Harassment in the Workplace

Just a very quick note on Dickson v. Burke Williams, Inc. (3/6/15) — Cal.App.4th —, in which the Court of Appeal held as follows:

[T]here cannot be a valid claim for failure to take reasonable steps necessary to prevent sexual harassment if, as here, the jury finds that the sexual harassment that occurred was not sufficiently severe or pervasive as to result in liability. A claim for failure to take reasonable steps necessary to prevent sexual harassment cannot prevail when the necessary element of sexual harassment is not established. Similarly, the jury’s finding that defendant was not liable on plaintiff’s sex discrimination claim because there was no adverse employment action precludes defendant’s liability for failure to take reasonable steps necessary to prevent sex discrimination.

The opinion is available here.

In Hirst v. City of Oceanside (5/8/15) — Cal.App.4th —, the plaintiff, Kimberli Hirst, worked as a phlebotomist for American Forensic Nurses, Inc. (AFN). AFN contracted with San Diego County to provide phlebotomy services for local law enforcement agencies, including the Oceanside Police Department (OPD).

Hirst sued the City of Oceanside under FEHA, alleging that an OPD officer sexually harassed her while she was providing phlebotomy services to OPD under AFN’s contract with the County. Hirst prevailed at trial, and the City moved for judgment notwithstanding the verdict, arguing that Hirst lacked standing to bring a FEHA claim against the City. The trial court denied the motion, and the City appealed. The Court of Appeal affirmed, holding that Hirst had standing to sue as a “person providing services pursuant to a contract.” The Court reasoned as follows:

At the relevant time, Government Code section 12940(j) provided that an employer may be held liable for its employee’s harassment of an “employee, an applicant, or a person providing services pursuant to a contract.” [In 2014, the Legislature broadened this provision to encompass interns and volunteers as well.] Section 12940(j)(5) defines “a person providing services pursuant to a contract” as one who (1) “has the right to control the performance of the contract for services and discretion as to the manner of performance”; (2) “is customarily engaged in an independently established business”; and (3) “has control over the time and place the work is performed, supplies the tools and instruments used in the work, and performs work that requires a particular skill not ordinarily used in the course of the employer’s work.”

Hirst met all three of these requirements. First, she exercised professional judgment in implementing the blood drawing services. Although law enforcement officers secured the environment in which she worked, they did not exercise authority over her in any other manner. Second, she was engaged in the profession of a phlebotomist, which was not a usual part of the City’s public duties. Third, she brought her own equipment to provide these services and did not use the City’s property or rely on its expertise.

Interestingly, Hirst apparently did not argue at trial that she was a “person providing services pursuant to a contract.” Instead, she argued that AFN was such a person, and that she was protected as AFN’s employee. The City did not deny that AFN was such a person, but argued that FEHA protection did not extend to AFN’s employees. The Court rejected this argument, holding that the Legislature could not have intended to cover a business entity such as AFN, but not the people through whom such an entity provides contractual services.

The opinion is available here.

In Patterson v. Domino’s Pizza, — Cal.4th — (8/28/14), an employee, Patterson, alleged that her supervisor subjected her to sexual harassment. She sued her direct employer, a franchisee of Domino’s Pizza, as well as Domino’s itself, the franchisor. Patterson alleged that Domino’s was liable because it was her joint employer and because the franchisee was its agent. The trial court granted summary judgment for Domino’s, the Court of Appeal reversed, and the California Supreme Court reversed the judgment of the Court of Appeal, holding as follows:

Potential liability of a franchisor depends upon whether it has “retained or assumed a general right of control over factors such as hiring, direction, supervision, discipline, discharge, and relevant day-to-day aspects of the workplace behavior of the franchisee‘s employees.” Slip op. at 30-31.

Although Domino’s “vigorously enforced” standards for general operations, it “lacked the general control of an ’employer’ or ‘principal’ over relevant day-to-day aspects of the employment and workplace behavior” of the franchisee’s employees. Slip op. at 33.

According to the testimonial evidence, [the franchisee] exercised sole control over selecting the individuals who worked in his store. He did not include Domino’s in the application, interview, or hiring process. Nor did anyone attempt to intervene on Domino’s behalf. It was [the franchisee’s] decision to hire Patterson as a new employee and to otherwise retain the existing staff when he bought the franchise.

Slip op. at 35-36. The franchisee also controlled its own sexual harassment policies and training. Slip op. at 36. Evidence that Domino’s told the franchisee to “get rid of” the alleged harasser did not raise an inference that Domino’s was in charge of employment decisions. Slip op. at 38.

The opinion is available here.

In Kim v. Konad USA Distribution, Inc. (June 12, 2014) — Cal.App.4th —, the plaintiff prevailed in a bench trial on claims of quid pro quo sexual harassment, hostile work environment harassment, and wrongful termination. After trial, the defendants objected to the court’s statement of decision, arguing that the court lacked subject matter jurisdiction because the plaintiff had failed to prove that she exhausted her remedies under FEHA and that the defendant had at least fie employees at the time of the alleged acts. The trial court entered judgment, and the defendants appealed.

The Court of Appeal affirmed, holding as follows:

Exhaustion of administrative remedies does not affect the fundamental subject matter jurisdiction of the trial court. Further, the defendants forfeited any right to a judgment of dismissal on the FEHA causes of action by failing to request dismissal of the FEHA causes of action before submitting the matter for decision. Slip op. at 12-13.

Although FEHA applies only to employers with five or more employees, a sexual harassment plaintiff need not prove that the defendant had five or more employees in order to prevail on a claim for wrongful termination in violation of public policy. Slip op. at 14-17.

A quick word on Volpei v. County of Ventura (11/7/13) — Cal.App.4th —.

Mark Volpei worked as an investigator for the Ventura County District Attorney’s office (County). Volpei was a member of the Ventura County Deputy Sheriffs’ Association (Association), which had a memorandum of agreement (MOA) with the County.

In 2011, Volpei sued the County for retaliation, harassment, disability discrimination, and other claims under the Fair Employment and Housing Act (FEHA). In 2012, the County petitioned to compel arbitration under the MOA, which provided that a grievance, including a claim of disability discrimination, “may be submitted to arbitration by the Association….”

In State of Arizona v. ASARCO LLC (9th Cir. 10/24/13), the Ninth Circuit considered whether a $300,000 punitive damage award in a Title VII sexual harassment suit violated constitutional limits where the jury awarded no compensatory damages and only one dollar in nominal damages.

In Davis v. Kiewit Pacific Co. (9/18/13, pub. 10/8/13) — Cal.App.4th —, the trial court entered a judgment for plaintiff Lisa Davis after a jury found defendant Kiewit Pacific Co. liable for gender discrimination, hostile work environment harassment, retaliation, and failure to prevent harassment, gender discrimination, or retaliation. However, before trial, the trial court granted Kiewit’s motion for summary adjudication on Davis’s claim for punitive damages, concluding there were no triable issues of material fact whether a managing agent of Kiewit had engaged in or ratified any oppressive, malicious and/or fraudulent conduct against her. The Court of Appeal reversed, finding triable issues of material fact on managing agent status.

In Vance v. Ball State University ___ U. S. ___ (6/24/13) the Supreme Court considered who qualifies as a “supervisor” for purposes of establishing vicarious liability in a Title VII discrimination and harassment action. Here is the case in a nutshell, taken from the majority opinion written by Justice Alito (joined by Chief Justice Roberts and Justices Scalia, Kennedy, and Thomas):

In this case, we decide a question left open in Burlington Industries, Inc. v. Ellerth, 524 U. S. 742 (1998), and Faragher v. Boca Raton, 524 U. S. 775 (1998), namely, who qualifies as a “supervisor” in a case in which an employee asserts a Title VII claim for workplace harassment?

Under Title VII, an employer’s liability for such harassment may depend on the status of the harasser. If the harassing employee is the victim’s co-worker, the employer is liable only if it was negligent in controlling working conditions. In cases in which the harasser is a “supervisor,” however, different rules apply. If the supervisor’s harassment culminates in a tangible employment action, the employer is strictly liable. But if no tangible employment action is taken, the employer may escape liability by establishing, as an affirmative defense, that (1) the employer exercised reasonable care to prevent and correct any harassing behavior and (2) that the plaintiff unreasonably failed to take advantage of the preventive or corrective opportunities that the employer provided. Id., at 807; Ellerth, supra, at 765. Under this framework, therefore, it matters whether a harasser is a “supervisor” or simply a co-worker.

We hold that an employee is a “supervisor” for purposes of vicarious liability under Title VII if he or she is empowered by the employer to take tangible employment actions against the victim….

Slip op. at 1-2.

What does it mean to be “empowered by the employer to take tangible employment actions against the victim”?  Funny you should ask.

Citing Ellerth, the Court held that one is so empowered when one may effect a “significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” Slip op. at 9. The Court rejected the position adopted by the EEOC and several lower courts that a supervisor is one with the ability to “exercise significant direction over another’s daily work.” Ibid.

Writing in dissent, Justice Ginsburg (joined by Justices Breyer, Sotomayor, and Kagan) argued that the Court should follow the approach adopted by the EEOC after Ellerth and Faragher that a supervisor is either: (1) an individual authorized “to undertake or recommend tangible employment decisions affecting the employee,” including “hiring, firing, promoting, demoting, and reassigning the employee”; or (2) an individual authorized “to direct the employee’s daily work activities.”

The opinion is available here.

McCoy v. Pacific Maritime Association (5/14/13) — Cal.App.4th —, addresses a number of issues that we see frequently in harassment and retaliation actions, as well as a number of more esoteric issues.

Pacific Maritime Association (PMA) serves as a bargaining agent for its membership, which includes stevedore companies, steamship lines, and port terminal operators. Yusen is a port terminal operator and a member of PMA.

Catherine McCoy worked as a marine clerk for Yusen. In 1998, she and others filed a federal lawsuit against Yusen and PMA based on allegations of unlawful discrimination. The lawsuit led to a confidential settlement that provided McCoy with training to become a vessel planner.

McCoy then filed a second action, alleging that the defendants deprived her of training materials and opportunities, harassed and shunned her in retaliation for her having brought the initial action. She also alleged that her supervisors made racially and sexually inappropriate comments, creating a hostile work environment.  She brought claims for sexual harassment and retaliation in violation of FEHA, negligent supervision, hiring, and retention, and intentional infliction of emotional distress.

The trial court granted summary adjudication for defendants of all claims other than retaliation. The jury returned a retaliation verdict for McCoy against Yusen and PMA, but the trial court granted defense motions for JNOV and new trial. The Court of Appeal held:

The trial court did not err in granting summary adjudication on McCoy’s sexual harassment claim. Comments by coworkers about other women’s bodies on five to nine occasions over a four month period were insufficient to support a sexual harassment claim on a hostile workplace theory. “Although crude and offensive, these remarks were not so severe and pervasive as to alter the conditions of appellant’s employment; the conduct did not create a work environment ‘permeated’ with sexual harassment.” Slip op. at 7-9.

The same evidence, together with evidence that McCoy faced isolation and ostracism, was not sufficient to support a claim for intentional infliction of emotional distress, and the trial court did not err in adjudicating that claim in favor of defendants. Slip op. at 9-10.

Regarding the trial of McCoy’s retaliation claim, the trial court did not err in excluding evidence that one of McCoy’s trainers “referred to other women’s buttocks in racial terms and mocked the vernacular of other African-American employees.” These “stray comments” were made by a nonparty, nonsupervisory employee, and had little probative value as to the retaliation claim.  Slip op. at 10-11.

However, the trial court did err in excluding evidence that other employees who had filed the earlier litigation also faced retaliation.  The trial court should have conducted a hearing to learn the details of the evidence and to determine the similarity to the conduct alleged by McCoy.  Slip op. at 11-13.

The trial court erred in entering judgment for the defendants notwithstanding the verdict. McCoy presented substantial evidence from which the jury could conclude that she suffered retaliation: management exposed details of the prior litigation’s confidential settlement to McCoy’s supervisor and coworkers; these workers, upon whom McCoy relied for training, subjected McCoy to harassment and ignored her requests for assistance; McCoy’s supervisor failed to intervene despite witnessing this abuse and being told of its impact on McCoy; and McCoy suffered “major depressive disorder and generalized anxiety” as a result.  Slip op. at 15-17.

McCoy did not need to bring a claim for constructive discharge in order to prevail on her retaliation claim.  Slip op. at 17.

Plaintiff’s counsel repeatedly violated the trial court’s rulings on motions in limine, and the trial court’s order granting a new trial based on irregularity in the proceedings was not a “manifest and unmistakable abuse of discretion.” Slip op. at 19-22.

The record reveals appellant was specifically directed not to discuss certain evidence, but then immediately proceeded to cite that evidence in closing argument to the jury in flagrant disobedience of the court’s orders. Appellant’s closing argument implied, many times, that race and gender played a role in respondents’ conduct toward appellant. In addition, appellant’s attorney began the rebuttal argument by flashing a photo of a decapitated man to the jury, suggesting that the image captured what respondents wanted to do to appellant.

Slip op. at 19-22.

Just a quick note on this case, Aber v. Comstock (12/18/12, pub. 1/11/13) — Cal.App.4th —. Plaintiff Lisa Aber sued her employer and two of its employees based on an alleged sexual assault by the employees. One of the employee defendants, Michael Comstock, cross-complained against Aber, alleging claims for defamation and intentional infliction of emotional distress. Aber filed a special motion to strike the under the anti-SLAPP statute (Code Civ. Proc., § 425.16). The trial court granted the motion and dismissed the cross-complaint, and the Court of Appeal affirmed, holding:

In Lawler v. Montblanc North America, LLC, ___ F.3d ___ (9th Cir. 1/11/13) , the plaintiff filed suit against her employer and its president and CEO for disability discrimination, retaliation, and harassment under the FEHA, as well as common law intentional infliction of emotional distress.  The district court granted summary judgment for the defendants, and the Ninth Circuit affirmed, holding:

In Ventura v. ABM Industries Incorporated (12/20/12) — Cal.App.4th — the plaintiff, a janitor, alleged that she was sexually harassed and intimidated by her supervisor. She sued for negligent supervision and hiring, and violation of the Ralph Act, Civil Code section 51.7, which guarantees “the right to be free from any violence, or intimidation by threat of violence, committed against their persons or property because of …” specified characteristics, including their sex. [I was going to say “gender,” but the statute says “sex.”]

On November 26, 2012, the Supreme Court of the United States heard oral argument in Vance v. Ball State University (Case No. 11-556). The question in Vance is whether, “as the Second, Fourth, and Ninth Circuits have held, the Faragher and Ellerth ‘supervisor’ liability rule (i) applies to harassment by those whom the employer vests with authority to direct and oversee their victim’s daily work, or, as the First, Seventh, and Eighth Circuits have held (ii) is limited to those harassers who have the power to ‘hire, fire, demote, promote, transfer, or discipline’ their victim.”

The transcript is here. SCOTUSblog reported on oral argument here. SCOTUSblog concludes that the Court may DIG the case (deny certiorari as improvidently granted) because the plaintiff could not show under either test that the alleged harasser was her supervisor.

Joaquin v. City of Los Angeles (1/23/12) — Cal.App.4th —-, 2012 WL 171723, concerns a difficult area of discrimination, harassment, and retaliation law: Balancing the rights of employees who have suffered harassment, discrimination, or other unlawful conduct, against the rights of those who are subjected to false allegations of such conduct, and the rights of employers who may have to decide who’s telling the truth.

Richard Joaquin was a police officer who complained of sexual harassment by a superior officer, Sands. The Department investigated and found Joaquin’s complaint unfounded. After a seven day hearing, a Board of Rights found Joaquin guilty of retaliating against Sands by filing a false complaint of harassment. The Board recommended Joaquin be terminated, and the Department accepted the recommendation.

Joaquin filed a petition for writ of mandate. The Superior Court concluded that the Board of Rights’ findings were not supported by the weight of the evidence, granted the petition, and ordered Joaquin reinstated. Interestingly, the court found:

The uncontradicted evidence is that some or all of the events reported by Joaquin actually occurred. Joaquin provided a detailed and consistent account of conduct which made him feel uncomfortable or offended. In the face of these allegations, Sands did not completely deny the shooting range [fn. omitted] or weight room incidents, or calling the front desk. He had a different explanation for the field impound location and Olympics incidents, but again did not deny that they occurred. He was contradicted on the basketball game incident, for he contended he was a member of the team long before Joaquin when Joaquin started the team and had always been one of the two coaches.

Slip op. at 5.