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Elizabeth Mcclure v. Department of Corrections and Rehabilitation

May 18, 2011

ELIZABETH MCCLURE, PLAINTIFF AND RESPONDENT,
v.
DEPARTMENT OF CORRECTIONS AND REHABILITATION, DEFENDANT AND APPELLANT.



(Super. Ct. No. 38737)

The opinion of the court was delivered by: Butz, J.

McClure v. Dept. of Corrections

CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

In this sexual harassment action, defendant California's Department of Corrections and Rehabilitation (the Department) (formerly California Department of Corrections) has found itself on the wrong side of a jury verdict in favor of plaintiff Elizabeth McClure.

In seeking reversal on appeal, the Department primarily contends (1) that the trial court erred in finding, as a matter of law, that McClure--who was assigned to work at the Department through a temporary service agency--was a special employee of the Department, and therefore able to sue the Department for sexual harassment under the California Fair Employment and Housing Act (the FEHA). (Gov. Code, § 12900 et seq.) The Department additionally contends (2) that the evidence is insufficient to support the jury's findings that the Department knew or should have known of the harassment, and failed to take immediate and appropriate corrective action; and (3) that the trial court erred in admitting some testimony from McClure.*fn1

We shall affirm the judgment against the Department and the order awarding attorney fees and costs to McClure.*fn2

For purposes of appeal, the Department concedes that its employee, Michael Pompey, M.D., sexually harassed McClure. This harassment encompassed both verbal and physical conduct.

Because of the way in which the issues on appeal present and resolve themselves, we will proceed straight to them, weaving in the facts as we go.

DISCUSSION

I. McClure's Status as a Department Employee

The FEHA establishes a comprehensive scheme for addressing employment discrimination and harassment, including sexual harassment. (Bradley v. Department of Corrections & Rehabilitation (2008) 158 Cal.App.4th 1612, 1623 (Bradley).) Because the FEHA, as relevant here, makes it unlawful for an "employer" to "'harass an employee'" on a sexual basis, one must be an "employee" to sue under that statute. (Bradley, at p. 1623; Gov. Code, § 12940, subd. (j)(1).)

The Department's primary contention on appeal is that McClure was not a Department "employee" and therefore could not sue the Department for sexual harassment under the FEHA. In this regard, the Department claims the trial court got it wrong twice: one, when it ruled, at the outset of opening statements at trial, that McClure was a special employee of the Department for FEHA purposes as a matter of law; and, two, after it had found, previously, based on undisputed facts presented during the Department's motion for summary judgment, that McClure was such an employee.*fn3 We think the trial court got it right.

The FEHA does not precisely define "employee." (Bradley, supra, 158 Cal.App.4th at p. 1625.) However, two regulations developed by the administrative agency charged with interpreting the FEHA, the Fair Employment and Housing Commission, do define the term for our purposes. (Ibid.; see Gov. Code, § 12935, subd. (a).)

The first regulation defines "employee" as "[a]ny individual under the direction and control of an employer under any appointment or contract of hire or apprenticeship, express or implied, oral or written." (Cal. Code Regs., tit. 2, § 7286.5, subd. (b) (hereafter, section 7286.5(b)), italics added.)

The second regulation adds that "[a]n individual compensated by a temporary service agency for work to be performed for an employer contracting with the temporary service agency may be considered an employee of that employer for such terms, conditions and privileges of employment under the control of that employer. Such an individual is an employee of the temporary service agency with regard to such terms, conditions and privileges of employment under the control of the temporary service agency." (§ 7286.5(b)(5), italics added.)

The language of these regulations reflects that the employment relationship for FEHA purposes must be tied directly to the amount of control exercised over the employee. (Bradley, supra, 158 Cal.App.4th at pp. 1625-1626.)

The language of the second regulation also reflects the concept of dual employment. "The possibility of dual employment is well recognized in the case law. 'Where an employer sends an employee to do work for another person, and both have the right to exercise certain powers of control over the employee, that employee may be held to have two employers--his original or "general" employer and a second, the "special" employer.' [Citation.] . . . '[A]n employee may at the same time be under a general and a special employer . . . .'" (Kowalski v. Shell Oil Co. (1979) 23 Cal.3d 168, 174 (Kowalski) [a workers' compensation case]; see Martinez v. Combs (2010) 49 Cal.4th 35, 50-51, fn. 16 [citing Bradley, supra, 158 Cal.App.4th at pp. 1625-1629, for the proposition that the concept of dual employment applies to the FEHA].)

As noted, the trial court found as a matter of law--in ruling on the Department's motion for summary judgment and in effect reiterating that ruling at the outset of trial--that McClure was a special employee of the Department and therefore could sue the Department under the ...


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