California Court of Appeals, First District, First Division
Solano County No. FCS034334, Superior Court Hon. Robert S. Bowers, Trial Judge.
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Bergquist Wood McIntosh Seto, Bruce A. McIntosh Kraeber Law Office and Rhonda D. Shelton-Kraeber for Plaintiff and Appellant.
Stubbs & Leone, Louis A. Leone, Kathleen L. Darmagnac; Davis & Young, Mark E. Davis and Eric J. Bengston for Defendants and Respondents.
Dondero, Acting P. J.
Plaintiff Brian Lewis, a heterosexual man, sued his former employer, the City of Benicia (City), and two former supervisors, Steve Hickman and Rick Lantrip, asserting claims under the California Fair Employment and Housing Act (FEHA;
Gov. Code, § 12900 et seq.) for sexual harassment and (as to City) retaliation. The trial court granted summary judgment in favor of Hickman and Lantrip, and judgment on the pleadings for City as to the sexual harassment claims. City prevailed at trial on the retaliation claim. On appeal, Lewis challenges the grants of summary judgment and judgment on the pleadings, and argues evidentiary and other errors require reversal as to retaliation. We reverse the summary judgment as to Hickman, affirm summary judgment as to Lantrip, and reverse the judgment on the pleadings for City. As to retaliation, we conclude the court prejudicially erred in excluding certain evidence at trial, and we reverse the judgment for City on the retaliation claim.
Lewis worked at City’s water treatment plant, first as a volunteer (beginning in March 2008), then as a paid intern for a 60-day internship (from July to October 2008),
and finally for a second stint as a volunteer (from January to May 2009). As we discuss in more detail in parts II.A and II.B below, Lewis alleges Hickman (who was Lewis’s supervisor during his first volunteer period and most of his paid internship) and Lantrip (who was Lewis’s supervisor during the last few weeks of his paid internship and during his second volunteer period) sexually harassed Lewis. Lewis alleges City retaliated against him for complaining about the harassment and for participating in an investigation of Hickman that resulted in Hickman’s retiring in lieu of termination.
Lewis’s complaint asserts causes of action against City, Hickman and Lantrip for sexual harassment, intentional infliction of emotional distress, and failure to prevent sexual harassment, and a cause of action against City for retaliation. The trial court granted summary judgment for Hickman and Lantrip. The court later granted City’s motion for judgment on the pleadings as to sexual harassment, intentional infliction of emotional distress, and failure to prevent sexual harassment.
At the conclusion of the trial on the retaliation claim, the jury returned a special verdict, finding (1) Lewis participated in protected activity, (2) City engaged in conduct that materially and adversely affected the terms and conditions of Lewis’s employment, and (3) Lewis’s participation in protected activity was a motivating reason for City’s adverse actions, but (4) City’s conduct was not a substantial factor in causing harm to Lewis. The court entered judgment for City, and later entered judgments for Hickman and Lantrip.
We consolidated, for purposes of oral argument and decision, Lewis’s appeals of (1) the judgment in favor of City (No. A134078), and (2) the judgments in favor of Hickman and Lantrip (No. A134114).
A. Summary Judgment for Hickman
Lewis contends the trial court erred in granting summary adjudication on his sexual harassment cause of action against Hickman. We conclude triable issues of material fact preclude summary adjudication of that claim.
1. Standard of Review
“The rules of review are well established. If no triable issue as to any material fact exists, the defendant is entitled to a judgment as a matter of law. [Citations.] In ruling on the motion, the court must view the evidence in the light most favorable to the opposing party. [Citation.] We review the record and the determination of the trial court de novo.”
(Shin v. Ahn (2007) 42 Cal.4th 482, 499 [64 Cal.Rptr.3d 803, 165 P.3d 581]; accord, Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 860 [107 Cal.Rptr.2d 841, 24 P.3d 493].)
2. Sexual Harassment Under FEHA
FEHA’s “prohibition against sexual harassment includes protection from a broad range of conduct, ranging 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 on the basis of sex.” (Miller v. Department of Corrections (2005) 36 Cal.4th 446, 461 [30 Cal.Rptr.3d 797, 115 P.3d 77] (Miller).) A hostile work environment sexual harassment claim requires a plaintiff employee to show: (1) he or she was subjected to unwelcome sexual advances, conduct or comments; (2) the harassment was based on sex; and (3) the harassment was sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment. (Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 279 [42 Cal.Rptr.3d 2, 132 P.3d 211] (Lyle); Kelley v. The Conco
Companies (2011) 196 Cal.App.4th 191, 202-203 [126 Cal.Rptr.3d 651]
(Kelley).) Under FEHA, an employee who harasses another employee may be held personally liable. (§ 12940, subd. (j)(3) [“An employee of an entity subject to this subdivision is personally liable for any harassment prohibited by this section that is perpetrated by the employee, regardless of whether the employer or covered entity knows or should have known of the conduct and fails to take immediate and appropriate corrective action.”];
see McClung v. Employment Development Dept. (2004) 34 Cal.4th 467, 471 [20 Cal.Rptr.3d 428, 99 P.3d 1015].)
Lewis contends the trial court erred in ruling Hickman’s alleged conduct did not constitute harassment because of Lewis’s sex, and in ruling the
conduct was not severe or pervasive enough to create a hostile work environment actionable under FEHA.
3. Harassment Because of Sex
To prove sexual harassment, a plaintiff must show he or she suffered discrimination because of sex. (Lyle, supra, 38 Cal.4th at pp. 279-280; Kelley, supra, 196 Cal.App.4th at p. 203.) “ ‘ “The critical issue... is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.” ’ [Citations.]” (Lyle, supra, 38 Cal.4th at pp. 279-280, quoting Oncale v. Sundowner Offshore Services, Inc. (1998) 523 U.S. 75, 80 [140 L.Ed.2d 201, 118 S.Ct. 998] (Oncale).) A FEHA plaintiff must show “ ‘ “that gender is a substantial factor in the discrimination, and that if the plaintiff ‘had been a man she would not have been treated in the same manner.’ ” [Citation.]’ [Citations.] Accordingly, it is the disparate treatment of an employee on the basis of sex... that is the essence of a sexual harassment claim.” (Lyle, supra, 38 Cal.4th at p. 280.) “Because proof of discriminatory intent often depends on inferences rather than on direct evidence, very little evidence of such intent is necessary to defeat summary judgment.” (Kelley, supra, 196 Cal.App.4th at p. 203.)
Under both Title VII and FEHA, sexual harassment can occur between members of the same gender as long as the plaintiff can establish the harassment amounted to discrimination because of sex. (Oncale, supra, 523 U.S. at pp. 79-80; Kelley, supra, 196 Cal.App.4th at p. 203; Singleton v. United States Gypsum Co. (2006) 140 Cal.App.4th 1547, 1557 [45 Cal.Rptr.3d 597] (Singleton); Mogilefsky v. Superior Court (1993) 20 Cal.App.4th 1409, 1416-1418 [26 Cal.Rptr.2d 116] (Mogilefsky).)
In Oncale, the Supreme Court discussed alternative “evidentiary route[s]” that could support an inference that same-gender harassment was discrimination because of sex. (Oncale, supra, 523 U.S. at pp. 80-81;
see Kelley, supra, 196 Cal.App.4th at p. 204.) The Court first noted an inference of discrimination may be “easy to draw” in male-female sexual harassment situations involving “explicit or implicit proposals of sexual activity, ” and “[t]he same chain of inference would be available to a plaintiff alleging same-sex harassment, if there were credible evidence that the harasser was homosexual.” (Oncale, supra, 523 U.S. at p. 80.) The Court stated, however, that “harassing conduct need not be motivated by sexual desire to support an inference of discrimination on the basis of sex” (ibid.), and the Court suggested other potential methods to establish the inference of discrimination. “A trier of fact might reasonably find such discrimination, for example, if a female victim is harassed in such sex-specific and derogatory terms by another woman as to make it clear that the harasser is motivated by general hostility to the presence of women in the workplace. A same-sex harassment plaintiff may also, of course, offer direct comparative evidence about how the alleged harasser treated members of both sexes in a mixed-sex workplace.” (Id. at pp. 80-81.) These are not necessarily the exclusive means of establishing the inference. (Kelley, supra, 196 Cal.App.4th at p. 205; see Singleton, supra,
140 Cal.App.4th at p. 1562.) But the Oncale Court emphasized that, “[w]hatever evidentiary route the plaintiff chooses to follow, he or she must always prove that the conduct at issue was not merely tinged with offensive sexual connotations, but actually constituted ‘discrimination... because of... sex.” (Oncale, supra, 523 U.S. at p. 81.)
We conclude that, applying the first evidentiary route outlined by the Supreme Court in Oncale, the evidence in the present case allows an inference Hickman’s conduct toward Lewis constituted discrimination because of sex. Preliminarily, we note California appellate courts have disagreed as to the evidentiary showing needed to support an inference that same-gender harassment constitutes discrimination on the basis of sex. In Singleton and Mogilefsky (cited by Lewis), our colleagues in the Second District (Divisions Eight and Four, respectively) concluded same-gender harassment consisting of sexual comments designed to humiliate the plaintiff and challenge his gender identity constitutes harassment because of sex within the meaning of FEHA. (See Singleton, supra,
140 Cal.App.4th at pp. 1561-1562, 1564; Mogilefsky, supra, 20 Cal.App.4th at pp. 1412, 1415-1416, 1418.) In these circumstances, the Singleton and Mogilefsky courts held a plaintiff need not prove the alleged harasser was motivated by sexual interest. (Singleton, supra, 140 Cal.App.4th at p. 1564; Mogilefsky, supra, 20 Cal.App.4th at ...