United States District Court, N.D. California
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANT'S MOTION FOR SUMMARY JUDGMENT RE: DKT. NO.
CHHABRIA United States District Judge.
retaliation claims fail at the first step of the
McDonnell Douglas analysis. See Loggins v.
Kaiser Permanente Int'l, 151 Cal.App.4th 1102,
1108-09 (2007). Simms identifies a protected activity -
reporting her harassment allegations to human resources in
April 2015. See Opp. (Dkt. No. 27) at 8-9. And Simms
identifies an adverse employment action - her firing the
following October. See Id. at 18. But she hasn't
identified the causal link between the two. Simms points to
temporal proximity. Id. at 17-19. But six months
isn't the kind of closeness in time from which courts can
infer a causal relationship. See Villiarimo v. Aloha
Island Air, Inc., 281 F.3d 1054, 1065 (9th Cir. 2002).
That's particularly true here given that Simms's
internal complaint was fully resolved in April, just days
after HR was alerted to it, when management
"expedited" Vantosky's departure. MSJ (Dkt. No.
25) at 4-5; Sobo Decl. (Dkt. No. 26) Ex. B at 36:13-17; Opp.
argues that her termination was underway as early as July.
Opp. at 18. But the causal link is still lacking. The
evidence from that time shows only that the
Chronicle conducted a department-wide review of its
staffing. See Thyberg Decl. (Dkt. No. 30) Ex. E at
25. For the HR department to call attention to the special
"Guild/Legal" concerns related to Simms's
employment status is unremarkable in that context. Human
resources is expected to call attention to any
special obligations a company owes to its workers. That it
did so here is not evidence that Simms was targeted, much
less that she was targeted for complaining about harassment;
it is evidence that the Chronicle was engaged in the
ordinary process one would expect of an organization weighing
whether and how to downsize.
extent Simms argues that Hearst should have taken special
preventive measures in response to the harassment allegations
brought against Vantosky in New York, the failure-to-prevent
claim is amenable to summary judgment in Hearst's favor.
See Cal. Gov't Code § 12940(k). At the time
Vantosky transferred to the Chronicle, the New York
Division of Human Rights had already investigated the
allegations against him and found "no probable
cause" to suspect sexual harassment or discrimination.
Sobo Decl. (Dkt. No. 26) Ex. F. Simms points to additional
allegations circulating among the rank and file around the
same time. But Simms offers nothing to suggest that
management at the defendant corporation - as opposed to
management at the separately organized New York newspaper -
had knowledge of these allegations and reason to believe they
gave rise to a stronger claim than the one already rejected
by the Division of Human Rights. See Peterson Decl.
(Dkt. No. 26) at ¶ 7; Opp. at 6.
extent Simms argues that Hearst is liable for failure to
prevent harassment based on the inaction of Simms's
departmental supervisors, there remains a dispute of fact.
Simms has submitted evidence that she reported her harassment
to two different direct supervisors - Schneiderman and Barno
- between February and April 2015. Thyberg Decl. (Dkt. No.
31) Ex. H at ¶¶ 16-17; id., Ex. G at
¶¶ 9-10. Simms has also submitted evidence
suggesting that Schneiderman failed to intervene in response
to her allegations. Id., Ex. H at ¶ 16;
id., Ex. G at ¶ 9. Although the evidence is
sparse, Hearst does not dispute it, and indeed Hearst makes
no mention of Schneiderman in its motion or reply.
See Reply (Dkt. No. 33) at 14. Given the lack of
clarity in Simms's failure-to-prevent argument,
Hearst's silence is perhaps less reflective of a dispute
of fact than of a dispute about the theories of liability
properly disclosed in this litigation. But since the
complaint adequately pleads Hearst's imputed knowledge of
Simms's harassment, and since the opposition to summary
judgment adequately raises questions about the responsiveness
of middle management, the Court cannot conclude that this
theory of subdivision (k) liability has been foreclosed.
Compl. (Dkt. No. 1-1) at ¶¶ 42, 43, 45; Opp. (Dkt.
No. 27) at 8. And because the predicate existence of
harassment is, for the reasons discussed below, a question
for the jury to resolve, the Court cannot grant summary
judgment on the failure-to-prevent claim. If Hearst believes
Simms should be prevented from arguing failure to prevent for
some other reason - as a Rule 37 sanction, for example - it
should file an appropriate motion before or in conjunction
with the motions in limine.
light of the strict-liability standard for claims premised on
a supervisor's misconduct, the only open question on
Simms's subdivision (j)(1) claim is whether
Vantosky's behavior rose to the level of actionable
harassment. See Cal. Gov't Code §
12940(j)(1); State Dep't of Health Servs. v. Superior
Court, 31 Cal.4th 1026, 1041 (2003). The Court cannot
rule out that possibility as a matter of law. The record
reflects a series of incidents consistent with a supervisor
leveraging his position to coerce affection from a
subordinate. Vantosky asked Simms to pay him more attention
in the workplace. See MSJ (Dkt. No. 25) at 3-4; Opp.
(Dkt. No. 27) at 6-7. He pressured her to speak with him more
regularly. Sobo Decl. (Dkt. No. 6) Ex. A at 31-32, 49. He
expressed romantic attachment. Id. at 56 And
finally, when Simms discouraged him, he said couldn't
keep himself away from her - suggesting not only that his
behavior wouldn't change, but that he didn't intend
it to. Id. at 54, 59. A reasonable jury could
interpret these incidents as the kind of severe or pervasive
pattern of conduct effecting a change in the conditions of
Simms's employment. See Lyle v. Warner Bros.
Television Prods., 38 Cal.4th 264, 279 (2006). That the
incidents were relatively few does not necessarily make them
"isolated" or "stray." Cf. Dee v.
Vintage Petroleum, Inc., 106 Cal.App.4th 30, 36 (2003),
as modified on denial of reh'g (Mar. 5, 2003). A
jury could reasonably conclude that someone in Simms's
position would absolutely dread the thought of going to work
every day in light of Vantosky's conduct, and that his
conduct constituted a significant interference with her
ability to do her job.
comparison with Hearst's cases is illustrative. In
Westendorf, for example, the plaintiff was subjected
to a coworker's lewd comments about women, but she
wasn't herself the object of them, she spent relatively
little time at the affected worksite, and she didn't
claim that her work suffered as a result. Westendorf v.
West Coast Contractors of Nev., Inc., 712 F.3d 417,
421-22 (9th Cir. 2013). In Fisher, the plaintiff
witnessed egregious acts of verbal and physical harassment,
but she never connected them to her own experience in the
workplace, and the record didn't make clear that the
incidents occurred particularly close in time to one another
or to the plaintiff's allegations of harassment.
Fisher v. San Pedro Peninsula Hosp., 214 Cal.App.3d
590, 612-14 (1989). Here, by contrast, Simms wasn't just
a witness to offensive conduct, but - viewing the evidence in
the light most favorable to Simms - the immediate target of
it. Simms demurred, and the behavior continued. She demurred
again, and the behavior escalated. Although it took her
longer to reach out to HR, Simms complained about the alleged
harassment just after it occurred, and on multiple occasions.
attempts to downplay the nature of Vantosky's conduct,
but the fact that the offending words or deeds were less
crass or aggressive here than in other, unsuccessful cases
doesn't necessarily work to Hearst's advantage, as
the analysis is holistic and fact-specific. Hughes v.
Pair, 46 Cal.4th 1035, 1044 (2009). Measured words and
actions might well be more insidious than a pattern
of vulgar but undirected slurs. See, e.g., Sobo
Decl. (Dkt. No. 26) Ex. A at 54:8-24. For the same reason,
the Court can't accept Hearst's position that half
the incidents Simms complained of can be set aside because
they didn't expressly invoke either sex or gender.
See, e.g., Landucci v. State Farm Ins. Co.,
65 F.Supp.3d 694, 704 (N.D. Cal. 2014). Even taken in
isolation, Vantosky's actions are difficult to explain as
anything other than "because of . . . [Simms's]
sex." Cal. Gov't Code § 12940(j)(1). Once the
actions are placed in their proper context, continuing to
insist that Simms's sex was not at issue borders on
absurd - whatever conclusion one might reach on the severity
or pervasiveness of the conduct.
judgment is granted on the retaliation and constitutional
claims and denied on the subdivision (j)(1)
claim. To the extent Simms is arguing for failure
to prevent based on the inaction of her direct supervisor at
the Chronicle, summary judgment is denied on the
subdivision (k) claim. Accordingly, Simms will not be able to
present an argument for punitive damages based on
Vantosky's transfer to the Chronicle, but a
punitive damages theory premised on Vantosky's actions as
a "managing agent" - a theory Hearst has not yet
addressed - remains. See Opp. (Dkt. No. 27) at 21;
Davis v. Kiewit Pac. Co., 220 Cal.App.4th 358, 366
parties should consult this Court's Standing Order for
Civil Trials in preparation for the pretrial conference. If
the parties believe they will require relief from the
standard deadline for motions in limine, they should file a
motion or stipulation to that effect no later than April 17.
IS SO ORDERED.
 Although Simms weaves it into her
argument for failure to prevent, it's clear enough from
the substance of both the complaint and the opposition to
summary judgment that Simms has brought - and supplied
evidence of - a separate subdivision (j)(1) claim.
See Dkt. No. 35; Compl. (Dkt. ...