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Mwaniki v. eBay9/23/2005
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
Plaintiff Peninah Mwaniki sued defendant eBay, Inc., for employment discrimination under the California Fair Employment and Housing Act (FEHA). (Gov. Code, ยง 12900 et seq.) She alleged that defendant had discharged her in retaliation for giving a statement that supported another employee's claim of racial discrimination. Defendant countered that it had discharged plaintiff for misconduct. A jury returned a special verdict finding that retaliation was a motivating reason for defendant's decision but not a substantial factor in causing harm to plaintiff. The verdict form instructed the jury to sign and return the form if it negatively answered the substantial-factor question. The jury did so, and the trial court rendered judgment for defendant. On appeal, plaintiff contends that (1) the special verdict was inconsistent, (2) the trial court gave the jury an erroneous instruction on mixed motive, and (3) the trial court abused its discretion by prohibiting plaintiff from calling defendant's in-house counsel as a witness. We affirm the judgment.
Background
Defendant operates an online marketplace that lists on its website more than 12 million items for sale on any given day. It has a quality assurance department that monitors the website to make sure that software bugs do not interfere with access to the site. In March 2000, it hired plaintiff to work in that department. In December, it promoted her to manager of the department's automation group. The automation group is responsible for designing and running computer programs known as "scripts" that test various portions of the website. In general, a script simulates a human user accessing the site and is "automated" in the sense that the person running the computer program can test the website without typing in data or manually clicking buttons on the webpage.
In June 2001, plaintiff recommended that defendant hire a Black woman who was then working in the department as a contractor. When no action occurred, she told the human resources director that she suspected that her supervisor, Robin Hedges, did not want to hire the contractor because the contractor was Black. Plaintiff had heard Hedges make a remark about the contractor's application to the effect that it came from "another black face." Defendant discharged Hedges in August, and the contractor filed a federal administrative claim with the Equal Employment Opportunity Commission. In October, defendant referred the claim for investigation to its in-house counsel, Laurie Chambers.
In November and December 2001, plaintiff reported to her new supervisor, Scott Murray, that the automation group was running scripts on a variety of Netscape web browsers. But, while plaintiff was on vacation, Murray learned about website problems experienced by customers using Netscape. He then learned from several employees in the group that the group only tested the Internet Explorer web browser. After returning from vacation, plaintiff admitted giving inaccurate information to Murray. She confessed that the group did not test Netscape because she had made a mistake in a coding standard that had been used by consultants in designing a script program to improve the group's efficiency. Defendant discharged plaintiff in February 2002.
Plaintiff filed this action in July 2002. She alleged a single cause of action asserting
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