Filed 5/15/14 Palma v. Rite Aid 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 not certified for
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or ordered published for purposes of rule 8.1115.



              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     SECOND APPELLATE DISTRICT
                                                  DIVISION TWO

MARTHA PALMA,                                                           B244766

                   Plaintiff and Respondent,                            (Los Angeles County
                                                                        Super. Ct. No. BC465411)
         v.

RITE AID CORPORATION,

                   Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County. Michael
Stern, Judge. Reversed and remanded for new trial.


         Manatt, Phelps & Phillips, Sandra R. King, Benjamin G. Shatz and Alison S.
White for Defendant and Appellant.


         Shegerian & Associates, Inc., Carney R. Shegerian and James Urbanic for Plaintiff
and Respondent.
       Appellant Rite Aid Corporation (appellant) appeals from a judgment entered in
favor of its former employee respondent Martha Palma (respondent) following a jury trial
of claims for wrongful termination and disability discrimination in violation of the
California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.).1
Appellant claims, among other things, that the trial court prejudicially erred in refusing to
give a mixed-motive instruction to the jury that an employer is not liable if an employee
would have been discharged for a non-discriminatory reason under standards articulated
in Harris v. City of Santa Monica (2013) 56 Cal.4th 203 (Harris). We agree and reverse
the judgment.
                    FACTS AND PROCEDURAL BACKGROUND
Employment, Termination and Complaint
       Respondent began working as a cashier for appellant in 1986, when she was
twenty years old. She worked for appellant until March 2011 when she was terminated
after appellant concluded an investigation of charges respondent had asked employees to
work “off the clock” and violated employer timekeeping policies.
       Respondent filed a complaint against appellant and respondent’s former
supervisor, Jilbert Shahdaryan, on July 14, 2011.2 The complaint contained eight causes
of action for: failure to accommodate and engage in the interactive process, retaliation,
discrimination and harassment in violation of the FEHA (first); discrimination and
harassment in violation of the California Family Rights Act (CFRA) (§ 12945.2)
(second); age and gender discrimination in violation of the FEHA (third and fourth);
wrongful discharge in violation of public policy (fifth); breach of contract (sixth);
intentional infliction of emotional distress (seventh); and defamation (eighth).
Respondent dismissed her claims for CFRA harassment, age discrimination and
defamation prior to trial and the intentional infliction of emotional distress cause of
action during trial. The trial court summarily adjudicated the contract claim against

1      Any unspecified statutory references are to the Government Code.

2      Shahdaryan was dismissed by stipulation during the trial.

                                              2
respondent and granted appellant’s motion in limine on the failure to accommodate claim
for failure to exhaust administrative remedies. The trial court granted nonsuit on the
gender discrimination cause of action.
       Appellant answered the complaint raising a number of affirmative defenses
including that the employment actions taken against respondent were for legitimate, non-
discriminatory, non-harassing and non-retaliatory reasons (third). Appellant also asserted
as affirmative defenses good faith belief (fourth) and waiver of claims by respondent’s
conduct (sixth). Appellant conceded at trial that it did not plead a mixed motive
affirmative defense.
Trial Evidence of Respondent’s Work Performance and Disability
       After beginning her career with appellant in 1986 as a cashier, respondent was
subsequently promoted to manager in September 2004. She managed stores in
Alhambra, Rosemead, Arcadia and Temple City. In 2009, respondent’s district manager,
Bradley Lohman, promoted her to manager of the Highland Park store, which was larger
and busier than the Temple City store respondent had been managing. The Temple City
store had $2 million in sales and the Highland Park store had $4 million in sales.
       When appellant began managing the Highland Park store in 2009, she had a
budget of $7,000 a week to allocate between management and the employees. By late
2010, the weekly budget was reduced to $5,600. According to Lohman, the district
manager did not determine how many employee hours a particular store manager had.
Rather, it was determined at the corporate level.
       Lohman, who was no longer employed by appellant at the time of trial, described
respondent as hardworking, very professional and caring about the job. Lohman
counseled the store managers about not allowing or asking employees to work off the
clock. Employees were not expected to work off the clock on their own time. Lohman
instructed the managers to pay employees for overtime.
       Lohman made regular and unannounced visits to stores so he could see what the
store looked liked to customers. Lohman walked through the stores with the managers to
check up on specific areas based on a store visit guide provided by the company.


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Appellant had a feedback system based on a color scheme of red, yellow and green: red
meant the store was not up to expectations; yellow meant the store was passing but
needed corrections; and green meant the store was in very good condition. Lohman
thought respondent did a fairly good job managing the Temple City store but that she
failed at some of the skills. In a March 2009 review, Lohman noted, among other things,
that appellant had issues with back room organization. However, Lohman would not
have promoted her to the Highland Park store unless she was doing a very good job.
       Lohman testified that several issues arose when respondent moved to the Highland
Park store. The issues included: stockroom controls, below standard cleanliness, out-of-
stock items, substandard merchandising, and rundown and improperly maintained
seasonal aisles. In August 2009, Lohman completed a store compliance audit sheet
evaluating the Highland Park store, in which he gave red failure ratings in a number of
areas. In October and November 2009, Lohman gave the store overall ratings of red
failure. However, in December 2009, he gave the store an overall yellow rating because
there was some improvement in the store.
       In January 2010, Lohman gave respondent a written counseling after the store
failed a “back to normal” inspection, which is a transition from Christmas into January.
The store should have been back in order, in stock and neat. All managers were aware
ahead of time that the store was going to have the back to normal inspection and were
provided with a checklist of what the district managing was going to inspect. Lohman’s
written counseling stated, “[Respondent] demonstrates poor accountability by blaming
poor store conditions or results on her assistant manager and/or lack of resources rather
than proactively managing the performance of or developing her assistant manager or
accepting responsibility for the quality of her own work.” Lohman did not feel that
respondent’s blaming poor store conditions or results or the assistant manager and the
lack of payroll was sufficient justification for failing the inspection because the store had
passed inspections under a previous manager’s direction.
       After giving respondent the written counseling, Lohman visited the store on
January 13, 2010 and gave it a red failure. Lohman rated the store as a red failure on an


                                              4
inspection in February 2010. In March 2010, the store got an overall yellow rating
because there was some improvement. In April 2010, the store got a red rating because it
fell backwards again. Lohman visited the store on May 11, and May 21, 2010. On May
21, 2010, the store received a yellow rating. By June 2, 2010, Lohman gave the store a
red rating because it appeared as though a lot of problems that had been corrected had
resurfaced and became an issue. When Lohman visited the store the next day, the overall
rating was yellow because some improvements had been made. However, in visits on
June 9, and 12, 2010, Lohman gave the store red ratings. Because he was getting
concerned, Lohman visited the store again on June 15, 2010; that visit resulted in a
yellow rating. However, in a visit the next day on June 16, 2010, he gave the store a red
rating. The store got red ratings on June 29, 2010 and July 1, 2010.
       When Lohman visited the store on July 14, 2014, it had an overall rating of green.
However, when he went back to the store the next day, the store got a yellow rating
because the store started to deteriorate in a short period of time. The same pattern
occurred in visits on July 20 and July 21, 2010, where the overall rating was a green on
the former day and a yellow on the latter day. The store received a yellow rating on July
30, 2010.
       In August 2010, Lohman was promoted. Shahdaryan became respondent’s district
manager in September 2010. Amy Oliveras, a clerk who worked in the Highland Park
store, testified that Shahdaryan told her, “Good luck with the woman manager.” When
she asked what he meant, he smirked.
       Around August 2008, respondent began having pains in her shoulder, hands and
feet. At times, she had stiffness and swelling in her hands. She would get bumps on her
hands and because of the swelling she could not grasp and hold objects. At the beginning
of 2009, she would have flare-ups. However, as time progressed, her mobility was
becoming more difficult and she was in pain more often. By the middle of 2009, she had
swelling in her feet, knees, and shoulder. She wore braces on her hands and had
difficulty walking and lifting objects. She wore ace bandages on her ankles for support
because it was painful to walk.


                                             5
       During Shahdaryan’s first store visit as district manager, Shahdaryan was very
critical of the stockroom and the way it looked. When respondent told him she was sick
and in pain, he just shook his head. After he walked the store, he asked respondent to
accompany him to his car where he gave respondent his business card. He told her,
“Martha, I should have taken a different direction with you. Do you know what I mean?”
Respondent thought he meant, he should have written her up about the store. Respondent
was upset because she had been on vacation and before she left the store was “almost
perfect.” While she was on vacation Jason Casal, the assistant manager, and another
person from a different store were managing the store.
       During the first month after that conversation with Shahdaryan’s visit, he made
comments about her not being able to walk fast. Once when they were walking the store,
respondent was walking really slowly, hunched over and wobbling because her feet were
in a lot of pain. He picked up a cane and said to respondent, “Here, do you need one of
these?” On a different occasion when they were walking the store, respondent fell behind
because she was in a lot of pain. Shahdaryan stopped and with his arms crossed said,
“What’s wrong?” He asked her, “Aren’t you embarrassed not to walk straight?” He then
stated, “I would be.”
       Shahdaryan made frequent visits to the store. At least half the time, he would tell
respondent to “hurry up” or that she was too slow. During one visit, when they were in
the stockroom, he began pointing out things that needed to be done. Respondent
explained that she was doing the best she could with the employees she had. She also
mentioned that she could not do any heavy lifting because she was in a lot of pain. In
response, he shook his head and said, “Well, if you’re in so much pain, why don’t you
just leave or quit?”
       By the end of September 2010, respondent’s pain was intolerable. She was crying
every day. She needed help getting out of her car. She used a cane to walk. When she
would come to work, sometimes she could not open the safe because her hands were so
stiff. She could not bend her left knee because it was really swollen. She had to wear a
knee brace. Sometimes she wore a back brace and braces on both hands.


                                             6
       On September 29, 2010, respondent went to see a doctor and was placed on a
medical leave of absence. When respondent called Shahdaryan to inform him of the
absence, he seemed upset and asked, “Martha, did you plan this?” Her medical leave was
extended through October 2010.
       Respondent returned to work in early November 2010 after being off for five
weeks. Within days of her return, Shahdaryan gave respondent a written warning.
According to respondent, when Shahdaryan inspected the store on November 11, 2010,
he held her accountable for things that occurred while she was out on medical leave.
       Also on November 11, 2010, respondent contacted human resources manager,
Carlos Viramontes. Viramontes walked into the store and found respondent in her office
crying. She explained that she was in a lot of pain and was having a hard time moving.
He asked if Shahdaryan knew that she was sick. When she said she told Shahdaryan that
she was in a lot of pain, Viramontes said he could not believe it. Viramontes told her she
needed to go to the doctor. She continued to work until another manager came to work
and then she went to the doctor who placed her on a second medical leave.
       In November 2010 during her second medical leave, respondent was diagnosed
with rheumatoid arthritis and prescribed medicine which significantly reduced her
symptoms and pain. When respondent returned to work later in November 2010, she did
not ask for any changes in her schedule, job duties and any aspect of her job. Respondent
was able to work through the day without the type of pain she had experienced earlier in
the year. Although she was feeling much better, she still had flare-ups.
       When respondent returned to work in late November 2010, Shahdaryan was not
friendly with her and appeared to be “mad” at her. Respondent had flare-ups in her
physical condition, which she believed were caused by Shahdaryan’s visits. He would
make her feel stressed and derailed because nothing she did was good enough for him.
He made comments like she was “too slow”. In December 2010, respondent told
Viramontes that she felt “humiliated” and “harassed” by Shahdaryan. However,
respondent testified that she did not tell Viramontes or anyone else about Shahdaryan’s
comments concerning her disability.


                                            7
       In January 2011, Shahdaryan was very critical of her saying she did not know how
to write a schedule and that her “disease” made her incompetent.
       On February 11, 2011, respondent e-mailed Shahdaryan that her budget was not
sufficient to run the store and that no employees could work off the clock as Brandon
Spencer had done for Shahdaryan. At the trial, Spencer, who no longer worked for
appellant, testified that he worked as an assistant manager for respondent at the Highland
Park store. Prior to working for respondent, Spencer worked as an assistant manager for
Shahdaryan, who managed the Highland Park store before being promoted to district
manager. Spencer worked off the clock for both respondent and Shahdaryan. When
Spencer worked off the clock, he did not tell anyone because he knew he could be
terminated for doing it. When he worked off the clock for respondent, she tried to make
it up to him by clocking him in early on another day and allowing him to come in a
couple of hours later. Spencer testified that respondent did this about four or five times
for him.
       On February 14, 2011, Shahdaryan gave respondent a final written warning. On
February 14, 2011, respondent sent Viramontes an e-mail in which she complained that
Shahdaryan had given her a write-up that was “unfair” because her store was
understaffed. Respondent’s e-mail did not mention her disability. Respondent also
complained to Shahdaryan’s assistant, Maria Gomez, that she felt Shahdaryan was
harassing her, was critical of her and wanted to fire her.
Respondent’s Termination after a Timekeeping Violation Investigation
       In early 2011, loss prevention manager, Chris Wade, was in respondent’s store
investigating employees about suspected employee theft. Respondent’s assistant
manager Casal told Wade that respondent had asked Casal to work on his day off without
clocking in or out on the day he worked. After Wade reported the incident to
Shahdaryan, the two met with Casal, who repeated the allegations. Casal provided a
written statement that respondent told him that his job was on the line if he did not come
to work on January 13, 2011. She told him to come to work and she would adjust his
time records in the future to credit him for four hours that he worked off the clock on


                                              8
January 13, 2011. Casal wrote that respondent then adjusted his time by two hours on
two subsequent shifts to compensate him for the unpaid hours he worked on January 13,
2011. At trial, Casal testified that respondent was honest and that she had not asked him
to falsify time records. She asked him to work so the store could meet the standards
during the inspection.
       Wade gave Casal’s written statement to Viramontes’s successor, Jaklen Alkyan,
who testified that she was unaware of respondent’s disability or her medical leaves of
absence. Wade and Alkyan interviewed cashier Xochitl Alvarado, who provided a
written statement that respondent had once picked her up at home on her day off and took
her to work. Respondent told her not to say anything about working on her day off.
Respondent denied any wrongdoing when Wade and Alkyan confronted her with the
allegations. Alkyan decided to suspend respondent pending further investigation.
Respondent testified that at the end of the interview Alkyan told her that Shahdaryan
would decide what would happen to respondent. Wade and Alkyan denied that this
happened.
       Wade and Alkyan subsequently interviewed additional employees. Roberto Lopez
provided a written statement that respondent asked him once to work off the clock for
two hours. The following week respondent added two hours that he did not work. Renee
Hernandez provided a written statement that she was owed two hours of pay because she
returned to work when a store alarm went off. When Hernandez asked to be paid,
respondent refused to pay her. Hernandez testified that respondent promised to pay her
by adjusting Hernandez’s time the following week so she could get paid for hours she did
not work. Hernandez had not been paid for reporting for alarm duties under other
supervisors but had not asked to be paid because she did not know that she was entitled to
be paid.
       Wade testified that clerk Olivares also told him and Alkyan that she worked off
the clock at respondent’s request. However, at trial Oliveras testified that she never
worked off the clock and denied telling Wade and Alkyan that she did.



                                             9
       Respondent denied asking anyone to work without being paid. At trial, respondent
called a number of employees to testify that she never asked them to work without pay
and that they were paid for the hours they worked.
       Appellant tracked employee time through the Kronos system. Employees clock in
at the register when they come in, clock out to go to lunch, clock back in after lunch and
clock out to go home. At trial, respondent testified that employees would forget to clock
in and out all the time. Respondent corrected their mistakes but never deleted hours.
       Alkyan reviewed the computerized time entries for the store. In Alkyan’s opinion,
there were too many adjustments to time punches by respondent. Respondent also failed
to include notes as required by company policy which would have explained the changes
to the time records. When asked about the changes to the time punches, respondent
denied any wrongdoing. Respondent wrote a statement confirming that she understood
appellant’s time record policies.
       Alkyan then discussed the investigation results with her supervisor, Senior Human
Resources Manager, Roger Ceballos. According to Ceballos, he did not know of
respondent’s disability or of her medical leaves. Alkyan and Ceballos testified that they
jointly decided to terminate respondent based on the time card manipulations. Aklyan,
Ceballos and Shahdaryan testified that Shahdaryan was not involved in the decision to
terminate respondent. Rather, appellant’s practice is that human resource makes the
decision to terminate employees. However, once Ceballos and Alkyan made the
decision, Ceballos e-mailed Shahdaryan directing him to tell respondent she was
terminated. Respondent testified that Shahdaryan telephoned her and said, “I’m firing
you for breaking company policy and company protocol, and you’re too sick to work
anyway.”
       Respondent’s expert testified that respondent suffered from major depressive
disorder associated with the events of her employment. Respondent’s forensic economist
testified that respondent’s economic losses ranged from $522,990 to $1.5 million.




                                            10
Jury Instructions and Argument
       The trial court instructed the jury with former CACI Nos. 2430, 2505, 2540, 2620
and 2507 explaining “a motivating factor/reason” was the standard for determining the
employer’s liability. The jury was given a special verdict form based on the instructions.
       Appellant requested a “mixed-motive” instruction in BAJI No. 12.26 which
provided: “If you find that the employer’s action, which is the subject of the plaintiff’s
claim, was actually motivated by both discriminatory and non-discriminatory reasons, the
employer is not liable if it can establish by a preponderance of the evidence that its
legitimate reason, standing alone, would have induced it to make the same decision.”
When the trial court asked if the mixed-motive defense had been raised in appellant’s
answer, appellant conceded that it was not raised as an affirmative defense. After
reviewing appellant’s answer, the trial court refused the instruction on the ground it was
“not going to try” the mixed-motive defense “at this late stage.” The trial court also
refused appellant’s proposed instructions on a good faith belief and business judgment.
       Respondent’s counsel argued to the jury that “all [respondent] has to prove [is]
that a motivating reason among a hundred motivating reasons for her termination or for
her harassment was her medical leave or her disability . . . or her protesting
discrimination and/or harassment.” “[If] any of them was a motivating reason among
whatever number of reasons for her termination, then the law was violated. In other
words, she wins.”
The Special Verdict
       The jury returned a special verdict in favor of respondent on the discrimination
and harassment claims. The jury found by a 10 to 2 vote that respondent had a disability
which was a motivating reason for appellant’s decision to discharge her and that
appellant’s conduct was a substantial factor in causing her harm. The jury also found that
respondent was subjected to unwanted harassing conduct because of her disability.
       The jury awarded respondent a total of $3,522,070 consisting of: $81,319 for past
economic loss, $440,751 for future economic loss; $1.5 million for past noneconomic
loss; and $1.5 million for future noneconomic loss. After the trial court denied


                                             11
appellant’s new trial and judgment notwithstanding the verdict motions, appellant filed
this timely appeal.
                                        DISCUSSION
I. Review Standards
       Appellant claims it was prejudiced when the trial court erroneously refused to give
its proposed BAJI instruction on “mixed motive.” “A party is entitled upon request to
correct, nonargumentative instructions on every theory of the cased advanced by him
which is supported by substantial evidence.” (Soule v. General Motors Corp. (1994) 8
Cal.4th 548, 572 (Soule).) However, “‘Instructions should state rules of law in general
terms and should not be calculated to amount to an argument to the jury in the guise of a
statement of law. [Citations.] Moreover, it is error to give, and proper to refuse,
instructions that unduly overemphasize issues, theories or defenses either by repetition or
singling them out or making them unduly prominent although the instruction may be a
legal proposition. [Citations.]’ [Citation.] Finally, ‘[e]rror cannot be predicated on the
trial court’s refusal to give a requested instruction if the subject matter is substantially
covered by the instructions given. [Citations.]’ [Citations.]” (Red Mountain, LLC v.
Fallbrook Public Utility Dist. (2006) 143 Cal.App.4th 333, 359-360.)
       We review the propriety of the jury instructions de novo. (Alamo v. Practice
Management Information Corp. (2013) 219 Cal.App.4th 466, 475 (Alamo).) The record
is reviewed in a light most favorable to the requesting party to determine whether the
instruction was warranted by substantial evidence. (Alamo, supra, 219 Cal.App.4th at
pp. 475-476.) However, even if there was instructional error, “there is no rule of
automatic reversal or ‘inherent’ prejudice applicable to any category of civil instructional
error, whether of commission or omission. A judgment may not be reversed for
instructional error in a civil case ‘unless, after an examination of the entire cause,
including the evidence, the court shall be of the opinion that the error complained of has
resulted in a miscarriage of justice.’ (Cal. Const., art. VI, § 13.)” (Soule, supra, 8
Cal.4th at p. 580.)



                                              12
II. The Harris Opinion
        Section 12940, subdivision (a) prohibits employers from taking adverse
employment actions against an employee on the basis of a disability. In February 2013,
while this appeal was pending, our Supreme Court held that an FEHA plaintiff seeking
damages for discrimination is required to show that an illegitimate criterion was a
“substantial motivating factor” for the employment decision. (Harris, supra, 56 Cal.4th
at p. 232.) Harris concluded that CACI No. 2500 incorrectly allowed the jury “to
determine whether discrimination was a motivating factor/reason for Harris’s
termination.” Instead, the jury was required to determine whether the discrimination was
a substantial motivating factor. (Id. at p. 232.) “Requiring the plaintiff to show that
discrimination was a substantial motivating factor, rather than simply a motivating
factor, more effectively ensures that liability will not be imposed based on evidence of
mere thoughts or passing statements unrelated to the disputed employment decision. At
the same time, for reasons explained above, proof that discrimination was a substantial
factor in an employment decision triggers the deterrent purpose of the FEHA and thus
exposes the employer to liability, even if other factors would have led the employer to
make the same decision at the time.” (Ibid.) Moreover, once the employer establishes
the same decision defense, a court may not award economic and noneconomic damages,
back pay or order reinstatement under the FEHA; but, the employee may obtain
declaratory and injunctive relief, fees and costs. (Id. at pp. 232-238.)
        After Harris was decided, Alamo v. Practice Management Information Corp.,
supra, 219 Cal.App.4th 466, determined that the trial court prejudicially erred in
instructing the jury with former versions of CACI Nos. 2430, 2500, 2505 and 2507 under
Harris. Alamo concluded that the proper standard for a FEHA discrimination claim is
not a motivating reason as used in the former CACI instructions but is a substantial
motivating reason as articulated in Harris. (Alamo, supra, 219 Cal.App.4th at pp. 469-
470.)
        Under these standards, the trial court erred in refusing appellant’s proposed mixed-
motive instruction and instructing the jury with former CACI instructions that “a


                                             13
motivating reason” is sufficient to establish liability. Viewing the evidence in a light
most favorable to appellant, it is reasonably probable that the instructional error
prejudicially affected the ten to two verdict. (Mendoza v. Western Medical Center Santa
Ana (2014) 222 Cal.App.4th 1334, 1342-1343.) Thus, the error was prejudicial.
       Moreover, we disagree with respondent that the trial court properly refused the
instruction because appellant did not plead a mixed-motive defense in its answer. Harris
concluded the employer’s failure to plead a same-decision defense as an affirmative
defense did not bar a mixed-motive instruction. (Harris, supra, 56 Cal.4th at p. 240.)
Harris explained: “Because the burden is on a defendant to make a same-decision
showing, it should plead this defense. In other words, if an employer wishes to assert the
defense, it should plead that if it is found that its actions were motivated by both
discriminatory and nondiscriminatory reasons, the nondiscriminatory reasons alone
would have induced it to make the same decision. [¶] However, ‘[n]o error or defect in a
pleading is to be regarded unless it affects substantial rights.’ [Citations.] The primary
function of a pleading is to give the other party notice so that it may prepare its case
[citation], and a defect in a pleading that otherwise properly notifies a party cannot be
said to affect substantial rights. This principle is consistent with the rule that leave to
amend a pleading should be liberally granted as long as there is no timeliness problem
under a statute of limitations or prejudice to the opposing party. [Citations.]” (Ibid.)
       In this case, appellant’s answer asserted that the adverse employment action was
for legitimate, non-discriminatory, non-harassing and non-retaliatory reasons (third).
Appellant also asserted as affirmative defenses good faith belief (fourth) and
respondent’s own conduct waived the claims as asserted in the complaint (sixth).
Appellant’s theory at trial was consistent with the defenses that respondent’s conduct in
violating appellant’s timekeeping policies was what prompted her termination. And,
respondent’s substantial rights would not have been affected by an instruction that the
jury could partly believe respondent’s evidence of discrimination and at the same time
believe that the discharge was for a nondiscriminatory reason. (Harris, supra, 56 Cal.4th



                                              14
at p. 240.) Thus, the failure to plead mixed-motive as an affirmative defense did not bar
the instruction under the circumstances of this case.
                                     DISPOSITION
       The judgment is reversed and the matter is remanded for a new trial. Appellant is
awarded costs on appeal.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.



                                                        _____________________, J.*
                                                              FERNS

We concur:



__________________________, P. J.
      BOREN



__________________________, J.
      CHAVEZ




________________________________________________________________________
* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.




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