In Mokler v. County of Orange, a California Court of Appeal held there was sufficient evidence to support a plaintiff's retaliatory dismissal claim, but rejected her sexual harassment claim as not being sufficiently severe or pervasive to alter the conditions of her employment. The county claimed the plaintiff was terminated for failing to follow bid procedures, thereby favoring some vendors over others. However, the plaintiff alleged there was a gender based hostile work environment in violation of the Fair Employment Housing Act, relying upon three occasions where she was harassed by a board member. Utilizing the "totality of the circumstances test," the court noted (1) the harasser was not the plaintiff's supervisor; (2) one instance involved only "an isolated, boorish comment" regarding the plaintiff's marital status and another did not occur at work; and (3) the last instance involved a brief touching that did not "constitute an extreme act of harassment." These events occurred over a five week period, and, although the behavior taken as a whole was "rude, inappropriate, and offensive," the acts were insufficient to establish a pattern of continuous, pervasive harassment as required under FEHA.

As to the whistleblower claim, the plaintiff had independently contacted a government official at the state department and complained that a proposed reorganization was not in compliance with state department requirements. Her employer argued that she was terminated after an internal investigation showed she breached county procurement procedures by improperly favoring a particular vendor. The court held that a jury could reasonably infer that the proffered reasons were pretextual because the county failed to mention to the employee prior to her termination that she had done anything irregular and it suddenly changed her performance evaluation after her complaint to the state official.

This case shows how retaliation claims can survive an underlying harassment claim and it serves as an important reminder that poor performance by an employee should be well documented and timely communicated to the employee to minimize claims of "pretext."