Vergos v. McNeal

Decision Date23 January 2007
Docket NumberNo. C051469.,C051469.
Citation53 Cal.Rptr.3d 647,146 Cal.App.4th 1387
CourtCalifornia Court of Appeals Court of Appeals
PartiesRandy VERGOS, Plaintiff and Respondent, v. Julie McNEAL, Defendant and Appellant.

Porter, Scott, Weiberg & Delehant and Brendan J. Begley, Michael W. Pott and George A. Acero, Sacramento, for Defendant and Appellant.

Law Office of Geraldine Armendariz and Geraldine Armendariz, San Francisco; Law Office of James A. Michel and James A. Michel for Plaintiff and Respondent.

SIMS, Acting P.J.

Plaintiff Randy Vergos, who alleges he was sexually harassed in his employment at the University of California at Davis (UCD), filed a civil rights claim against the manager who denied his administrative grievances—defendant Julie McNeal (acting director of UCD's Facilities Services Department1). McNeal appeals from the trial court's order denying her motion to strike plaintiffs third cause of action (alleging violation of civil rights) as a "strategic lawsuit against public participation" (SLAPP) under Code of Civil Procedure section 425.16.2 McNeal contends her statements and conduct as a hearing officer denying plaintiffs grievances are protected by the anti-SLAPP statute. We agree and shall reverse the order and remand to the trial court to determine an award of attorney's fees for McNeal.3

FACTUAL AND PROCEDURAL BACKGROUND

On September 19, 2002, plaintiff filed a complaint against McNeal, Allen Tollefson and the Regents of the University of California (the Regents). Tollefson and the Regents are not parties to this appeal. The operative first amended complaint (filed October 17, 2002) alleged (1) sexual harassment, as against all defendants, (2) negligent hiring, supervision and training, as against the Regents, and (3) violation of civil rights, as against all defendants. Plaintiff also sought punitive damages.

The complaint alleged McNeal was "an employee, agent, and manager for the Defendant Regents at [UCD]. McNeal is sued in her individual capacity. McNeal is the Director, Operations and Maintenance for [UCD] and has responsibility for the management of an estimated $50 million annually in construction and maintenance projects at [UCD] and overall supervision of an estimated 500 employees. McNeal is Tollefson's immediate supervisor. A political appointee, prior to her designation by the Regents as Director, Operations and Maintenance in 1991 McNeal had no managerial or supervisory experience or familiarity with the management of large budgets, construction projects, or work crews, and no training or experience as a fair and impartial hearing officer for employee grievances."

The general allegations asserted as follows:

Plaintiff was employed by UCD as an inspector, planner and estimator, and on "several occasions during the year last past" was sexually harassed by his supervisor, Allen Tollefson. On February 11, 2002, and March 4, 2002, plaintiff filed grievances, and the Regents assigned an investigator, who allegedly verified from other employees that Tollefson referred to plaintiff as "my boy toy" and "my bitch." In July 2002, McNeal, who was Director of Operations and Maintenance for UCD, and who was also Tollefson's supervisor, acted as the hearing of Seer and managing agent for the Regents in the matter of plaintiffs grievances. McNeal denied the grievances and wrote to plaintiff that it was "more likely" that the allegations of excessive controlling behavior, verbal threats and sexual harassment did not occur. McNeal refused to recognize the substance of plaintiffs grievances or to take effective action to prevent recurrence of Tollefson's conduct or to protect Plaintiff from future unwelcome contact with Tollefson. The complaint alleged McNeal was being sued in her individual capacity. The complaint alleged plaintiff had filed a complaint with the Department of Fair Employment and Housing (DFEH) on October 9, 2002, and was awaiting a right to sue letter.

The first count alleged sexual harassment as against "All defendants," but did not make any specific allegation against McNeal. It alleged Tollefson harassed plaintiff, and the Regents had an obligation to prevent sexual harassment after another employee complained about Tollefson in 2001.

The second count alleged negligent hiring, supervision and training as against the Regents.

The third count incorporated by reference the other allegations and alleged violation of civil rights as against all defendants. The third count alleged:

"33. In hearing, processing, and deciding the grievances alleged in paragraphs 20 and 21, Julie McNeal and other employees of the Regents were acting as managers and agents for the Regents under the Personnel Policy and the color of state law.

"34. The denial of plaintiffs grievances against Tollefson's conduct as alleged denied plaintiff the benefit and protection of his federal statutory and constitutional right to be free of sexual harassment, discrimination and retaliation.4

"35. The Personnel Policy contains no written provision that grievances filed by employees of [UCD] shall be heard by a fair and impartial hearing officer thereby perpetuating a long standing and persistent pattern, practice, and custom of the Regents to deny employee grievances in which grieving parties have alleged sexual discrimination, harassment, or retaliation by supervisors and managers.

"36. The Regents do not provide training for McNeal as a hearing officer to hear and decide grievances under the Personnel Policy."

On August 5, 2005, McNeal filed a section 425.16 special motion to strike the third cause of action (the civil rights violation) as a SLAPP, because it accused McNeal of conduct (hearing, processing, and deciding plaintiffs workplace grievances) that arose from alleged activities "in furtherance of her right of petition or free speech." The motion further argued plaintiff could not show a likelihood of success so as to avoid a section 425.16 dismissal (in part because he failed to exhaust internal administrative remedies).

McNeal's attorneys submitted declarations explaining why the anti-SLAPP motion was not filed until almost three years after the complaint was filed.

McNeal submitted a declaration attesting that, in handling plaintiffs grievances, she followed the procedures set forth in the statewide Regents' Personnel Policies for Staff Members and the local implementing procedures (collectively, PPSM). Section 70 of the PPSM permitted an employee such as plaintiff to file an Employee Complaint Form with the Human Resources Department and seek a remedy for employee grievances. Step I of the Section 70 process was review by the department head, who could delegate investigation to an appropriate individual. If the complainant was not satisfied with the Step I response, he could appeal it for Step II review. An Employee and Labor Relations (ELR) analyst would determine if the appeal was eligible for Step II review, in which case a complaint resolution officer would be appointed and would convene a meeting with the complainant and others to obtain information and respond to the complaint. Some types of grievances could be appealed to a third step, in which a Step III Hearing Officer would hold an evidentiary hearing and issue a decision.5

McNeal attested that plaintiff filed complaints pursuant to PPSM Section 70 on February 11 and March 4, 2002, accusing Tollefson of sexual harassment. These grievances were assigned to McNeal as department head. ELR Analyst Dan Grey was assigned to investigate the complaints and prepare a report for McNeal's review. Grey reported that plaintiffs claims were unsubstantiated by the evidence. McNeal had no reason to believe Grey harbored any unlawful prejudice against plaintiff, and McNeal herself did not harbor any unlawful prejudice against plaintiff. McNeal reviewed Grey's report, found it to be adequate, and agreed with its conclusions. She accordingly found plaintiffs complaints to be without merit and so notified him. McNeal attested, "To my knowledge, [plaintiff] did not appeal this decision to the next step in PPSM Section 70 process."

Plaintiff opposed the anti-SLAPP motion. He submitted various declarations, parts of which were excluded by the trial court's sustaining of some of McNeal's evidentiary objections.6 The parties do not challenge the evidentiary rulings on appeal. The admitted portions of the declarations include UCD Senior Superintendent Leslie Nopp's declaration asserting that McNeal took it upon herself to be the person to review plaintiffs grievance concerning Tollefson.7 The plaintiffs declaration in the joint appendix on appeal is unsigned (a point not noted by the parties). In any event the trial court sustained evidentiary objections to paragraph 5 (in which plaintiff described alleged incidents of harassment by Tollefson) on the grounds it conflicted with plaintiffs interrogatory answers. Plaintiffs interrogatory answers said Tollefson followed plaintiff around, sometimes came up behind him, stared at plaintiffs hair and body, made comments about the penises of other men, said one man had pretty lips, tugged at his own (Tollefson's) crotch, and got angry when plaintiff refused to move into Tollefson's office. Plaintiffs interrogatory answers also said UCD policy does not require a hearing officer to be fair or impartial.

On November 22, 2005, the trial court issued an order denying McNeal's anti-SLAPP motion. The court first determined there was good cause for McNeal's delay in filing the motion. As to the court's denial of McNeal's motion to strike the third cause of action (civil rights claim), the trial court said, "Defendant [McNeal] has not shown that ... section 425.16 applies to Plaintiffs third cause of action. The gravamen of Plaintiffs third cause of action is Defendant's hearing, processing and deciding of Plaintiffs grievances. [Citation to complaint.] Plaintiffs third cause of action is not based on the content of what Defendant...

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