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Kenneth Jack Harrison v. City of Brea et al

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE


December 6, 2010

KENNETH JACK HARRISON, PLAINTIFF AND APPELLANT,
v.
CITY OF BREA ET AL., DEFENDANTS AND RESPONDENTS.

Appeal from a judgment of the Superior Court of Orange County, Randell L. Wilkinson, Judge. Affirmed. (Super. Ct. No. 30-2008-00110478)

The opinion of the court was delivered by: O'leary, J.

Harrison v. City of Brea

CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

OPINION

Kenneth Jack Harrison's wrongful discharge action against the City of Brea (the City), and several individual employees of the City, was dismissed after several rounds of demurrers and amended pleadings. On appeal, Harrison contends he adequately pleaded causes of action against the City for wrongful discharge in violation of the California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12940, subd. (h)),*fn1 and against the individual defendants for workplace harassment and failing to take reasonable steps to prevent workplace harassment. (§ 12940, subds. (j)(1) & (k).) We reject his contentions and affirm the judgment.

FACTS & PROCEDURE

Harrison's First Amended Complaint

Harrison is a firefighter for the City of Brea. His original complaint, which is not in the record, was filed on August 12, 2008. While demurrers were pending, Harrison filed his first amended complaint on January 13, 2009.

The first amended complaint named as defendants the City and 17 individual City employees including the city manager, Harrison's fire department supervisors (the fire chief, the division chief, battalion chiefs, fire captains, and fire marshals) and several co-worker firefighters. He alleged a litany of complaints about perceived mistreatment by supervisors and co-workers over the years.

Harrison alleged his problems began in July 2003, when he requested a shift transfer because of "harassment incidents" involving a female supervisor. He sent complaints to a captain, a battalion chief, and the fire chief about the female supervisor. Their investigation, conducted by an outside attorney, concluded Harrison was at fault.

Several months later, in November 2003, after Harrison tried to get another firefighter to take his morning shift, a captain "spun the whole issue into a problem," and upset the battalion chief, who thereafter discouraged employees from covering shifts for Harrison. Harrison was given new policy requirements requiring the battalion chief's approval of "last minute shift trades" something not required of other employees. The battalion chief then sent a copy of the e-mail concerning the new policy to the fire chief, just a few days before Harrison's promotion interview.

In November or December 2003, Harrison left work while on duty to assist his wife who was at home sick and needed help with their children. Before he was permitted to return to work, Harrison's supervisors required him to bring a doctor's note confirming that his wife's illness required him to attend to her at home.

Through that winter, Harrison continued to attempt to get the battalion chief to "retract" the shift trade policy, but he would not. Although the union president told Harrison "management has discretion in this matter, and can act accordingly[,]" Harrison continued to communicate with his supervisors to "clarify his intent, views and compliance with the new policy," but still they would not change the policy.

In March 2005, Harrison requested shift trades but was told "he could not staff out of rank." Harrison told the battalion chief he had child care issues requiring shift trades, but he was ignored even though "other employees did the same thing as Harrison."

In May 2005, Harrison was passed over for promotion, when others with less tenure received promotions. When he asked superiors about the status of his promotion, he was not given "updates." Finally, in December 2005, Harrison was promoted, but the fire chief embarrassed him at the promotion ceremony by failing to follow the department custom of mentioning accomplishments of the person receiving the promotion.

In January 2006, Harrison was required to attend a specialized training session that other "veterans" were not required to attend. In February 2006, Harrison "questioned" a captain for attempting to make patient care decisions because the captain was not a paramedic. Another captain accused Harrison of creating dissention among the firefighters and creating a hostile work environment.

In late June 2006, Harrison found "unsecured fireworks" in the station and lit them as a prank to startle a co-worker. Even though Harrison believed a captain condoned the prank, the battalion chief officially disciplined Harrison. In August 2007, the fire chief picked someone else to represent the department at a 9/11 ceremony even though Harrison "was at ground zero that day." From September 2006 through December 2006, Harrison raised complaints about the chain of command for handling a specific drug vial containing morphine, but no action was taken on his concerns, and he was harassed for having raised them.

In April 2007, Harrison was denied a retroactive pay raise, and when he asked why his raise was only two and one-half percent instead of the standard five percent, the fire chief said the raise was appropriate for someone with a record like Harrison's. Harrison then got in a heated argument with a captain over the pay raise matter. The battalion chief approved the captain's request to have Harrison transferred to another station for a "cooling off" period. In June 2007, Harrison was put on a special six month evaluation and told he needed to "show less resistance and follow management rules."

In May 2007, while in the cab of a fire engine and in the presence of a captain, another firefighter made a crude comment about women's genitalia and asked Harrison for his opinion. "Harrison replied with religious comments that enraged [the captain, who then] gave him a direct order not to talk religion ever again." But two months later the fire chief discussed the incident with Harrison. The fire chief said the captain had given him a different report about the incident, which included that the captain told Harrison, "[he] could talk about Jesus anytime."

Harrison alleged that in August 2007, and again in November 2007, he found pornographic magazines in a station restroom, and once a captain had pornography on a station computer. The fire department's softball team "is officially named the 'Ball Bags' and has a scrotum for its logo." Supervisors allowed alcohol use in the dugout during softball games, and when the Sheriff's Department team complained to a battalion chief "about the drunkenness," the administration took no action. Harrison was in a group of about 20 people at a meeting at which the battalion chief asked the fire chief's secretary, "'have you ever had sex on the beach?'"

In September 2007, a captain told Harrison he should not allow his wife to regularly come to the station for lunch without first asking permission because "it might interfere with business at the station." In October 2007, Harrison was reprimanded by another captain for giving his children and mother-in-law a ride in a fire engine and he was required to sign paper work stating he could "give [his] wife a ride only, not [his] kids."

Harrison alleged that "on or about November 8, 2007, [he] notified the [fire chief] that he filed a complaint filed with the [Equal Employment Opportunity Commission (EEOC)]. Harrison was informed that he was put on sick leave until [the] EEOC claim was received."

Harrison's first amended complaint contained five causes of action. The first cause of action against the City only was for constructive wrongful discharge in violation of section 12940, subdivision (h), based on retaliation for having complained about the July 2003 sexual harassment by his female supervisor. The second cause of action against the City only was for constructive wrongful discharge based on failure to prevent harassment due to Harrison's religious creed and beliefs in violation of Government Code section 12940, subdivision (k). The third cause of action against the City only was for constructive wrongful discharge in violation of section 12940, subdivision (h), based on Harrison's complaints beginning in September 2006 about the department's handling of the drug vial. The fourth cause of action was against the individual defendants who were Harrison's supervisors (including captains, battalion chiefs, and the fire chief) for failure to prevent harassment in violation of section 12940, subdivision (k). The fifth cause of action was against his co-worker firefighters for harassment in violation of section 12940, subdivision (j).

The City and the individual defendants filed demurrers to the first amended complaint. The City contended the wrongful discharge causes of action against it failed because there was no allegation Harrison's employment with the City had been terminated, he had failed to exhaust his administrative remedies because complaints filed with the Department of Fair Employment and Housing (DFEH) and the EEOC did not allege he had been constructively or wrongfully discharged, and the facts alleged were insufficient to support the causes of action. The individual defendants contended the first amended complaint failed to state sufficient facts as to the supervisor defendants because they can only be liable for their own acts of harassment, not for failing to prevent; and as to the co-workers, the only specific allegation was as to one firefighter's crude comment, which was insufficient to support a cause of action for harassment.

The City and individual defendants requested the court to take judicial notice of the records of Harrison's filings with both the EEOC and the Department of Fair Employment and Housing, which the court granted. The documents included an EEOC charge of discrimination (EEOC Charge No. 480-2008-00793) signed by Harrison on December 20, 2007, alleging that from May 29, 2007, to October 2, 2007, he was discriminated against and harassed "due to filing reports of violation of law and based upon my religion and religious beliefs[,]" and an EEOC right to sue letter on that charge. The documents also included 17 form discrimination complaints (DFEH Complaint Nos. E-200708-K-0890-00c through 16c) filed by Harrison with the DFEH on December 24, 2007, and right to sue letters dated December 26, 2007. On each of those 17 claim forms Harrison checked the boxes indicating the adverse employment action was harassment, occurring from May 18, 2007, to November 12, 2007, due to his religion and in handwriting stated Harrison believed the reason for harassment was "retaliation for reporting violations of law, my religion and my religious beliefs." Finally, included in the request for judicial notice was an 18th form discrimination complaint filed with the DFEH on December 31, 2007 (DFEH Complaint No. E-200708-K-0890-17c), against the City manager, and the right to sue letter. As with the other DFEH claims, Harrison checked the boxes indicating the adverse employment action was harassment, occurring from May 18, 2007, to November 12, 2007, due to his religion. In handwriting Harrison stated his belief as to the reasons for harassment was "[the City manager] has created a hostile work environment, conspired to discriminate against me, discriminated against me, harassed me, retaliated against me, failed to prevent harassment against me, failed to prevent retaliation against me due to me filing report of violations of law and based upon my religion and religious beliefs." The trial court sustained the demurrers granting Harrison leave to amend his complaint.

Second Amended Complaint & Demurrer

Harrison filed a second amended complaint. He omitted most of the individual defendants, identifying only the fire chief, one battalion chief, and three fire captains as defendants. The second amended complaint repeated many of the factual allegations contained in the first amended complaint, but Harrison now stated only two causes of action, both against the City only. He did not allege causes of action against any individual defendants.

The first cause of action was for constructive wrongful discharge in violation of section 12940, subdivision (h), based on retaliation. Harrison alleged he was "involuntarily placed on leave of absence for an indefinite period of time" after informing the fire chief he had filed a complaint with the EEOC for hostile work environment created against Harrison because of his religious beliefs and whistle blowing about mishandling controlled substances. The second cause of action alleged Harrison had been discriminated against in violation of second 12940, subdivision (a), because of his religious beliefs by being denied retroactive pay, having derogatory statements put in his personnel file, being ordered to not talk about his religious beliefs, being treated differently by supervisors, and being denied standard pay increases. He sought damages and also sought "retroactive seniority and expungement of all negative and other adverse materials in his personnel file."

The City filed a motion to strike allegations in the second amended complaint that contradicted allegations in his prior complaints. It filed a demurrer largely on the same grounds as the prior demurrer--Harrison had failed to exhaust his administrative remedies, had not alleged his employment with the City had been terminated, and failed to state a cause of action for constructive wrongful discharge or religious discrimination.

The trial court sustained the demurrer with leave to amend as to the first cause of action for constructive wrongful discharge "to allow [Harrison], if he is able, to allege that his employment was terminated either by resignation or actual discharge." The demurrer was sustained without leave to amend as to the second cause of action for religious discrimination.

Third Amended Complaint & Demurrer

Harrison's third amended complaint named only the City as a defendant. He alleged that since 2003, the City and his supervisors allowed and encouraged harassment of Harrison "due to his religious beliefs as a Christian" and in retaliation for "whistle blowing about mishandling of controlled substances." He repeated most of the factual allegations contained in the first and second amended complaints. Harrison again alleged that on or about November 8, 2007, he notified the fire chief he had filed an EEOC complaint and was then informed "[he] was involuntary put on sick leave until [the] EEOC claim was received." Harrison added that his "sick leave pay ran out in January, 2008. Since that time, Harrison has not been paid and is not able to return to work." The third amended complaint alleged a single cause of action titled "wrongful discharge based on retaliation in violation of . . . [section] 12940[, subdivision] (h)." Harrison alleged he was "involuntarily placed on leave of absence for an indefinite period of time" due to the sole fact he informed the fire chief he had filed a complaint with the EEOC for hostile work environment created against Harrison because of his religious beliefs and whistle blowing about mishandling controlled substances. He again sought damages and "expungement of all negative and other adverse materials in his personnel file."

The City again demurred, for the same reasons as in its prior demurrers. The City referred to the documents filed in its earlier request for judicial notice and requested the court to take judicial notice of Harrison's files from the Worker's Compensation Appeals Board (WCAB). Although Harrison's complaints continually alleged that on November 8, 2007, he was placed on involuntary sick leave after notifying the fire chief he had filed an EEOC complaint, the WCAB records demonstrated November 8, 2007, was the date Harrison signed documents appealing denial of a worker's compensation claim.

Harrison did not file opposition to the demurrer. The court sustained the demurrer without leave to amend concluding Harrison failed to exhaust his administrative remedies and failed to set forth facts sufficient to constitute a cause of action. The court dismissed Harrison's action.

DISCUSSION

1. Standard of Review/Appellant's Burden

"Our standard of review of an order of dismissal following the sustaining of a demurrer is well established. We treat the demurrer as admitting all material facts properly pleaded and matters subject to judicial notice, but not deductions, contentions, or conclusions of law or fact. [Citation.] We also consider matters that may be judicially noticed. [Citation.] We give the complaint a reasonable interpretation, reading the complaint as a whole and its parts in context. [Citation.]" (Stonehouse Homes LLC v. City of Sierra Madre (2008) 167 Cal.App.4th 531, 538-539 (Stonehouse Homes).)

We review the order sustaining the demurrer de novo, affirming if it was correct on any theory. (Stonehouse Homes, supra, 167 Cal.App.4th at p. 539.) Nonetheless, because a judgment is presumed to be correct, it is the appellant's burden to demonstrate the trial court's error. (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.) "'This burden requires more than a mere assertion that the judgment is wrong. "Issues do not have a life of their own: If they are not raised or supported by argument or citation to authority, [they are] . . . waived." [Citation.] It is not our place to construct theories or arguments to undermine the judgment and defeat the presumption of correctness. When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived. [Citation.]' [Citation.]" (Dietz v. Meisenheimer & Herron (2009) 177 Cal.App.4th 771, 799.)

2. Wrongful Discharge Cause of Action Against the City

Harrison contends the trial court erred by sustaining the demurrer as to his wrongful discharge cause of action against the City. We reject his contention.

As the City points out, among the reasons the trial court sustained the demurrer was Harrison's failure to exhaust his administrative remedies. In his opening brief, Harrison makes no mention whatsoever of this ground for the trial court's ruling, thus arguably waiving any contention it was incorrect. In his reply brief,*fn2 Harrison asserts the trial court's ruling was incorrect, although his contention is not supported by legal analysis. It is improper to raise new contentions in the reply brief, and generally such contentions are forfeited. (Taylor v. Roseville Toyota, Inc. (2006) 138 Cal.App.4th 994, 1001, fn. 2.) But even were the argument not waived, it fails on its merits. The exhaustion ruling was a legally correct theory on which the court properly sustained the demurrer.*fn3

Harrison's third amended complaint alleged only a single wrongful discharge cause of action against the City under section 12940, subdivision (h), which makes it an unlawful employment practice for an employer to "discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part."

A plaintiff may pursue a cause of action asserting employment practices in violation of FEHA only if the plaintiff has first exhausted the act's administrative remedies. (Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal.App.4th 1718, 1724 (Martin)), which include filing an administrative complaint with the DFEH (§ 12960) and obtaining the DFEH's notice of right to sue (§ 12965, subd. (b)). (Martin, supra, 29 Cal.App.4th at p. 1724; see also Ruiz v. Department of Corrections (2000) 77 Cal.App.4th 891, 897.)

"To exhaust his or her administrative remedies as to a particular act made unlawful by the [FEHA], the claimant must specify that act in the administrative complaint, even if the complaint does specify other cognizable wrongful acts. [Citation.] . . . [I]n the context of the [FEHA] . . . '[t]he failure to exhaust an administrative remedy is a jurisdictional, not a procedural, defect' . . . ." (Martin, supra, 29 Cal.App.4th at p. 1724 (Martin), italics added; see also Okoli v. Lockheed Technical Operations Co. (1995) 36 Cal.App.4th 1607, 1613 (Okoli).)

Harrison's third amended complaint alleged the City wrongfully discharged him on November 8, 2007, when he notified the fire chief he had filed an EEOC complaint and was informed "he was put on involuntary sick leave until [the] EEOC claim was received." But Harrison's EEOC complaint was not filed until December 20, many weeks after he claims he was wrongfully discharged. Harrison's form DFEH complaints, filed December 24, contained boxes he could have checked off indicating any number of adverse employment actions, including those amounting to a discharge (e.g., fired, laid off, demoted, and forced to quit were all available options), but Harrison did not indicate any of those actions occurred. Harrison only alleged he had been harassed and in handwriting stated he believed the reason for harassment was "retaliation for reporting violations of law, my religion and my religious beliefs."

Harrison's DFEH claims did not embody the conduct that forms the gravamen of his third amended complaint--that he was wrongfully discharged for having filed an EEOC complaint. "Thus, so far as the record shows[,] the DFEH never received the opportunity, with respect to [this] additional theor[y] . . . to pursue the 'vital policy interests embodied in [the FEHA], i.e., the resolution of disputes and elimination of unlawful employment practices by conciliation. [Citations.]' [Citation.]" (Martin, supra, 29 Cal.App.4th at p. 1728; Okoli, supra, 36 Cal.App.4th at p. 1617.) Because he failed to exhaust his administrative remedies, Harrison's FEHA wrongful discharge cause of action was properly dismissed.

On appeal, Harrison for the first time cites to Colores v. Board of Trustees (2003) 105 Cal.App.4th 1293, asserting, in effect, he adequately alleged a common law tort cause of action against the City for constructive discharge in violation of public policy. Even were we to consider this new theory for the first time on appeal (Alfaro v. Community Housing Improvement System & Planning Assn., Inc. (2009) 171 Cal.App.4th 1356, 1396 [appellant challenging sustaining of demurrer may change legal theory on appeal]), we are bound to reject it. Five years after the Colores decision, our Supreme Court held in Miklosy v. Regents of University of California (2008) 44 Cal.4th 876, at pages 898 to 900, that because section 815 abolishes common law liability for public entities, a cause of action for common law constructive discharge in violation of public policy does not lie against a public entity. (See also Lloyd v. County of Los Angeles (2009) 172 Cal.App.4th 320, 329 [public entities are immune to Tameny suits].)

3. Harassment Causes of Action Against Individual Defendants

Harrison contends he adequately pled causes of action in his first amended complaint against the individual defendants for harassment. We reject his contentions.

Harrison's first amended complaint contained a cause of action (fifth cause of action) against four of his co-worker firefighters alleging harassment against him because of his religious creed and beliefs in violation of section 12940, subdivision (j)(1). It also contained a cause of action (fourth cause of action) against 12 individual defendants who were Harrison's supervisors (including captains, battalion chiefs, and the fire chief) for failure to prevent the harassment in violation of section 12940, subdivision (k). The trial court sustained the individual defendants' demurrer to the fourth and fifth causes of action with leave to amend because the complaint failed to allege sufficient facts to support the causes of action.

Harrison's second amended complaint did not amend as to the harassment causes of action against the individual defendants. It identified five individuals (three captains, one battalion chief, and the fire chief) as defendants in its preliminary allegations, but the complaint's two causes of action for discrimination and wrongful discharge named only the City as defendant. Harrison's third amended complaint omitted all reference to the individuals as defendants, and named only the City as defendant in its one wrongful discharge cause of action.

On appeal, the City contends by amending his complaint and omitting the individual defendants, Harrison effectively dismissed them, and he cannot now seek review of the order sustaining the demurrer as to those defendants (or causes of action). We disagree.

The City relies on Fireman's Fund Ins. Co. v. Sparks Construction, Inc. (2004) 114 Cal.App.4th 1135, 1142 (Fireman's Fund), for the proposition "that an amended complaint that omits defendants named in the original complaint operates as a dismissal as to them. [Citations.]" (See also Lee v. Bank of America (1994) 27 Cal.App.4th 197, 215 [amended complaint supersedes prior complaints].) But that reliance is misplaced. Fireman's Fund involved a first amended complaint filed as matter of right (Code Civ. Proc., § 472). In the context of a demurrer, "When a demurrer to a cause of action is sustained with leave to amend, the plaintiff may elect not to amend the cause of action. The order sustaining the demurrer is treated as an intermediate order with respect to that cause of action, appealable at the time of a final judgment, and the plaintiff is deemed to have elected to stand on the validity of the cause of action as originally pleaded. [Citations.] 'The rule that a choice to amend waives any error can reasonably be applied only on a cause-of-action-by-cause-of-action basis. If a plaintiff chooses not to amend one cause of action but files an amended complaint containing the remaining causes of action or amended versions of the remaining causes of action, no waiver occurs and the plaintiff may challenge the intermediate ruling on the demurrer on an appeal from a subsequent judgment. It is only where the plaintiff amends the cause of action to which the demurrer was sustained that any error is waived.' [Citation.]" (National Union Fire Ins. Co. of Pittsburgh, PA v. Cambridge Integrated Services Group, Inc. (2009) 171 Cal.App.4th 35, 44.)

In short, although the trial court granted Harrison leave to amend his harassment causes of action as to the individual defendants, by not amending he effectively chose to stand on his original pleading. He was not required to "continue to re-allege the 'dead' cause[s] of action in future amended complaints in order to preserve the right of appeal regarding its validity. . . . [S]uch pointless reallegation is unnecessary to avoid waiver." (National Union Fire Ins. Co. of Pittsburgh, Pa, supra, 171 Cal.App.4th at p. 45.) But while Harrison has not waived review of the court's order sustaining the demurrer to his harassment causes of action against the individual defendants, his contentions nonetheless fail.

Section 12940, subdivision (j)(1), of the FEHA provides it is unlawful for "an employer . . . or any other person, because of . . . religious creed . . . to harass an employee . . . ." Both the employer and the individual employees who engage in harassment may be held liable. (§ 12940, subd. (j)(3).)

In addition to prohibiting harassment, the FEHA also demands employers take all reasonable steps to prevent harassment from occurring in the workplace. This obligation is articulated in section 12940, subdivision (j)(1), in the second to last sentence which provides, "An entity shall take all reasonable steps to prevent harassment from occurring." The employer's duty is also articulated in section 12940, subdivision (k), which similarly provides it is an unlawful employment practice "[f]or an employer [and other employment related entities], to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring."

Harrison's first amended complaint's fourth cause of action was against the fire department's supervisory employees alleging they failed to take reasonable steps to prevent harassment under section 12940, subdivision (k). Such a cause of action fails as a matter of law. The duty to take reasonable steps to prevent workplace harassment imposed by section 12940, subdivisions (j), (i) and (k), applies only to the employer. (Fiol v. Doellstedt (1996) 50 Cal.App.4th 1318, 1326 ["a supervisory employee owes no duty to his or her subordinates to prevent sexual harassment in the workplace. That is a duty owed only by the employer"].) Accordingly, nonharassing supervisors who fail to take action to prevent harassment are not personally liable for harassment under FEHA. (Id. at p. 1322.)

We turn then to whether Harrison's first amended complaint stated a cause of action for harassment of Harrison because of his religious creed and beliefs. It did not. Harrison concedes in his opening brief that "the religious aspect was a relatively minor part of the [first amended complaint]," but he asserts he adequately pled he was "continually harassed because of his religion." But in reviewing a ruling on demurrer, while we treat the demurrer as admitting all material facts properly pleaded, we do not give any such deference to the pleading's deductions, contentions, or conclusions of law or fact. (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126.)

Harrison's conclusory allegation he was harassed due to his Christian religious beliefs is only based upon the very limited facts. The only specific incident alleged in his complaint in anyway related to religion was one occurring in late May 2007. While Harrison was with other firefighters in the cab of a fire engine, a firefighter "was crudely commenting on women's genitalia with [a captain] and asked Harrison's opinion during this conversation. Harrison replied with religious comments that enraged [the captain, who then] gave him a direct order not to talk religion ever again." In July 2007, the fire chief "pull[ed] Harrison aside and [told] him that he received a rebuttal concerning the incident in the cab with [the captain]. [The fire chief] stated that the conversation told to him was contrary to what Harrison reported (about the religious talk) [the captain] stated Harrison could talk about Jesus anytime." In his reply brief, Harrison adds as an additional fact an assertion his fire department co-workers and supervisors knew he was a Christian because many of them were also Christians who attended church services and prayer meetings with Harrison.

In the sexual harassment context, the Supreme Court has stated "to prevail, an employee claiming harassment based upon a hostile work environment must demonstrate that the conduct complained of was severe enough or sufficiently pervasive to alter the conditions of employment and create a work environment that qualifies as hostile or abusive to employees because of their sex. [Citations.] The working environment must be evaluated in light of the totality of the circumstances: '[W]hether an environment is "hostile" or "abusive" can be determined only by looking at all the circumstances. These may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.' [Citation.] [¶] . . . [T]he evidence in a hostile environment sexual harassment case should not be viewed too narrowly: '[T]he objective severity of harassment should be judged from the perspective of a reasonable person in the plaintiff's position, considering "all the circumstances." [Citation.]. . . . [T]hat inquiry requires careful consideration of the social context in which particular behavior occurs and is experienced by its target. . . . The real social impact of workplace behavior often depends on a constellation of surrounding circumstances, expectations, and relationships which are not fully captured by a simple recitation of the words used or the physical acts performed. Common sense, and an appropriate sensibility to social context, will enable courts and juries to distinguish between simple teasing or roughhousing . . . and conduct which a reasonable person in the plaintiff's position would find severely hostile or abusive.' [Citations.]" (Miller v. Department of Corrections (2005) 36 Cal.4th 446, 462 (Miller); see Etter v. Veriflo Corp. (1998) 67 Cal.App.4th 457, 467 [to establish actionable racial harassment the "acts must be more than occasional, isolated, sporadic (i.e., pervasive), or trivial (i.e., severe)"].)

Harrison has not alleged conduct "severe enough or sufficiently pervasive to alter the conditions of employment and create a work environment that qualifies as hostile or abusive to employees because of their [Christian religion]." (Miller, supra, 36 Cal.4th at p. 467.) He has alleged nothing more than an isolated incident at work in which he referred to his religious beliefs and was told by a captain to not discuss religion at work. He alleged no other specific incidents in which his religion was in anyway concerned. The captain's comment was nothing more than a "stray" remark, which is not sufficient to support his harassment cause of action. (See Gibbs v. Consolidated Services (2003) 111 Cal.App.4th 794, 801 [supervisor's single comment plaintiff might be getting to old to drive truck not sufficient to show discrimination].)

In his reply brief, Harrison discusses facts relating to what he terms sexual harassment by his co-workers--namely crude talk by his fellow firefighters about their sexual exploits, displays of pornographic materials in the stationhouse, and prevalent use of vulgarities by co-workers. Although Harrison suggests these allegations supported his sexual harassment claim, his complaints did not contain a sexual harassment cause of action, rather he claimed harassment based on his religious beliefs. Similarly, his EEOC and DFEH complaints made no mention of sexual harassment, rather they claimed harassment and retaliation due to his religious beliefs. Although he calls the conduct "sexual harassment," the gravamen of Harrison's allegations are the conduct constituted religious harassment, i.e., his co-workers' and supervisors' crude conduct was anathema to Harrison's religious beliefs and thus constituted harassment because of his religious beliefs. But again, the only specific incident alleged relating to Harrison's religious beliefs was the single incident in the fire truck, combined with a general knowledge that Harrison was Christian and did not approve of raunchy stationhouse behavior. That is not sufficient to state a cause of action for religious harassment.

DISPOSITION

The judgment is affirmed. Respondents are awarded their costs on appeal.

WE CONCUR: BEDSWORTH, ACTING P. J. MOORE, J.


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