Opinion
No. C 02-01080 WHA
April 7, 2003
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
INTRODUCTION
In this employment-discrimination case, plaintiff alleges that she suffered sexual harassment by defendant Federal Express Corporation as a result of actions by co-workers, as well as the company's ratification of those actions and failure to monitor sexual harassment. Defendant moves to dismiss plaintiff's complaint in its entirety. This order finds that some of plaintiffs allegations are time-barred and FedEx promptly and reasonably responded to plaintiffs other allegations of harassment. Furthermore, the failure to prevent or monitor sexual harassment does not independently give rise to a cause of action in the absence of actionable sexual harassment. Additionally, plaintiff's retaliation claims fails because she has not alleged an adverse employment action. Accordingly, plaintiff's complaint is DISMISSED with prejudice.
STATEMENT
THE ALLEGED SEXUAL HARASSMENT AND RETALIATION.
Plaintiff began work at Federal Express in 1989 at the station in San Jose, California. In 1998 she transferred to the Dublin station. When that stationed closed, plaintiff moved to the Pleasonton station in 1999. Plaintiff alleges that she was sexually harassed by five different male co-workers.
In 1997, plaintiffs co-worker Fred Verticelli, complimented plaintiff's hair and smile on a daily basis (Compl. ¶ 7; Pltf. Dep. at 88) ("you are so beautiful;" "you are having a nice hair day"). Plaintiff told a co-worker that the comments made her feel "a little uneasy" but did not complain to management. Plaintiff and Verticelli continued to work together at the same facility for four months (Pltf. Dep. at 89-93). There are no further allegations against Verticelli.
Sometime in 1998, plaintiff complained to her manager that a co-worker, Kim Frakes, spanked her one time on the buttocks. Frakes was given a copy of the sexual harassment policy from his manager and the incident was never repeated. Plaintiff's manager told her that she had spoken to Frakes and that everything had been taken care of ( id. at 26, 70, 169-70).
In May 2000, plaintiff's co-worker Andy Cuneo, told her he made a comment to a customer about plaintiff being "available," as in available for a dating or sexual encounter. Plaintiff said nothing to Cuneo or to management, but found the comment extremely humiliating. Nothing else is alleged against Cuneo ( id. at 71-74, 172).
Sometime in May 2000, plaintiff overheard co-worker Richard Fryor "describing his sexual exploits" and using the "f word" in conversation with someone else. Plaintiff is unaware whether management addressed the matter or whether it happened ever again (Compl. ¶ 2; id. at 172-74).
At various times and to various managers, plaintiff did complain of some of the above incidents. Because plaintiff's claims fail as a matter of law without regard to such complaints, however, this order does not detail these ancillary facts relating to plaintiff's claims.
Plaintiff's allegations focus on her co-worker Gilbert Gonzales. Plaintiff and Gonzales worked together since 1990. They were neighbors and would commute to work together once a week. In the spring or early summer of 1999, Gonzales made a comment to plaintiff about her breasts. Also around that time, he asked her when they were going to have an affair. Plaintiff felt these comments were inappropriate. In November 1999, Gonzales came up behind plaintiff and began massaging her shoulders. When she moved away, he transferred his massage attentions to another female co-worker. In December 1999, Gonzales was waiting in line behind plaintiff and touched her buttocks. Plaintiff moved away quickly and felt embarrassed. A few days later on December 24, 1999, Gonzales confronted plaintiff about the way she had spoke to his wife during a phonecall unrelated to these allegations and called plaintiff a "bitch" (Saindon Decl. ¶ 6). Plaintiff reported this comment to management. Several weeks later plaintiff wrote to management about the harassment and an investigation was launched (Opp. at 4). A few months later Gonzales passed plaintiff in the hall and "directed a mocking laugh" at her (Saindon Decl. ¶ 10).
Plaintiff testified that no sexual harassment or hostile work environment occurred in 2001 by any individual (Pltf. Dep. at 167). In terms of retaliation, plaintiff provides evidence of three incidents. First, plaintiff's husband believes he drove by Gonzales and saw Gonzales gesture with his middle finger. Second, plaintiff's husband, again driving in his car saw Gonzales "put his hand over his mouth and just started laughing." Plaintiff did not witness these incidents. The final incident occurred at work when Gonzales and plaintiff were approaching one another in a hallway. Gonzales put his hand to his mouth and smiled. This occurred some time before February 18, 2000 ( id. at 54-58).
As noted below, plaintiff's harassment and retaliation claims fail as a matter of law without regard to the company's policies and procedures geared toward prevention of harassment. Accordingly, this order does not detail these ancillary facts relating to plaintiffs claims.
PROCEDURAL HISTORY.
Plaintiff filed two discrimination complaints with California's Department of Fair Employment and Housing. The first was filed November 13, 2000, asserting that on "12/24/99 or later" co-worker Gonzales sexually harassed her (Compl. Exh. A). The second was filed on June 16, 2001 and asserted sexual harassment and retaliation by a number of co-workers from "approx 10/97-3/5/01" ( id. Exh. B).
Plaintiff filed suit in California Superior Court for the County of Alameda on November 9, 2001, against defendant Federal Express Corporation. Plaintiff's complaint alleges sexual harassment by her co-workers and that FedEx ratified such sexual harassment. She states claims under California's Fair Employment and Housing Act. Cal. Gov. Code § 12940.
On March 6, 2002, defendant removed the case to this Court asserting diversity jurisdiction. Defendant moved for summary judgment on March 5, 2003. After full briefing on the motion, oral argument was heard on March 27, 2003.
Defendant moved for summary judgment on plaintiff's punitive-damages claim. Plaintiff does not 28 oppose this (Opp. at 19) ("plaintiff would be prepared to strike the allegations and demand in her complaint seeking punitive damages").
ANALYSIS
1. LEGAL STANDARD FOR SUMMARY JUDGMENT.Summary judgment shall be rendered if "there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." FRCP 56(c). Summary judgment is not granted if the dispute about a material fact is "genuine" — that is, if the evidence is such that a reasonable trier of fact could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). "The evidence, and all reasonable inferences therefrom must be viewed in the light most favorable to the nonmoving party." T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630-31 (9th Cir. 1987).
The moving party "has both the initial burden of production and ultimate burden of persuasion on a motion for summary judgment." Nissan Fire Marine Ins. Co., Ltd. v. Fritz Companies, Inc., 210 F.3d 1099, 1102 (9th Cir. 2000). "Credibility determinations, weighing evidence, and drawing of legitimate inferences from the facts are jury functions, not those of a judge, whether he is ruling on a motion for summary judgment or for directed verdict; evidence of the nonmovant is to be believed and all justifiable inferences are to be drawn in his favor." Anderson, 477 U.S. at 255.
On a motion by the party without the burden of proof at trial, the party may carry its initial burden by either of two methods. "The moving party may produce evidence negating an essential element of the nonmoving party's case, or, after suitable discovery, the moving party may show that the nonmoving party does not have enough evidence of an essential element of its claim or defense to carry its ultimate burden of persuasion at trial." Nissan Fire, 210 F.3d at 1106. Once the moving party meets its burden, the nonmoving party must "go beyond the pleadings and by [its] own affidavits, or by depositions, answers to interrogatories and admissions on file, designate specific facts showing there is a genuine issue for trial." Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986) (internal quotations omitted). Summary judgment for a defendant is appropriate when plaintiff fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which party will bear the burden of proof at trial. Id. at 322.
2. PLAINTIFF'S SEXUAL-HARASSMENT CLAIM FAILS AS A MATTER OF LAW.
A. The Continuing Violation Doctrine Does Not Save All of Plaintiff's Allegations.
Initially, this order determines that some of plaintiffs alleged incidents of harassment are time-barred. Cal. Gov't Code § 12960(d) provides that b"No [administrative] complaint may be filed after the expiration of one year from the date upon which the alleged unlawful practice or refusal to cooperate occurred . . ." Thus any incidents that occurred more than one year prior to the filing of plaintiff's administrative complaint would ordinarily be time-barred.
While there are statutory exceptions to this general rule, plaintiff does not allege that any of them apply in this case.
Here, plaintiffs second FEHA complaint was dated June 16, 2001. It asserted sexual harassment by co-workers from "approx 10/97-3/5/01." FEHA's one-year statute of limitations therefore bars incidents (other than those related to her first FHEA complaint) that occurred before June 16, 2000. Plaintiff testified that no sexual harassment occurred in the calendar year 2001. Accordingly the events before June 16, 2000 that are barred are the allegations against Verticelli and Frakes of events that occurred in 1997 and 1998, and against Cuneo and Fryor that occurred in May 2000.
Plaintiff alleges that the continuing-violation doctrine preserves her time-barred claims against these co-workers. In Birschtein v. New United Motor Mfg., Inc., 92 Cal.App.4th 994 (2001), the court of appeal held that a continuing violation of sexual harassment can bring in acts outside the statutory period where the unlawful actions were sufficiently similar in kind to those that occurred within the statutory period, occurred with reasonable frequency and had not acquired a degree of permanence. Here the incidents involve Verticelli's complimentary comments and Frakes' single slap on the buttocks that occurred in 1997 and 1998. The other two incidents are isolated comments by Cunyo and Fryor that occurred in May 2000. These actions were discrete, intermittent and discontinuous. They did not occur with enough frequency to be considered a course of conduct or a consistent pattern. More importantly, plaintiff does not allege any incidents of harassment after May 2000 that occurred within the statute of limitations. Thus there is no timely allegation with which the continuing-violation doctrine could tie these earlier incidents. Accordingly, these incidents do not survive the statute of limitations as part of a continuing violation under Birschtein and plaintiff's claims related to them fail.
As to the single remaining alleged harasser, co-worker Gonzales, plaintiff's first FEHA complaint, filed November 13, 2000, asserted that on "12/24/99 or later" he sexually harassed her. Thus any incidents after November 13, 1999 were preserved by plaintiff's filing of this complaint. Plaintiff also alleges that in the spring or early summer of 1999, Gonzales made certain comments to her. While these events occurred prior to November 13, this order finds that they are sufficiently related to Gonzales' other actions after the relevant date to be considered as part of a continuing violation. Accordingly, this order next addresses whether plaintiff's claim against her co-worker Gonzales is actionable under FEHA.
Plaintiff also alleges that in 1990, Gonzales did a pelvic thrust toward her on a dance floor at a party. This action is too remote in time to be deemed related to those actions which fall within the statute of limitations and will not be recognized as part of the alleged harassment.
B. Plaintiff's Evidence of Sexual Harassment by Gonzales.
Establishing a prima facie case of sexual harassment based on a hostile work environment requires a plaintiff to demonstrate that the harassment complained of was sufficiently pervasive to alter her conditions of employment. Fisher v. San Pedro Peninsula Hosp., 214 Cal.App.3d 590, 608 (1989). In determining whether statements or conduct reach this level, courts consider "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." Etter v. Veriflo Corp., 67 Cal.App.4th 457, 463-64 (1998) (citation omitted). These factors are examined from both a subjective and an objective viewpoint in light of the "the totality of the circumstances." Fischer, 214 Cal.App.3d at 609. Thus, the conduct must be such objectively hostile enough that a reasonable woman would find it affected her ability to work in the environment. Ellison v. Brady, 924 F.2d 872, 879 (9th Cir. 1991). Furthermore, "acts of harassment cannot be occasional, isolated, sporadic, or trivial, rather, the plaintiff must show a concerted pattern of harassment of a repeated, routine or generalized nature." Fisher, 214 Cal.App.3d at 610.
The provisions of FEHA at issue here have been found to be substantively identical to Title VII's, thus the court may examine Title VII decisions. Brooks v. City of San Mateo, 229 F.3d 917, 923 n. 3 (9th Cir 2000).
With regard to Gonzales, plaintiff alleges the following: Gonzales was a co-worker whom plaintiff had known for a decade. They lived in the same neighborhood and carpooled to work approximately once a week (Gonzales Dep. at 13-14). In July 1999, Gonzales said to plaintiff "Whoa Mari, I didn't know you had breasts" (Compl. ¶ 8). Plaintiff thought this comment was inappropriate (Saindon Decl. ¶ 6). Later during the summer of 1999, Gonzales said to plaintiff, "When are we going to have an affair, Mari?" (Compl. ¶ 8). Even plaintiff, who is extra-sensitive to and embarrassed by such sexual remarks herself admits that she "could handle his inappropriate conduct" to this point (Opp. at 17). In November 1999, Gonzales put his hands on plaintiff's shoulders to massage her while they were with other co-workers, and she moved away. He immediately stopped and began to massage another female co-worker. In December 1999, Gonzales was waiting in line behind plaintiff and touched her buttocks. Plaintiff moved away quickly and felt embarrassed. A few days later on December 24, 1999, Gonzales called plaintiff a "bitch" in relation to the way she had spoken to his wife on the telephone (Saindon Decl. ¶ 6). After plaintiff complained to management in early 2000 about Gonzales, a few months later he directed a mocking laugh at her ( id. ¶ 10).
Plaintiff emphasizes that she was particularly sensitive to the actions of Gonzales because of events that occurred in her past. Plaintiff fails to demonstrate, however, how Gonzales' actions affected her work environment or performance. Fisher, 214 Cal.App.3d at 610 ("The plaintiff must prove that the defendant's conduct would have interfered with a reasonable employee's work performance . . ."). Instead, she describes that suffering all of the harassment (including that which this order found inactionable), affected "the relative social comfort of the workplace" (Opp. at 15). Even apart from this, however, evidence of plaintiffs emotional distress goes only to the subjective prong of the test. The objective prong's test is whether a reasonable woman would have experienced a hostile work environment in this situation on account of the actions taken by Gonzales against plaintiff. These actions occurred over a six-month period and were sporadic and isolated. Gonzales was not an authority figure in the workplace, but rather a colleague with whom plaintiff had carpooled and had known for ten years. While it appears that Gonzales' behavior would probably not rise to the level of an actionable hostile work environment, this order grounds its result in the findings below and does not so hold as a matter of law.
C. FedEx Cannot be Held Liable for Gonzales' Harassment.
Even if Gonzales' actions rose to the level of a hostile work environment, plaintiff's claim still must fail. An employer may be liable under California Government Code Section 12940(g) if it aids, abets, incites, compels or coerces harassment or attempts to do so. Aiding and abetting occurs when one gives substantial assistance or encouragement to another to commit a prohibited act. E.g., Saunders v. Superior Court, 27 Cal.App.4th 832, 846 (1994). Otherwise, an employer is liable for harassment by an employee other than a supervisor only if the employer knows or should have known of the conduct and fails to take immediate corrective action. Cal. Gov't Code § 12940(h). An employer's remedies should be reasonably calculated to end the harassment. Ellison, 924 F.2d at 882. "Employers should impose sufficient penalties to assure a workplace free from sexual harassment. In essence, then, we think that the reasonableness of an employer's remedy will depend on its ability to stop harassment by the person who engaged in harassment." Ibid; Star v. Dep't of Veteran's Affairs, 237 F.3d 1036 (9th Cir. 2001) (counseling or admonishing a harassing employee can constitute an adequate disciplinary response).
The first question is whether FedEx aided and abetted the alleged harassment. Cal. Gov't Code § 12940(g). While plaintiff cites this theory, she provides no evidence indicating that FedEx aided and abetted Gonzales' harassment. Apart from allowing plaintiff and Gonzales to remain in the same workplace, plaintiff has not provided any evidence of any substantial encouragement by any FedEx agent. Significantly, plaintiff cites only one minor incident that occurred after FedEx management was she alerted to the alleged harassment. Plaintiff claims that a few months after she complained to management, Gonzales "directed a taunting laugh at her" (Saindon Decl. ¶ 10). According to plaintiff's allegations no other harassment occurred after FedEx was made aware of the harassment. As a matter of law, FedEx is not liable for aiding and abetting Gonzales' alleged harassment.
The next question is whether FedEx took "immediate and corrective action." Cal. Gov't Code § 12940(h)(1). Plaintiff claims that she did not complain to management about Gonzales earlier because she had complained of harassment by other co-workers in the past and was not satisfied with management's response. Nonetheless, as to the company's knowledge, this weighs against plaintiff. If she was capable in the past of utilizing the complaint procedures in place, the company would have reason to believe that she again would use them if she needed to. In each instance when plaintiff complained in the past, no harassment was ever repeated. This provides further support for the company's position that it should not have known of Gonzales' actions.
While plaintiff did not complain immediately after the incidents during the summer, the massage incident, or the butt-touching, she told a manager when Gonzales called her a bitch. The manager verbally counseled Gonzales. After several weeks, during which time plaintiff does not allege any further harassment, plaintiff wrote to a senior manager about the Gonzales harassment on January 17. An investigation was launched and it reached the interview stage in approximately three weeks. In his February 11 interview, Gonzales denied the incidents in the summer and the butt-touching. The human-resources manager/interviewer wrote a report which concluded that Gonzales had massaged plaintiff, and that plaintiff was not entitled to be released from a time-in-department requirement requiring that she remain in her current position. Gonzales received documented counseling regarding acceptable conduct in the workplace (Pltf. Dep. at 32). Plaintiff received written discipline for cursing in the workplace.
Plaintiff makes much of the fact that the investigation did not credit all of her allegations. She alleges that the company believed Gonzales over her because he had good performance ratings and was well-liked by managers, whereas plaintiff had lesser performance ratings, a history of volatility and her managers were less laudatory (Opp. at 5). These considerations were legitimate for FedEx to consider in their good-faith determination as to what harassment had occurred. But whether FedEx came to an entirely accurate conclusion regarding what had occurred is irrelevant, so long as it took prompt remedial action based upon what it found to have occurred. Additionally, plaintiff alleges that she should have been transferred, despite the time-in-department requirement in her employment contract that precluded such a move. That FedEx could have done more does not raise a fact issue as to whether FedEx took prompt remedial action so long as the action it took was reasonable.
This order finds that FedEx's response was reasonable and no jury could reasonably conclude otherwise. Significantly, Gonzales' alleged harassment did not continue. The counseling remedy applied here was reasonably calculated to end the harassment found to have occurred during the investigation. Star, 237 F.3d 1036 (admonishing a harassing employee can constitute an adequate disciplinary response). The actions taken by FedEx were in fact sufficient in this instance to deter any future harassment by Gonzales, as plaintiff does not allege any later acts. Accordingly, plaintiff cannot hold FedEx liable for any sexual harassment by Gonzales she may have suffered.
* * *
The core of plaintiff's opposition addresses her claim that the company failed to prevent the harassment she allegedly suffered and thereby ratified her co-workers' actions. She criticizes the company's response to her complaints, although she admits that no incident recurred after she complained. Plaintiff begs the court to examine the allegedly poor company training on sexual harassment and weak management response to her complaints of harassment as part of the harassment she suffered. She argues that the company's weak response over the years to her various complaints regarding the incidents described above create a continuing violation. Plaintiff maintains it was not necessarily the sexually-harassing acts themselves that gave rise to a pattern comprising a continuing violation, but the company's persistent failure to deter such harassment. Plaintiff's theory fails for two reasons.
First, California law has not extended the continuing-violation doctrine, per Birschtein, 92 Cal.App.4th 994, to an employer's failure to monitor. Plaintiff's counsel admitted at the hearing that this would be a novel interpretation of the continuing-violation doctrine under California law and that he had found no case relying upon such a theory. Plaintiff's theory seems in line with the affirmative duty California places upon employers to take steps to prevent harassment. This Court is not in a position, however, to extend the boundaries of California sexual-harassment law.
Furthermore, this order finds that such an extension of the boundaries of California law on continuing violations in the context of sexual harassment is unlikely. Plaintiff's theory assumes that the cumulative effect of the harassing incidents does not rise to the level of an actionable hostile work environment, or else a plaintiff would not need to rely on such a theory and could proceed directly under Birchwood. The affirmative duty to prevent harassment, however, only creates an independent cause of action where there is otherwise actionable harassment.
Second, plaintiff appears to be proceeding on a theory that the the company violated FEHA's provision charging it to "take all reasonable steps to prevent harassment from occurring." Cal. Gov't Code § 12940(j)(1). She essentially argues that because some harassment occurred, the company's policies necessarily were inadequate. In this vein, plaintiff seems to advocate a strict-liability standard for her co-workers' sexual harassment. This is not the law in California. For co-worker harassment, as noted above, an employer only is liable if it knew or should have known of the conduct. The standard for employer liability for actions of a supervisor or agent is different; under such circumstances, an employer would be strictly liable. Fisher, 214 Cal.App.3d at 590.
Plaintiff goes to great lengths, and even offers expert testimony to detail alternative methods through which the company could have improved its sexual harassment training. Plaintiff's analysis is misguided. Plaintiff misunderstands the implications of FEHA's affirmative-responsibility clause. It is true that FEHA charges employers with creating policies designed to prevent harassment in the workplace. Furthermore, this provision does create an independent tort cause of action under California law. Trujillo v. N. County Transit Dist., 63 Cal.App.4th 280, 286 (1998). This cause of action only stands, however, for victims of harassment whose claims rise to an actionable level. Id. at 288-89. The plaintiff must have a cause of action for harassment against her employer. Such a claim requires respondeat superior, which is absent here. In other words, if a plaintiff's harassment claim cannot be sustained, her claim for failure-to-monitor necessarily fails. Because this order finds that plaintiffs sexual-harassment claim fails as a matter of law, the evidence she presents regarding the company's failure to adequately monitor harassment is inapposite.
3. PLAINTIFF'S RETALIATION CLAIM IS DISMISSED BECAUSE SHE FAILS TO ALLEGES AN ADVERSE EMPLOYMENT ACTION.
To establish a prima facie case of retaliation, a plaintiff must demonstrate that: (1) she engaged in a protected activity, (2) she suffered an adverse employment, and (3) a casual link exists between the two events. Guthrey v. State of California, 63 Cal.App.4th 1108, 1125 (1998). Here it is undisputed that plaintiff's complaints to management about her co-workers would constitute protected activity. Because plaintiff fails to meet the second (or third) prong of the test, however, her claim fails. As noted above, plaintiff alleges that FedEx retahated against her when Gonzales gestured to plaintiff's husband with his middle finger; another time laughed at plaintiff's husband; and passed plaintiff at work and put his hand to his mouth and smiled. It is questionable whether these incidents could be considered "employment" actions at all, particularly since they were committed by a co-worker. Nevertheless, it is clear that these actions do not rise to the actionable level of an adverse employment action under California caselaw. Thomas v. Dep't of Corrections, 77 Cal.App.4th 507, 510 (2000) (describing such actions as terminations, demotion, wage decrease, loss of benefits or responsibilities as examples of adverse employment actions). Plaintiff's retaliation claim must be dismissed.
CONCLUSION
For the foregoing reasons, defendant's motion is GRANTED in its entirety. Plaintiffs case is DISMISSED with prejudice. The Clerk shall CLOSE the file.
JUDGMENT
For the reasons stated in this Court's order granting summary judgment, dated April 7, 2003, JUDGMENT is ENTERED in favor of defendant Federal Express Corporation and against plaintiff. The Clerk shall CLOSE the file.