Date: 09-06-2017

Case Style: Orlando Nakai v. Friendship House Association of American Indians, Inc.

Case Number: A147966

Judge: Banke

Court: California Court of Appeals First Appellate District Division One on appeal from the Superior Court, San Francisco County

Plaintiff's Attorney: John B. McMorrow

Defendant's Attorney: Julie A. Marquis

Description: For over 20 years, plaintiff Orlando Nakai (Orlando1) was employed by Friendship
House Association of American Indians, Inc. (Friendship House), a drug and alcohol
rehabilitation program providing treatment services to Native Americans. His
employment was terminated by the program’s CEO, who also happened to be his motherin-law,
after his wife informed the CEO that Orlando had a gun and was angry at
Friendship House employees and she had obtained a restraining order. Orlando then filed
this action for wrongful termination, claiming discrimination on the basis of his marital
status and that Friendship House had failed to conduct a reasonable investigation prior to
discharging him. The trial court granted summary judgment in favor of defendants,
ruling Orlando had failed to establish a prima facie case of marital status discrimination
and failed to demonstrate his employer had a duty to investigate. We affirm.

1
We refer to the parties by their first names given that some parties share the
same last name.
2
BACKGROUND
Orlando worked in Friendship House’s San Francisco office, as did Helen
Waukazoo (Helen), the program’s CEO and Orlando’s mother-in-law. Helen had begun
volunteering at Friendship House when she was 19 years old. She eventually became a
paid employee and ultimately the CEO. Orlando commenced his employment with the
program in 1994 and ultimately became the second-most senior manager and was
considered a high performing employee.
In 2000, Orlando married Karen Nakai (Karen), Helen’s daughter. Karen had
participated in the treatment program prior to 2000, and then worked for the program as a
counselor from 2009–2015.2
In March 2014, Orlando and Karen began experiencing
marital difficulties. Karen stated Orlando had become distant, and she became aware he
was withdrawing large sums of money from their retirement fund.
Late one evening in May 2016, Karen called Helen at home. Karen reported that
Orlando had a gun, was angry with the employees of Friendship House, was dangerous,
and had relapsed on drugs. The following day, Helen placed Orlando on paid
administrative leave. Karen, in turn, obtained a temporary restraining order (TRO)
against him and provided Helen with a copy.3
Based on the information Karen provided,

2
Although Friendship House states in its respondent’s brief that Orlando also
participated in the treatment program, the record citation it provides shows only that
Karen participated in the program. Orlando stated in his declaration in opposition to the
defendant’s motion for summary judgment that he has not abused substances for over 20
years, thus, suggesting that at one time he did suffer from an addiction. Helen, in turn,
testified at her deposition that Karen has suffered a relapse, but did not provide specific
dates.
3 While Orlando takes issue with the veracity of the application that supported the
TRO, pointing out it was prepared by Karen’s daughter, who Karen admitted at her
deposition abuses both drugs and alcohol and is not a reliable reporter of information, this
is not an appeal from the issuance of that order and we are bound by the factual
determinations made by the court that issued that order.
3
Helen subsequently terminated Orlando’s employment.4
Orlando sued for wrongful termination, claiming (1) his employment was
wrongfully terminated in violation of the Fair Employment and Housing Act (FEHA)
(Gov. Code, § 12940, et seq.), (2) his employment was wrongfully terminated in violation
of the implied covenant of good faith and fair dealing, and (3) his employment was
wrongfully terminated in violation of a duty under FEHA to conduct a reasonable
investigation upon receiving Karen’s report of an alleged threat. Thus, he alleged, among
other things, that Friendship House, “acting through its Chief Executive Officer,
discharged [him] in order to take sides in her daughter’s divorce, . . . breach[ing] the
Implied Covenant of Good Faith and Fair Dealing in violation of [FEHA] . . . and
discharging him solely on the basis of his Marital Status.” He further alleged, “the
allegations made by Karen Nakai against [him] triggered a duty under the provisions of
[FEHA] to conduct a reasonable investigation of the allegations,” but Friendship House
“failed to conduct any investigation whatsoever before making the decision to discharge
[him].”
Defendants eventually moved for and were granted summary judgment.
DISCUSSION5
Analytical Framework Under FEHA
“Because of the similarity between state and federal employment discrimination
laws, California courts look to pertinent federal precedent when applying our own
statutes.” (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354 (Guz).) “In
California, courts employ at trial the three-stage test that was established in McDonnell

4 At her deposition, Karen testified Orlando never threatened or abused her during
their marriage. Rather, she feared for her safety because of the emotional estrangement
between the two and the presence of a gun in the house.
5
Our standard of review is well established: On a grant of summary judgment,
“[w]e review the trial court’s decision de novo, considering ‘all of the evidence set forth
in the [supporting and opposition] papers, except that to which objections have been
made and sustained by the court, and all [uncontradicted] inferences reasonably deducible
from the evidence.’ ” (Artiglio v. Corninh Inc. (1998) 18 Cal.4th 604, 612, quoting Code
Civ. Proc., § 437c, subd. (c).)
4
Douglas Corp. v. Green (1973) 411 U.S. 792, 802 . . . , to resolve discrimination
claims. . . . [Citation.] At trial, the employee must first establish a prima facie case of
discrimination, showing ‘ “ ‘actions taken by the employer from which one can infer, if
such actions remain unexplained, that it is more likely than not that such actions were
“based on a [prohibited] discriminatory criterion. . . .” ’ ” ’ ” (Reid v. Google, Inc. (2010)
50 Cal.4th 512, 520, fn. 2 (Reid).) A prima facie claim arises “when the employee shows
(1) at the time of the adverse action [he was a member of a protected class], (2) an
adverse employment action was taken against the employee, (3) at the time of the adverse
action the employee was satisfactorily performing his or her job,” (Hersant v.
Department of Social Services (1997) 57 Cal.App.4th 997, 1003 (Hersant)) and (4) the
adverse action occurred “under circumstances which give rise to an inference of unlawful
discrimination.” (Texas Dept. of Community Affairs v. Burdine (1981) 450 U.S. 248,
253.) “Once the employee satisfies this burden, there is a presumption of discrimination,
and the burden then shifts to the employer to show that its action was motivated by
legitimate, nondiscriminatory reasons. [Citation.] A reason is ‘ “legitimate” ’ if it is
‘facially unrelated to prohibited bias, and which if true, would thus preclude a finding of
discrimination.’ [Citation.] If the employer meets this burden, the employee then must
show that the employer’s reasons are pretexts for discrimination, or produce other
evidence of intentional discrimination.” (Reid, at p. 520, fn. 2, italics omitted.)
In the context of a defense motion for summary judgment, “[a]ssuming the
complaint alleges facts establishing a prima facie case that unlawful disparate treatment
occurred, the initial burden rests on the employer (moving party) to produce substantial
evidence (1) negating an essential element of plaintiff’s case or (2) (more commonly)
showing one or more legitimate, nondiscriminatory reasons for its action against the
plaintiff employee. . . . [¶] The burden then shifts to the plaintiff employee (opposing
party) to rebut defendant’s showing by producing substantial evidence that raises a
rational inference that discrimination occurred; i.e., that the employer’s stated neutral
legitimate reasons for its actions are each a ‘pretext’ or cover-up for unlawful
discrimination, or other action contrary to law or contractual obligation.” (Chin, et al.,
5
Cal. Practice Guide: Employment Litigation (The Rutter Group 2016) ¶¶ 19:728 to
19:729, p. 19-121, italics omitted.) By applying McDonnell Douglas’s shifting burdens
of production in the context of a motion for summary judgment, “ ‘the judge [will]
determine whether the litigants have created an issue of fact to be decided by the jury.’ ”
(Horn v. Cushman & Wakefield Western, Inc. (1999) 72 Cal.App.4th 798, 805–807
(Horn).)
“[T]o avoid summary judgment, an employee claiming discrimination must offer
substantial evidence that the employer’s stated nondiscriminatory reason for the adverse
action was untrue or pretextual, or evidence the employer acted with a discriminatory
animus, or a combination of the two, such that a reasonable trier of fact could conclude
the employer engaged in intentional discrimination.” (Hersant, supra, 57 Cal.App.4th at
pp. 1004–1005.) “[T]he employee [cannot] simply show the employer’s decision was
wrong, mistaken, or unwise. Rather, the employee ‘ “must demonstrate such weaknesses,
implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s
proffered legitimate reasons for its actions that a reasonable factfinder could rationally
find them ‘unworthy of credence,’ [citation], and hence infer ‘that the employer did not
act for the [. . . asserted] non-discriminatory reasons.’ ” ’ ” (Horn, supra, 72 Cal.App.4th
at pp. 805–807, italics omitted.)
Failure to Allege a Prima Facie Case of Marital Status Discrimination
Orlando claims Helen terminated his employment “solely because of his status as
the spouse of the complaining employee and [her] son-in-law.” Thus, the motivation for
his discharge, Orlando contends, was marital status discrimination, which is prohibited by
FEHA. (Gov. Code, § 12940, subd. (a) [“It is an unlawful employment practice . . .
[¶] [f]or an employer, because of . . . marital status . . . to bar or to discharge the person
from employment.”].)
Illustrative examples of marital discrimination include refusing “to hire unwed
mothers because they were unwed, a refusal to hire single people because they were
single, or the granting of maternity leave to married teachers only.” (Chen v. County of
Orange (2002) 96 Cal.App.4th 926, 940 (Chen).)
6
While laws prohibiting marital status discrimination are “ ‘to prevent
discrimination against classes of people,’ ” they do not extend to “ ‘ “the status of being
married to a particular person.” ’ ” (Chen, supra, 96 Cal.App.4th at p. 944, quoting
Bammert v. Labor and Industry Review Commission (App. 1999) 232 Wis.2d 365, 625.)
The latter context has been described as a “[c]onduit case,” occurring when a “plaintiff is
the object of adverse action because of something about his or her spouse.” (Chen, at
p. 943.) “Conduit cases may be divided into two categories: those in which the animus
directed against the plaintiff’s spouse is itself unlawful, and those in which the animus is
not unlawful.” (Ibid.) “[S]imple politics is the typical example” of a conduit case not
based on wrongful animus—for example, where a store employee was fired because her
husband was a police officer who had participated in the arrest of the store owner’s wife.
(Id. at pp. 943–944, citing Bammert, at p. 365.) Such cases “have been universally met
with rejection as valid marital status discrimination claims.” (Chen, at p. 943.)
Orlando’s allegations are those of a “conduit case,” as his claim is predicated not
on alleged animus towards the married state, itself, but on supposed particulars about his
spouse. For example, Orlando asserts he was “treated in a disparate fashion from other
employees of Respondent solely because of his status as the spouse of the complaining
employee and son-in-law of Respondent’s CEO.” In other words, he claims he was
treated differently not because he was married, but because he happened to be married to
the CEO’s daughter—a political problem, not a marital discrimination problem. He
similarly asserts that in terminating his employment, the CEO “was attempting to
influence and effect a Custody dispute involving her granddaughter.” This is simply an
assertion the CEO sided with her daughter on a child custody issue—a family dynamics
problem, not a marital discrimination problem. Indeed, as the trial court observed,
Orlando was married to the CEO’s daughter for 14 years. Thus, “[i]f marital status were
an issue, [Orlando] would have been terminated earlier. It was the identity of Ms.
Nakai—not the marital status—that led to the discharge.”
7
In short, while Orlando may have alleged that he was unfairly discharged on the
basis of groundless or overblown accusations by his wife, he failed to allege a prima facie
case of martial status discrimination.
Failure to Raise a Triable Issue of Pretext and Marital Status Discrimination
Even assuming Orlando alleged a prima facie case of marital status discrimination,
which he did not, defendants made a sufficient showing in their motion for summary
judgment to shift the burden back to him to produce evidence the stated reasons for his
discharge were pretextual and raising a triable issue of marital status discrimination.
When an employee satisfies his or her initial burden to make a prima facie case,
“the burden then shifts to the employer to show that its action was motivated by
legitimate, nondiscriminatory reasons. [Citation.] A reason is ‘ “legitimate” ’ if it is
‘facially unrelated to prohibited bias, and which if true, would thus preclude a finding of
discrimination.’ [Citation.] If the employer meets this burden, the employee then must
show that the employer’s reasons are pretexts for discrimination, or produce other
evidence of intentional discrimination.” (Reid, supra, 50 Cal.4th at p. 520, fn. 2, italics
omitted.) The employer’s “true reasons need not necessarily have been wise or correct.”
(Guz, supra, 24 Cal.4th at p. 358.) The “issue is discriminatory animus, not whether [the]
employer’s decision was ‘wrong or mistaken,’ or whether [the] employer is ‘wise,
shrewd, prudent, or competent.’ ” (Ibid., quoting Fuentes v. Perskie (3rd Cir. 1994)
32 F.3d 759, 765.) If the employer provides a legitimate business reason for the
employee’s termination, the employee had the burden to provide “substantial evidence”
which could convince a “ ‘reasonable factfinder’ ” that the “ ‘ “employer did not act for
the [. . . asserted] non-discriminatory reasons.” ’ ” (Hersant, supra, 57 Cal.App.4th at
p. 1005.)
In support of their motion, defendants first pointed to Orlando’s own allegations—
that his wife had called the CEO and told her Orlando “had a gun, was angry at all of the
employees of Friendship House and that he relapsed to using drugs and/or alcohol.” He
further alleged his wife had obtained a TRO against him. Taking these allegations at face
value, they show a non-discriminatory basis for the termination of his employment, and
8
as we have discussed above, they do not raise any issue of marital status discrimination.
Defendants also pointed to Helen’s deposition testimony that Karen had said she was
afraid Orlando would shoot her. In Helen’s view, this triggered a workplace concern
because Karen claimed “what was being said was threatening to her,” and Friendship
House “policy does state that whether staff is off duty or on duty, there’s a threat against
them, that that is against [Friendship House’s] policy.” Indeed, given the number of
reported workplace shootings in our day and age, this was an entirely reasonable
perspective.
Orlando, in turn, failed to present any substantial evidence that the CEO’s stated
reasons for his discharge were pretextual, raising a triable issue of marital status
discrimination. As we have discussed, Orlando’s own allegations, which were
unsupported by any evidence, were not allegations of marital status discrimination. In
short, he failed to present any evidence raising a triable issue that the stated reason for his
discharge was pretextual and, in fact, his discharge was motivated by marital status
discrimination.
Friendship House Was Not Required to Conduct an Investigation Under Either the
Implied Covenant of Good Faith and Fair Dealing or FEHA
Orlando has never disputed that he was an at-will employee. Instead, he pointed
out that regardless of whether an employee is at-will, an employer cannot violate the antidiscrimination
provisions of FEHA. While that is correct, that does not mean FEHA
imbues at-will employees with any contractual due process rights in connection with their
employment.
At-will employment “establishes the presumption that an employer may terminate
its employees at will, for any or no reason.” (Guz, supra, 24 Cal.4th at p. 350.) The
employer “may act peremptorily, arbitrarily, or inconsistently, without providing specific
protections such as prior warning, fair procedures, objective evaluation, or preferential
reassignment.” (Ibid.) Accordingly, defendants could legally discharge Orlando for any
reason, so long as it was not a prohibited discriminatory reason.
9
In asserting Friendship House was required to conduct an investigation before
discharging him, Orlando relies on Cotran v. Rollins Hudig Hall Internat., Inc. (1998)
17 Cal.4th 93 (Cotran) and maintains the trial court erroneously relied, instead, on
Halvorsen v. Aramark Uniform Services, Inc. (1998) 65 Cal.App.4th 1383 (Halvorsen).
In Halvorsen, an employee was fired after he blamed his supervisor for a poor
business decision in front of a high-ranking manager. (Halvorsen, supra, 65 Cal.App.4th
at p. 1387.) Shortly thereafter, he was fired due to performance. (Ibid.) He sued his
supervisor for “wrongfully inducing the employer to terminate him,” and his employer
for “breach of contract or of the covenant of good faith and fair dealing.” (Id. at p. 1386.)
The trial court sustained the manager’s demurrer and granted the employer’s motion for
summary judgment. (Id. at p. 1387.) The Court of Appeal affirmed, stating Halvorsen
was unable “to identify any triable fact remaining as to whether his employment . . . was
at-will, [so he instead attempted] to create a requirement of good cause for termination by
invoking the covenant of good faith and fair dealing.” (Id. at p. 1390.) However, when
employment is at-will under the terms of the contract “the covenant of good faith and fair
dealing ‘cannot be used to imply an obligation which would completely obliterate a right
expressly provided by a written contract.’ ” (Ibid., quoting Tollefson v. Roman Catholic
Bishop (1990) 219 Cal.App.3d 843, 853–854 [explaining that implied covenant does not
limit an employer’s right to terminate an employee], disapproved in part on another
ground in Scott v. Pacific Gas & Electric Co. (1995) 11 Cal.4th 454, 474, fn. 5.)
In Cotran, two employees accused a high-level executive of sexual harassment.
After an extensive investigation, the employer decided the accusations appeared credible
and terminated the plaintiff’s employment. (Cotran, supra, 17 Cal.4th at pp. 97–98.)
The plaintiff ultimately proceeded to trial on a breach of contract claim. (Id. at p. 99.)
The employer’s defense was that it had concluded, honestly and in good faith, that there
were grounds for termination. (Ibid.) The jury was instructed, however, that it was to
determine “ ‘whether the [alleged] acts are in fact true.’ ” (Ibid.) It found none of the
alleged acts of harassment actually occurred and awarded the plaintiff $1.78 million in
lost compensation. (Ibid.) The Court of Appeal reversed. The Supreme Court granted
10
review to decide whether, in a case where an employee has been hired under a contract
with an implied termination “ ‘for good cause’ ” provision, the jury must determine (a)
whether the alleged misconduct took place or (b) whether the employer reasonably and in
good faith believed the acts occurred. (Id. at pp. 95, 103, 107.) The court adopted the
latter standard, clarifying that the role of the jury is not to determine whether the
employer came to the right factual conclusion, but “to assess the objective
reasonableness of the employer’s factual determination of misconduct.” (Id. at p. 103.)
In short, Cotran did not involve at-will employment, but rather assumed the existence of
a provision prohibiting discharge except for cause. (Id. at pp. 95, 107–108.) It was in
connection with this undisputed point, that the court defined “ ‘good cause’ ” to mean a
“reasoned conclusion” “supported by . . . an adequate investigation that includes notice of
the claimed misconduct and a chance for the employee to respond.” (Id. at p. 108.)
The trial court correctly recognized that the instant case is comparable to
Halvorsen, not to Cotran. Orlando, like the plaintiff in Halvorsen, was indisputably
hired as an at-will employee, whereas the plaintiff in Cotran was not and, instead, could
only be dismissed for “good cause.” And Orlando, like the plaintiff in Halvorsen, claims
the implied covenant of good faith and fair dealing created a duty on the part of his
employer to conduct “a reasonable investigation before terminating him.” (Halvorsen,
supra, 65 Cal.App.4th at p. 1391.) But as the appellate court explained in Halvorsen, the
reasonable investigation described in Cotran “applies only to cases in which an employee
is under an ‘implied agreement not to be dismissed except for “good cause.” ’ ”
(Halvorsen, at p. 1391, italics omitted.) It does not apply to an employee, like Orlando,
whose employment is at-will. (Ibid.)
Orlando nevertheless maintains “[t]he allegations against [him] clearly triggered
obligations of an Employer under California Law” to conduct “an adequate investigation”
to ensure compliance with FEHA’s mandate to provide a “Safe Work Environment.”6
To

6
Although Orlando has provided a string of statutory citations in his opening
brief, he cited to only Government Code section 12940 in his first amended complaint
and his opposition to the motion for summary judgment “It is a well-established tenet of
11
begin with, FEHA’s investigation process pertains to complaints of workplace
discrimination or harassment prohibited by FEHA. (See Gov. Code, § 12940, subd. (j)(1)
[“Harassment of an employee . . . shall be unlawful if the entity, or its agents or
supervisors, knows or should have known of this conduct and fails to take immediate and
appropriate corrective action.”].) As we have discussed, Orlando did not allege a prima
facie case of marital status discrimination or harassment under FEHA.
Furthermore, this claim is predicated on the notion FEHA’s investigation process
exists for the benefit of the alleged perpetrator, as well as the alleged victim of prohibited
discrimination. California courts have applied federal precedent holding that when an
employer receives a complaint of unlawful conduct, “the ‘most significant immediate
measure an employer can take in response to a . . . complaint is to launch a prompt
investigation to determine whether the complaint is justified.’ ” (Bradley v. Department
of Corrections & Rehabilitation (2008) 158 Cal.App.4th 1612, 1631, quoting Swenson v.
Potter (2001) 271 F.3d 1184, 1193 [addressing duty to investigate complaint of unlawful
harassment].)
Orlando cites Franklin v. The Monadnock Co. (2007) 151 Cal.App.4th 252, as
suggesting alleged perpetrators have a procedural right to an investigation. In Franklin,
an employee was fired after he reported workplace death threats to himself and other
employees to the human resources department, and later to the police when his employer
took no action and his coworker tried to stab him with a metal screwdriver. (Id. at
p. 256.) The trial court dismissed his wrongful termination in violation of public policy
claim. (Id. at p. 255.) The Court of Appeal reversed. The court first recognized that
even an at-will employee can bring a claim for wrongful termination in violation of
public policy; “ ‘[t]he difficulty, of course, lies in determining where and how to draw the

appellate jurisprudence that a litigant may not pursue one line of legal argument in the
trial court, and having failed in that approach, pursue a different . . . line of argument on
appeal, thus depriving the trial court of the opportunity to consider what the appellant
contends on appeal is the real dispute.” (Brandwein v. Butler (2013) 218 Cal.App.4th
1485, 1519.) Accordingly, we do not address the remaining statutes to which Orlando
now refers.
12
line between claims that genuinely involve matters of public policy, and those that
concern merely ordinary disputes between employer and employee.’ ” (Id. at p. 257,
quoting Gantt v. Sentry Insurance (1992) 1 Cal.4th 1083, 1090, overruled in part on
another ground in Green v. Ralee Engineering Co. (1998) 19 Cal.4th 66, 80, fn. 6.) It
next concluded the plaintiff had adequately alleged a matter of public policy rooted in
statute—the prevention of workplace violence. (Franklin, at pp. 258–260.) The court
also concluded, as Orlando points out, that the prevention of workplace violence is a
matter that “benefit[s] the public at large—a requirement for a claim of wrongful
discharge in violation of public policy.” (Id. at p. 263.) We fail to see how recognition
of this seemingly self-evident proposition, however, translates into a rule that if the
employer does not investigate an alleged threat of workplace violence that constitutes a
breach of duty owed to the alleged perpetrator.
Orlando also maintains Friendship House had “written [p]olicies” obligating it “to
conduct a Cotran like” investigation “of the claimed threat of workplace violence” that
allegedly implicated FEHA. He additionally asserts these policies required the CEO,
because she was Orlando’s mother-in-law, “to recuse herself from the matter,” which she
failed to do. But again, Orlando’s assertions fail at the starting gate because he has failed
to state even a prima facie case of marital status discrimination under FEHA, making any
provisions of FEHA inapplicable. (See Dickson v. Burke Williams, Inc. (2015)
234 Cal.App.4th 1307, 1318 [where sex discrimination not proven, no actionable claim
for failure to prevent sex discrimination]; Scotch v. Art Institute of California (2009)
173 Cal.App.4th 986, 1021 [actionable claim of failure to investigate “is dependent on a
claim of actual discrimination”].) Furthermore, Orlando has not identified any written
policy that restricted the CEO’s authority to terminate his employment. While Orlando
infers such a restriction from a provision in an employee manual, that provision actually
states: “No employee may be directly supervised by immediate family. Any Board
member who has immediate family employed at Friendship House must abstain from
voting, decision making, or attempting to influence decisions on any matter directly
13
related to that employee.” (Italics added.) Helen, the CEO, was not Orlando’s direct
supervisor. Nor was it even alleged she was a board member.
In sum, there is no basis for Orlando’s attempts to bring himself within the ambit
of FEHA or Cotran.

Outcome: The summary judgment is affirmed. Respondents to recover costs on appeal.

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