rights,
14
including protection from certain attorney fees and costs awards.”
(Id. at p. 1256.)
In Aldea Dos Vientos v. CalAtlantic Group, Inc. (2020) 44
Cal.App.5th 1073, review denied June 10, 2020, S261262, a
condominium’s covenants, conditions and restrictions contained a
provision requiring 51 percent of the homeowners association to
vote to initiate arbitration. This provision violated both the
Davis-Stirling Common Interest Development Act (Civ. Code,
§ 4000 et seq.) and recent legislation barring developers from
using such provisions as a defense against the claims of
condominium associations. (Aldea Does Vientos, at pp. 1078-
1079.) Under the circumstances, the arbitrator’s enforcement of
the provision violated explicit legislative expressions of public
policy. (Id. at p. 1079.)
In Jordan v. California Department of Motor Vehicles,
supra, 100 Cal.App.4th 431, the court held that an award of over
$88 million in public funds pursuant to statutory authority for an
arbitration of an $18 million dispute was an unconstitutional gift
of public funds in violation of Revenue and Taxation Code section
6909, subdivision (b), as well as the public policy set forth in
article XVI, section 6 of the California Constitution. (Jordan, at
p. 438.)
Ahdout v. Hekmatjah, supra, 213 Cal.App.4th 21 involved a
petition to vacate an arbitration award that allowed respondents
to keep compensation they received for contracting work, despite
being unlicensed. (Id. at p. 28.) The Contractors State License
Law (Bus. & Prof. Code, § 7000 et seq.) provided strict and harsh
penalties for a contractor’s failure to maintain proper licensure in
order to protect the public. (Ahdout, at p. 30.) Thus, the Ahdout
court determined that the licensing laws constituted explicit
15
legislative expressions of public policy regarding unlicensed
contractors, therefore the general prohibition of judicial review of
arbitration awards did not apply. (Id. at p. 38.) The appellate
court reversed and remanded to the trial court for a de novo
review of the evidence to determine whether disgorgement of
profit for violation of the licensing laws was required. (Id. at
p. 39.)
In City of Palo Alto v. Service Employees Internat. Union
(1999) 77 Cal.App.4th 327, the city obtained a stay-away
injunction against, and terminated, an employee who threatened
to shoot a coworker and the coworker’s family. (Id. at p. 330.) An
arbitrator’s award ordering the city to reinstate the employee
conflicted with the court-ordered injunction against the employee.
The arbitration award thus violated the public policy requiring
obedience to court orders. The court reversed the order
confirming the arbitration award and denying the petition to
vacate the award. (Ibid.)
In Sargon Enterprises, Inc. v. Browne George Ross LLP
(2017) 15 Cal.App.5th 749, the court corrected a portion of an
arbitration award contrary to the public policy that parties to an
arbitration agreement have the right to initiate litigation in
court. (Id. at p. 768.) The arbitrator’s decision had the effect of
depriving a party of a statutory right, “namely, the right . . .
[citation] to test in court the validity and enforceability of an
arbitration agreement before submitting to arbitration.” (Id. at
p. 770.)
More recently, in Brown v. TGS Management Co., LLC
(2020) 57 Cal.App.5th 303, a former employee initiated
arbitration against his former employer, seeking declaratory and
injunctive relief based on challenges to the validity of a
16
noncompetition agreement, among other things. The arbitrator
rendered a decision against the former employee, and the trial
court affirmed. However, the Court of Appeal reversed, holding
that the arbitration award conflicted with the employee’s right to
work in his chosen profession, as set forth in section 16600 of the
Business and Professions Code. (Brown, supra, at pp. 314-320.)
As the above cases demonstrate, the ability of a court to
vacate or correct an arbitration award on the ground that the
award contravened an unwaivable statutory right or public policy
is limited to narrow situations where a specific procedural right
or substantive law was violated. No such violation occurred in
this case. While appellant is correct that the antidiscrimination
laws and antiharassment laws present important statutory rights
and explicit expressions of public policy, appellant does not have
an unwaivable right to prevail in her case if the facts do not
support her claims. Appellant received a full and fair hearing,
and she failed to prevail on her claims. This outcome does not
deprive her of an unwaivable right, nor does it violate public
policy.
IV. Appellant’s remaining arguments fail to present a
reviewable issue
Appellant argues that her termination constituted
discrimination as a matter of law because her opposition to the
age harassment she suffered was protected under Government
Code section 12940, subdivision (h). Appellant states that the
arbitrator’s award, “not even acknowledging the
contemporaneous documentary evidence and testimony the ageist
remarks were made, and finding no such conduct led to the
decision to terminate [appellant], contravenes FEHA public
policy statute [sic] and must be vacated.” Contrary to appellant’s
17
position, the arbitrator “carefully listened to the ten (10)
witnesses called to testify; . . . received into evidence sixty-nine
(69) exhibits as well as the certified reporters transcripts of the
entire proceedings,” and reviewed substantial briefing from both
parties. There is no suggestion that the proceeding was improper
in any way. Appellant only challenges the arbitrator’s factual
conclusions issued after the hearing. The arbitrator’s factual
decision that appellant failed to prove her claims is not
reviewable, and we decline to discuss the evidence in detail.
(Moncharsh, supra, 3 Cal.4th at p. 11.)
Appellant cites Harris v. City of Santa Monica (2013) 56
Cal.4th 203, 211 (Harris), for the proposition that, where there is
evidence of both a discriminatory and a nondiscriminatory motive
for an employee’s termination, the trier of fact must determine
whether the employer would have terminated the employee at
the time for the nondiscriminatory reason even if the
discriminatory motive were not present. Harris involved a jury
trial in which the court declined to give the city’s proposed mixed-
motives defense instruction. (Id. at p. 213.) The court held that
an employer is entitled to a mixed-motive instruction where it
proves that it would have made the same employment decision
absent discrimination; however, the employer cannot fully escape
liability for the unlawful discrimination. (Id. at p. 211.)
Harris is inapplicable. The present matter did not involve
a jury trial or jury instructions. Further, the arbitrator ruled
unequivocally that “Rasor demoted [appellant] based on her
underperformance.” The arbitrator did not find any
discriminatory motivation for appellant’s demotion or
termination. Therefore, there was no reason for a mixed-motive
18
analysis. Again, we do not review the arbitrator’s factual
findings. (Moncharsh, supra, 3 Cal.4th at p. 11.)4
Appellant cites Government Code section 12940,
subdivision (k), which requires that an employer “take all
reasonable steps necessary to prevent discrimination and
harassment from occurring.” Appellant makes the factual
argument that Rasor did not counsel Ryndak against making
ageist remarks. Thus, appellant argues, Lithia failed to prevent
harassment as a matter of law. Appellant wrongly categorizes
the arbitrator’s factual finding as a legal finding. The arbitrator
found that appellant failed to prove her claims, including her
claim for failure to prevent harassment. We do not review this
factual finding. (Moncharsh, supra, 3 Cal.4th at p. 11.)
Finally, appellant claims that the arbitrator erred in
declining to rule in her favor on her whistleblower retaliation
claim under Labor Code section 1102.5. Appellant argues that
because the arbitrator did “not even acknowledge the evidence of
ageist remarks,” there cannot have been a reasoned award on
this claim. Appellant argues that the arbitrator “never
determined” whether there was sufficient evidence that
appellant’s termination was substantially motivated by age.
4 Appellant argues that if age was a substantial motivating
reason for the termination, but appellant would have been
terminated regardless for performance reasons, Harris mandates
that appellant may not be entitled to damages but may be
entitled to attorney fees and costs. (Harris, supra, 56 Cal.4th at
p. 211.) The arbitrator in this matter did not find that age was a
substantial motivating reason for appellant’s termination.
Instead, the arbitrator found that appellant was demoted
exclusively for underperformance. Thus, the rule set forth in
Harris regarding attorney fees and costs is also inapplicable.
19
On the contrary, the arbitrator did decide these issues. The
arbitrator decided against appellant on all of her causes of action
against respondents, including her claims for Labor Code
violations and discrimination. The arbitrator’s factual findings
are binding on appellant and will not be reviewed further.
(Moncharsh, supra, 3 Cal.4th at p. 11.)
DISPOSITION
The order is affirmed. Respondents are awarded their costs
of appeal.
________________________
CHAVEZ, J.
We concur:
________________________
LUI, P. J.
________________________
ASHMANN-GERST, J.
20