214 Cal. App. 3d at 608, 262 Cal. Rptr. at 852. The factors that may be considered in evaluating these circumstances are: "1) the nature of the unwelcome sexual acts or works (generally, physical touching is more offensive than unwelcome verbal abuse); 2) the frequency of the offensive encounters; 3) the total number of days over which all of the offensive conduct occurs; and 4) the context in which the sexually harassing conduct occurred." Id.
To be actionable, the harassment cannot be "occasional, isolated, sporadic, or trivial." Id. Rather, the plaintiff must show a concerted pattern of harassment of a "repeated, routine or generalized nature." Id. However, harassment need not be directed specifically at the plaintiff in order for her to prevail on a claim for a hostile working environment: one who is not personally subjected to offensive remarks or touchings of a sexual nature may still recover if she establishes "that she personally witnessed the harassing conduct and that it [took place] in her immediate work environment." Id. at 611, 262 Cal. Rptr. at 853.
Here, Pereira alleges in her declaration that she was subjected to foul, offensive and sexually explicit language on a daily basis for over ten months. Pereira Dec. at 3, 5-8, 11-13. Pereira's declaration is supported by her notes and the tape transcript of conversations between her co-workers in which such language is used repeatedly. Pereira Dec., Ex. 12, 13. On this tape, Pereira's co-workers engage in bizarre sexual conversations and sing lewd songs in Vietnamese. For example, at one point, one of the co-worker's says, "Mother Fucker, when it's fully aroused it looks like a boa . . . a boa head . . . the boa head rises fearfully . . . she will cry of pleasure." Tanh Tran Dec. at 2. At another point, the same person says, "Fuck a man today, fuck another tomorrow. In the beginning, talk sweet, after the fucking, then things will be OK?" Tanh Tran Dec. at 2.
Pereira also claims that on several occasions comments of a sexual nature were directed specifically at her, including remarks by her co-workers about wanting to have sex with a prostitute who looks like Pereira, and a request by one of these men that Pereira "go to bed" with him. Pereira Dec. at 5-6. Pereira further asserts that when she complained about her co-workers' harassment, she was subjected to death threats and other more subtle forms of retaliation. Pereira Dec. at 7, 9.
In response, Schlage argues that Pereira was at most subjected to isolated incidents of "locker room" talk which was not directed specifically at her. To support this assertion, Schlage submits two identical boilerplate declarations from Pereira's co-workers in which they deny that they ever directed offensive language at Pereira or made death threats towards her. See Ban Ngyuen Dec. at 2; Dung Khac Tran Dec. at 2. Notably, neither co-worker denies using repeated foul and offensive language.
After reviewing the supporting and opposing evidence, the Court finds that issues of material fact remain as to whether sexual harassment was directed at Pereira and whether it was sufficiently severe or pervasive to constitute a hostile working environment. If a jury were to believe Pereira's version of the facts, it could reasonably find that she was subjected to sufficiently severe and pervasive harassment to alter the conditions of her employment. Therefore, the Court cannot rule as a matter of law that Pereira's co-worker's conduct did not create a hostile working environment.
2. Remedial Measures
Under California law, the employer is "strictly liable for the harassing conduct of its agents and supervisors," Fisher, 214 Cal. App. 3d at 608 n.6, 262 Cal. Rptr. at 851 n.6 (citing DFEH v. Bee Hive Answering Serv., FEHC No. 84-16 at 18 (1984)), and is liable for co-worker harassment where it, or its agents or supervisors, "knows or should have known of this conduct and fails to take immediate and appropriate corrective action." Id. (citing DFEH v. Madera County, FEHC No. 88-11 at 22 (1988)).
Once apprised of harassing conduct, an employer's remedy should be "immediate and appropriate," 29 C.F.R. § 1604.11(d), and "reasonably calculated to end the harassment." Ellison, 924 F.2d at 881-82. Obviously, not all harassment warrants dismissal of the harasser. Id. (citing Barrett v. Omaha Nat. Bank, 726 F.2d 424, 427 (8th Cir. 1984). Rather, the remedy should be "assessed proportionately to the seriousness of the offense." Id. (citing Dornhecker v. Malibu Grand Prix Corp., 828 F.2d 307, 309 (5th Cir. 1987). In essence, the reasonableness of a remedy depends on its effectiveness in ending the harassment. 924 F.2d at 882.
Here, there is no dispute that Schlage knew of the alleged harassment of Pereira through Pereira's own repeated complaints. Schlage does, however, claim that after each of Pereira's complaints it investigated and counseled and/or warned the employees alleged to have harassed Pereira. According to Schlage, Pereira's accusations were simply never substantiated by any other evidence uncovered in their investigations.
In response, Pereira claims that her complaints were repeatedly ignored and/or dismissed. For example, according to Pereira, Bob Stanley said he could do nothing about her co-workers' language unless it was spoken in English. Pereira Dec. at 4. Furthermore, during one conversation, Kathy Jaramillo allegedly told Pereira that her accusations were "crazy". Pereira Dec. at 10. It is also undisputed that Schlage never attempted to institute formal disciplinary action against any of Pereira's alleged harassers or to transfer them to a different department where they would not come into contact with Pereira.
Therefore, issues of genuine fact remain as to whether Schlage's investigations, counseling, and warnings were sufficient remedial actions to excuse Schlage from liability.
Although the language of Title VII and Cal. Gov't Code § 12940 differs slightly, their "antidiscriminatory objectives and the overriding public policy purposes are identical and [courts] refer to . . . federal decisions where appropriate." County of Alameda v. Fair Employment & Housing Commission, 153 Cal. App. 3d 499, 504, 200 Cal. Rptr. 381 (1984). The same issues of fact that remain on Pereira's federal claim for retaliation are applicable to her state law claim as well. Therefore summary judgment is not appropriate on this claim either.
Based on the foregoing, Schlage's motion for summary judgment is GRANTED on Pereira's Title VII claim for hostile working environment, and DENIED on her Title VII claim for retaliation and her state law claims for both hostile working environment and retaliation. Pereira's cross-motion for summary judgment is DENIED.
Schlage has also made a motion to continue the trial date. Accordingly, the trial date is vacated and new dates will be set by the Court.
IT IS SO ORDERED.
United States District Judge
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