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Ortega v. The Neil Jones Food Co.

United States District Court, N.D. California, San Jose Division

January 21, 2014

ROSA ORTEGA, Plaintiff,
v.
THE NEIL JONES FOOD COMPANY; JOSE MANZO; and DOES 1-10, inclusive, Defendants.

ORDER DENYING DEFENDANT NEIL JONES FOOD COMPANY'S MOTION FOR SUMMARY JUDGMENT

LUCY H. KOH, District Judge.

Plaintiff Rosa Ortega ("Ortega") filed this action against her former employer the Neil Jones Food Company ("Neil Jones") and one of her former co-workers Jose Manzo ("Manzo") alleging that Ortega experienced a hostile work environment due to severe and pervasive sexual harassment. Ortega contends that Neil Jones and Manzo acted in violation of California's Fair Employment and Housing Act ("FEHA") and that Manzo engaged in gender violence and sexual battery in violation of California law. Before the Court is Neil Jones' Motion for Summary Judgment. See ECF No. 68. Ortega has filed an Opposition, and Neil Jones has filed a reply. See ECF Nos. 72-73. Pursuant to Civil Local Rule 7-1(b), the Court finds this matter appropriate for resolution without oral argument and hereby VACATES the hearing on this Motion set for January 23, 2014, at 1:30 p.m. The Case Management Conference scheduled for January 23, 2014, at 1:30 p.m. remains as set. The Court, having considered the record in this case, applicable law, and parties' briefs, DENIES Neil Jones' Motion for Summary Judgment for the reasons stated below.

I. BACKGROUND

A. Factual Background

Ortega and Manzo were employees of Neil Jones. The two were seasonal workers at Neil Jones' tomato processing plant in Hollister. They worked from July through mid-October with no days off. Ortega's employment at Neil Jones commenced in 2002 or 2003 and terminated at the end of the 2012 season due to a knee injury. ECF No. 68, Ex. A ("Ortega Depo.") at 11. Ortega's duties involved cleaning the Neil Jones facility, and she was supervised by Sylvia De Marco ("De Marco"), the sanitation supervisor. Id. at 12. Manzo's first season at Neil Jones was in 1991. Both Manzo and Ortega were members of a union, which had a grievance and arbitration process to mediate disputes between Neil Jones and union members.

Ortega's job duties included using pressure washers to clean parts of the Neil Jones facility. ECF No. 70 ("Ortega Decl.") ¶ 5. As such, during the workday, Ortega changed in and out of rain suits to protect her from the washers. Id. Ortega and other female employees utilized an isolated section of the facility to change in and out of the suits. Id. Such privacy was necessary because employees' clothes under the rain suits routinely were so wet that they clung to employees' bodies, thus exposing employees' buttocks and breasts. Id. Accordingly, after female employees changed out of the rain suits, they went to a bathroom to change into dry clothes. Id.

Ortega began noticing that Manzo, a male co-worker, was coming around the rain suit changing area during the 2009 season. Id. ¶ 9. About three times a week, Manzo would come and look at Ortega and her female co-workers as they were changing out of the rain suits in the private area. Id. Ortega began to complain to De Marco about Manzo's presence in this area. Id. ¶ 10; Ortega Depo. at 20. Specifically, Ortega complained ten times about Manzo's activities between 2009 and 2012. Ortega Decl. ¶ 10; Ortega Depo. at 21. De Marco indicated that she would talk to Manzo and told Ortega not to worry about Manzo because "he is just an old man." Ortega Decl. ¶ 10. Meanwhile, in 2010, one of Ortega's female colleagues, Elizabeth Garay, also complained about Manzo to De Marco. ECF No. 68, Ex. D ("De Marco Depo.") at 8-9. De Marco, after witnessing Manzo going to the area where female employees were changing, asked Manzo why he was going there. Id. at 9. Manzo told De Marco that his gloves were stored in that area. Id. De Marco instructed Manzo to find a different spot for his gloves and reported the incident to Manzo's supervisor and to her own supervisor. Id.

At the same time, during the 2009 to 2012 seasons, Manzo began following Ortega around the workplace. Ortega Decl. ¶ 11. Ortega shooed Manzo away and admonished him to go back to his work area. Id. Ortega complained to De Marco about Manzo's following of Ortega several times in 2011 and 2012. Id. ¶¶ 12-16. De Marco instructed Ortega not to worry about Manzo because he was "an old man" and stated that she had spoken to Manzo, but that Manzo would not listen. Id. ¶¶ 13-16.

During the 2009 to 2012 seasons, Manzo also approached Ortega and said "Ay, Rosita" several times. During the 2009 season, this occurred three times. Ortega complained to De Marco, who said she would talk to Manzo. Id. ¶¶ 17, 19-20. When the incident reoccurred, and Ortega again complained, De Marco stated that she had already spoken to Manzo, but would speak to him again. Id. ¶ 19. When the third incident occurred, Ortega complained to Daniel Quintana ("Quintana"), who was De Marco's supervisor. Quintana told Ortega that he and De Marco would talk to Manzo. Id . ¶ 20. The "Ay, Rosita" comments occurred seven times in 2010, three times in 2011, and two times in 2012. Id. ¶¶ 21-23. Ortega complained to De Marco nine times, and De Marco repeatedly instructed Ortega to ignore Manzo because he was an "old man." Id.

On August 20, 2012, at approximately 2 p.m., while Ortega was washing with a pressure hose, Manzo walked up behind her, brushed his genitals up against her buttocks, and whispered "Ay, Rosita" in her ear. De Marco Depo. at 24; Ortega Depo. at 20-23. Ortega began crying, and a co-worker came up to her and said that the co-worker could not believe that "he just did that to you." Ortega Decl. ¶ 24. Immediately after the incident, Ortega complained to De Marco. Ortega Depo. at 25-26. De Marco stated that she "didn't know what to do, " to which another supervisor who was in De Marco's office stated, "[y]ou need to do something about this." Ortega Decl. ¶ 24.

Ortega then went to the office of the Human Resources Manager, Judy Vanderpool ("Vanderpool") along with a Human Resources Clerk, who served as an interpreter. Ortega Depo. at 26-27. Ortega complained about the incident, through the interpreter, to Vanderpool. Id. Ortega, who did not know Manzo's last name, identified him using employee badge photos provided to her. Id. Vanderpool asked if Ortega had complained to De Marco. Ortega Decl. ¶ 25. Ortega answered affirmatively, and Vanderpool had asked if De Marco had prepared a written report. Id. When Ortega indicated that De Marco had not prepared such a report, Vanderpool indicated that she could not take any action without such a report. Id. Meanwhile, De Marco conferred with Manzo's supervisor. ECF No. 68, Ex. E ("Avila Depo.") at 7-8.

The next morning, Vanderpool called a meeting with Manzo, his supervisor, and another manager, who served as Manzo's interpreter. Id. at 9-10. Vanderpool informed Manzo of Ortega's complaint, and read him a written warning that Vanderpool had prepared. Id. at 10. The warning stated that Neil Jones has "had prior complaints from female workers that you stare at them and it makes them uncomfortable." ECF No. 71, Ex. 2. Vanderpool suspended Manzo for two days and placed him on probation for the remainder of the season because, "it seemed apparent that [Ortega] was very upset and something took place. " Id. (emphasis added); ECF No. 68, Ex. B ("Vanderpool Depo.") at 17. Vanderpool admonished Manzo not to disclose the nature of their conversation. Avila Depo. at 11. Manzo denied the allegations, but accepted the punishment. Vanderpool Depo. at 17, 35.

The next day, Ortega complained to Vanderpool that she disagreed with the level of punishment meted out on Manzo. Id. at 15-16. Ortega also informed Vanderpool of previous incidents with Manzo. Id. at 11. Vanderpool inquired as to why Ortega did not report these prior incidents to Vanderpool. Id. Ortega contends that she was told at her orientation that such complaints were to go to her direct supervisor, which is why she did not report incidents to Vanderpool. Ortega Decl. ¶ 26. Vanderpool continued the investigation, but could not substantiate Ortega's allegations with respect to previous incidents. Vanderpool Depo. at 15-16. Vanderpool later informed Ortega that Neil Jones was unable to substantiate Ortega's allegations with respect to the incidents prior to August 20, 2012. Id.

Ortega contends that she was harassed by other co-workers as a result of the incident with Manzo. Ortega Depo. at 29. Specifically, one co-worker asked Ortega whether Ortega "was the one who had her ass grabbed" and another co-worker mimicked Manzo grabbing Ortega's buttocks as Ortega removed her rain suit. Ortega Decl. ¶ 27-28. Furthermore, Ortega contends that she continues to encounter Manzo. Ortega Depo. at 34. Specifically, three days after the incident, Manzo and Ortega were on the same stairwell, where Manzo looked at Ortega directly and laughed. Ortega Depo. at 34; Ortega Decl. ¶ 28. Moreover, Ortega had to see Manzo every day for the month following Manzo's suspension because they worked in the same area. Ortega Decl. ¶ 29. Manzo stared at Ortega and laughed at her. Id.

Ortega contends that she has suffered severe emotional distress as a result of Manzo's three-season-long harassment. Id. ¶ 31. Ortega has had difficulty sleeping, nightmares, and now fears men, including her husband. Id. Ortega also experienced severe nervousness at work. Id. ¶ 32. She cried at work and had difficulty concentrating on tasks that she had been assigned. Id.

B. Procedural History

Ortega filed a complaint against Neil Jones with the California Department of Fair Employment and Housing and requested an immediate right-to-sue notice, which the agency granted on September 4, 2012. Compl., Ex. A. On September 19, 2012, Ortega filed the Complaint in the instant litigation in the California Superior Court for San Benito County. See Compl. Neil Jones, with the consent of Manzo, removed the action to this Court under diversity jurisdiction. See ECF No. 1. On February 13, 2013, this Court issued a case management order, under which fact discovery was to close on October 17, 2013, and the parties were limited to 15 depositions per side. ECF No. 34. The parties exchanged discovery in accordance with the Court's order. Ortega was deposed on May 5, 2013. On December 11, 2013, Neil Jones filed the instant Motion for Summary Judgment. ECF No. 68. On December 24, 2013, Ortega filed her Opposition, and attached, among other documents, an affidavit from Ortega herself. ECF Nos. 69-72. On January 2, 2014, Neil Jones filed a Reply. ECF No. 73.

II. LEGAL STANDARD

Summary judgment is appropriate if, viewing the evidence and drawing all reasonable inferences in the light most favorable to the nonmoving party, there are no genuine disputed issues of material fact, and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A fact is "material" if it "might affect the outcome of the suit under the governing law, " and a dispute as to a material fact is "genuine" if there is sufficient evidence for a reasonable trier of fact to decide in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). "If the evidence is merely colorable, or is not significantly probative, " the court may grant summary judgment. Id. at 249-50 (citation omitted). At the summary judgment stage, the Court "does not assess credibility or weigh the evidence, but simply determines whether there is a genuine factual issue for trial." House v. Bell, 547 U.S. 518, 559-60 (2006).

The moving party has the burden of demonstrating the absence of a genuine issue of fact for trial. Celotex, 477 U.S. at 323. To meet its burden, "the moving party must either produce evidence negating an essential element of the nonmoving party's claim or defense or show that the nonmoving party does not have enough evidence of an essential element to carry its ultimate burden of persuasion at trial." Nissan Fire & Marine Ins. Co. v. Fritz Companies, Inc., 210 F.3d 1099, 1102 (9th Cir. 2000) (citation omitted). Once the moving party has satisfied its initial burden of production, the burden shifts to the nonmoving party to show that there is a genuine issue of material fact. Id. at 1103.

III. DISCUSSION

A. Objections to Ortega's Opposition

Before the Court turns to the merits of Neil Jones' Motion for Summary Judgment, the Court addresses Neil Jones' objections to Ortega's Opposition. In its Reply in support of the instant Motion, Neil Jones contends that much of Ortega's Opposition is procedurally improper because Ortega raises new factual allegations therein that were not presented in Ortega's Complaint. ECF No. 73 at 2-4. Specifically, Neil Jones contends that the Complaint only alleged that Ortega had complained to her supervisors about the August 20, 2012, incident. Id. In contrast, Neil Jones suggests, Ortega's Opposition increases the number of alleged complaints by suggesting that Ortega complained to De Marco during the several times that Manzo said "Ay, Rosita." Id.

Neil Jones relies principally on Wasco Prods., Inc. v. Southwall Techs, Inc., 435 F.3d 989, 990 (9th Cir. 2006), to contend that Ortega's Opposition improperly supplemented the Complaint's allegations. In Wasco, the plaintiff brought suit against two defendants alleging that defendants' had misrepresented the efficacy of certain products. The plaintiff sought to toll the statute of limitations on the basis that the defendants had engaged in a civil conspiracy and, as such, that the statute of limitations did not begin to run until the last overt act in pursuit of the conspiracy had been completed. Id. at 989. The Ninth Circuit held that plaintiff was required to allege civil conspiracy under the heightened pleading standards of Rule 9(b) because of the underlying allegation of fraud. Id. at 990-92. The Ninth Circuit concluded that plaintiff could not toll the statute of limitations on the basis of civil conspiracy by merely raising the civil conspiracy issue for the first time in its opposition to defendants' motion for summary judgment. Id. at 992.

Neil Jones further cites Coleman v. Quaker Oats Co., 232 F.3d 1271 (9th Cir. 2000). In Coleman, the Ninth Circuit held that a plaintiff who had in his complaint only alleged a disparate treatment age discrimination claim could not, at summary judgment, make a disparate impact claim of discrimination. Id. at 1292. The Ninth Circuit found that allowing plaintiffs to proceed on a disparate impact theory after the close of discovery would prejudice defendant, because discovery had proceeded on the assumption that the case was a disparate treatment case, and accordingly no discovery on defenses to disparate impact was taken. Id. Therefore, the Ninth Circuit held that "[t]he lack of notice on this issue central to the cause of action makes it difficult, if not impossible, for [defendant] to defend itself." Id. As a result, the Ninth Circuit determined that "plaintiffs, who clearly stated... claims of disparate treatment but sought also to pursue claims of disparate impact, were required either (1) to plead the additional disparate impact theory in their complaints, or (2) to make known during discovery their intention to pursue recovery on the disparate impact theory omitted from their complaints." Id. at 1294 (emphasis added).

Here, the Court finds that Neil Jones had ample notice that Ortega's prior complaints to De Marco were part of the basis of her hostile work environment claim for two reasons. First, the Complaint alleged that Manzo frequently watched female employees put on and take off rain suits and that he leered at a sexual manner at Ortega and other female employees on a daily basis. Compl. ¶¶ 8-10. The Complaint further stated that Manzo followed Ortega around and would say "Ay, Rosita" on a daily basis. Id. ¶ 11. Moreover, the Complaint alleges that Ortega's co-worker complained to De Marco about this precise behavior, id. ¶ 7, and that multiple women had lodged complaints regarding Manzo with supervisors at Neil Jones, id. ¶ 18. These allegations in the Complaint suggest that Manzo's actions prior to August 20, 2012, and Neil Jones' notice of such behavior was part of the case from the case's inception. Based on these allegations, Neil Jones was on notice that Manzo's history and what Neil Jones knew about that history would be central to the case. Accordingly, the Court finds that this is not a case in which it would have been difficult-let alone impossible-for Neil Jones to prepare its defense.

Second, Ortega made clear during her May 9, 2013, deposition that she had complained to De Marco several times. In her deposition, Ortega stated that she complained about Manzo as early as 2009 and that she complained to De Marco several times:

Q: When was the first time that you complained to Sylvia [De Marco] about Mr. Manzo?
A: I'm not sure. But we would always complain about that man. It wasn't just me. It was other people.
Q: All right. Specifically you, when is the first time that you can remember complaining to Sylvia about Mr. Manzo?
A: Let me try to remember. Because it's been a long time already. That was around - let me see. We're in 2013. Like in 2009.
Q: And what did you tell Sylvia back in 2009 about Mr. Manzo?
A: That he would come up to me and make comments that I didn't like.
Q: What did Sylvia tell you when you made complaints about Mr. Manzo?
A: She would just laugh, like if it was something cute. Oh - she would say, oh, he's old.
Q: Can you estimate for me how many times you complained to Sylvia about Mr. Manzo prior to August of 2012?
A: It was a lot of times. Yeah.
Q: More than ten?
A: I think so.

Ortega Depo. 20:6-21:5. Notwithstanding this explicit disclosure that Ortega had complained to De Marco more than ten times in a period lasting from 2009 to 2012, Neil Jones did not follow up to request additional discovery. Importantly, Ortega was deposed on May 9, 2013, and fact discovery did not close until October 17, 2013, more than five months later. ECF No. 68, Ex. B. All the other depositions before the Court occurred substantially after May 9, 2013. Therefore, the Court finds that Neil Jones would not be prejudiced by the Court's consideration of Ortega's complaints despite the fact that these complaints were not explicitly mentioned in Ortega's Complaint. Rather, Neil Jones could have pursued discovery and prepared a defense in light of Ortega's statements at her deposition.

In addition to contending that Ortega's Opposition contains facts not pleaded in her Complaint, Neil Jones further objects to Ortega's Opposition and Ortega's affidavit in support of her Opposition on the basis that several statements contained therein are inadmissible hearsay or that such statements conflict with statements Ortega made during her deposition. The Court addresses each of these in turn.

First, Neil Jones contends that Ortega's recounting of statements made to her by Vanderpool, De Marco, and Quintana are inadmissible hearsay. ECF No. 73 at 4-9. The Court finds that none of these statements is hearsay because all of the statements fall within the party-admission exemption to the hearsay rule. Fed.R.Evid. 801(d)(2). Under that rule, out-of-court statements are admissible if the statements are offered against the party who made them. Here, Vanderpool, De Marco, and Quintana were supervisors at Neil Jones, and the scope of their employment included certain human resources responsibilities. All of the statements that Ortega now cites were made in response to Ortega's human resources complaints. Accordingly, these statements were made by Neil Jones' "agent or employee on a matter within the scope of that relationship and while it existed." Fed.R.Evid. 801(d)(2)(D). These statements are therefore non-hearsay and admissible.

Second, Neil Jones contends that statements made in Ortega's affidavit, which was submitted in support of her Opposition to the instant Motion, conflict with Ortega's earlier deposition and that therefore the affidavit should be stricken as a sham affidavit. ECF No. 73 at 9-11. Under the sham-affidavit rule, "a party cannot create an issue of fact by an affidavit contradicting his prior deposition testimony." Kennedy v. Allied Mut. Ins. Co. 952 F.2d 262, 266 (9th Cir. 1991). "[A] party who has been examined at length on deposition" may not "raise an issue of fact simply by submitting an affidavit contradicting his prior testimony." Id. The sham-affidavit rule must be "applied with caution" because "[a]ggressive invocation of the rule... threatens to ensnare parties who may have simply been confused during their deposition testimony and may encourage gamesmanship by opposing attorneys." Van Asdale v. Int'l Game Tech., 577 F.3d 989, 998 (9th Cir. 2009). Accordingly, there are two limitations to the sham-affidavit rule. First, the Court must find that the affidavit is not merely contradictory, but is actually a sham, that is the affidavit was designed for the purpose of creating an issue of fact. Kennedy, 952 F.3d at 266-67. Second, the "inconsistency between a party's deposition testimony and subsequent affidavit must be clear and unambiguous to justify striking the affidavit." Van Asdale, 577 F.3d at 998.

Here, the Court finds that Ortega's affidavit is not a sham affidavit under this standard for the reasons stated below. Neil Jones contends that several statements in Ortega's affidavit are inconsistent with the following deposition testimony:

Q: All right. We have talked about Mr. Manzo saying, Ay, Rosita. And you said that he used to do that on a daily basis.
A: Yes.
Q: And then we talked about the incident that happened on August 20th when he brushed up against you. Other than those two types of conduct, has Mr. Manzo done anything else that has bothered you or disturbed you?
A: Well, no. Just the thing that he was laughing at me.
Q: And that happened one time?
A: No.
Q: How many times did he laugh at you?
A: Every time I would see him.
Q: And this is after the August 20th incident?
A: Yes.
Q: And you never reported those incidents?
INTERPRETER: Can I say "those laughing incidents"?
COUNSEL: Yes.
THE WITNESS: No. Because by then I had my attorney.

Ortega Depo. 38:5-39:2 (emphasis added). Neil Jones contends that Ortega's statements in her affidavit that she complained to De Marco about Manzo's staring while Ortega and her female colleagues changed out of rain suits and about Manzo's following of Ortega around the workplace are inconsistent with Ortega's deposition answer "[w]ell, no" to the questions of whether anything else had bothered Ortega. ECF No. 73 at 5. The Court finds that this contradiction is insufficient to support a finding that Ortega's affidavit was a "sham." Ortega's Complaint clearly recounts the incidents regarding Manzo's staring at female employees while changing out of their rain suits. Compl. ¶ 7. Moreover, in her deposition, De Marco concedes that there were at least two complaints about Manzo's presence in the changing area. De Marco Depo. at 8-9. In addition, in other parts of Ortega's deposition, Ortega states that she lodged multiple other complaints with De Marco regarding Manzo's harassing actions. Ortega Depo. at 20 ("[W]e would always complain about that man."). Moreover, in her deposition, Ortega stated that as early as 2009, Ortega complained to de Marco that Manzo came up to Ortega and made comments that Ortega did not appreciate. Id. at 21. In light of the fact that there were complaints about Manzo and that Ortega has consistently maintained her story that Manzo's presence in the changing area had made women uncomfortable and that Manzo made unwanted contact with and comments to Ortega, the Court cannot conclude that Ortega's affidavit statement that she complained about Manzo's presence in the changing area was made for the purpose of creating an issue of fact.

Further, Neil Jones contends that parts of Ortega's affidavit are inconsistent with the following deposition statement:

Q: How often would [Manzo] make comments to you?
A: Almost all the time.
Q: Every day?
A: Yes.

Ortega Depo. 19:16-19. Neil Jones appears to contend that Ortega's affidavit statements that Ortega had complained to De Marco about Manzo saying "Ay, Rosita" and De Marco's subsequent inaction is inconsistent with this deposition testimony. ECF No. 73 at 6-7. The Court does not see how these statements are inconsistent, let alone clearly and unambiguously so.

Moreover, Neil Jones contends that Ortega's statement in her affidavit that Vanderpool stated that she could not take any action without a written report about the August 20, 2012 incident from De Marco is inconsistent with Ortega's deposition testimony, in which she stated that Vanderpool said that she was going to investigate. Id. at 9. The Court finds that this inconsistency is immaterial. It is undisputed from the record that Vanderpool did in fact investigate the August 20 incident and took disciplinary action. Even if Vanderpool had stated that she could not take any action without a report from De Marco, that would not be a basis to create an issue of fact on the instant Motion. Accordingly, the question of what exactly Vanderpool said to Ortega is irrelevant to the instant Motion and therefore cannot be a basis to strike an affidavit as a sham.

Finally, Neil Jones contends that Ortega's statement in her affidavit that Manzo grabbed her hips and grinded his genitals on her buttocks is inconsistent with the following deposition testimony:

Q: So can you describe what happened when he came up behind you? You said he brushed against your booty?
A: Yes. He turned, and brushed his part up against my booty.
Q: About how long did this last?
A: I couldn't tell you. But it was just a couple of seconds.
Q: And was it - was he rough with you?
A: What do you mean rough?
Q: I mean, did he hit you hard, or was it just brushing by when you were passing?
A: He just brushed by me. And then when he was up here by my ear, I would feel his spit when he said, Ay, Rosita.
Q: Did he grab you with his hands at all?
A: No.

Ortega Depo. 23:21-24:11. The Court finds that the inconsistency here does not demonstrate that Ortega's affidavit was designed to create a fact. The facts appear to be largely consistent-not only between Ortega's deposition and affidavit, but also with Neil Jones' version of the incident. Manzo brushed up against Ortega's buttocks for a couple of seconds. Manzo further whispered into Ortega's ear, such that his face was quite close to hers, "Ay, Rosita." See De Marco Depo. at 24-25. The sole discrepancy is whether Manzo grabbed Ortega's hips. Whether he did so or not is immaterial to the questions presented by the underlying Motion: whether the work environment was hostile and whether Neil Jones adequately investigated the incident. Nothing in the instant Motion turns on whether Manzo grabbed Ortega's hips or only brushed up against her with his penis. Accordingly, this factual discrepancy was not created for the purpose of artificially concocting a genuine factual issue, and therefore cannot be a basis for applying the sham-affidavit rule.

In sum, many of the discrepancies between Ortega's deposition testimony and her affidavit in support of her Opposition are illusory. The remaining discrepancies are minor or irrelevant. Accordingly, the Court overrules Neil Jones' objections to Ortega's Opposition brief and her affidavit in support of her Opposition brief. Having done so, the Court now turns to the merits of the underlying Motion.

B. Sexual Harassment Claim

Ortega alleges that her workplace at Neil Jones was a hostile work environment plagued by sexual harassment in violation of FEHA. Cal. Gov't Code § 19200, et. seq. "California courts have adopted the [Title VII] standard for hostile work environment sexual harassment claims under the FEHA." Lyle v. Warner Bros. Television Prods., 38 Cal.4th 264, 279 (2006). Therefore, Ortega must establish that "she was subjected to sexual advances, conduct, or comments that were (1) unwelcome, (2) because of sex, and (3) sufficiently severe or pervasive to alter the conditions of her employment and create an abusive work environment." Id. An employer is liable for the harassment where the employer "or its agents or supervisors, knows or should have known of [the harassing] conduct and fails to take immediate and appropriate corrective action." Cal. Govt. Code § 12940(j)(1).

Neil Jones moves for summary judgment on two grounds. First, Neil Jones contends that the conduct about which Ortega complains was not severe or pervasive and thus does not constitute an actionable hostile work environment. Second, Neil Jones contends that it engaged in an adequate investigation after it was notified of the August 20, 2012, incident, and therefore that it took immediate and appropriate corrective action. Accordingly, Neil Jones contends that it is not liable for Manzo's conduct, even if Manzo's conduct constituted severe or pervasive harassment. The Court addresses each of these contentions in turn.

1. Severe or Pervasive

"[C]ourts have held an employee generally cannot recover for harassment that is occasional, isolated, sporadic, or trivial." Lyle, 38 Cal.4th at 283. "[R]ather, the employee must show a concerted pattern of harassment of a repeated, routine, or generalized nature." Id. Courts consider four factors in determining whether conduct rises to the level of severe or pervasive harassment: "(1) the nature of the unwelcome sexual acts or words (generally, physical touching is more offensive than unwelcome verbal abuse); (2) the frequency of the offensive encounters; (3) the total number of days over which all of the offensive conduct occurs; and (4) the context in which the sexually harassing conduct occurred." Fisher v. San Pedro Peninsula Hospital, 214 Cal.App.3d 590, 610 (1989). "Whether the sexual conduct complained of is sufficiently pervasive to create a hostile or offensive work environment must be determined from the totality of the circumstances." Id. at 609.

Construing the facts in favor of Ortega, as the Court must at summary judgment, the Court finds substantial factual disputes regarding whether Manzo's actions constituted actionable sexual harassment that was severe or pervasive. Ortega has alleged that Manzo repeatedly stared at her and her female co-workers in a private changing area in which the women's bodies were exposed. Ortega Depo. at 20. Further Ortega has stated that Manzo followed her around the workplace and made the sexualized comment "Ay, Rosita" on multiple occasions. Ortega Decl. ¶¶ 11-23. This harassment culminated in the form of sexual harassment least tolerated by our legal system-an unwanted, inappropriate, sexualized touching-when Manzo brushed his genitals against Ortega's buttocks and whispered "Ay, Rosita" in her ear. De Marco Depo. at 24; Ortega Depo. at 20-23. And, the harassment did not end there. It continued when co-workers remarked on the incident and Manzo continued to laugh at Ortega in the workplace. Ortega Depo. at 29; Ortega Decl. ¶¶ 27-28. The seriousness and frequency of these incidents, viewed as a whole, create an issue of genuine fact regarding whether the harassment was "occasional, isolated, sporadic, or trivial" or in contrast whether it was severe or pervasive. Lyle, 38 Cal.4th at 283.

In finding issues of fact persist, the Court notes that this case bears similarity to McKinzy v. National R.R. Passenger Corp., 836 F.Supp.2d 1014 (N.D. Cal. 2011), a case in which Judge Wilken found that factual issues precluded granting summary judgment to a defendant-employer notwithstanding the employer's contention that the harassment was not severe or pervasive as a matter of law. In McKinzy, the plaintiff, a conductor, sued her employer, Amtrak, for sexual harassment based on several incidents during which plaintiff's supervisor sexually harassed her while the plaintiff and her supervisor were working on Caltrain lines. Id. at 1020-21. The supervisor approached plaintiff and asked her to have sex with him four separate times. Moreover, as plaintiff was bent over working on brakes for the train, the supervisor approached her from behind and touched her buttocks. Id. at 1020. Judge Wilken held that plaintiff's sexual harassment claim under FEHA could survive summary judgment because plaintiff's testimony that she "repeatedly rejected [her supervisor's] invitations to have sex" and that the supervisor "touched her buttocks and nearly touched her private area'" was sufficient to create a genuine issue of fact as to whether plaintiff suffered severe or pervasive harassment. Id. at 1024.

The Court finds that the conduct at issue in the instant case is similar to that in McKinzy. Although Manzo did not explicitly proposition Ortega for sex, his repeated staring at her and other female employees while they were changing clothes, following Ortega around the workplace, and commenting "Ay, Rosita" to Ortega are sufficient to create an issue of fact on whether the workplace was plagued by severe or pervasive harassment. Moreover, the physical contact in the instant case is even more egregious than that in McKinzy. While in McKinzy, plaintiff was subjected to her supervisor touching her buttocks and nearly touching her "private area, " here, Ortega was subjected to Manzo brushing his penis against her buttocks while she was attempting to work. Ortega Depo. at 20-23. Accordingly, the Court finds that the totality of the circumstances is similar to the totality of circumstances in McKinzy. Accordingly, like McKinzy, there are sufficient facts to survive the Motion for Summary Judgment.

The Court finds that the cases cited by Neil Jones are distinguishable. In Fisher, the California Court of Appeal affirmed dismissal of a sexual harassment claim brought by a woman who had alleged only that her co-workers were harassed. The Court of Appeal stated that the plaintiff "could not have suffered from working in a hostile environment unless she was personally exposed to it." Fisher, 214 Cal.App.4th at 613. Similarly, in Beyda v. City of Los Angeles, 65 Cal.App.4th 511, 519 (1998), which Neil Jones also cites, the California Court of Appeal affirmed a trial court's finding that evidence of sexual harassment to the plaintiff's colleagues could not be considered in determining whether plaintiff suffered a hostile work environment, because "[h]arassment against others in the workplace is only relevant to the plaintiff's case if she has personal knowledge of it." In contrast, here, Ortega has stated that she was personally exposed to the harassing activity. Manzo stared at Ortega while she was changing. Manzo followed Ortega around the workplace. Manzo moaned, "Ay, Rosita" at Ortega. Manzo brushed his penis against Ortega.

The level of harassment in Jones v. Flagship Intern., 793 F.2d 714 (5th Cir. 1986), and Weiss v. Coca-Cola Bottling Co. of Chicago, 990 F.2d 333, 337 (7th Cir. 1993), two cases that Neil Jones cites in which federal appellate courts have affirmed findings of no sexual harassment, falls substantially below that in this case. In Jones, the plaintiff was subjected to propositions for sex by her supervisor, but experienced no unwanted physical touching. Moreover, unlike the instant case, the district court order affirmed in Jones followed a bench trial, and therefore, the district court was able to make findings of fact. In Weiss, the plaintiff "alleged that [her supervisor] asked her for dates, called her a "dumb blond, " put his hand on her shoulder several times, placed I love you' signs in her work area and attempted to kiss her in a bar." Weiss, 990 F.2d at 337. Unlike the instant case, there was no actual physical touching, let alone the sort of intimate unwanted sexualized touching to which Ortega was subjected. Moreover, there was nothing in Weiss and Jones that was comparable to Manzo's staring at Ortega and her female employees while they changed clothes. Accordingly, the Court finds these cases to be distinguishable. As did Judge Wilken in McKinzy. Judge Wilken distinguished Jones on the basis that unlike Jones, in McKinzy, "there [was] evidence that [plaintiff's supervisor] demonstrated greater persistence and touched [plaintiff] offensively." 836 F.Supp.2d at 1024.

Neil Jones further cites Mokler v. County of Orange, 157 Cal.App.4th 121 (2007), a case in which the California Court of Appeal reversed the denial of judgment notwithstanding the verdict in favor of an employer in a sexual harassment case. Again, the Court finds that the level of harassment in that case fell substantially below the level of sexual harassment to which Ortega has testified in the instant mater. Specifically, in Mokler, a female executive director of a county office on aging sued the county for sexual harassment on the basis that a member of the Board of Supervisors engaged in harassing conduct. Id. at 126-27. The plaintiff in Mokler contended that the Supervisor made a degrading comment about the plaintiff's marital status (by calling her an "aging nun" when she told him that she was unmarried); flirted with plaintiff at a campaign party and complimented her physical appearance; and put his arm around plaintiff at plaintiff's office, rubbing her breast with his arm as he did so. Id. at 131-32. The Court of Appeal held that these facts were insufficient as a matter of law to demonstrate a hostile work environment. The Court of Appeal stated:

Norby [the Supervisor] did not supervise Mokler or work in the same building with her. The first incident involved no touching or sexual remarks; rather, Norby uttered an isolated but boorish comment on Mokler's marital status. The second incident did not occur at work, and involved a minor suggestive remark and nonsexual touching. The third incident involved touching when Norby placed his arm around Mokler and rubbed his arm against her breast in the process. The touching, however, was brief and did not constitute an extreme act of harassment. Norby's request for Mokler's home address was brazen, but this conduct falls short of what the law requires to establish a hostile work environment.

Id. at 145.

There are significant factual differences between Mokler and the instant case. First, the alleged harassment in Mokler was three incidents over a period of five weeks. In contrast, here, Ortega alleges many more incidents over a period of years. Second, unlike Mokler, here, the offending actor, Manzo, worked in the same facility as Ortega, which exacerbated the frequency and the intensity of the harassment. Third, all of the incidents in the instant case occurred at Ortega and Manzo's workplace, unlike Mokler, where two out of the three incidents occurred in non-work settings. Finally, and most importantly, the physical contact to which Ortega was subjected, the brushing of Manzo's genitals against Ortega's buttocks, is more severe than the "brief" rubbing of the Supervisor's arm against the plaintiff's breast. Considering the totality of the circumstances in Ortega's favor, the Court finds that the instant case presents more severe and pervasive harassment than that at issue in Mokler.

The remaining cases that Neil Jones cites are no longer good law, because these cases have been superseded by the Supreme Court's decision in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), where the Supreme Court held that plaintiffs need not suffer serious psychological injury to bring a hostile work environment claim under Title VII. The Supreme Court in Harris explicitly rejected Rabidue v. Osceola Refining Co., 805 F.2d 611 (6th Cir. 1986), and Downes v. FAA, 775 F.2d 288 (Fed Cir. 1985), which Neil Jones relies upon in the instant Motion. See Harris, 510 U.S. at 20-21 (noting a circuit split and rejecting the views of the Sixth and Federal Circuits in Rabidue and Downes ). Moreover, the Ninth Circuit had rejected Rabidue and Scott even before the Supreme Court did so. Ellison v. Brady, 924 F.2d 872, 877 (9th Cir. 1991) ("We do not agree with the standards set forth in Scott and Rabidue, and we choose not to follow those decisions."). Finally, the Seventh Circuit itself has recognized that its decision in Scott v. Sears v. Roebuck & Co., 798 F.2d 210 (7th Cir. 1986), upon which Neil Jones also relies, does not survive Harris. Saxton v. Am. Tel. & Tel. Co., 10 F.3d 526, 533 (7th Cir. 1993) ("Thus, to the extent that our prior cases required proof that the harassment cause[d] such anxiety and debilitation to the plaintiff that working conditions were poisoned, ' Scott v. Sears, Roebuck & Co., 798 F.2d 210, 213 (7th Cir. 1986), they have been overruled [by Harris ]."). The Court therefore finds that the Neil Jones' reliance on these cases misplaced.

For these reasons, the Court finds that there are genuine issues of material fact with respect to whether Ortega had been subjected to severe or pervasive harassment. These factual disputes preclude the Court from granting summary judgment to Neil Jones notwithstanding Neil Jones' contention that Ortega did not, as a matter of law, suffer severe or pervasive harassment.

2. The Investigation

Neil Jones also moves for summary judgment on the theory that it conducted an adequate investigation and that therefore it is not liable for any of Manzo's harassment of Ortega. Employers are not automatically liable for sexual harassment resulting from the conduct of co-workers. Rather, an employer is liable only where the employer "or its agents or supervisors, knows or should have known of [the harassing] conduct and fails to take immediate and appropriate corrective action." Cal. Govt. Code § 12940(j)(1). Whether an employer's response is sufficient is usually a question of fact. Bradley v. California Dep't of Corr. & Rehab., 158 Cal.App.4th 1612, 1630 (2008).

"Once an employer knows or should know of co-worker harassment, a remedial obligation kicks in. An employer is liable for the hostile work environment created by a co-worker unless the employer takes adequate remedial measures in order to avoid liability." Nichols v. Azteca Rest. Enterprises, Inc., 256 F.3d 864, 875 (9th Cir. 2001) (internal quotation marks, citations, and alterations omitted). "The measures need to include immediate corrective action that is reasonably calculated to 1) end the current harassment and 2) to deter future harassment." Bradley, 158 Cal.App.4th at 1630. The employer's "obligation actually has two parts. The first consists of the temporary steps the employer takes to deal with the situation while it determines whether the complaint is justified. The second consists of the permanent remedial steps the employer takes once it has completed its investigation." Swenson v. Potter, 271 F.3d 1184, 1192 (9th Cir. 2001). "Employers should impose sufficient penalties to assure a workplace free from sexual harassment. In essence, then, ... the reasonableness of an employer's remedy will depend on its ability to stop harassment by the person who engaged in harassment." Ellison v. Brady, 924 F.2d 872, 882 (9th Cir. 1991). Employers therefore have a duty to undertake a remedy that is likely to be effective. Fuller v. City of Oakland, 47 F.3d 1522, 1528-29 (9th Cir. 1995). "In evaluating the adequacy of the remedy, the court may also take into account the remedy's ability to persuade potential harassers to refrain from unlawful conduct." Ellison, 924 F.2d at 882. "[M]indful of the difficulty employers face when dealing with claims of harassment, finding themselves between the rock of an inadequate response under Title VII and the hard place of potential tort liability for wrongful discharge of the alleged harasser, " courts have held that "a good faith investigation of alleged harassment may satisfy the prompt and adequate' response standard, even if the investigation turns up no evidence of harassment." Harris v. L & L Wings, Inc., 132 F.3d 978, 984 (4th Cir. 1997).

Applying these standards here, the Court finds that issues of fact remain with respect to whether Neil Jones' investigation and remedy were adequate. While it is undisputed that Neil Jones investigated Manzo's action after the August 20, 2012 incident, there are substantial factual disputes with respect to whether the remedy that followed the investigation was adequate. Specifically, while Neil Jones suspended Manzo for two days, Ortega contends that her harassing interactions with Manzo continued when their paths would necessarily cross in the workplace. On several incidents after the August 20, 2012 incident, Ortega would see Manzo, and Manzo would stare at Ortega and laugh at her. While Neil Jones contends that the mere fact that it investigated the August 20, 2012 incident is sufficient to shield it from liability for Manzo's actions, the law requires more. An investigation is only sufficient when the investigation concludes that there was no harassment. Harris, 132 F.3d at 984; see also Bradley, 158 Cal.App.4th at 1634 (holding that a defendant "cannot rest on its complex investigation process since the statute mandates remedial action designed to end the harassment." (emphasis in original)). In contrast, here it is undisputed that Neil Jones' investigation concluded that harassment occurred on August 20, 2012. Such a finding triggers a responsibility to fashion a remedy that puts an end to the harassment. Nichols, 256 F.3d at 875.

In addition to the factual issues regarding whether the investigation and remedy of the August 20, 2012 incident were sufficient, the Court finds that there are also genuine issues of material fact with respect to whether Neil Jones adequately investigated complaints about Manzo's conduct before the August 20, 2012 incident. Specifically, Ortega had complained to her immediate supervisor, De Marco, on several occasions about Manzo watching her and female co-workers changing, about Manzo following her around the workplace, and about Manzo saying "Ay, Rosita" to Ortega. Ortega Decl. ¶¶ 12-17, 19-20. Nonetheless, it appears that De Marco was fairly dismissive of Ortega's complaints. De Marco states that she instructed Manzo to stay out of the area where the women were changing, but it does not appear that anyone at Neil Jones ever admonished Manzo regarding the fact that he was making women in the workplace uncomfortable and that he should be mindful. De Marco Depo. at 8-9; see Ellison, 924 F.2d at 881 (holding that antidiscrimination statutes "require[] more than a mere request to refrain from discriminatory conduct"). The efficacy of Neil Jones' response to the initial complaints is further undermined by the fact that the August 20, 2012 incident occurred.

The cases Neil Jones relies on are inapposite or distinguishable. Neil Jones relies principally on Casenas v. Fujisawa USA, Inc., 58 Cal.App.4th 101 (1997), to contend that its investigation was adequate. However, Casenas concerns wholly different legal claims. Casenas concerns whether the plaintiff was constructively discharged from her employment. The Court of Appeal specifically stated that the plaintiff's appeal "is not about whether [the defendant] sexually harassed her." Id. at 112. Moreover, Neil Jones cites cases from the wrongful-termination context to contend that its investigation was sufficient. See Aguilera v. Baca, 510 F.3d 1161 (9th Cir. 2007); Silva v. Lucky Stores, Inc., 65 Cal.App.4th 256 (1998). These cases are inapplicable because the standards of an investigation to prevent future harassment are different than the standards designed to ensure that employees have been given adequate process prior to the termination. Neil Jones further cites McClung v. Employment Dev. Dep't, 113 Cal.App.4th 335 (2003), which is no longer good law. See McClung v. Employment Dev. Dep't, 99 P.3d 1015, 1017 (Cal. 2004) (reversing the Court of Appeal).

The remaining cases Neil Jones cites are factually distinguishable. Unlike this case, where the harassment continued even after Neil Jones' investigation, in Mathieu v. Norrell Corp., 115 Cal.App.4th 1174, 1185 (2004), the complainant indicated to the investigator that the harassment had stopped before the investigation could conclude. See Ortega Depo. at 34. In fact, in Mathieu, the employer followed up with the complainant and the complainant affirmatively indicated that the problematic conduct had not recurred. Moreover, the Court finds that the remedies that Neil Jones provided here fall substantially below those the Ninth Circuit found satisfactory in Swenson. The defendant-employer in Swenson twice admonished the harassing employee to stay away from the plaintiff and further moved the harassing employee to a different location within the same facility. Swenson, 271 F.3d at 1192. Furthermore, the defendant-employer undertook an investigation, and despite the fact that it found that a charge of sexual harassment could not be sustained, the defendant-employer adjusted plaintiff's work schedule and work assignments to avoid interaction with the harassing employee and offered plaintiff an opportunity to transfer to another facility. Id. at 1194. In fact, these changes were effective. The plaintiff in Swenson only saw the harassing employee once a month after the new procedures were put in place. Id. at 1190.

In the instant case, in contrast, De Marco did nothing from 2009 to August 20, 2012 other than suggest that Manzo place his gloves elsewhere to avoid the female employees' changing area. De Marco merely advised Ortega and her female colleague to ignore Manzo's behavior because Manzo was "an old man." Moreover, even after the August 20, 2012 incident, Neil Jones suspended Manzo for two days. ECF No. 71, Ex. 2. Neil Jones did not permanently alter work duties or locations notwithstanding the fact that Vanderpool believed that Manzo had likely engaged in problematic conduct on August 20, 2012, and there were prior complaints about Manzo's conduct. Vanderpool Depo. at 42. Therefore, Ortega continued to be forced to interact with Manzo, which made matters worse. Ortega Decl. ¶ 29. Furthermore, the Ninth Circuit in Swenson indicated that an employer's remedy must be proportional to the alleged harassment and the strength of the evidence that harassment occurred. As the Ninth Circuit stated, "[t]he more egregious the conduct alleged, and the more substantial the proof supporting the allegation, the harder the employer must try to minimize further contact between the two employees...." Swenson, 271 F.3d at 1192-93. Here, the alleged harassment was more severe than that at issue in Swenson. In Swenson, the harassing employee propositioned the plaintiff and grabbed her gloved hand to kiss it. In contrast, here, Manzo's conduct was more severe, as discussed above. Ortega Depo. at 20-23. Accordingly, Neil Jones' remedial obligations were even higher than that in Swenson. In light of this heightened burden and the fact that the Court finds that the remedial measures taken here fall below those in Swenson, the Court finds that there are issues of fact regarding whether the employer's remedy was sufficient.

IV. CONCLUSION

For the foregoing reasons, the Court DENIES Neil Jones' Motion for Summary Judgment.

IT IS SO ORDERED.


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