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Elizabeth Mcclure v. Department of Corrections and Rehabilitation

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Lassen)


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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FEHA. We turn to the undisputed facts of McClure's employment status.

Preferred Staffing (Staffing) is a temporary service agency that provides temporary medical staff, including certified nursing assistants, to medical providers; 95 percent of Staffing's business is with the California prison system.

Pursuant to a contract between Staffing and the Department and a request from the Department for certified nursing assistants, Staffing assigned McClure, such an assistant, to work in one of the Department's medical facilities, the California Correctional Center (CCC) in Susanville. McClure worked at CCC from June 14, 2002, until September 9, 2002.

Staffing recruited and hired McClure. Both Staffing's co-owner, Jennifer Snoddy, and Staffing's employment forms explained to McClure that she was Staffing's employee, and not the employee of Staffing's clients. Staffing required McClure to submit time sheets to it so it could pay her. Staffing withheld taxes from McClure's paychecks, carried McClure on its payroll for all purposes, and issued a W-2 form to her.

McClure was instructed to contact only Staffing for her work assignments at CCC.

McClure received orientation at CCC (from CCC personnel) regarding the facility, the clinic and the infirmary, and what she would be doing. McClure was supervised by CCC staff, and was subordinate to CCC nurses and physicians, whose orders she had to follow.

Staffing performed annual employee evaluations based upon information obtained from clients such as the Department.

As noted, for purposes of this appeal, during her work at CCC, McClure was sexually harassed by a physician with whom she worked, Michael Pompey, M.D.

On September 9, 2002, CCC Supervising Nurse David Falkowski asked Snoddy not to assign McClure to CCC anymore because of attendance problems. On September 13, 2002, Snoddy informed McClure that she (Snoddy) would no longer be assigning McClure shifts at CCC. On September 12, McClure had secured a full-time position with a different medical provider.

As for the fact of whether Staffing or the Department was responsible for handling McClure's complaint of sexual harassment, Snoddy, in a declaration in support of the Department's motion for summary judgment, stated essentially that Staffing was. However, in her deposition that preceded this declaration, Snoddy testified that it was the Department's responsibility to make sure that Staffing's employees were not harassed for any reason, sexually or otherwise; and if the Department believed there was a problem along these lines, it was the Department's responsibility to rectify it and notify Snoddy. To the extent that Snoddy's subsequent declaration in support of the summary judgment motion conflicts with her previous deposition testimony on this issue, we must go with the deposition testimony as the definitive word. (See D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 21-22; Jacobs v. Fire Ins. Exchange (1995) 36 Cal.App.4th 1258, 1270.) Indeed, it was the Department, not Staffing, which undertook to investigate and remedy McClure's sexual harassment complaint against Dr. Pompey.

These undisputed facts of employee status are similar to those in Bradley. The Bradley court concluded that, based on the undisputed facts there, plaintiff Bradley was a special employee of the Department for FEHA purposes as a matter of law. (Bradley, supra, 158 Cal.App.4th at p. 1629.)

Bradley was sexually harassed by a prison chaplain while working as a licensed clinical social worker at one of the Department's prison-based substance abuse treatment facilities. (Bradley, supra, 158 Cal.App.4th at pp. 1618-1620.) The Bradley court summarized Bradley's employee status as follows: "[Bradley] worked at the facility as a contract worker pursuant to a contract negotiated between [the Department] and the National Medical Registry (registry). The registry, in turn, contracted with Bradley to work at and provide services to the facility. [The Department] uses contract workers on a regular basis when needed to supplement regular staff. Bradley filled out a timesheet, recording the hours she worked, which was then certified by her supervisors and forwarded to the registry. The registry billed [the Department] for the number of hours worked and issued a check to Bradley to compensate her for the hours she worked at the facility. [¶] At the facility, Bradley worked under Chief Psychiatrist Dr. Brim and took direction from Brim or Chief Psychologist Dr. Anthony." (Id. at p. 1618.)

The Bradley court stated, in using the dual-employer FEHA regulation of section 7286.5(b)(5) in determining Bradley's employee status for FEHA purposes, "The key is that liability is predicated on the allegations of harassment . . . involving the terms, conditions, or privileges of employment under the control of the employer . . . . There are no allegations in the complaint nor is there any evidence to suggest that liability might rest on terms, conditions, or privileges of employment under the control of the registry. To the contrary, all of the allegations relate to matters under [the Department's] control. [¶] . . . There are no allegations involving any harassment originating from or relating to the relationship Bradley had with the registry." (Bradley, supra, 158 Cal.App.4th at p. 1629.)

Similarly, here, all of McClure's sexual harassment allegations and evidence relate to matters under the Department's control. There are no allegations involving any harassment originating from or relating to the relationship that McClure had with Staffing. Similar to Bradley, then, the trial court here properly found that, based on these undisputed facts, McClure was a special employee of the Department for FEHA purposes as a matter of law.

The Department raises four points against this conclusion.

First and foremost, the Department maintains that the trial court ruled, as a matter of law, that McClure was a special employee of the Department without considering any facts, whether disputed or undisputed, to determine this issue. The Department argues that the trial court, in ruling on McClure's employee status at the outset of opening statements, erroneously read Bradley as holding that a temporary service agency employee is always a special employee of the agency's client as a matter of law. The Department notes that the issue of whether an individual is an employee is generally a question of fact unless the facts are undisputed--then the question is one of law; but, the Department stresses, the issue of employee status is always determined based on facts, whether disputed or undisputed. (Kowalski, supra, 23 Cal.3d at p. 175; Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 608-609, fn. 6.) The Department further notes that Bradley's conclusion of special employee status, unlike the trial court's similar conclusion here, was in line with these principles--in Bradley, the temporary service agency employee was found, "based on undisputed facts," to be a special employee of the Department as a matter of law. (Bradley, supra, 158 Cal.App.4th at p. 1629, italics added.)

There are two holes in the Department's argument. The first one is that the trial court here had already found, prior to trial, based on its reading of Bradley in light of the undisputed facts presented during the Department's motion for summary judgment (those undisputed facts are set forth above), that McClure was a special employee of the Department for FEHA purposes as a matter of law. The second one is that the trial court, just before reiterating its finding at the outset of opening statements that McClure was such an employee, had summarized the salient undisputed facts to counsel as follows: "[T]he prison needed some medical type personnel, including a . . . certified nurse's assistant, . . . and it went to . . . [Staffing]." "Staffing recruited and hired . . . McClure, who then went to the prison and worked under the supervision of prison personnel. [¶] [McClure] was subsequently terminated by the prison [staff] notifying [Staffing]" that "they no longer wanted [McClure]."

Second, the Department argues that McClure was not a department employee as a matter of law because she was not appointed pursuant to the state civil service process and could not acquire employee status with a public entity pursuant to contract. The Bradley court rejected an almost identical contention, reasoning that nothing in the FEHA regulation defining "employee" (§ 7286.5(b)) mandates that the employment contract be direct or that persons working for the state are only employees for FEHA purposes if hired pursuant to the state merit or civil service process. (Bradley, supra, 158 Cal.App.4th at pp. 1625.) Furthermore, Bradley added, if the Department's position were adopted, "there would be a large number of people working daily in our state prison system [through an employee service agency] (and presumably in other state agencies) without protection under the FEHA. This is inconsistent with the legislative intent to expand FEHA protection to the largest number of individuals possible . . . . It is also contrary to statutory language stating the FEHA applies to the state as an employer." (Bradley, at p. 1627; see also Vernon v. State of California (2004) 116 Cal.App.4th 114, 123 [because FEHA is a remedial statute prohibiting employment discrimination, it is to be construed liberally as to its jurisdictional scope].) The Department's reliance on Mendoza v. Town of Ross (2005) 128 Cal.App.4th 625, 629, 634, on this point is off the mark; the individual there was a volunteer for the town, rather than an employee under the FEHA. (See Bradley, supra, 158 Cal.App.4th at p. 1626, fn. 2.)

Third, the Department argues that employee Bradley was compensated by the Department, whereas McClure was compensated by Staffing. As to Bradley, this is not quite true. Although the Bradley court stated cryptically in a footnote that "Bradley was paid by [the Department] pursuant to the terms of the contract between [the Department] and the registry" (Bradley, supra, 158 Cal.App.4th at p. 1626, fn. 2), the court had explained earlier in greater detail, "The registry billed [the Department] for the number of hours worked and issued a check to Bradley to compensate her for the hours she worked at [the Department's] facility" (id. at p. 1618). This is similar to the payment scheme here. In any event, the fact of direct compensation is not the defining criterion of employee status. (Id. at p. 1626.)

And for its fourth point, the Department looks to the Staffing contract, which stated that McClure was an employee of Staffing and not Staffing's clients. For our purposes, however, this point is countered definitively by that contract's recognition that the client would have control over the Staffing employee's performance of workplace duties for the client. (See Bradley, supra, 158 Cal.App.4th at p. 1628.)

Since we have concluded that, based on the undisputed facts presented during the Department's motion for summary judgment, McClure was a special employee of the Department for FEHA purposes as a matter of law, this also disposes of the Department's related contentions that (1) the trial court erroneously instructed the jury that McClure was a Department employee as a matter of law, and (2) the trial court erroneously denied the Department's summary judgment motion, because, according to the Department, the undisputed facts showed that McClure was not a special employee of the Department.

II. Sufficiency of the Evidence Regarding Knowledge and Remediation

The Department contends the evidence is insufficient to support the jury's findings that the Department knew or should have known of Dr. Pompey's harassment, and failed to take immediate and appropriate corrective action. We conclude the Department has forfeited this contention by setting forth in its opening brief only the evidence favorable to it.

These two factual findings are required under the FEHA to hold an employer, like the Department, liable for sexual harassment by a nonsupervisory employee, like Pompey. (Gov. Code, § 12940, subd. (j)(1); State Dept. of Health Services v. Superior Court (2003) 31 Cal.4th 1026, 1040-1041.)

Since the Department has claimed that these two factual findings are not supported by sufficient evidence, the Department is required to set forth in its opening brief "'all the material evidence on the[se] point[s] and not merely [its] own evidence. Unless this is done the error is deemed to be waived [forfeited]." (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881; see also Hauselt v. County of Butte (2009) 172 Cal.App.4th 550, 563.)

The Department falls victim to this rule.

There is actually no evidentiary dispute on appeal concerning the first finding--the Department's actual or constructive knowledge of the harassment. During closing argument at trial, McClure's attorney conceded that only after August 27, 2002, did the Department know or should it have known that Pompey sexually harassed McClure; on that date, CCC correctional officer Annette Laguna-Bates had formally reported to the Department that she witnessed Pompey sexually harassing McClure the day before.

That leaves the second challenged finding: the Department failed to take immediate and appropriate corrective action after learning of the alleged harassment on August 27, 2002.

In its opening brief, the Department refers to the reports, memoranda, meetings, counseling, internal complaint process, and investigation that it undertook concerning the alleged harassment.

Omitted from the Department's portrait of the evidence, as McClure points out however, is the entirety of Robert Sanchez's testimony. At the relevant time, Sanchez was the Department's pertinent regional manager for its Discrimination Investigations Unit (now called the Office of Civil Rights), which investigated and oversaw sexual harassment complaints. Sanchez did not review the McClure file until December 10, 2003. Even at that late date, the file did not state when the incident or anything else occurred; whether any action had been taken; and who the witnesses were. Sanchez could not even determine, from the file, what the allegations were.

Also omitted from the Department's evidentiary summary, again, as noted by McClure, is a material part of Jennifer Snoddy's testimony. In that part, Snoddy, as Staffing's principal, testified that she wrote letters, left phone messages, and did everything she could to learn about McClure's alleged sexual harassment, but it was not until more than one year after McClure was let go that Snoddy got a letter from the Department that there was an ongoing investigation. Snoddy was never informed about the investigation's outcome, despite contacting the CCC's warden and associate warden as well as the Department's person handling the matter in Sacramento.

Finally, McClure points to two other significant factual omissions in the Department's briefing: The Department's investigator did not interview witnesses until March 2003 (except for McClure, who was interviewed in December 2002, and Pompey, who was interviewed in June 2003, both as noted in the Department's brief); and the investigator did not issue a report of findings until January 2004 (nearly a year and a half after the incidents).

In light of these material omissions, we conclude the Department has forfeited its claim of evidentiary insufficiency. (Foreman & Clark Corp. v. Fallon, supra, 3 Cal.3d at p. 881.)

III. Admission of Certain Testimony from McClure

Lastly, the Department contends the trial court erred prejudicially in admitting McClure's testimony concerning (1) a statement made to her by Dr. Richard Sandham, CCC's chief medical officer and Pompey's supervisor, and (2) her interpretation of that statement.

The challenged testimony arose out of a sexual harassment meeting that McClure had with Dr. Sandham in September 2002; McClure's testimony encompassed the following questions and answers:

"Q. Did Sandham give you any assurances about Dr. Pompey and how he was going to correct the problem?

"A. No, he had told me that Dr. Pompey had been in the prison system for 20 years and he wasn't going to change the way he talked to anybody.

"Q. How did that make you feel?

"A. A lot worse.

"Q. Why?

"A. Well, because by him making that comment, I knew that it wasn't going to stop. He had obviously been doing it or implying that he was going to continue to do it."

The Department contends that the trial court, in admitting this evidence, prejudicially violated one of its own in limine orders. That in limine order precluded evidence regarding Pompey's conduct with and comments to or about other women (except for conduct involving similar sexual harassment incidents, and comments Pompey had made to McClure about his wife).*fn4 We disagree with the Department's contention.

This in limine order was based on Evidence Code section 1101's prohibition of generalized "bad acts--bad character" evidence. (See Evid. Code, § 1101, subd. (a).)

McClure's challenged testimony involving Dr. Sandham's statement, however, was relevant to the disputed issue of whether the Department failed to take immediate and appropriate corrective action following McClure's alleged harassment. Furthermore, even if McClure's challenged testimony is considered evidence of "bad acts--bad character," such evidence is admissible when relevant to prove some specific fact--such as knowledge--other than a general disposition to act badly. (Evid. Code, § 1101, subds. (a), (b).) Here, this would have been the Department's prior knowledge of Pompey's improper conduct. For these reasons, we conclude the trial court did not err, or, for the sake of argument, did not err prejudicially, in admitting into evidence McClure's testimony involving Dr. Sandham's statement.

DISPOSITION

The judgment (C062601) and the order awarding attorney fees and costs (C063431) are affirmed. McClure is awarded her costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1), (2).)

We concur: RAYE , P. J. MAURO , J.


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