California Court of Appeals, Fourth District, First Division
APPEAL from an order of the Superior Court of San Diego County No. 37-2010-00101050- CU-PO-NC, Jacqueline M. Stern, Judge.
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Ritter & Associates, Dwight Ritter and Karen Albence, for Plaintiff and Respondent.
John Mullen, City Attorney, Deborah L. Nash, Assistant City Attorney; Greines, Martin, Stein & Richland, Timothy T. Coates and Alana H. Rotter, for Defendant and Appellant.
Ritter & Associates, Dwight Ritter and Karen Albence for Plaintiff and Respondent.
Kimberli Hirst, an employee of American Forensic Nurses, Inc. (AFN), brought a California Fair Employment and Housing Act (FEHA; Gov. Code, § 12900 et seq.) claim against the City of Oceanside (City), alleging she was sexually harassed by an Oceanside police officer, Gilbert Garcia, while she was providing phlebotomist services on behalf of the Oceanside Police Department. The jury found Hirst proved her claim and awarded her $1.5 million in damages against the City. After reducing the amount for which Garcia was found responsible, the court entered judgment in Hirst's favor for $1.125 million.
The City moved for a new trial and for a judgment notwithstanding the verdict (JNOV). In the new trial motion, the City contended the damages award was unsupported by the evidence. In the JNOV motion, the City argued Hirst was not entitled to recover under the FEHA because she was not a City employee, special employee, or a "person providing services pursuant to a contract" under Government Code section 12940, subdivision (j)(1).
The court denied the JNOV motion, but granted the new trial motion finding the damage award was excessive. The court ordered a new trial on both liability and damages because "the issues are so interrelated that damages cannot be separated from the facts underlying liability."
Hirst did not appeal from the new trial order, but the City appealed from the denial of its JNOV motion, contending Hirst had no standing to recover damages on her FEHA claim against the City. We determine the evidence supports that Hirst was a "person providing services pursuant to a contract" and therefore she was entitled to recover against the City for its employee's sexual harassment. (§ 12940, subd. (j)(1).) Based on this conclusion, we do not reach the additional asserted ground for standing (whether Hirst was a "special employee" of the City). We affirm the court order denying the JNOV motion and remand for further proceedings under the court's new trial order.
FACTUAL AND PROCEDURAL BACKGROUND
Under the applicable review standard, we summarize the evidence in the light most favorable to Hirst. (See Begnal v. Canfield & Associates, Inc. (2000) 78 Cal.App.4th 66, 72 [92 Cal.Rptr.2d 611].) In the Discussion section, we describe additional evidence regarding the business and employment relationships among the City, AFN, and Hirst.
AFN provides phlebotomy services for law enforcement agencies that need blood samples drawn from suspects for intoxication testing and other purposes. In 2004, AFN entered into a contract with San Diego County (County), requiring AFN to supply personnel to perform blood draws "on an on-call basis" at locations throughout the County, including the Oceanside Police Department.
In August 2008, AFN hired Hirst, a certified and trained phlebotomist, to work on an on-call basis in the North County area. About one month later, while Hirst was performing these blood drawing services for the Oceanside Police Department, Oceanside police officer Garcia began making graphic sexual comments to her, and then repeated these comments during the next several months. These comments included Garcia telling Hirst " 'I'd like to bend you over and fuck you in the ass' " and " 'I want to watch you... give me a blow job' " and " 'you have a nice ass.' " Hirst did not immediately report these comments because-as a new employee-she was concerned about her job and was afraid of police officer retaliation.
In about May 2009, Hirst's AFN supervisor, Terry Johnston, questioned Hirst about Garcia, stating that Garcia has been "saying really nasty things about you" of a sexual nature. At that point, Hirst broke down and disclosed
Officer Garcia's harassment. Johnston responded that he would need to report the conduct, but Hirst was "adamant" she did not want to report because she was afraid of retaliation. She "just wanted it to go away." Johnston continued discussing the issue with Hirst, insisting he would need to report the conduct. At one point, a contract reserve officer overheard these conversations, and volunteered to report the conduct to an Oceanside police sergeant.
Shortly after, the reserve officer reported the conduct. In response, Garcia's supervisor ordered him to stay away from Hirst, and began an investigation. Upon learning of the harassment, AFN's president and chief executive officer communicated with the Oceanside Police Department in an effort to ensure Garcia would be appropriately controlled and disciplined. The AFN president also counseled Hirst regarding safety measures.
During the next several months, Garcia engaged in several additional acts of harassment and/or retaliation against Hirst, including driving by and staring at her in a menacing way, kicking open a security gate in a dark area of the police station while letting Hirst into the station, making an intimidating comment about Hirst while she was at the station for a blood draw, and driving by her vehicle and mouthing the words " 'fuck you.' "
In September 2009, a City human resources manager prepared a report concluding that Officer Garcia had sexually harassed Hirst and setting forth numerous factual findings supporting this conclusion. The report stated that Officer Garcia's sexual harassment of Hirst was "inexcusable in the workplace.... Hirst made it clear that she was offended by [his] statements and that Officer Garcia's continued conduct unreasonably interfered with her work environment and caused her to feel intimidated and offended." The manager concluded: "There is sufficient evidence to substantiate a finding that Officer [Garcia] engaged in sexually derogatory and suggestive statements and graphic verbal commentary and Hostile Work Environment Sexual Harassment under the standards established by the [City's internal harassment and discrimination prevention policy]. The substantiated evidence in this investigation also indicates a high likelihood that Officer Garcia's actions meet the elements necessary to establish a prima facie case of Hostile Work Environment Sexual Harassment under the California Fair Employment and Housing Act (FEHA)."
Based on this report, the Oceanside Police Department put Garcia on administrative leave. The police chief recommended termination, and this decision was affirmed by the city manager. Garcia's termination became final after he unsuccessfully challenged the termination at an arbitration hearing.
About one year later, Hirst sued the City. She initially alleged seven causes of action, but only her FEHA sexual harassment claim remained by the time of trial. Hirst's theory was that Garcia sexually harassed her and that the City was liable either because Garcia was her supervisor or because the City knew or should have known about the harassment and failed to take immediate corrective action. (§ 12940, subd. (j).)
At trial, Hirst presented the evidence summarized above regarding the harassment, and also presented evidence regarding the City's failure to promptly prevent the continuing harassment and her emotional distress resulting from Garcia's conduct. She additionally presented an expert, a human resources consultant, who testified that once the City learned of the harassment, it failed to take reasonable and timely steps to prevent continued harassment and retaliation against ...