Filed 1/23/14 Hughes v. Cal. Dept. of Corrections and Rehabilitation CA2/5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

CHARLES HUGHES,

Plaintiff and Respondent,

v.

CALIFORNIA DEPARTMENT OF CORRECTIONS & REHABILITATION,

Defendant and Appellant. B238134

(Los Angeles County Super. Ct. No. BC355143)

APPEAL from a judgment of the Superior Court of the County of Los Angeles, Terry A. Green, Judge. Affirmed. Kamala D. Harris, Attorney General, Alic ia B. Fowler, Senior Assistant Attorney General, Jerald Mosley, Supe rvising Deputy Atto rney General, Gabrielle H. Brumbach and Bruce W. Reynolds, Depu ty Attorneys General, fo r Defendant and Appellant. Law Offices of Stephen J. Horvath, St ephen J. Horvath, Marcus J. Berger; Benedon & Serlin, Douglas G. Benedon, a nd Gerald M. Serlin for Plaintiff and Respondent.2 INTRODUCTION

A jury found in favor of plaintiff and appellant Char les Hughes (plaintiff) on his

cause of action for retaliation under th e Fair Employment a nd Housing Act (FEHA) 1 and awarded him damages in the amount of $1 ,670,393.37. On ap peal, defendant and respondent State of California Department of Corrections a nd Rehabilitation (the Department) contends that there was insuffici ent evidence to support the jury’s finding of retaliation, the trial court failed to instruct th e jury properly on plaintiff’s burden to prove retaliatory intent, the damage awards for ba ck pay and overtime were improper, and there

was insufficient evidence to support the noneconomic damage award.

We hold that there was substantial ev idence to support the jury’s finding of retaliation under FEHA, the trial court properly instructed the jury on plaintiff’s burden to prove retaliatory intent, the jury properly awarded damages for ba ck pay and overtime, and there was sufficient evidence to support th e noneconomic damage award. Therefore, we affirm the judgment in favor of plaintiff.

FACTUAL BACKGROUND 2

A. Plaintiff’s Employme nt With the Department Plaintiff began his employment with the Department as a correctional officer in 1994. In 2000, plaintiff was pr omoted to the rank of correctional lieutenant. In 2004 and 2005, at the time of the incidents that gave rise to this action, plaintiff was assigned as a

1 Government Code section 12920 et seq. Plaintiff’s retaliation claim was pleaded under section 12940.

2 Pursuant to the substantial evidence sta ndard of review discussed below, we state the facts in a light most favorable to the ve rdict, indulging all reasonable inferences and resolving all conflicts in favor of the verdict. ( Bickel v. City of Piedmont (1997) 16 Cal.4th 1040, 1053.)3 correctional lieutenant to California State Prison Los Angeles Co unty (Los Angeles County state prison) located in Lancaster. While employed at the Department, plaintiff was a member of the correctional police officer’s union. In 1995, he became a job steward. In that capacity, he represented union members in “lower-level grievances . . . [a nd] small internal affa irs interviews.” In 1998, plaintiff was elected chapter president of the union, a position he held at the time of the incidents in question. In that position, he “interface[d] with the warden [and] highlevel managers . . . .” He also handled “hi gh-level internal affairs interviews” and “highlevel disciplinary cases, such as terminations.”

B. Protected Activity

1. Plaintiff’s Activities Concerni ng the Department’s Racial Segregation of Inmates In November 2004, plaintiff read a Lo s Angeles Times newspaper article about oral arguments before the United States S upreme Court in the Garrison Johnson case. 3 Based on the content of the article, plai ntiff had discussions with other union representatives because he knew, based on his experience, that the Department’s representation to the Supreme Court—that it onl y segregated inmates for the first 60 days from reception—was not true. Plaintiff then spoke to a news reporter at the Press Enterprise and told her that “what [the De partment’s attorneys] were saying [to the Supreme Court was] absolutely not true and that [the Depart ment] use[d] race all the time . . . past the 60 days from reception.” He told the reporter that he believed “the Department was lying” about racial segreg ation in the California prison system.

3 According to the parties, the case pl aintiff read about in the newspaper was Johnson v. California (2005) 543 U.S. 499 (the Johnson case) which held that the Department’s policy in segregating inmates by race at reception was subject to strict judicial scrutiny under the United States Constitution.4 After speaking to the reporters, plainti ff met with Warden Charles Harrison and requested any written policies that the Department followed concerning the racial segregation of inmates. He also told the warden about his conversation with the newspaper reporter. Plaintiff then had a simi lar conversation with Chief Deputy Warden

Montero and Lieutenant Frank. He was info rmed that the Department did not have any written policies concerning the raci al segregation of inmates. Following plaintiff’s interview with the reporter, a newspaper article was published that accurately stated plaintiff’s ex perience regarding the racial segregation of inmates in the California state prison system . Plaintiff was quoted in the article as saying, “There’s no way I put a black and a white together [i n the same cell].” Sometime after the newspaper article wa s published, plaintiff was notified that State Senator Gloria Romero was convening a Se nate hearing and he was asked to testify. According to plaintiff, he agreed to testify be cause “[w]ith this issu e, [he] really had a very serious concern with [his ] Department because [correcti onal officers did segregate], and [the Department was] lyi ng about [the segregation policy] to . . . the United States Supreme Court. [¶] And [he] thought, ‘wait a minute. If [the Department’s lawyers] have to lie about what [correctional officer s] do, maybe [the officers] shouldn’t be doing this.’ [¶] And [he] had a bi g concern that because there weren’t written policies, because [correctional officers did] this every day an d [the Department’s lawyers were] lying to the United States Supreme Court and trying to cover this up—[correctional officers were] the guys that [were] doing this. [He did] it every day so, . . . [he] had deep concerns [that] ‘[correctional officers] s houldn’t be doing this. And if [the Department had] to lie about it, then there [was] a bi g problem.’ [¶] And that came from [his] experience . . . as

a correctional counselor and as a lieutenant, so some other guys had big concerns about the code of silence, and [he] had that concer n as well. That was a major concern. [¶] But [he] looked at it a little bit different, t oo, because of [his] experience—because most of those guys are just officers. [¶] [He] had the counselor experience and lieutenant experience. [He] was the guy who [was] actually [racially se gregating inmates], and [he] had a big concern about doing that because [the Department was] lying about it.”5 At the state Senate hearing, plaintiff to ld the truth about the Department’s racial segregation of inmates. Spec ifically, he testified about “h ow at Lancaster [correctional officers] racially segregate pa st the 60-day mark. [¶] [T he Los Angeles County state prison was] not a reception center. [It wa s] a general populati on housing unit, and [correctional officers at the facility did] inta ke people from recepti on and transfers, and [did] . . . what [the Department] said [they] didn’t do.” A Department Director, Jeanne Woodford, attended the Senate hearing, as di d Bruce Slavin from the Department’s office of legal affairs. 4

2. Plaintiff’s Activities C oncerning the Comedy Show In May 2005, representatives of HBO ap proached the public information officer for the Los Angeles County stat e prison about performing a come dy show at that facility. The public information office r informed Warden Harrison that comedy shows had been performed twice before at a different fac ility. The warden appr oved the performance without reviewing the content in advance. Warden Harrison attended the performance,

which included the use of inappropriate language. Ac cording to the warden, the comedians “hit upon all ethnic groups and all ge nders, poking fun at everybody.” He did recall that sexual props were used during the show, including a “dildo” and “fake

breasts.”

Warden Harrison attended the entire s how and laughed at times during the performance. But, during the course of th e performance, the ward en recognized that “there were terms said or things said that [he] wish[ed they] had known in advance . . . [so he] could have cautioned against them .” He considered shutting down the performance, but “elected to fi nish the comedy show.” He recalled thinking that the

4 As explained below, the hiring authority and decisionmaker for the two notices of adverse action issued in connection with the fi rst and second terminations of plaintiff was Michael Knowles. Alth ough Knowles denied that he was aware of plaintiff’s activities in connection with the state Senate testimony, he attended weekly meetings at which the Johnson case and the segregation issue were discussed.6 content could be offensive to some people, an d specifically recalled a comment that could

have been offensive to female staff. Sergeant Alfred Salazar was on duty and present during the comedy show. Three to five minutes into the performance, Salaza r “felt a hostile work environment.” During

the show he witnessed “a lot of sexua l harassment and racial discrimination slurs/language . . . .” Ward en Harrison was present, as was Captain Wofford, but nothing was done to stop the performance. Salazar “w as really bothered” by the show, and he spoke to other staff members w ho “were [bothered] as well.”

Because Salazar feared retaliation if he complained about the show, he initially did nothing in response to it. Seven or eight days after the show, however, he contacted plaintiff, who was his union representative, a nd plaintiff advised hi m to write a report detailing his concerns about the show. Pl aintiff, who had not heard about the comedy show until he spoke to Salazar, was “absolutel y shocked” when he re ad Salazar’s report, and he reported the incident to his superiors as required. He wanted his entire chain of command to be aware of the incident at the prison. On May 16, 2005, during a management meeting, Associate Warden Downs referenced certain adverse employment actions then pending against plaintiff. According to several persons who attended that mee ting, Downs made comments about plaintiff, such as “We got him . . . they will string him up,” “We have him up against the wall,” “[Plaintiff’s] ass would be na iled against the wall,” and “I think the reason [plaintiff] is attacking this administration is due to the f act that he has sustai ned adverse action with another one coming that will nail his ass to the wall . . . .”

No one in the chain of command contacte d plaintiff in respon se to his reports about the comedy show, but he was contacted by the Department’s office of civil rights. Kathy Salas from that office condu cted an intake interview with plaintiff in August 2005. Following that interview, the office of civ il rights began an inves tigation of the comedy show. In October 2005, Salas interviewed plai ntiff again. He told Salas what Salazar had told him about the comedy show and di scussed his concerns about retaliation. Although Salas concluded “that the comedy show violated equal employment opportunity7 rules and regulations, as well as the [Depar tment’s] rules and re gulations regarding sexual harassment and discrimination,” and that discrimination and sexual harassment definitely occurred during the comedy show . She did not inve stigate plaintiff’s complaint about retaliation. She also determined that pl aintiff’s complaint about the comedy show constituted protected activity. The office of civil rights found that Warden Harrison was responsible for allowing the come dy show to take place, and he received disciplinary action for that decision. Warden Harrison left the Los Angeles County state prison in November 2005 and accepted a positi on as associate warden at the state prison facility in Norco.

C. Terminations

1. First Termination According to plaintiff, on September 10 , 2004, he was working as the watch

commander. While he was in the warden’s o ffice with Lieutenant Henderson, plaintiff

heard a radio call about a serious incident. Plaintiff and Henderson left the warden’s office and proceeded to the area of cell 149, where he observed a group of correctional officers. Inside the cell, he saw an inmate lying face down in a pool of blood. It appeared to plaintiff that an inmate had be en murdered. Medical staff were in the cell

with the inmate. Plaintiff began to take control of the crim e scene. Two investigative officers were at the scene taking photographs and “telling people to clear the area.” Plaintiff assisted the investigators as they “isolate[d], contain[ ed], and control[led] the area.” He cleared “people from the area outside the cell.” To help gain control of the crime scene, plaintiff directed a squad officer to “p lace crime scene tape to delin eate the area of the crime

scene.” About 10 minutes after plaintiff arrive d at the crime scene, medical technical

assistant Brenda Wimbish arrived in civilia n clothing. As she approached the tape, plaintiff directed her to stop. Two other me dical assistants were already performing CPR8 on the victim. According to plaintiff, he a nd Wimbish “went back and forth a couple of times. [But o]nce [he] figured out that she wanted the inmate transferred or moved, [he] immediately turned to . . . O fficer Ellis . . . and instructed him to go in there and help transport the body.” Ellis assisted the two medical assistants in removing the inmate from the cell and transporting him out of the building. Based on plaintiff’s experience, he believed the inmate was dead. 5 He told his custody staff, “slow down, chill out. He’s dead.” Plaintiff later told investigators that he

did not remember if Associat e Warden Fakhoury ordered hi m to allow Wimbish access to the scene. Plaintiff recalled interacting with the associate warden at the scene, but did not

remember what had been said. In September 2004, Brenda Wimbish was a senior medical technical assistant at the Los Angeles County state prison in Lanc aster. On September 10, she was in her

office in the central infirmar y when she was informed that there was a nonresponsive inmate in the administrative segregation area who was en route to the triage treatment area or emergency room. She went to the emergency room and waited for the inmate patient to arrive. Doctors were present, and she was asked numerous times, “What’s taking them so long, why isn’t the patient here ?” Wimbish was informed that the inmate patient was nonresponsive and medical staff at the scene were not being allowed to transport him. Wimbish, along with other medical a nd custody staff, proceeded to the scene where she saw plaintiff and a security s quad that was taking photographs. When Wimbish went “underneath the taped-off area ,” plaintiff informed her that she “was impeding a crime scene and directed [her] to leave.” She told plai ntiff they were waiting in the emergency room for the patient. Plain tiff told her, “Chill out, Wimbish, the patient is dead.” Wimbish told plaintiff he was pl acing the inmate patient’s life in jeopardy and exposing the Department to possible litigation. Plaintiff again directed Wimbish to leave

the crime scene.

5 The coroner estimated that the inmate may have been de ad as long as four hours before officers discovered his body.9 Lieutenant Walton told Wimbish to spea k with Associate Warden Fakhoury who was also on scene. Wimbish explained to the associate warden that there were no medical staff in the building who were qualifie d to pronounce the inmate dead and that qualified medical staff were waiting for the inma te in the emergency room. The associate warden immediately directed the custody staff to allow the medical staff to transport the inmate to the emergency room, which they did. As a result of the incident, Wimbish wrote a memorandum detailing the incident with plaintiff. She wrote the memorandum because custody staff had impeded medical staff in rendering medical services, which she c onsidered a serious issu e that needed to be addressed by “a higher administration.” Based on Wimbish’s memorandum, Warden Harrison made a written request for an internal affairs investigati on on January 13, 2005, i.e., four months after the incident. According to the request, plaintiff violated the “Emergency Medical Response Protocol” by denying Wimbish access to the inmate patient and making an unauthorized

determination that th e inmate was dead. On January 31, 2005, intern al affairs special agent Richard Cortez was assigned to conduct the investigation requested by Warden Harrison. Cortez began witness interviews in July 20 05. According to plaintiff’s wife , on the evening of July 19, 2005, Cortez called plaintiff at home concerning servic e of a notice of hearing. Plaintiff told

Cortez not to come to his home and instead to serve the notice on him at work. Shortly thereafter, at around 9:00 p.m., Cortez knocke d on plaintiff’s door and “just ended up coming in.” Plaintiff’s wife was angry, and her children were scared. Plaintiff’s wife called the prison the next day and complained. She also filed a wr itten complaint about the incident. Two of plaintiff’s experts opi ned that Cortez should have recused himself from the investigation based on the complaint. Cortez rece ived a written admonition, but was not removed from the investigation. During the course of his investigati on, Cortez interviewed 34 witnesses and attached 50 exhibits to his final investigati on report. The report liste d four allegations of misconduct by plaintiff: (1) he violated th e “Emergency Medical Response Operational10 Procedure” when he ordered Wimbish out of the crime scene after she had responded to the scene to arrange the tran sfer of the inmate to the infirmary; (2) he made an

unauthorized medical assessment of the inmate when he told Wimbish to “Chill out he is already dead” and “‘He’s dead, there is not hing we can do;’” (3) he ordered two other responding medical technical a ssistants out of the crime scene, thereby preventing them from assisting the medical assistants already on scene; and (4) he was dishonest when he

stated in his internal affairs interview that the associate ward en did not order him to allow Wimbish access to the inmate. The report conc luded by referring the matter to the hiring authority. Although Cortez’s final report reflected that plaintiff allegedly violated the Department’s medical emerge ncy response policy, the repor t failed to disclose that plaintiff had not been trained in that policy. Moreover, the report did not disclose that Cortez had interviewed Gerardo Cardenas, an in-service training officer, who confirmed that plaintiff had not been trained in that polic y. Cardenas also confirmed that, if plaintiff had been trained in that polic y, it would have been reflected in plaintiff’s training log,

which documentation was available for review by internal affairs investigators. As to the allegation of dishonesty, Cort ez’s report, which was required to identify the evidence in support of each allegation, did not cite as evidence the statement plaintiff made to investigators concer ning whether Associate Warden Fakhoury had instructed plaintiff to allow Wimbish acce ss to the inmate patient. Sp ecifically, the report did not disclose that during an intern al affairs interview of plain tiff he was asked, “Why would [Associate Warden Fakhou ry] say he told [you] to back o ff so [medical st aff] can move the inmate out [of the cell] ?” Plaintiff responded by e xplaining “I don’t’ know why [Associate Warden Fakhoury] wo uld say it. You have to ask [him]. I could tell you that

I never heard that.” Cortez’s report was forwarded to Deputy Director Michael Knowles to make the final decision concerning plaintiff’s termination. 6 One of plaintiff’s experts explained

6 Knowles confirmed that he made th e decision to terminate plaintiff.11 that, as the hiring authority, Knowles was required to review the investigative report and

determine if “there is sufficient evidence to support a possible adverse action.” That expert also stated that each allegation of mi sconduct set forth in the report was to be followed by bullet points detaili ng the evidence in support of the allegation. Knowles recognized that the allegation of dishonesty in the report was not supported by a bullet point specifying the statement or statements pl aintiff made to the investigator that were dishonest, but he nevertheless sustained the dishonesty alle gation on the assumption that the allegation was true.

Based on Knowles’s decision to terminat e plaintiff, the Department sent him a

notice of adverse action dated Oc tober 19, 2005, advising plai ntiff that he was dismissed from his position of correctional lieutenant effective November 1, 2005. 7 That notice included the allegation of dishone sty based on plaintiff’s alle ged denial to the internal affairs investigator that Associate Warden Fakhoury ordered him to allow Wimbish access to the inmate patient. On November 24, 2005, Knowles issued a modified notice of adverse action setting the effective date of plaintiff’s term ination as December 13, 2005. That notice again set forth the allegation of dishonesty contained in th e initial notice, but included two additional allegations of dishonesty: (1 ) plaintiff denied in his internal affairs interview that he gave medical staff any directi ons on the date of the incident in question; and (2) plaintiff asserted in th at same interview that he would never impede medical staff from entering a crime scene to tr eat an injured inmate. Those allegations were not in the internal affairs report and were not the subject of plaintiff’s Skelly hearing. 8

7 The initial notice of adverse action was signed by Derral Adams, associate director, southern section.

8 “Skelly hearing” refers to the administrative hearing required by Skelly v. State Personnel Board (1975) 15 Cal.3d 194 [state statut ory scheme regulating civil service employment recognizes that a permanent civil service employee has a property interest in continued employment that is protected by due process].12 2. Second Termination When Hughes was elected chapter pres ident of the union in 2004, correctional officer Eric Stanback was elected vice-presid ent. Soon after the election, in January 2005, Stanback started a recall election agains t plaintiff. Stanback accused plaintiff of stealing money from a nonprofit organization that plaintiff ran 9 and asked officers to sign a petition to have plaintiff recalled. In Ma rch 2005, plaintiff called Stanback and said, “Do you remember Reno, do y ou remember where we went in Reno?” According to plaintiff, he was referring to an incident th at occurred at a union convention in Reno. During that convention, Stanback asked plai ntiff to accompany him to a brothel where plaintiff, who was married, “had a dr ink and . . . Stanback partaked [ sic ] in the activities . . . .” Plaintiff was off duty when he called Stanback, and the call related to union activities, not his job as a correctional lieutenant. Three other union members were in the car when plain tiff called Stanback. Two days after the telephone call, St anback submitted a memorandum to Warden Harrison complaining about the call. According to Stanback , in addition to referencing the brothel in Reno, plaintiff also stated , “I’m Charles Hughes, and I’ll get you.” The following month, after Stanback had been absent from union meetings, plaintiff, while off duty, telephoned Stanba ck’s supervisor, Serg eant Eltzroth, and

informed him that because Stan back had been removed as a union job steward, he should not be given permission to leave his post to attend a union meeting scheduled for that day, unless he took time off and made arrangements to cover his post. Based on that telephone call, Stanback wa s denied permission to leave his post and, at the union meeting later that day, he was temporarily removed as vice-president for failing to attend union meetings. In resp onse, Stanback immediately sent Warden Harrison a memorandum complaining that plai ntiff misused his position as lieutenant to prevent Stanback from attending the union meeting.

9 Plaintiff managed a nonprofit organi zation named the California Staff Assault Task Force that provided assistance to co rrectional staff who had been assaulted by inmates.13 Based on Stanback’s co mplaints about plaintiff, Warden Harrison submitted a request for investigation to internal affair s senior special agent Linda Hidy on May 10, 2005. But Hidy reject ed the Warden’s request because she determined that the alleged misconduct involved supervisory issues that did not warrant an internal affairs investigation of misconduct. Warden Harri son then contacted his supervisor, regional administrator Wendy Still, who decided to resubmit the request for investigation to

internal affairs. 10 Hidy, however, again rejected the resubmitted request. Internal affairs rejected the requests because the allegations against plaintiff were based on his off-duty union activity. By a memorandum to the Department’s in ternal affairs assist ant secretary, Still requested that the allegations against plai ntiff be reconsidered. Thereafter, the Department’s Sacramento headqu arters ordered Hidy to accept the investigation requests concerning plaintiff. Hidy therefore approv ed the investigation requests and assigned internal affairs investigator Gene Pettit to conduct the investigation. During Pettit’s internal affairs interview of him, plaintiff denied that he said “I’ll get you” to Stanback during the telephone ca ll about the Reno incident. Plaintiff also

identified three witnesses who would corroborat e that plaintiff did not say “I’ll get you” to Stanback in the telephone call. Pe ttit, however, did not in terview those three

witnesses. To support his complaint about being re moved as union vice-president, Stanback provided Pettit with one page from the union minutes showing that Stanback had been removed from his posi tion on the union’s board of directors. Bu t Pettit did not obtain a complete copy of the minutes which reflecte d that during the same meeting, plaintiff

restored Stanback to the union’s board.

10 Still knew about plaintiff’s testimony before the state Senate and the comedy show.14 On November 4, 2005, Pettit forwarded hi s investigation report to the hiring authority Knowles. 11 The report set forth six allegati ons of misconduct against plaintiff, including the two incidents discussed above in volving Stanback, i.e., the telephone call to

Stanback about the Reno incident and the tele phone call to Eltzroth advising him to deny Stanback permission to attend a union meet ing. Pettit included summaries of his interviews of 10 witnesses, including a summary of his interview of plaintiff, and attached 20 exhibits to his report. When Knowles reviewed Pettit’s report, it did not contain any specific allegation of dishonesty against plaintiff. Neverthele ss, based on that report, Knowles issued a

notice of adverse action 12 that included two allegations of misconduct, including a new allegation asserting dishonesty against pl aintiff. The first allegation was based on plaintiff’s telephone call to Stanback about the Reno incident. The second allegation was based on plaintiff’s conversation with Eltzroth during which he advi sed Eltzroth not to grant Stanback time off to attend the union me eting. But that second allegation further alleged that plaintiff had been dishonest when he told Eltzroth th at Stanback had been removed from his position with the union beca use the union did not remove Stanback as vice-president until after the conversati on between plaintiff and Eltzroth. In making his decision to terminate plain tiff based on, inter alia, the newly added dishonesty allegation, Knowles was aware that plaintiff had told Pe ttit during the internal affairs interview that when plaintiff spoke to Eltzroth, he advised him that he had removed Stanback from his job steward pos ition, not his position as vice-president. Nevertheless, Knowles found by a preponderance of the evidence that plaintiff falsely represented to Eltzroth that Stanback had been removed as vice-president.

11 Knowles admitted that he was the hiring authority and “the decisionmaker” for the second termination.

12 Knowles signed the notice of adverse action for the second termination on December 7, 2005, but it apparently was not se rved on plaintiff or distributed until March 1, 2006.15 On November 14, 2005, Kn owles sent a letter notifying plaintiff of Knowles’s decision to terminate him. Although the letter stated that “formal Adverse Action papers” would be served within 30 days, th e formal notice of adverse action attaching Pettit’s report and exhibits, i.e., the Skelly pa ckage, was not sent to plaintiff until March 1, 2006. That notice stated that plaintiff ha d been terminated effective January 2, 2006, notwithstanding that plainti ff’s first termination was e ffective December 13, 2005. Plaintiff’s expert opined that he was unawa re of any authority that would allow the Department to terminate an employee who had already been terminated. Plaintiff was not given a Skelly heari ng on the second termination until April 11, 2006. The hearing officer, Chief Deputy Warden Lind a Schulties, recommended to Knowles that the second termination be upheld, despite her admission that she had never recommended firing a former employee who had already been fired. Schulties believed that the second termination was necessary in the event the fi rst termination was overturned. The Department notified plainti ff of its final decision to impose the second termination on May 30, 2006. Although Know les acknowledged that he was the hiring authority and decisionmaker for the second termination, the De partment’s letter asserted that Deputy Director Scott Kernan had made the final decision.

D. State Personnel Board Appeals Plaintiff appealed both of his terminati ons to the state personnel board (board). Following a hearing before an administrative law judge on the first termination, the board adopted the judge’s findings and decision th at reversed plaintiff’s termination. According to the adopted decision, “[the Depa rtment] failed to prove by a preponderance of the evidence any of the cause s for discipline alleged agains t [plaintiff].” The adopted

decision ordered as follows: “The action of the appointing power dismissing [plaintiff] from his position as a Correctional Lieutenant is revoked. Jurisdiction is reserved in the event the parties are unable to agree to back salary, benefits , and interest due [plaintiff] under the provisions of Government Code section 19584.”16 Following a hearing before an administrative law judge on the second termination, the board adopted a resolutio n ruling that the appeal fro m the second termination was dismissed on the grounds that the board had no jurisdiction to h ear an appeal from a

dismissal that was “void and of no effect.” According to the boar d’s adopted resolution, “a dismissal is a permanent separation from st ate service, and . . . appellant was not a state employee at the time of the [second term ination] . . . .” Accordingly, the board concluded that the second termination “imposed upon [plaintiff] with the effective date of January 2, 2006 [was] deemed null and void and the appeal therefrom [was] dismissed.”

E. Damages Plaintiff’s economic expert calculated th at plaintiff suffered economic damages in the form of lost wages and overtime in th e amount of $448,856.98. According to plaintiff, the two terminations caused him to su ffer emotional distress and physical injury. “Q. Did the stress affect your health in any wa y? A. Yeah. After I was fired, I went to

the doctor and it was a while after I was fire d, and it was just building up, and I was—I had to get put on diabetes medicine, high blood pressure, cholesterol meds. I couldn’t sleep, so I got some sleeping meds, medications , and I just jumped ri ght into trying to defend myself and trying to get my job back , which at the end it was successful, but it was a long road and a lot of he arings and, you know, it took a lot of work to undue what they did in the sense of my j ob and getting it back, and I did.”

Plaintiff also believed that the two term inations damaged his reputation. “Q. What about your reputation? Do you feel that it affected your reputation? A. Yeah, I was publicly fired and really where that I think really—I think it affected my family more. My daughter Ashley, she would get teas ed and they’d say, yo u know, you’re poor now and your daddy got fired and they actually did—I was the current events. My news articles about being fired was their current ev ent in their class and the teachers assigned those out. It’s pretty amazing.” And plaintiff believed that the two termin ations damaged his career. “Q. And do you believe that you suffered harm to your career? A. I’ve done really well taking tests17 and promoting and I—as I testif ied, I went [up] on both side s, the union side, and I’ve went up the Department side, number one ranked lieutenant in the state, but I think that side is pretty much done. In fact, I don’ t—I actually don’t even think I’m going to be a lieutenant much longer because—I mean, a lieutenant is a very responsible job, and you’ve got a lot of responsibilities, and I belie ve they’re going to do th is to me again, it’s just a matter of time, but I’m going to go ba ck to work and do wh at I can do.” [¶] . . 

### . [¶] Q. And do you have a ny feelings about your ability to prom ote in the future? A. I don’t believe there’s going to be a ny possibility of promoting.”

Plaintiff’s wife also believed that the two terminations had caused plaintiff to suffer emotional distress and physical injury. “How [the two terminations] affected my husband, he has always been a busy—he’s al ways been very busy. But he was—the

stress was not there. He was able to work overtime, come home and sleep very well [at] night. [¶] After the terminations, he be came a different person. He—it was just extremely stressful. He no longer was able to leave his work outside of our home,

because before he was able to work 6:00 to 2:00, or even a double, come home, and he would leave everything right at work. [¶] Now, with the terminations, he, obviously, brought them home. He was extremely stressed. He was not sleeping at night. He went to the doctor and got sleeping p ills. They didn’t work. He ha d to get more. He had high blood pressure that he didn’t have before. He started eating a lot more, because he was just stressed. [¶] And, as a wife, I was, honey, but then he ju st was so stressed. He just would eat. He’d go to the doctors. He e nded up with diabetes—he ended up with high blood pressure, diabetes, high chol esterol, after this started. [¶] So the long hours, I know that a lot of people work long hours and, maybe , commute, but it was very separate. It wasn’t the same kind of stress that he constantly was in. He would come home, he would constantly be reading documents like this, in our home. So that’s what my kids saw. My kids didn’t just see a dad who just went to work and came back. They saw him obsessing over documents. [¶] And when my kids would approach him, he would be very grumpy, and he would say, not now, not now, now is not a good time. Or he would—they would try to talk to him and he woul d be—because he would be home,18 obsessing over this, and he wo uld say, now is not a good tim e, or, come back later, or— so he just became a different—a different person.” Plaintiff’s medical expert opined that th e stress from the two terminations caused plaintiff to develop medical conditions and also aggravated existing conditions. “Q. Okay, well, can you explain to the jury th ese ailments that you identified and how stress—how they’re related to stress. A. There were four diffe rent ailments that [plaintiff] suffers from. The first were digestive problems. These predated his stressors with the [Department]. And he had been on over-the-counter Tums for some years, which began in or about 2003. So he has reflux, or heart burn; a condition, again, that preexisted the stress. [¶] Through and af ter the stress, this condition worsened, per [plaintiff], and now actually re quires, or did require in or about 2005, treatment with prescription medication, including something called Nexium. [¶] So the symptom was there before and then was aggravated after th ese stresses. And the relationship there is

that with stress comes in creased adrenaline, comes increased acid production, hydrochloric acid to the stomach. [¶] If someone has reflux where acid comes back up, as most of us have felt, increased stress both subjectively and objectively increases the acidity that one would percei ve. And that would be the injury with re gard to the digestive system. [¶] The second would be with regard to [plaintiff’s] diabetes. Although diabetes is a process that takes years to develop, it was first diagnosed in or

about 2007. So there was no evidence of diabetes documen ted in the medical records until and after he was evaluated by another p hysician. And that was also documented in

the Kaiser records. So the first documentation there was in 2007, about August of that year. And, therefore, there was no pree xisting diabetes, although there can be a preexisting tendency towards diabet es. [¶] There again, stre ss is well-documented in the

medical literature to be associ ated with the development over aberration of diabetes, just as other risk factors can be, such as weight, such as cigarette smoking, etc. [¶] So we went from somebody with no diabetes to being diagnose d with diabetes. And the

medical literature substantiates the fact that th ese are not just coincidental findings, but in a given case can be actually causally related. [¶] Number [three] was sleep disorder.19 [Plaintiff] had a history of what is called sl eep apnea, dating back to approximately the early 2000’s. [¶] An d sleep apnea is a process by whic h there is haphazard disordered breathing or even stoppage of breathing during sleep. It ca n be related to a number of things, some of which can be traumatic; some of which are related to weight. [¶] In [plaintiff’s] case, this was, agai n, documented several years prio r. So this is a preexisting condition in terms of a sleep di sorder. [¶] However, [plaintif f] also had a surgery, which was a repair of his tonsils and the pharynx area, which, according to him, gave a significant improvement. And that surger y was done about May of 2004. And his sleep[less]ness improved at that time. [¶] Subsequently, [plain tiff] developed further sleep disturbances based on his psychologic stress related to the processes that were going on as a result of his employment. And that progressed to the point that he was placed at Kaiser on Ambien, which is a slee p medication, absent which he had extreme difficulty sleeping. And no sleep study has been performed in the recent past. [¶] Therefore, he had a preexisting sleep disord er, with improvement after surgery, which has now deteriorated again after these stress es, which have caused him to develop again irregular sleep. [¶] And the last was hyperten sion. Again, first diagnosed in about 2007, several years after his stressors began, wa s diagnosed by severa l industrial physicians,

and has been treated with medication since that time.” Plaintiff’s expert further concluded that plaintiff’s medi cal conditions would require fu ture care and treatment.

PROCEDURAL BACKGROUND

Plaintiff filed a first amended complaint against the Department and several of its individual employees asserting causes of ac tion for: (1) discrimination, harassment, retaliation under FEHA; (2) wrongful terminati on in violation of public policy; and (3)

intentional infliction of emotional distress. Following two defense summary judgment motions, the case proceeded to jury trial against the Department only on the FEHA retaliation claim. In a special verdict, the ju ry found in favor of pl aintiff on his retaliation claims based on his protected activities of te stifying before the state Senate on racial20 segregation and complaining about the tale nt show. The jury concluded that the Department was aware of those protected ac tivities before imposing the first and second terminations, plaintiff’s protected activities were a motivating reason for those adverse employment actions, and the Department’s reta liation was a substantia l factor in causing injury to plaintiff. The jury awarded plaintiff damages in the total amount of $1,670,393.37 comprised of $233,172.06 in lo st earnings, 187,221.31 in lost overtime earnings, $1,000,000 for past noneconomic loss, and $250,000 for future noneconomic

loss.

DISCUSSION

A. Substantial Evidence

1. Standard of Review The Department’s challenge to the sufficiency of the ev idence in support of the jury’s finding of retaliation is governed by the substantial ev idence standard of review. “‘Where findings of fact are challenged on a civil appeal, we are bound by the “elementary, but often overlooked principle of law, that . . . the power of an appellate court begins and ends with a determinati on as to whether there is any substantial evidence, contradicted or uncontradicted,” to support the findings below. [Citation.] We

must therefore view the eviden ce in the light most favorab le to the prevailing party, giving it the benefit of every reasonable infere nce and resolving all conflicts in its favor

in accordance with the sta ndard of review so long adhered to by this court.’ [Citation.]” ( Bickel v. City of Piedmont, supra, 16 Cal.4th at p. 1053.)

2. Legal Principles

“Past California cases hold that in orde r to establish a prima facie case of retaliation under the FEHA, a plaintiff must sh ow (1) he or she engaged in a ‘protected activity,’ (2) the employer subjected the employe e to an adverse employment action, and21 (3) a causal link existed between the prot ected activity and the employer’s action. ( Iwekaogwu v. City of Los Angeles (1999) 75 Cal.App.4th 803 , 814-815 [89 Cal.Rptr.2d 505]; Flait v. North American Watch Corp . (1992) 3 Cal.App.4th 46 7, 476 [4 Cal.Rptr.2d 522] [adopting the title VII (Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.) burdenshifting analysis of McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, 802-805 [36 L.Ed.2d 668, 93 S.Ct. 1817 ]].) Once an employee estab lishes a prima facie case, the employer is required to offer a legitimat e, nonretaliatory reason for the adverse employment action. ( Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 68 [105 Cal.Rp tr.2d 652].) If the employer pr oduces a legitimate reason for the adverse employment action, the presum ption of retaliation ‘“‘drops out of the picture,’”’ and the burden shif ts back to the employee to pr ove intentional retaliation. ( Ibid. )” ( Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.)

3. Protected Activity Although the Department concedes that plaintiff’s complain ts about the comedy show constituted protected activity under FEHA, it contends that his testimony before the state Senate did not constitute protected activ ity. According to th e Department, in his testimony before the state Senate, plainti ff was complaining that the Department’s lawyers were lying to the Supreme Court abou t its segregation policies, and complaints about lying do not constitu te protected activity. In the special verdict, the jury fou nd that plaintiff’s state Senate testimony constituted protected activity, an d substantial evidence supported that finding. Plaintiff’s trial testimony, when read in light of the substantial ev idence standard of review, supported a reasonable inference that he wa s not just concerned about the Department lying about its racial segrega tion policy, but also about the legality of that policy and the ramifications of his participation in the en forcement of that policy, as well as the participation of other correctional officers. Spec ifically, plaintiff testif ied at trial that the fact the Department was lying about the polic y concerned him and ot her officers because they were segregating inmates based on race “every day” and he “was the guy who [was]22 actually [racially segregating inmates], and [he] had a big concern about doing that because [the Department was] lying about it.” Plaintiff further testified that “[i]f [the Department’s lawyers] have to lie about wh at [correctional officers] do, maybe [the officers] shouldn’t be doing this.” Under FEHA, an employer’s policy requiring an employee to racially discriminate as a term or condition of employment is an unlawful employment practice. (See Moyo v. Gomez (9th Cir. 1994) 40 F.3d 982, 985 [if employee can show that he was discharged for refusing to carry out or otherwise pr otesting the defendant’s policy of racial discrimination against inmates, the employ ee states a claim based upon an unlawful employment practice].) Based on plaintiff’s trial testimo ny concerning hi s reasons for testifying before the state Senate, a reasonabl e juror could have concluded that his state Senate testimony was protected activity under FEHA because it could fairly be construed as a complaint about or protes t against being required, as a condition of employment, to engage in illegal activity. Therefore, subs tantial evidence supported the jury’s finding that plaintiff’s state Senate testim ony was protected activity under FEHA. The Department contends th at plaintiff’s belief that the Department’s segregation policy was illegal was not objec tively reasonable because in mates are not employees of the Department and, thus, its policy of se gregating them could not be an employment practice under FEHA. But, as explained above, plaintiff’s te stimony, although not perfectly clear, supported a reasonable in ference that the employment practice about which plaintiff was complaining was the De partment, as a term or condition of his employment, requiring him and ot her correctional officers to, in effect, segregate inmates based on race. Under FEHA, that is an unlawful employment practice. (Gov. Code, § 12940, subd. (i) [“It is an unlawful employme nt practice . . . [F]or any person to . . . compel . . . the doing of any of the acts forbidden under this part, or to attempt to do so”].) The Department further contends that pl aintiff did not make it aware that he was complaining about being required to partic ipate in unlawful discrimination. This contention is not supported by the record. Plaintiff’s tria l testimony on the issue—when23 read in a light most favorable to the ju ry’s finding, giving it the benefit of every reasonable inference and resolving all conflic ts in favor of the finding—supported a

reasonable inference that he testified before the Senate based on hi s concern about being required to segregate inmates by race, and the Department representatives who were present at the hearing were th erefore aware of his concern.

4. Retaliatory Intent The Department contends that there was in sufficient evidence to support the jury’s finding that the Department terminated plaintiff because it knew of his protected activities. According to the Department, the various empl oyees involved in the two terminations had little or no knowledge about plaintiff’s state Senate testimony or the comedy show. The Department further contends that the investigations leading up to the two terminations were initiated prior to plai ntiff’s protected activities and the evidence, “as a whole,” shows that the Department had a good faith belief that plaintiff had engaged in misconduct.

a. First Termination Substantial evidence suppor ted the jury’s conclusion that plaintiff’s protected activities were a motivating reason for the first termination. Plaintiff’s expert testified that internal affairs investigator Cortez had a conflict of interest and should have been

removed from the inves tigation based on the complaint by pl aintiff’s wife. Nevertheless, the Department allowed Cortez to conduct the investigation. That evidence supported a

reasonable inference of a reta liatory motive behind the inve stigation that led up to the first termination. That the Department would allow an investigator, who had the appearance of bias against plaintiff, to con tinue to investigate him suggested that the Department was intent on term inating plaintiff, even if hi s alleged misconduct did not

warrant such action.

That inference of bias at the outset of the first investigation was bolstered by the fact that although Cortez knew or should have known from his interview of in-service24 training officer Cardenas that plaintiff had not been trained in the medical policy, he was accused of violating, Cortez did not include th at mitigating information in his final report as required. A reasonable juror could prop erly infer from that omission a retaliatory motive, i.e., the investigation was unfairly biased against plaintiff and in favor of termination. Similarly, the evidence of comments made by Associ ate Warden Downs at the May 2005 management meeting concerning mana gement’s desire to “nail” plaintiff in the pending adverse employment actions against him, supported an inference that certain managers or supervisors in the Department were intent on termin ating plaintiff. And

there was evidence that one of Downs’s comments at that meeting alluded to a connection between the pending adverse empl oyment actions and plai ntiff’s “attacks” on

Warden Harrison. Knowles’s actions in making the final deci sion to terminate plaintiff the first time also supported a reasonable inference of reta liatory intent. First, Knowles knew about plaintiff’s complaints about the comedy sh ow, and there was circumstantial evidence from which the jury could have reasonably inferred that Knowles knew about plaintiff’s Senate testimony, including evidence that Know les regularly attended weekly meetings at

which the Johnson case and the Department’s raci al segregation of inmates was

discussed. 13 Moreover, Knowles admitted that when he decided to terminate plaintiff the first time based on the dishonesty allegation, Knowles was aware that the investigator’s report did not specify the evidence in support of that allegation as required. Nevertheless, he terminated plaintiff on the assumption that evidence supported that allegation. In addition, there was evidence that Knowles modified the notice of adverse action to include two additional allegations of dishonesty , neither of which had been the subject of the first investigation or the first Skelly h earing. This evidence supported a reasonable

13 As noted, Knowles denied being aware of plaintiff’s state Senate testimony, despite his attendance at the w eekly meetings during which the Johnson case and the racial segregation issue were discussed. But even assuming th at the jury believed Knowles’s denial, it was undisputed that he was aware of plaintiff’s activities in connection with the comedy show at the time he issued the notices of adverse action for both terminations.25 inference of bias or animus against defenda nt, i.e., Knowles—as the decisionmaker for

the first termination and with knowledge of plaintiff’s pr otected activities—deviated from standard disciplinary procedures to ensu re that plaintiff would be terminated.

b. Second Termination

There was also substantial evidence to suppor t the jury’s finding that plaintiff’s protected activities were a motivating factor in the Department’s second termination of defendant. Plaintiff’s expert testified that because the allegations underlying the second

termination were based on his off-duty union activities, they were not the proper subject of an internal affairs investigation. That ev idence, when comb ined with the evidence that internal affairs twice rejected the request to investigate on that basis, supported an

inference that from the start of the second in vestigation, the termination was improperly motivated. That inference was also supp orted by the failure of internal affairs investigator Pettit to interview the three witnesses that plaintiff claimed would substantiate his denial of Stanback’s allegati on that plaintiff said, “I’ll get you” during the telephone call about the Reno incident. Pettit also failed to obtain a co mplete copy of the minutes of the union meeting at which Stan back claimed plaintiff removed him from the board. Those complete minutes showed that, at the same meeting at which Stanback alleged he was removed from his union position, plain tiff reinstated him to that position. Pettit’s failures in this regard supporte d a reasonable inference that the second investigation was biased and unfair and, ther efore, designed to ensure that defendant

would be terminated a second time. In addition, as was the case with th e first termination, Knowles—as the

decisionmaker on the second termination and with knowledge of plaintiff’s protected

activities—added an alle gation of dishonesty to the notice of adverse action that had not been included in the investiga tion report. Again, the additi on of that allegation, when it had not been investigated by internal affairs, supporte d a reasonable inference that Knowles was attempting to ensure that plaintiff would be terminated a second time.26 Finally, that the Department pursued the second termination after defendant had already been terminated, strongly suggested that the Department wanted to ensure plaintiff’s termination. In light of the foregoing evidence c oncerning the second investigation and the Department ’s continued pursuit of the s econd termination even after the first termination, it was reasonable for the jury to conclude that the second termination was retaliatory. As to both terminations, the Department raises several fact-based arguments, each of which, in effect, urges us to reweig h and reevaluate the evidence and make independent credibility determinations. But, un der the applicable standard of review, we cannot retry the case on appeal. We theref ore reject the Department’s arguments concerning the evidence in support of the jury’s finding of retaliation, as those arguments are grounded on the faulty prem ise that an appellate court can second-guess the trier of fact on appeal and substitute its judgment for that of the trier of fact. As explained above,

under the substantial evidence standard of re view, we are limited to a determination of

whether there is any substantial evidence , contradicted or uncontradicted, that supports the verdict. As explained above, substan tial evidence supported the jury’s finding of

retaliation.

B. Instructional Error

1. Standard of Review The Department’s contention that the inst ructions on retaliation under FEHA were inadequate or erroneous is reviewed de novo and its c ontention that such erroneous instruction of the jury prej udiced its defense is review ed to determine whether the improper instructions misled the jury and af fected the outcome of the trial. “‘“‘The propriety of jury instructions is a que stion of law that we review de novo

. [Citation.]” ( Cristler v. Express Messenger Systems, Inc. (2009) 171 Cal.App.4th 72, 82 [89 Cal.Rptr.3d 34].) If an instruction is found to be erroneous, reversal is required only when “it appears probable that the improper in struction misled the ju ry and affected [its]27 verdict. [Citation.]” ( Lundquist v. Reusser (1994) 7 Cal.4th 1193, 1213 [31 Cal.Rptr.2d 776, 875 P.2d 1279].)’ ( SCC Acquisitions, Inc. v. Central Pacific Bank (2012) 207 Cal.App.4th 859, 863 [143 Cal. Rptr.3d 711].) In determinin g whether a jury was likely misled, the court must also eval uate ‘“(1) the state of the evid ence, (2) the effect of other instructions, (3) the effect of counsel’s ar guments, and (4) any indications by the jury itself that it was misled.” ([ Soule v. General Motors Corp. (1994) 8 Cal.4th 548,] 580- 581 [34 Cal.Rptr.2d 607 , 882 P.2d 298].)’ ( Heard v. Lockheed Missiles & Space Co. (1996) 44 Cal.App.4th 1735, 17 57 [52 Cal.Rptr.2d 620].)” ( Spriesterbach v. Holland (2013) 215 Cal.App.4th 255, 263.)

2. The Department’s Pro posed Jury Instructions The Department contends that the trial c ourt erred when it refu sed to instruct the jury with the Department’s proposed instruc tion nos. 7 (plaintiff must offer substantial

evidence that intentional retaliation based on plaintiff’s protected activities was “the motivating reason for the terminations”), 8 (employer can terminate if it honestly believed reasons and acted in good faith), 12 (definition of pretext ), and 13 (employer can terminate if not discriminatory). According to the Department, the requested instructions “followed the law” and would have provided the jury with the e ssential elements of plaintiff’s retaliation claim. Although the Department summarily conclu des that its four proposed instructions followed the law, it makes no effo rt on appeal to substantiate that conclusion. As to each proposed instruction, the Department fails to identify the case or statute that the instruction purportedly follows. Absent a reasoned discussion of the specific language of

each instruction and the case law or statute that supports it, the Department fails at the outset to carry its burden on appeal to demonstrate instructional error. (See Bullock v. Philip Morris USA, Inc. (2008) 159 Cal.App.4th 655, 685 [“An appellant must affirmatively demonstrate e rror through reasoned argument, citation to the appellate record, and discussion of legal authority. [Cit ations.] Accordingly, we cannot conclude that the refusal to give an instruction was error absent an adequate showing that the28 proposed instruction was proper. [Citation.] . . . By failing to discuss the entire instruction and failing to explai n why it was proper, [appellant] fails to carry its burden to demonstrate error”].) In any event, the proposed in structions were argumentative ( People v. Battle (2011) 198 Cal.App.4th 50, 85) and in some resp ects were not consistent with the law. For example, plaintiff’s propos ed special instruction no. 7 st ated that plaintiff had the burden of showing that defenda nt’s retaliation based on plai ntiff’s protected activity was “the motivating reason” for the terminations, i.e., plaintiff must prove causation under a

“but for” standard. That is a misstatement of the law. (See Harris v. City of Santa

Monica (2013) 56 Cal.4th 203, 219 ( Harris ) [rejecting a “but for” standard for causation and endorsing an “a substantial factor” st andard in a FEHA discrimination case].) Moreover, the instructions we re not necessary, as the instructions given adequately covered the necessary points. (See Bullock v. Philip Morris USA, Inc., supra, 159 Cal.App.4th at p. 685.) And the Depart ment does not specify why its proposed instructions were essential to clarify th e claimed deficiencies in CACI No. 2505.

3. CACI No. 2505 In a related argument, the Department main tains that the instruction on retaliation given by the trial court—CACI No. 2505—was improper and misled the jury because it did not specify that plaintiff had the burden of showing causation under “a substantial

factor” standard. 14 Plaintiff counters that, under the doctrine of invited error, the Department is prohibited from challenging CACI No. 2505 on appeal because the Department asked the trial court to give that instruction.

“‘Under the doctrine of “invited error” a party cannot successfully take advantage of error committed by the court at his request . . . . In the present case, therefore,

defendant cannot attack a verdict resulti ng from an erroneous instruction which it

14 In relevant part, CACI No . 2505 provided that plaintiff had the burden of proving, inter alia, that plaintiff’s FEHA protected activity was “a motivating reason” for his terminations.29 prompted. [Citations.]’ ( Jentick v. Pacific Gas & Elec. Co. (1941) 18 Ca l.2d 117, 121 [114 P.2d 343].) ‘Defendant may not avoid th e application of the doctrine by asserting that the error was not deliberately or willfully induced. The good fa ith of defendant is

immaterial. It is in cumbent upon counsel to propose in structions that do not mislead a jury into bringing in an improper verdict.’ ( Id. at p. 122.)” ( Perlin v. Fountain View Management, Inc. (2006) 163 Cal.Ap p.4th 657, 667.) The Department submitted to the trial c ourt a list of proposed instructions, and included in that list was CACI No. 2505, i.e., the Department requested that the trial court instruct the jury on retaliation with that instruction. Therefore, the Department cannot challenge the propriety of that instruction on appeal. In its reply brief, the Department argues that it is not barred by the doctrine of invited error from challenging CA CI No. 2505 on appeal beca use the inadequacy of that instruction was not judicially rec ognized until after trial. Citing to Joaquin v. City of Los Angeles (2012) 202 Cal.App.4th 1207 ( Joaquin ) and Harris, supra, 56 Cal.4th 203, the Department argues that it should be allowed to raise a new legal theory on appeal because

those cases constitute new authorities on the adequacy of CACI No . 2505 that were decided after the entry of judgment and coul d not have been reas onably anticipated. ( Boeken v. Philip Morris, Inc. (2005) 127 Cal.App. 4th 1640, 1681.) Although Joaquin, supra, 202 Cal.App.4th 1207, does criticize CACI No. 2505 for not specifying an “a substantial factor” standa rd for causation, that criticism is dicta.

The court in Joaquin prefaced its entire discussion of the adequacy of CACI No. 2505 with the following observation. “The [appella nt] has not raised the issue of instructional error [based on CACI No . 2505], and in light of our conc lusion that there is no substantial evidence of retaliatory intent, we need not decide whether the jury was correctly instructed [with that instruction].” ( Id . at p. 1229.) As for Harris, supra, 56 Cal.4th 203, which the Department raises fo r the first time in its reply, that case involved a racial discrimination claim under FEHA, not a retalia tion claim, and it dealt with a different instruction—CACI No. 2500. ( Harris, supra, 56 Cal.4th at p. 232.)30 Thus, contrary to the Department’s as sertion, there is no new case authority expressly holding that CACI No. 2505 inade quately defines the elements of a retaliation claim under FEHA. Therefore, it was incumbent on the Department to raise in the trial

court the defects in CACI No . 2505 that it now asserts fo r the first time on appeal. Because it did not object to or request modification of CACI No. 2505 at trial, and instead affirmatively relied upon that instruc tion, the Department cannot now challenge the adequacy of that instruction on appeal.

C. Damages

1. Standard of Review The Department’s contenti ons concerning the propriety of awarding backpay and overtime as elements of the damages award ca lculation involve questi ons of law that are reviewed de novo, but the Depa rtment’s challenge to the suffi ciency of the evidence in support of the noneconomic component of the damages calculation is reviewed for

substantial evidence. “Whether a plaintiff ‘is entitled to a particular measure of damages is a question of law subject to de novo revi ew. [Citations.] The amount of damages, on the other hand, is a fact question . . . [and] an award of damages will not be disturbed if it is supported by substantial evidence.’ ( Toscano v. Greene Music (2004) 124 Cal.App.4th 685, 691 [21 Cal.Rptr.3d 732] .) We make ‘“[a]ll presump tions favor the trial court’s ruling, which is entitled to great deference becau se the trial judge, having been present at trial, necessarily is more fa miliar with the evidence and is bound by the more demanding test of weighing conflicting evidence rather than our standard of review under the substantial evidence rule. . . . [W]e do not reassess the credib ility of witnesses or reweigh the evidence. To th e contrary, we consider the evidence in the light most favorable to the judgment, accepting ever y reasonable inference and resolving all conflicts in its favor.”’ ( Kelly v. CB&I Constructors, Inc . (2009) 179 Cal.App.4th 442, 452 [102 Cal.Rptr.3d 32], cita tions omitted.) ‘The evidence is insufficient to support a damage award only when no reasonable interpre tation of the record supports the figure.’31 ( Toscano v. Greene Music, supra , 124 Cal.App.4th at p. 691.)” ( Rony v. Costa (2012) 210 Cal.App.4th 746, 753-754.)

2. Backpay The Department argues that because th e state personnel board already awarded plaintiff backpay, plaintiff was collaterally esto pped from relitigating th at issue at trial. Plaintiff responds by pointing out that the Department did not raise the issue in the trial court, a failure that he contends forfeits 15 the issue on appeal. In its reply brief, the Department maintains that it preserved the issue by arguing the collateral estoppel issue in a pretrial motion. The issue of collateral estoppel is forfeited if it is not properly raised in the trial court. ( Rodgers v. Sargent Controls & Aerospace (2006) 136 Cal.App.4th 82, 89.) The Department’s assertion that it raised the co llateral estoppel issue in the trial court is unsupported by the record. Th e pretrial motion to which the Department refers can fairly be construed as raising two issues: the st ate personnel board had exclusive jurisdiction over the backpay issue ba sed on plaintiff’s election to proc eed in that forum; and plaintiff was improperly forum shopping by attemp ting to litigate the backpay issue in two

different fora. 16 The issue of collateral estoppel was not mentioned, much less explained,

in that motion.

15 Plaintiff uses the term waiver, but our Supreme Court has explained that, under these circumstances, the correct term is forfeit. “As the United Stat es Supreme Court has clarified, the correct term is ‘forfeiture’ ra ther than ‘waiver,’ because the fo rmer term refers to a failure to object or to invoke a right, whereas the latter term conveys an express relinquishment of a right or privilege. (See, e.g., United States v. Olano (1993) 507 U.S. 725, 733 [123 L.Ed.2d 508, 113 S.Ct. 1770]; In re S.B. (2004) 32 Cal.4th 1287, 1293, f n. 2 [13 Cal.Rptr.3d 786, 90 P.3d 746] ( S.B. ); People v. Simon (2001) 25 Cal.4th 1082, 1097, fn. 9 [108 Cal.Rptr.2d 385, 25 P.3d 598] ( Simon ).) As a practical matter, the tw o terms on occasion have been used interchangeably. ( Simon , at p. 1097, fn. 9; People v

. Saunders (1993) 5 Cal.4th 580, 590, fn. 6 [20 Cal.Rptr.2d 638, 853 P.2d 1093] ( Saunders ).)” ( In re Sheena K. (2007) 40 Cal.4th 875, 880, fn.1.).

16 The memorandum of points and author ities in support of the motion in issue summarized the grounds for the motion as follows: “[ The Department] files this32 Because the Department failed to raise th e collateral estoppel issue in the trial court, the issue has been forfeited. “The fo rfeiture rule generally ap plies in all civil and criminal proceedings. (9 Witk in, Cal. Procedure (5th ed. 2008) Appeal, § 400, pp. 458- 459; 6 Witkin & Epstein, Ca l. Criminal Law (3d ed. 2000) Reversible Error, § 37, pp. 497-500.) The rule is designe d to advance efficiency and deter gamesmanship. As we explained in People v. Simon , [ supra ], 25 Cal.4th 1082 . . . : ‘“‘“The purpose of the general doctrine of waiver [or forfeiture] is to encourage a defendant to bring errors to the attention of the trial court, so that they may be corrected or avoided and a fair trial had . . . .”’ [Citation.] ‘“No pr ocedural principle is more famili ar to this Court than that a

constitutional right,” or a right of any other sort, “m ay be forfeited in criminal as well as civil cases by the failure to make timely asse rtion of the right before a tribunal having jurisdiction to determine it.” . . .’ [Citation.] [¶] ‘The ra tionale for this rule was aptly explained in Sommer v. Martin (1921) 55 Cal.App. 603 at page 610 [204 P. 33] . . . : “‘In the hurry of the trial many things may be, an d are, overlooked which would readily have

been rectified had attention be en called to them. The law ca sts upon the party the duty of looking after his legal rights and of calling th e judge’s attention to any infringement of them. If any other rule were to obtain, the party would in most cases be careful to be silent as to his objections un til it would be too late to obvi ate them, and the result would be that few judgments would stand the test of an appeal.’”’ [Citation.]” (Fn. omitted; [citations].)’ ( Simon, supra , 25 Cal.4th at p. 1103, italics added.)” ( Keener v. Jeld-Wen,

Inc . (2009) 46 Cal.4th 247, 264-265.)

memorandum of points and authorities in suppor t of its argument that plaintiff elected the State Personnel Board (‘SPB’) as his exclusiv e forum in which to recover backpay and that he may not offer evidence of or request double recovery of backpay and benefits from the jury.” The two point headings in the memorandum provided: “I. [Plaintiff] Should Not Be Allowed To As k To Be Compensated Twice For The Same Loss” and “II. Allowing [plaintiff] to Argu e for Damages He Has Alrea dy Been Awarded Would Be a Waste of Scarce Judicial Resources.”33 3. Overtime The Department contends that because the state personnel board does not award overtime compensation, plaintiff was barred from seeking such damages in the trial court. According to the Department, plaintiff’s “clever forum shopping” should have not allowed him to obtain a recovery of overtim e damages in the trial court after he had already elected his state personnel board remedy. The Department cites no authority for its contention that because the state personnel board, as a matter of administ rative policy, does not award overtime compensation, the trial court had no power to grant such an award, and we find no support for it in law or logic. The trial c ourt had jurisdiction to determine plaintiff’s retaliation claim under FEHA, including the jurisdiction to enter a damage award according to proof at trial. Under Californi a law, once the jury determined that the Department was liable for retaliation under FE HA, plaintiff was entitled to establish the damages that reasonably flowed from the De partment’s statutor y violation. (See Cloud v. Casey (1999) 76 Cal.App.4th 895, 910 [“the trier of fact must determine the amount and extent of backpay . . . necessary to make [t he plaintiff] whole fo r the harm she suffered because of the corporations’ ge nder discrimination”].) Beca use the Department does not

contend that there was insu fficient evidence to support the award of overtime compensation, the jury properly included such compensation as a component of the economic damage award.

4. Noneconomic Damages The Department challenges the sufficien cy of the evidence in support of the noneconomic damage award on several grounds . As to the award for past noneconomic damages, the Department contends that phys ical distress and ps ychological damages were unsupported by evidence and that plai ntiff was not entitled to “litigation stress” damages. As to future pain and sufferi ng damages, the Department contends that plaintiff offered no evidence to support such an award.34 Each of the Department’s arguments concerning the noneconomic damage award is an attempt to reweigh or r eevaluate the evidence on appeal . Plaintiff’s expert provided testimony that supported a reasonable inferenc e that the stress from the terminations was a contributing cause of two serious medica l conditions—diabetes and hypertension—and an aggravating factor as to two preexi sting medical conditions—sleep apnea and a digestive tract disorder. As for psychological damage, plaintiff’s wife testified th at he became a “different person” after the terminations, particularly aro und his children. She also testified that he was stressed by the terminations and, as a result, overate, developed high blood pressure, and was not sleeping at night, testimony from which the jury could have reasonable inferred that plaintiff suffered psychological distress that manifested itself in those physical symptoms. As for litigation stress damages, plain tiff contends, and we agree, that the Department forfeited this issue by failing to raise it in the trial court. ( Keener v. WeldJen, Inc., supra, 46 Cal.4th at p. 264-265.) Once pl aintiff and his wife testified about stress arising from the litigati on without objection, the Depa rtment was required to raise

the issue with the trial court by, for example, asking the tria l court to admonish the jury or by requesting a jury instru ction that allowed the jury to differentiate between stress caused by the terminations and stress caused by the litigation. The Department’s failure to do so deprived plaintiff of the opportunity to argue the i ssue in the trial court, and it prevented the trial court from providing guidance to the ju ry on the issue. As to future pain and suffering, plainti ff testified that he was concerned about his reputation and, specifically, concerned that his firing had been the topic of a current events assignment in hi s daughter’s class. He also test ified that he was concerned about

the effect the terminations would have on his career and c oncerned that he may not be able to promote in the future. That te stimony constituted substantial evidence and supported a reasonable inference that plai ntiff would experience future pain and suffering.35 DISPOSITION

The judgment in favor of plaintiff is affirmed. Plaintiff is awarded costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

MOSK, J.

We concur:

TURNER, P. J.

KUMAR, J. 

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