(Super. Ct. No. 06CC08814) Appeals from a judgment of the Superior Court of Orange County, Kazuharu Makino, Judge. Affirmed.
The opinion of the court was delivered by: Fybel, J.
CERTIFIED FOR PUBLICATION
Plaintiff Stephanie Crowley Brennan appeals from a judgment entered in favor of her former employer, Townsend & O'Leary Enterprises, Inc., and a former manager at Townsend & O'Leary Enterprises, Scott Montgomery (collectively referred to as defendants), after the trial court granted defendants' motion for judgment notwithstanding the verdict (JNOV motion). The court granted the JNOV motion on the ground insufficient evidence supported a finding plaintiff had been subjected to severe or pervasive harassment based on her gender.
We affirm. The California Supreme Court has set forth the legal standards to be applied in determining whether a plaintiff has demonstrated severe or pervasive harassment based on gender. (See Hughes v. Pair (2009) 46 Cal.4th 1035 (Hughes); Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264 (Lyle).) Applying those legal standards to the evidence in the record in the light most favorable to the jury's verdicts, we must conclude insufficient evidence supported a finding plaintiff was subjected to severe or pervasive harassment based on her gender. The trial court, therefore, did not err by granting defendants' JNOV motion. We cannot reconcile any other result than the one reached by the trial court with California Supreme Court authority. Because we conclude plaintiff's appeal is without merit, we do not reach the issues raised in defendants' cross-appeal.
CHRONOLOGICAL SUMMARY OF TRIAL EVIDENCE
In the following summary of the evidence, we focus in particular on the nature, frequency, timing, and context of defendants' conduct. (See Mokler v. County of Orange (2007) 157 Cal.App.4th 121, 142 (Mokler) [setting forth factors that can be considered in evaluating totality of circumstances upon which hostile work environment determination is based].) Consistent with the judgment-notwithstanding-the-verdict standard of review, we recount the facts in the record in the light most favorable to the jury's verdicts, relying heavily on plaintiff's own trial testimony. (Wolf v. Walt Disney Pictures & Television (2008) 162 Cal.App.4th 1107, 1138.)
In January 1991, plaintiff was hired to work as an assistant media planner for the advertising agency of Townsend & O'Leary Enterprises, Inc. (the agency). In 1995 or 1996, plaintiff became the manager of marketing services. As of the date plaintiff submitted her letter of resignation in January 2005, she served as an account supervisor and vice-president of the agency.
Plaintiff testified that during her employment with the agency, she and the agency's owner, Steve O'Leary, were "very close." She stated he was "more than a friend" as she considered him to be "like a second father to [her] for a long time." Plaintiff was also "close" to Steve O'Leary's wife, Patricia O'Leary, who was responsible for human resources at the agency since 1984.
Plaintiff testified Steve O'Leary asked about her personal life and relationships "quite often" and "at least a couple of times a month," over an unspecified period of time. She stated that Steve O'Leary would ask "if [she] got any of that" and use a hand gesture, described in the record as consisting of clapping both palms together multiple times, when he talked to her about her sex life. The record does not show when or how often plaintiff and Steve O'Leary discussed her sex life or he made the described hand gesture.
In 1999, the agency hired David Robinson to work in the capacity of senior vice-president media director. Plaintiff testified the agency's office environment began to change after Robinson was hired. Plaintiff did not agree with the agency's decisions to terminate the employment of certain employees.
In May or June 2000, over four years before she resigned, plaintiff helped plan a bachelorette party outside of the office for one of the agency's employees, Dione Disbro. All but one of the partygoers worked for the agency. One of the other planners of the bachelorette party brought to the party a wedding veil that had a plastic penis attached to it for Disbro to wear. The veil was later brought into the office. Plaintiff testified that she was present at a staff meeting during which Steve O'Leary asked Disbro to recount the events of the bachelorette party while wearing the veil. (Plaintiff explained that birthdays, anniversaries, and "personal things that are happening" were discussed during the latter part of staff meetings.) Plaintiff testified Disbro wore the veil for about five minutes and appeared embarrassed. Plaintiff found Steve O'Leary's request offensive because "the original intent of the penis veil was at a bachelorette party."
Plaintiff testified about specific personal conversations she had with Steve O'Leary in the 2000 to 2001 timeframe, years before she resigned. She told Steve O'Leary she was not sure there were "serious men still out there," and had discussed with him her dating relationship with a man who had a young daughter. She also told Steve O'Leary about a sexually transmitted disease she had contracted from a previous boyfriend. Plaintiff talked with Steve O'Leary about finding "a new guy" named Peter. Plaintiff testified those specific conversations had been initiated by Steve O'Leary because he was concerned that plaintiff was having a hard time in her personal life. Plaintiff did not testify that she was offended by any of her conversations with Steve O'Leary regarding her personal life.
In 2000 or 2001, plaintiff attended an offsite Christmas party for the agency, at which a management employee, Michael Todd, dressed as Santa Claus. Todd asked one particular female employee to sit on his lap and asked her about not having a man in her life. Plaintiff said she found Todd's conduct offensive because "that's her personal business," and "[n]obody else at the company needs to know that or see that she feels bad about it or embarrassed by it." Todd invited another female to sit on his lap; she complied and did not appear to be bothered by his request. Todd asked a third employee, Erin Nash, to sit on his lap. Nash complied and Todd asked her about her relationship with another co-worker. Plaintiff found Todd's conduct offensive because he was asking Nash about her personal life in front of about 70 people. Each of the women sat on Todd's lap for less than five minutes. Plaintiff was not asked to sit on Todd's lap and stated she was glad she had not been asked to do so.
Plaintiff attended another offsite Christmas party in either 2002 or 2003, at which Steve O'Leary wore a red-and-white Santa hat which had the word "bitch" across the brow. Plaintiff found Steve O'Leary's hat offensive because he was the agency's owner and chief executive officer.
Plaintiff did not complain about the conduct that occurred at either Christmas party.
Defendant Scott Montgomery was hired by the agency in January 2002 as executive creative director. Montgomery was never plaintiff's supervisor. There was no evidence plaintiff observed any incidents of sexual harassment at the agency in between the two Christmas parties discussed ante, or between the more recent Christmas party and the August 2004 e-mail.
On August 19, 2004, in response to news that employee Scott Berger was leaving the agency, Montgomery sent an e-mail to Robinson, which was inadvertently forwarded to Berger (the August 2004 e-mail). In the August 2004 e-mail, Montgomery stated in relevant part: "Three down, one big-titted, mindless one to go." Berger forwarded the August 2004 e-mail to plaintiff. She testified she believed the "three down" referred to Berger, a former agency employee named Amy Shepeck, and plaintiff's supervisor, John Most. Plaintiff accurately understood that the statement "big-titted, mindless one" referred to her; she found the August 2004 e-mail demeaning and otherwise offensive. Plaintiff brought the August 2004 e-mail to Most's attention. Most told plaintiff he would take care of it.
Plaintiff testified that after receipt of the August 2004 e-mail, she started speaking to past and present employees of the agency to find out whether there were other examples of sexual harassment at the agency. She learned from a co-worker that in September 2003, Montgomery had sent an e-mail to that co-worker, in which he stated that one of the agency's female clients was "a demanding, unconstructive, counter-productive, mindless, shitty-ass bitch." The e-mail had not been sent to plaintiff. Plaintiff also learned that Montgomery had called the same client a "cunt," and made inappropriate comments to female co-workers, although plaintiff had never heard those comments herself.
Shortly after receiving the August 2004 e-mail, plaintiff went on a previously scheduled vacation to Hawaii, using a ticket that had been paid for by Steve O'Leary. Plaintiff met with Most and Steve O'Leary after she returned to work.*fn1 Steve O'Leary apologized to plaintiff for what had happened and showed her a letter of reprimand Montgomery had signed which warned Montgomery against violating the agency's sexual harassment policy. Steve O'Leary told plaintiff that Montgomery wanted to apologize to her; however, plaintiff told Steve O'Leary she did not want Montgomery to apologize to her. After receipt of the August 2004 e-mail, plaintiff did not have any interaction with Montgomery.
A week after she first met with Steve O'Leary about the August 2004 e-mail, plaintiff again met with him. She told Steve O'Leary that she was not sure the agency was an environment she could or wanted to "grow in." She informed Steve O'Leary that she had learned of other examples of sexual harassment at the agency, but said she was too upset to talk about them and refused to provide him with any examples. He asked her to stay at the agency and help fix the environment and bring the culture back to what it once was. Instead of agreeing to stay, plaintiff discussed with Steve O'Leary an "exit strategy" that she called a constructive discharge, which she assumed would include a compensation package. At trial, plaintiff was asked: "So you wanted a compensation package in order to leave [the agency] because of the e-mail that you got on August 19th, 2004; is that correct?" Plaintiff responded: "I wanted a constructive discharge in result of the e-mail that I got on August 19th, 2004. Like a layoff situation, yes."
During a third meeting a few days later in mid-September 2004, Steve O'Leary told plaintiff that he wanted her to stay at the agency and help fix the work environment. He told her that he took complaints of sexual harassment very seriously and asked for the names of people to whom she had spoken. Plaintiff told Steve O'Leary she was not sure they would be willing to speak to him. Plaintiff had expected that Steve O'Leary "was going to come to the table . . . with a . . . package" for her.
On October 14, 2004, plaintiff and Steve O'Leary met again. Plaintiff told him the other complainants were not willing to speak with him. She also told him that she had decided to "move on" with her attorney and gave Steve O'Leary a letter from her attorney.
In November 2004, the agency brought in someone from outside the agency to investigate sexual harassment in the agency's workplace. Plaintiff refused to speak with him.
On January 4, 2005, plaintiff gave one week's notice that she would no longer be working for the agency. A week or two after she left the agency, she started working for Most who had resigned from the agency in September 2004.
At trial, plaintiff was asked: "So besides the August 19th of 2004 e-mail there were no other instances where you were personally subjected to sexual harassment in your 14 years of employment with [the agency]; is that correct?" Plaintiff answered: "Not that I know of that I was subjected to directly." Plaintiff was also asked: "From the date of the e-mail, August 19th of 2004, until the date of your resignation, January 4th, 2005, you never personally experienced any sexual harassment, did you?" Plaintiff responded: "Personally, no."
Plaintiff claimed that after she got her attorney involved, she felt people were avoiding her at work. She was getting "kind of pulled back" from attending certain meetings; she testified this began, however, before the August 2004 e-mail. The agency's vice-president at the time, Jim Harrington, stopped attending her account meetings after her attorney got involved. Although she suggested the agency conduct sexual harassment training, it did not happen. Plaintiff argues Montgomery's reprimand was an insufficient consequence for his conduct. She testified she considered unfair and offensive the agency's failure to provide her a report from the agency's sexual harassment investigation. She felt further retaliated against when Patricia O'Leary asked plaintiff during her exit interview "why are you doing this to us?"
Plaintiff's operative complaint asserted claims for violations of Labor Code section 1102.5, subdivisions (a) and (b) and wrongful constructive termination in violation of public policy against the agency, Steve O'Leary, and Patricia O'Leary; sexual harassment and negligent infliction of emotional distress against the agency, Steve O'Leary, Patricia O'Leary, and Montgomery; and intentional infliction of emotional distress and defamation against the agency, Steve O'Leary, and Montgomery. No cause of action for retaliation was included in the operative complaint.
Only two of the claims contained in the operative complaint--wrongful termination in violation of public policy and sexual harassment--were tried before a jury. At the conclusion of plaintiff's case-in-chief, the trial court granted a defense motion for non-suit as to the wrongful constructive termination claim. The court also granted non-suit on the sexual harassment claim as to Steve O'Leary and Patricia O'Leary only.
The jury returned special verdicts in favor of plaintiff and against defendants on the sexual harassment claim, expressly finding plaintiff was subjected to severe or pervasive harassment because she was a woman. Judgment was entered awarding plaintiff $200,000 against the agency and $50,000 against Montgomery.
Defendants filed the JNOV motion and a motion for a new trial. The trial court granted the JNOV motion and judgment was entered in defendants' favor. Plaintiff filed a notice of appeal. Defendants filed a notice of cross-appeal.*fn2
"The trial court's power to grant a motion for judgment notwithstanding the verdict is the same as its power to grant a directed verdict. [Citation.] 'A motion for judgment notwithstanding the verdict may be granted only if it appears from the evidence, viewed in the light most favorable to the party securing the verdict, that there is no substantial evidence in support.' [Citations.] On appeal from the denial of a motion for judgment notwithstanding the verdict, we determine whether there is any substantial evidence, contradicted or uncontradicted, supporting the jury's verdict. [Citations.] If there is, we must affirm the denial of the motion. [Citations.] If the appeal challenging the denial of the motion for judgment notwithstanding the verdict raises purely legal questions, however, our review is de novo. [Citation.]" (Wolf v. Walt Disney Pictures & Television, supra, 162 Cal.App.4th at p. 1138.)
Plaintiff's sole contention on appeal is that the trial court erred by granting the JNOV motion because substantial evidence supported the jury's verdicts finding in her favor as to the sexual harassment claim. Citing Lyle, supra, 38 Cal.4th 264, the trial court at the hearing on the JNOV motion stated that insufficient evidence supported the jury's finding plaintiff was subjected to severe or pervasive sexual harassment in the workplace as a matter of law. For the reasons we will explain in detail, the jury's verdicts were not supported by substantial evidence because, as a matter of law, insufficient evidence shows plaintiff was subjected to severe or pervasive sexual harassment as defined by California Supreme Court precedent.
The California Supreme Court restated the framework of sexual harassment law in California, as follows: "Like federal law, California law prohibits sexual harassment in the workplace. Originally enacted in 1980, Government Code section 12940 is part of the FEHA [(the California Fair Employment and Housing Act)]. [Citation.] It defines 'an unlawful employment practice' as an employer's refusal to hire, employ, or select for a training program leading to employment, any person because of that person's 'race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, or sexual orientation.' [Citation.] Since 1985, the FEHA has prohibited sexual harassment of an employee. [Citation.] [¶] With respect to sexual harassment in the workplace [citation], the prohibited conduct ranges from expressly or impliedly conditioning employment benefits on submission to, or tolerance of, unwelcome sexual advances to the creation of a work environment that is 'hostile or abusive to employees because of their sex.' [Citation.] Thus, similar to the federal law's Title VII [(title VII of the Civil Rights Act of 1964)], California's FEHA 'recognize[s] two theories of liability for sexual harassment claims . . . ". . . quid pro quo ...