ORDER RE: MOTION FOR SUMMARY JUDGMENT OR PARTIAL SUMMARY JUDGMENT IN THE ALTERNATIVE (Doc. 57)
Defendants American Medical Response West (hereinafter referred to as "AMR") and Tracy J. Fischer (hereinafter referred to as "Fischer") have filed a motion for summary judgment or partial summary judgment in the alternative pursuant to Federal Rule of Civil Procedure 56. For reasons discussed below, the motion for summary judgment shall be denied. The motion for partial summary judgment (i.e., summary adjudication) shall be granted in part and denied in part. Summary adjudication shall be granted in favor of Fischer (but not AMR) as to the third cause of action for defamation and in favor of AMR as to the fifth cause of action for sexual battery; summary adjudication of all other causes of action and the punitive damages claim shall be denied.
II. FACTS AND PROCEDURAL BACKGROUND
The Court refers the parties to previous orders for a complete chronology of the proceedings. On January 21, 2010, plaintiff Deanna Rangel (hereinafter referred to as "Plaintiff" or "Rangel") filed her first amended complaint against defendants AMR, Fischer (sued as Tracy J. Fisher) and Jose Martinez, asserting causes of action for (1) violation of Title VII of the Civil Rights Act of 1964 as amended, 42 U.S.C. § 2000e et seq. (against AMR), (2) violation of the California Fair Employment and Housing Act (FEHA), California Government Code § 12900 et seq. (against AMR and Martinez), (3) defamation -- slander per se (against AMR and Fischer), (4) wrongful discharge in violation of public policy (against AMR) and (5) sexual battery in violation of California Civil Code § 1708.5 (against AMR and Martinez). In the first amended complaint, Rangel alleged as follows:
"Plaintiff is a female who was sexually harassed, defamed and retaliated against by Defendant employer, American Medical Response West . . . and Defendants Jose Martinez . . . and Tracy J. Fisher [sic] . . . , supervisors for AMR and Plaintiff's supervisors, creating a hostile work environment and quid pro quo harassment, in Tulare County, California, at the time of the acts giving rise to this action." Rangel further alleged:
"Defendant, AMR, was an employer at all times relevant herein, and is a California corporation, qualified and doing business in the State of California, and has continuously had and does now have at least fifteen employees. Defendant, AMR, is an enterprise engaged in commerce within the meaning of 42 U.S.C. § 2000e(b). [¶] At all times relevant herein Defendants, Martinez and Fisher [sic], were employees, agents and supervisors of Defendant, AMR, within the meaning of California Government Code § 12926(r)."
"On or about November 6, 2008, Plaintiff filed charges of discrimination and harassment with the U.S. Equal Employment Opportunity Commission (hereinafter referred to as 'EEOC') and California Department of Fair Employment and Housing (hereinafter referred to as 'DFEH') against Defendant, AMR, alleging discrimination, sex harassment, and retaliation . . . . [¶] On or about November 6, 2008, Plaintiff filed a charges [sic] of discrimination with [DFEH] against Defendants, Martinez and Fisher [sic], alleging discrimination, sex harassment, and retaliation . . . . A copy of the DFEH/EEOC charges are attached as Exhibits A and B, hereto."
Rangel's DFEH/EEOC complaints, which had been attached to Rangel's original complaint filed August 20, 2009, alleged sex discrimination by AMR and Martinez and further alleged as follows:
"On May 5, 2008, I [Rangel] was subjected to a write-up. On August 10, 2008, I was verbal [sic] and visually sexually harassed by Jose Martinez, Paramedic/Supervisor. On August 28, 2008, I was terminated while in the position of EMI 1 earning $14.45 per hour. I was hired on June 25, 2001. [¶] T. J. Fisher [sic], Administrative Supervisor told me I was being written up due to a patient complaint. T. J. Fisher [sic] told me I was being terminated due to misconduct."
Rangel's DFEH/EEOC complaints further alleged:
"I believe I was subjected to a write-up and verbally and visually sexually harassed which is discrimination on the basis of my sex (female) and terminated in retaliation for complaining. My beliefs are based on the following: [¶] A. On May 5, 2008, I was subjected to a write-up due to a patient complaint although non female employees have received patient complaints and are not written up. [¶] B. On August 10, 2008, I was verbally and visually sexually harassed (example on file with DFEH) by Jose Martinez Paramedic/Supervisor. The harassment created a hostile work environment. [¶] C. On August 10, 2008, I reported the incident to Brian Perez, Shop Stewart [sic]/Paramedic and nothing was done. [¶] D. On August 28, 2008, I was terminated for misconduct although non female employees are not terminated for misconduct."
On March 4, 2011, AMR and Fischer filed their motion for summary judgment or partial summary judgment (i.e., summary adjudication) in the alternative pursuant to Federal Rule of Civil Procedure 56, contending the absence of genuine issues of material fact entitles them to judgment as a matter of law. On March 28, 2011, Rangel filed her opposition to AMR's and Fischer's motion. AMR and Fischer filed their reply to Rangel's opposition on April 4, 2011. On May 18, 2011, the Court issued an order requiring the parties to brief additional issues. Rangel filed her supplemental brief on May 31, 2011; AMR and Fischer filed their supplemental brief on June 13, 2011.
"A party may move for summary judgment, identifying each claim or defense -- or the part of each claim or defense -- on which summary judgment is sought. The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The moving party bears the initial burden of "informing the district court of the basis for its motion, and identifying those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); see Fed. R. Civ.
P. 56(c)(1)(A). "Where the non-moving party bears the burden of proof at trial, the moving party need only prove that there is an absence of evidence to support the non-moving party's case." In re Oracle Corp. Securities Litigation, 627 F.3d 376, 387 (2010) (citing Celotex, supra, at p. 325). If the moving party meets its initial burden, the burden shifts to the non-moving party to present evidence establishing the existence of a genuine dispute as to any material fact. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585-86, 106 S.Ct. 1348, 89 L.Ed.2d 538. A court ruling on a motion for summary judgment must construe all facts and inferences in the light most favorable to the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Even if the motion is unopposed, the movant is not absolved of the burden to show there are no genuine issues of material fact, Henry v. Gill Industries, Inc., 983 F.2d 943, 949-50 (9th Cir. 1993), although the court may assume the movant's assertions of fact to be undisputed for the purposes of the motion and grant summary judgment if the facts and other supporting materials show the movant is entitled to it. See Fed. R. Civ. P. 56(e)(2), (3).
The following facts are undisputed for the purposes of defendants' motion. On August 10, 2008, Rangel, Martinez and Rangel's partner -- another AMR employee named Chris Zeigers -- were on duty at AMR's Porterville, California, station. As Rangel and Zeigers were exiting the station, an altercation between Rangel and Martinez ensued, culminating in Rangel's telling Martinez he "didn't have any balls" and Martinez's unzipping his pants and exposing his testicles to Rangel. Martinez's testicles were visible for about a second. AMR and Fischer now contend summary judgment must be granted because the foregoing is insufficient to establish triable issues on any of Rangel's claims.
A. First cause of action (violation of Title VII of the Civil Rights Act) -- As a threshold matter, AMR moves for summary adjudication of Rangel's first cause of action for violation of Title VII of the Civil Rights Act of 1964 as amended, 42 U.S.C. § 2000e et seq. Under this cause of action, Rangel alleges: "Since at least May 2008, Defendant, AMR, has engaged in unlawful employment practices in violation of § 703(a)(1) of Title VII, 42 U.S.C. § 2000e-2(a)(1). These practices including subjecting Plaintiff to a sexually hostile, abusive, intimidating and offensive work environment, which culminated in an adverse tangible employment action." Rangel further alleges, "Since at least May 2008, Defendant, AMR, subjected Plaintiff to adverse employment actions in retaliation for her opposition to and rejection of the sexual harassment in violation of § 704(a) of Title VII, 42 U.S.C. § 2000e-3(a). These practices include but are not limited to unjust discipline, continued harassment, and, ultimately, termination of her employment on or about August 28, 2008."
AMR first contends that, to the extent Rangel intends to claim sexual harassment based on a hostile work environment, summary adjudication of this cause of action must be granted because Martinez's act of exposing his testicles to Rangel was an isolated incident hardly severe or pervasive enough to alter the conditions of Rangel's employment. Title VII provides "[i]t shall be an unlawful employment practice for an employer-- [¶] (1) to . . . discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's . . . sex," 42 U.S.C. § 2000e-2(a), and "discrimination on the basis of sex . . . includes sexual harassment in the form of a hostile work environment." E.E.O.C. v. Prospect Airport Services, Inc., 621 F.3d 991, 997 (9th Cir. 2010). "A plaintiff may establish a sex hostile work environment claim by showing that he was subjected to verbal or physical harassment that was sexual in nature, that the harassment was unwelcome and that the harassment was sufficiently severe or pervasive to alter the conditions of the plaintiff's employment and create an abusive work environment." Dawson v. Entek Intern., 630 F.3d 928, 937-38 (9th Cir. 2011). Having reviewed the pleadings and all competent and admissible evidence submitted, the Court finds, contrary to AMR's contention, a reasonable trier of fact could find the alleged misconduct was severe enough to have created an abusive environment.
"To determine whether conduct was sufficiently severe or pervasive to [alter the conditions of the plaintiff's employment and create an abusive environment], [courts] look at 'all the circumstances, including 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." Vasquez v. County of Los Angeles, 349 F.3d 634 (9th Cir. 2003) (quoting Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 270-71, 121 S.Ct. 1508, 149 L.Ed.2d 509 (2001)). "The 'severe or pervasive' element has both objective and subjective components." Prospect Airport Services, Inc., supra, 621 F.3d at 999 (citing Brooks v. City of San Mateo, 229 F.3d 917, 924 (9th Cir. 2000)). "A plaintiff must establish that the conduct at issue was both objectively and subjectively offensive: he must show that a reasonable person would find the work environment to be 'hostile or abusive,' and that he in fact did perceive it to be so." Dawson, 630 F.3d at 938 (citing Faragher v. City of Boca Raton, 524 U.S. 775, 787, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998)). "There is a subjective requirement as well as an objective requirement, because 'if the victim does not subjectively perceive the environment to be abusive, the conduct has not actually altered the conditions of the victim's employment.' " Prospect Airport Services, Inc., at p. 999 (quoting Harris v. Forklift Systems, Inc., 510 U.S. 17, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993)).
At her deposition Rangel testified the following exchange occurred moments before Martinez exposed his testicles to her. As she was walking to her ambulance, Rangel jokingly told Martinez to not dirty the Porterville station because she had just finished cleaning it. In response, Martinez told Rangel she couldn't come to the station and tell people what to do just because she wore the pants at home. Martinez further told Rangel, "Remember you have a write-up, so you better watch out." According to Rangel, Martinez pulled out a knife, opened it and said something to the effect of "I can cut you right now" or "I can slice you right now." Rangel told Martinez he "didn't have any balls because no one drops out of the [California Highway Patrol] in less than a week." Martinez then said something to Rangel along the lines of "I'll show you I have balls," unzipped his pants, put his hands down his pants, pulled out his testicles and said, "[A]nd look, they're even shaven, too."
Objectively, Martinez's acts of threatening to physically assault Rangel coupled with his exposing himself to Rangel are themselves sufficiently serious to constitute severe conduct for the purpose of Title VII. Rangel also testified she felt "degraded," "assaulted," "paralyzed" and "extremely stressed" as a result, and thus subjectively perceived Martinez's actions to be hostile and abusive.
In arguing Martinez's alleged misconduct could not have been severe enough to alter the conditions of Rangel's employment because it was simply an isolated incident, AMR essentially contends isolated incidents can never underlie a sex hostile work environment claim. AMR has provided no authority -- and the Court's research reveals no authority -- to support this proposition. Isolated incidents, if extremely serious, may amount to discriminatory changes in the terms and conditions of employment. See Faragher, supra, 524 U.S. at 788; see also Worth v. Tyler, 276 F.3d 249, 268 (7th Cir. 2001) ("There is no minimum number of incidents required to establish a hostile work environment . . . . Indeed, we have often recognized that even one act of harassment will suffice if it is egregious"); Lockard v. Pizza Hut, Inc., 162 F.3d 1062, 1072 (10th Cir. 1998) (single instance of physically threatening and humiliating behavior that unreasonably interfered with plaintiff's ability to perform her job duties severe enough to create actionable hostile work environment); Tomka v. Seiler Corp., 66 F.3d 1295, 1305 (2d Cir. 1995) (abrogated on other grounds by Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998)) ("[E]ven a single incident of sexual assault sufficiently alters the conditions of the victim's employment and clearly creates an abusive work environment for purposes of Title VII liability").
In the Court's view, this is such a case. The evidence leaves open the possibility the alleged misconduct may have been more than just innocuous behavior toward a co-worker. The evidence shows this may have been a case of lewd and obscene conduct by a male superior toward a female subordinate that could conceivably have constituted the crime of indecent exposure under California law. See Cal. Pen. Code, § 314 ("Every person who willfully and lewdly . . . [¶] [ ] [e]xposes his person, or the private parts thereof, in any public place, or in any place where there are present other persons to be offended or annoyed thereby . . . [¶] . . . is guilty of a misdemeanor"). Furthermore, Rangel does not rely solely upon the exposure incident to support her Title VII claim, as AMR would have the Court believe. At her deposition, Rangel testified that on one prior occasion, as she was washing dishes in the Porterville station, Martinez walked up to her, grabbed her hair and started playing with her hair while telling her how beautiful it was. Rangel further testified there were other times when Martinez would "come by . . . and spank [her] in the ass with a towel." Based on this evidence, a reasonable trier of fact could conclude Martinez exposed himself to Rangel for his own sexual gratification. Rangel also testified other AMR employees told her Martinez had said Rangel "didn't deserve to be working as an EMT," called her a "bitch," "whore," "cochina," "fuckin' worthless," and that he had said similar things about his wife and other women. Based on this evidence, a reasonable trier of fact could also conclude Martinez's alleged misconduct was driven by anti-female animus. Accordingly, even though it appears Martinez threatened and exposed himself to Rangel once, that behavior can fairly be characterized as severe and objectively offensive.
AMR further contends summary adjudication of Rangel's Title VII cause of action must be granted in favor of AMR because AMR cannot be held liable for Martinez's alleged misconduct in the absence of any complaints by Rangel. AMR contends it had no actual or constructive knowledge of any prior alleged harassment, either by Martinez or against Rangel, and that Rangel never complained to management, human resources or her union about Martinez before the exposure incident. The vicarious liability potentially faced by an employer for harassment committed by an employee depends on the employee's relationship to the victim. "In general, an employer is vicariously liable for a hostile environment created by a supervisor. [Citation.] However, when no 'tangible employment action' [(i.e., a significant change in employment status, such as discharge, demotion, or undesirable reassignment)], has been taken, an employer may raise 'an affirmative defense to liability or damages, subject to proof by a preponderance of the evidence.' " Nichols v. Azteca Restaurant Enterprises, Inc., 256 F.3d 864, 877 (9th Cir. 2001) (quoting Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 765, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998)) (emphasis added). "The affirmative defense has two prongs: (1) 'that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior'; and (2) 'that the plaintiff unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.' " Id. (quoting Ellerth, supra, 524 U.S. at 765). By contrast, " '[i]f . . . the harasser is merely a co-worker, the plaintiff must prove that . . . the employer knew or should have known of the harassment but did not take adequate steps to address it.' " Dawson, supra, 630 F.3d at 939 (quoting Swinton v. Potomac Corp., 270 F.3d 794, 803 (9th Cir. 2001)) (ital. added).
In arguing it cannot be held vicariously liable for sexual harassment because no evidence suggests it knew or should have known of Martinez's alleged misconduct, AMR presupposes Martinez and Rangel were nothing more than co-workers. The Court finds sufficient evidence in the record to question whether this was truly the case. "An employer is vicariously liable for actions by a supervisor who has 'immediate (or successively higher) authority over the employee.' " Dawson, supra, 630 F.3d at 940 (quoting Faragher, supra, 524 U.S. at 807). "This distinction 'is not dependent upon job titles or formal structures within the workplace, but rather upon whether a supervisor has the authority to demand obedience from an employee.' " Id. (quoting McGinest v. GTE Service Corp., 360 F.3d 1103, 1119 n. 13 (9th Cir. 2004)). AMR contends Martinez could not have been Rangel's supervisor because the evidence shows he, like Rangel, was simply a paramedic who did not have the authority to hire, fire or discipline employees or give raises. Problematically for AMR, Rangel testified Martinez acted as her supervisor from 2007 to 2008 and that he was present when other supervisors imposed discipline on her. Rangel further testified Martinez was at one point the shop steward for what was presumably the Porterville bargaining unit of Rangel's union, the National Emergency Medical Services Association (NEMSA), and that he represented her when she was a member of NEMSA. In light of this evidence, Martinez "could be deemed by a trier of fact as [Rangel's] supervisor even if [AMR] did not define his role that way." Dawson, supra, 630 F.3d at 940. Accordingly, AMR cannot meet its initial burden on summary judgment simply by contending it did not know or could not have known of any prior alleged harassment, as it does in proceeding under the assumption Martinez and Rangel were co-workers. AMR must also present evidence showing it exercised reasonable care to prevent and correct harassment and that Rangel unreasonably failed to take advantage of any preventive or corrective opportunities, as is required when, as in this case, the evidence suggests the perpetrator was a supervisor. That was not done here.
Even assuming Martinez was merely Rangel's co-worker, the Court finds sufficient evidence to suggest, contrary to AMR's contention, it knew or should have known Martinez was harassing other employees. Rangel testified that sometime in 2006 or 2007, prior to the exposure incident, she complained to her supervisors Manny Santonio and Jerry Hensley about Martinez's behavior toward her and others and about how he "call[ed] them names and how he treat[ed] his partners." Rangel further testified that sometime in 2007 or 2008, she complained to her then-shop steward Brian Perez about how Martinez would walk out of the shower with just a towel on. Rangel further testified she complained to Perez sometime in early 2008 about how Martinez would grab her hair and play with it. Based on the foregoing, summary adjudication of the Title VII cause of action must be denied.
B. Second cause of action (violation of FEHA) -- AMR further moves for summary adjudication of Rangel's second cause of action for violation of FEHA, Cal. Gov. Code sections 12900 et seq. Incorporating previous allegations by reference, Rangel alleges as follows under this cause of action:
"[A] substantial or motivating factor in Defendants' discrimination, sexual harassment, and retaliatory termination on or about August 28, 2008, was [Plaintiff's] sex, female, in violation of [FEHA]. [¶] The behavior, conduct and comments by the Defendants created a work environment that was intimidating, hostile, oppressive and offensive to Plaintiff which deprived Plaintiff of the benefit of a discrimination-free work environment, all in violation of California Government Code §§ 12940, et seq. Such conduct on the part of Defendant, Martinez, included, but was not limited to, exposing his genitals to Plaintiff."
"Under California Government Code § 12940(k), Defendant, AMR, had a duty to prevent discrimination, sexual harassment and retaliation against Plaintiff and to provide her with a workplace which was free of discrimination and harassment. Defendant, AMR, failed to take reasonable steps to prevent discrimination against and harassment of Plaintiff on the basis of her sex. In fact, AMR knowingly and willfully allowed and condoned a sexually charged workplace."
AMR now contends that, to the extent Rangel intends to claim failure to prevent harassment in violation of California Government Code § 12940(j) and (k), summary adjudication of this cause of action must be granted because it took reasonable steps to prevent any harassment from occurring. Under FEHA, "[a]n entity shall take all reasonable steps to prevent harassment from occurring," Cal. Gov. Code, § 12940, subd. (j)(1); it is an unlawful employment practice "[f]or an employer . . . to fail to take all reasonable steps necessary to prevent . . . harassment from occurring." Id., subd. (k). Because Rangel has met her burden to show genuine issues of material fact as to actionable harassment, ...