Patrick C. Kelley was an apprentice ironworker employed by respondent The Conco Companies (Conco). He complained that he was subjected to a barrage of sexually demeaning comments and gestures by his male supervisor, and later to similar comments by male coworkers, and that he was also subjected to physical threats by coworkers in retaliation for his complaints about his supervisor. Kelley's employer changed his worksite to separate him from his harassers, but Kelley was later suspended by his union from its apprenticeship program rendering him ineligible for employment.
In October 2007, Kelley sued Conco and David Seaman (collectively, Defendants) for sex discrimination and sexual harassment in violation of FEHA (§ 12940); retaliation; termination in violation of public policy; failure to prevent discrimination; intentional infliction of emotional distress; and negligent infliction of emotional distress. Defendants moved for summary judgment. We summarize the evidence offered in support of and opposition to summary judgment, construing Kelley's evidence liberally and Defendants' evidence narrowly and drawing, as we must, all reasonable inferences in favor of Kelley. (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 254 [100 Cal.Rptr.3d 296].)
The Emeryville Jobsite Incidents
Conco is one of the largest concrete construction companies in California. Kelley was an apprentice ironworker with Ironworkers Union Local 378 (Local 378) and Conco was a union shop. To get work, Kelley would contact companies such as Conco directly and, once hired, he would inform the union and obtain a dispatch slip.
On July 28, 2006, Kelley was hired as an apprentice ironworker at Conco and began working at a jobsite in Emeryville with Seaman as his supervisor. On about July 30, 2006,
Kelley confronted Seaman and said Seaman was "fucking gay." Seaman responded angrily and "puffed up," took off his tool bag and said he was going to "kick [Kelley's] ass."
Kelley remained on the job, ate lunch on the jobsite and did not interact with anyone. After lunch, Kelley spoke to Conco field safety manager Joseph Anthony Gallegos, Jr., for 20 to 30 minutes and told him "exactly what happened."
On the afternoon of the Seaman incident, two coworkers called Kelley a "bitch" and one "got in [Kelley's] face" and "talk[ed] shit" to him. Seaman twice told them to leave Kelley alone, but Kelley heard them continue to say they were going to jump him after work. When Kelley got home, he called the Conco dispatcher, Scott Nava, asked to be assigned to a different jobsite, and explained why. Nava agreed and told him to report the next day to a Vallejo worksite.
Kelley's Work in Vallejo and Redwood City
After leaving the Emeryville jobsite, Kelley worked on a Conco job in Vallejo for two days. On both days coworkers called him a "bitch," "faggot," and "narc" or "snitch" for complaining and two of them told him he would be lucky if he did not get his ass beat after work. A supervisor was within earshot but ignored the comments. Kelley reported the incident to Nava at the end of the day and Nava said, "`Well, that's the way the trade is, man. That's just the way these guys are.'"
A week or two after the Emeryville job, Seaman called Kelley and asked if he wanted a ride to a Conco job in Redwood City. Kelley accepted the ride because he was afraid he would lose his job if he declined. Seaman was not Kelley's supervisor on that job, and Kelley worked there for three or four days without incident. According to Seaman, Kelley's job performance was better in Redwood City than in Emeryville.
Kelley's Other Work for Conco
Kelley never worked with Seaman again, but he worked for Conco on other jobs over the next three months. On some jobs, he had no problems. At others, he heard remarks daily about what had happened with Seaman. He was called "punk bitch," "snitch" or "fag," and people would "get in his face" and would threaten to jump him after work. Kelley complained about this conduct to Scott Nava "two [to] three times a week" and asked to be removed from the jobs. Nava regularly moved him. Kelley also complained to at least one other person ("Tony") at Conco on two or three occasions about the behavior.
Kelley's Suspension from the Union
Kelley was required to attend classes in order to maintain his status as a union apprentice. He wrote the union a letter asking for a day off so he could attend his brother's wedding and handed it to union representative Dana Fairchild before a class. After Kelley took the day off (which was after the incident with Seaman), Fairchild told Kelley he never received the letter and the absence was unauthorized. Fairchild raised the issue with the apprenticeship board and on October 3, 2006, Kelley was asked to leave a Conco job to attend a board meeting on the issue. At the meeting, the board suspended him for six months.
The apprenticeship board notified Conco on October 10, 2006, that Kelley had been dropped from the program effective October 3 and was not eligible for employment or training under the terms of the union's collective bargaining agreement with Conco. Kelley never again worked at Conco.
Kelley's Subsequent Search for Work
After the suspension expired in about April 2007, the union told Kelley never to call or go back to Conco because there was no longer any kind of work for him there. When Kelley later tried to get work from other companies, he would be released after the first week of pay. When he asked the union why he was getting released, Fairchild "got on his case," "yelled at him for what happened at Conco," and said that was the reason he could not get work.
Kelley worked for short durations for other contractors including Brodhead Steel, Mission City Steel, Harris Salinas, and Shepard Steel. While working at Brodhead, Kelley's coworkers called him a "bitch" and a "narc" and one coworker who said he was a friend of Seaman told Kelley he was a "punk for doing what [he] did." There were three incidents at Brodhead involving two workers. Kelley was fired from the Harris Salinas job because he tested positive for marijuana. The company told him to check back for work in a few months, but he was never rehired. Kelley's boss at Shepard said he wanted to keep Kelley, saying Kelley was a good worker, but told Kelley "the guys upstairs" did not think he was going to work out so he was let go.
Kelley's Resignation from the Union
Kelley said that by October 2007, he was suffering a deep depression and did not want to go back to ironworking. He asked the union for a six-month
Trial Court Rulings
At the hearing on the summary judgment motion, the court summarized its understanding of the evidence as follows. "[D]istilling as best I can[,] ... all of a sudden, on one day, [Seaman] goes ballistic and gets so mad at Mr. Kelley that he lets loose with a great volume of extremely-unpleasant, ugly, sexually-ladened language and that that provokes something of a confrontation, in which [Kelley] challenges [Seaman] and the two of them square off, but, for some reason, no physical altercation ensues. And then, you know, things kind of go back to being more or less normal. [¶] ... There doesn't appear to be any kind of a pervasive nature of this conduct[.] [¶] The question in my mind is, is the incident in and of itself so severe, ... so inherently destructive of [Kelley's] work environment that in and of itself it should be considered sexual harassment? ... [T]hat's really the only question I have." After hearing argument, the court took the matter under submission and subsequently issued a written order granting summary judgment to Defendants.
A. Summary Judgment Standard
Summary judgment is appropriate "if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (Code Civ. Proc., § 437c, subd. (c).) "[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.... There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 [107 Cal.Rptr.2d 841, 24 P.3d 493], fns. omitted (Aguilar).) When the plaintiff bears the burden of proving facts by a preponderance of
An order granting summary judgment is reviewed de novo. (Aguilar, supra, 25 Cal.4th at p. 860.) In ruling on the motion, the court must draw all reasonable inferences from the evidence in the light most favorable to the opposing party. (Id. at p. 843.) "We liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party. [Citation.]" (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037 [32 Cal.Rptr.3d 436, 116 P.3d 1123] (Yanowitz).)
B. Sexual Harassment and Sex Discrimination Cause of Action
"The elements of such a cause of action are: `(1) plaintiff belongs to a protected group; (2) plaintiff was subject to unwelcome sexual harassment; (3) the harassment complained of was based on sex; (4) the harassment
Kelley argues the trial court erred both in ruling that the evidence did not support an inference that he was harassed because of his sex, and in ruling that the harassment was not severe or pervasive enough to amount to an adverse employment action actionable under FEHA.
1. Discrimination Based on Sex
Oncale suggests alternative "evidentiary route[s]" that could support an inference that same-sex harassment was discrimination because of sex. (Oncale, supra, 523 U.S. at pp. 80-81.) An inference of discrimination may be "easy to draw" in male-female sexual harassment situations where there are 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." (Id. at p. 80.) An inference of discrimination on the basis of sex could be drawn where, for example, "a female victim is harassed in such sex-specific and derogatory terms by another woman as to make it clear that the harasser was motivated by general hostility to the presence of women in the workplace. A same-sex harassment plaintiff [might] also ... offer direct comparative evidence about how the alleged harasser treated members of both sexes in a mixed-sex workplace." (Id. at pp. 80-81.)
While we agree with Kelley's assertion that these are not necessarily the exclusive means of establishing that inference, "[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 `discrimina[tion] ... because of ... sex.'" (Oncale, supra, 523 U.S. at p. 81.)
The statements made to Kelley were crude, offensive and demeaning, as it was evident that they were intended to be. No evidence, however, was presented from which a reasonable trier of fact could conclude that they were an expression of actual sexual desire or intent by Seaman, or that they resulted from Kelley's actual or perceived sexual orientation. The mere fact that words may have sexual content or connotations, or discuss sex, is not sufficient to establish sexual harassment. (Lyle, supra, 38 Cal.4th at pp. 279-280.) "[W]hile the use of vulgar or sexually disparaging language may be relevant to show discrimination, it is not necessarily sufficient, by itself, to establish actionable conduct." (Id. at p. 281.)
Courts have routinely insisted on evidence that an alleged harasser was acting from genuine sexual interest before holding that the fact of a sexual proposition supported an inference of discrimination because of sex. (Davis v. Coastal Internat. Security, Inc. (D.C.Cir. 2002) 348 U.S. App.D.C. 375 [275 F.3d 1119, 1121, 1125] [where alleged harassers grabbed plaintiff's crotch, made kissing gestures and described oral sex, court distinguished cases involving "actual homosexual desire [that] motivated the harassment"]; McCown v. St. John's Health System (8th Cir. 2003) 349 F.3d 540, 541-543 [where alleged harasser grabbed plaintiff's genitalia and simulated anal intercourse with plaintiff, evidence of sexual harassment was insufficient because there was "no evidence ... that [the harasser] was homosexual and
Kelley cites Singleton, supra, 140 Cal.App.4th 1547 in support of his argument that he was not required to show any sexual intent or motivation to establish his claim. In Singleton, our colleagues in the Second District held that same-sex harassment, very similar to the conduct alleged here, was gender-specific and thus constituted discrimination because of sex. (Id. at pp. 1561-1562.) In Singleton, male coworkers made homophobic comments to the male heterosexual plaintiff, repeatedly called him "`Sing-a-ling,'" which the plaintiff understood as a reference to a homosexual movie character, told the plaintiff he was wearing tight jeans or a G-string, made gestures and comments suggesting the plaintiff performed fellatio on his supervisor, threatened to anally penetrate the plaintiff, and solicited oral sex from the plaintiff. (Id. at pp. 1552-1553.)
The Singleton court found evidence that Singleton was disparately treated because of his sex because the statements "targeted Singleton's heterosexual identity, and attacked it by and through their comments" thereby treating him "`differently'" than they would have treated a woman. (Singleton, supra, 140 Cal.App.4th at p. 1562.) "It follows that the harassment was `because of sex,' i.e., it employed attacks on Singleton's identity as a heterosexual male as a tool of harassment." (Ibid.; see also Miner v. Mid-America Door Co. (2002) 2003 OK CIV APP 32 [68 P.3d 212, 219] [harassing comments "clearly were intended to attack Plaintiffs' masculinity [and] question their virility" but there was also evidence that women were not treated in the same manner].)
We respectfully disagree. Singleton finds that the gender-specific nature of the harassment establishes disparate treatment based on sex. Singleton's reasoning inevitably leads to the conclusion that any hostile, offensive and harassing comment or conduct, with or without sexual content or innuendo, made to one gender and which would not be made to the other, would constitute discrimination because of sex within the scope of FEHA. (Singleton,
While Kelley was undoubtedly subjected to grossly offensive comments and conduct, he did not produce evidence which would support a claim that he suffered discrimination in the workplace because of his gender.
2. Severe and Pervasive Harassment
Since we find that Kelley failed to meet his burden of establishing sex-based discrimination, we need not address the trial court finding that he also failed to establish that the conduct was "`sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.'" (Harris v. Forklift Systems, Inc., supra, 510 U.S. at p. 21.) We observe, however, that although Kelley alleges conduct by Seaman that was patently offensive, the evidence Kelley presented failed to show pervasive hostile conduct, sexually motivated or otherwise, by Seaman or by any other supervisor on any date other than July 30, 2006.
We believe the trial court correctly determined that Kelley failed to establish that he was subjected to a sexually discriminatory environment that altered the conditions of his employment. We affirm the trial court's summary adjudication of the sexual harassment claim in favor of Defendants.
C. Failure to Prevent Sexual Harassment
The trial court granted summary adjudication of Kelley's claim for retaliation under section 12940, subdivision (h) because Kelley "failed to present sufficient evidence to create a triable issue of material fact regarding the contention that he was subjected to an adverse employment action by Defendants because he complained about Seaman's misconduct to Joseph Gallegos and/or other managers of Conco. [Kelley] has completely failed to show that Conco's assertion that it had no choice but to terminate [his] employment on or about November 8, 2006, because he was dropped from the ironworkers apprenticeship program was pretextual. [Kelley's] contention that Conco now refuses to hire him after he was reinstated to the apprenticeship program because he has been blacklisted is not supported by any admissible evidence."
1. Legal Standards
2. Protected Activity
Moreover, a mistake of either fact or law may establish an employee's good faith but mistaken belief that he or she is opposing conduct prohibited by FEHA. (Miller, supra, 36 Cal.4th at p. 475.) As an illustration of a case where an employee's good faith but erroneous belief that he or she was protesting prohibited conduct, Miller cites Drinkwater v. Union Carbide Corp. (3d Cir. 1990) 904 F.2d 853. (Miller, at p. 475.) In Drinkwater, the court held that the plaintiff's reliance on case law that was later overruled established her reasonable and good faith belief that the conduct she protested was a violation of antidiscrimination law. (Drinkwater, at pp. 865-866.) In this case, at the time Seaman harassed Kelley, two California courts of appeal had
We conclude Kelley has produced sufficient evidence to support an inference that he engaged in protected activity within the meaning of FEHA when he complained of Seaman's conduct.
3. Adverse Employment Action and Causal Link
Section 12940(h) provides that it is an unlawful employment practice for an employer "to discharge, expel, or otherwise discriminate against any person" because the person opposed prohibited conduct. The term "otherwise discriminate" refers to and encompasses the same forms of adverse employment activity that are actionable under section 12940, subdivision (a)'s prohibition against discrimination because of sex. (Yanowitz, supra, 36 Cal.4th at pp. 1050-1051.) Creation or tolerance of a hostile work environment for an employee in retaliation for the employee's complaining about prohibited conduct is an adverse employment action within the meaning of section 12940(h). (Yanowitz, at pp. 1052-1053.) Moreover, an employer's alleged retaliatory responses may be considered collectively to determine whether the employee was subjected to an adverse employment action under section 12940(h). (Yanowitz, at pp. 1055-1056.)
Kelley argues that his termination from Conco upon his suspension from the union and Conco's failure to rehire him following his suspension were adverse employment actions taken in retaliation for his complaints about
a. The Union Suspension
Kelley produced evidence that union representative Fairchild fabricated reasons for Kelley's suspension from the union in October 2006. However, Kelley fails to present any evidence that would support an inference that Conco caused his union to suspend him from its apprenticeship program. Kelley cites only Fairchild's hostile comments about Kelley's complaints about Conco, and Jeffrey Thomas's admission that he spoke to the union about Kelley's suspension. He also notes that Thomas was a longtime union member. But Thomas was the superintendent of the Conco ironworkers, Fairchild was the apprentice coordinator for the union, and Kelley was the only Conco employee on the union list of dropped apprentices. It was Thomas's responsibility to then let the job foreman know that an apprentice was ineligible to work. Kelley makes no showing that any communication between Thomas and Fairchild on his union status was unusual or suspicious, and offers nothing more than speculation that the union's action was at Conco's behest. Whatever Fairchild's motivation, nothing Kelley presented would support an inference of collusion or management involvement in the union suspension.
Kelley raises no triable issue about whether Conco caused the union to suspend him in retaliation for Kelley's complaints about harassment, and he acknowledges that he was ineligible for continued employment after that suspension. He therefore fails to show that Conco's basis for terminating him was pretextual.
b. Failure to Rehire
Kelley also argues that Conco's failure to rehire him after the expiration of his suspension was in retaliation for his complaints about sexual harassment.
c. Retaliatory Harassment
Kelley's final claim of retaliation is for continuing harassment at Conco worksites following his complaint about Seaman's harassment, including express references to Kelley's complaints about Seaman and threats of retaliatory violence. Kelley's evidence established a clear inference that he was subjected to retaliation by at least some of his coworkers as a result of his complaints against Seaman. Not only did the threatening statements allude to Kelley's prior complaint, but as Mark Benedet, Conco's superintendent of carpenters and Seaman's supervisor at the Emeryville jobsite testified, in the construction trades news of altercations between a supervisor and an employee passes "around the whole community." In fact, Kelley alleged that he heard similar comments, and received similar threats, from coworkers on other non-Conco jobsites on three occasions.
Section 12940(h) does not specifically address whether an employer can be held liable for retaliation by nonmanagement employees. Few California courts have considered the issue. In Birschtein v. New United Motor Manufacturing, Inc. (2001) 92 Cal.App.4th 994, 1007 [112 Cal.Rptr.2d 347], the court stated that a FEHA retaliation claim may be based on the acts of a coworker, but did so relying on cases dealing with the scope of an employer's duty to remedy harassment, and it did not discuss the scope of an employer's liability for retaliation by a coworker.
While no evidence was presented here that any Conco supervisory personnel orchestrated retaliatory action against Kelley, he did aver that he complained about this conduct to Scott Nava "two [to] three times a week" and at least one other person ("Tony") at Conco on two or three occasions about the behavior.
Kelley has raised triable issues as to whether coworkers engaged in retaliatory harassment sufficiently severe to constitute an adverse employment action, whether Conco had actual or constructive knowledge of the improper conduct, and whether it took appropriate action in response. Summary adjudication of this cause of action was therefore improper.
E. Termination in Violation of Public Policy
The trial court granted summary adjudication to Conco on Kelley's claim for termination in violation of public policy because Kelley "failed to show that Conco's assertion that it terminated his employment on November 8, 2006 because he was dropped from the ironworkers apprenticeship program was false or against the public policy of the State of California as expressed through its statutes and regulations."
Kelley does not cite legal authority that an employer is liable in tort for failing to rehire an employee in violation of public policy. (Cf. Daly v. Exxon Corp. (1997) 55 Cal.App.4th 39, 45 [63 Cal.Rptr.2d 727] [no tort liability for failing to renew written employment contract for fixed term in violation of
We affirm the trial court's grant of summary adjudication of this claim.
F. Intentional Infliction of Emotional Distress
The trial court granted summary adjudication to Conco on Kelley's claim for intentional infliction of emotional distress, explaining, "Although the Court does not accept Defendants' contention that failure of the First Cause of Action [for sexual harassment] precludes the possibility that [Kelley] can prevail on the Fifth Cause of Action [for intentional infliction of emotional distress], the Court does not find sufficient evidence in the record to support [Kelley's] assertion that the conduct of Seaman and other Conco employees was `so extreme as to exceed all bounds of that usually tolerated in a civilized community.' See Garamendi v. Golden Eagle Ins. Co. (2005) 128 Cal.App.4th 452, 480 [27 Cal.Rptr.3d 239]. Although the Court regards the conduct of Defendant Seaman as despicable and wholly unnecessary to his supervisory duties over [Kelley], the Court must consider the context in which it occurred."
As the trial court observed, the context in which Seaman's behavior occurred is significant. In the environment in which Kelley was employed, profanity, vulgarity and sexual taunting were commonplace and apparently generally accepted. Whether Seaman's behavior in that setting would be considered "so extreme as to exceed all bounds of that usually tolerated in a civilized community" is at least arguable. But even if we assume for purposes of argument that Seaman's conduct was sufficiently extreme and outrageous behavior to be actionable, we conclude Kelley cannot establish an intentional infliction tort claim because the record does not support an inference that he suffered severe emotional distress as a result of that harassment.
Although a reasonable fact finder could find that Kelley ultimately suffered serious distress,
The grant of summary judgment is reversed. Summary adjudication of the second cause of action is reversed. Summary adjudication of all other claims is affirmed. The parties shall bear their own costs on appeal.
Jones, P. J., and Simons, J., concurred.