Accardi v. Superior Court

• Citation: 17 Cal.App.4th 341,21 Cal.Rptr.2d 292
• Decision Date: 21 July 1993
• Docket Number: No. B072215,B072215
• Parties: , 63 Fair Empl.Prac.Cas. (BNA) 689, 62 Empl. Prac. Dec. P 42,543 Debbra J. ACCARDI, Petitioner, v. SUPERIOR COURT of the State of California, for the County of Ventura, Respondent. CITY OF SIMI VALLEY et al., Real Parties in Interest. Civ.
• Court: California Court of Appeals

Page 292

21 Cal.Rptr.2d 292

17 Cal.App.4th 341, 63 Fair Empl.Prac.Cas. (BNA) 689,

62 Empl. Prac. Dec. P 42,543

Debbra J. ACCARDI, Petitioner, v. SUPERIOR COURT of the State of California, for the County of Ventura, Respondent.

CITY OF SIMI VALLEY et al., Real Parties in Interest.

Civ. No. B072215.

Court of Appeal, Second District, Division 6, California.

July 21, 1993.

As Modified on Denial of Rehearing Aug. 20, 1993.

Review Denied Nov. 16, 1993.

Rehwald Rameson & Lewis and William Rehwald and Sylvia J. Simmons, Woodland Hills, for petitioner.

No appearance for respondent.

Beach, Procter & McCarthy and Thomas E. Beach and Sean D. Cowdrey, Ventura, for real parties in interest.

GILBERT, Associate Justice.

Sexual harassment does not necessarily involve sexual conduct. It need not have anything to do with lewd acts, double entendres or sexual advances. Sexual harassment may involve conduct, whether blatant or subtle, that discriminates against a person solely because of that person's sex.

In this writ proceeding, we hold that sexual harassment occurs when an employer creates a hostile environment for an employee because of that employee's sex. We also hold that a claim for sexual harassment is not time-barred when there are continuous acts of discrimination over a period of time provided that some of those acts fall within the limitations period. We further hold that a claim of emotional distress arising out of sexual harassment is not preempted by workers' compensation law.

Petitioner, Debbra J. Accardi, was at one time employed as a police officer with the City of Simi Valley. On October 11, 1991, she filed sexual discrimination complaints with the California Department of Fair Employment and Housing (DFEH). On October 17, 1991, Accardi obtained a "right to sue letter" from DFEH. On March 13, 1992, she filed a lawsuit against real parties, the City of Simi Valley, James Bartholomew, Richard Wright, Anthony Harper, III, and Mark Layhew, and others. Her complaint alleges causes of action for sexual harassment in violation of Government Code section 12940 et seq., constructive discharge, intentional interference with business relationship, and intentional infliction of emotional distress.

Real parties demurred upon the ground that the causes of action for sexual harassment and intentional infliction of emotional distress are preempted by the exclusive provisions of workers' compensation laws. (Lab.Code, §§ 132a, 3601; Cole v. Fair Oaks Fire Protection Dist. (1987) 43 Cal.3d 148, 151, 233 Cal.Rptr. 308, 729 P.2d 743.) They also asserted that the cause of action for sexual harassment was barred by the statute of limitations. (Gov.Code, § 12960.) Respondent superior court sustained the demurrers with leave to amend.

On September 30, 1992, Accardi filed an amended complaint. Real parties demurred to the amended complaint upon grounds similar to their first demurrers.

The trial court sustained the demurrer without leave to amend as to the causes of action for sexual harassment and emotional distress. It held that Accardi did not state a cause of action for sexual harassment and emotional distress. The court also ruled that Labor Code section 132a preempted the cause of action for intentional infliction of emotional distress and held that the cause of action for sexual harassment was time-barred. The claim of constructive discharge was the only cause of action to survive the demurrers.

Accardi, lacking a remedy by way of an appeal, sought relief by way of a petition for extraordinary writ from this court. We have issued an alternative writ of mandate. (Omaha Indemnity Co. v. Superior Court (1989) 209 Cal.App.3d 1266, 1273-1274, 258 Cal.Rptr. 66.)

Because a demurrer admits all factual allegations contained in a complaint (White v. Davis (1975) 13 Cal.3d 757, 765, 120 Cal.Rptr. 94, 533 P.2d 222), this court assumes the truth of all well-pled allegations contained in the complaint. "[T]he question of plaintiffs' ability to prove these allegations, or the possible difficulty in making such proof, does not concern the reviewing court." (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 604, 262 Cal.Rptr. 842.)

Accardi alleges in her amended complaint that she was hired as an officer of the police department of the City of Simi Valley in November 1980. During her tenure, between November 1980 and July 1991, she claims to have been subjected to numerous and continuing episodes of discrimination and harassment because of her sex. The misconduct she specifies includes, among other things, spreading untrue rumors about her abilities, deliberately singling her out for unfavorable work assignments and work shifts, making unsubstantiated complaints about her performance, making statements that her baton was only useful to perform sex acts, stuffing her shotgun barrels with paper so that the weapon would explode if fired, spreading rumors that she had slept with superior officers in order to receive favorable assignments, and threatening to disrupt her wedding.

The amended complaint also alleges such events as: deliberately overburdening her with double work assignments; denying assistance when she requested it; deliberately circumventing established procedures when she was assigned to duty as a court officer in order to make her work more difficult; excluding her from group activities; mimicking and making fun of her before her peers in the unit; admitting to her that there were double standards and telling her she must live with them; allowing threats of bodily harm to be made to her in front of a room filled with officers; allowing derogatory and condescending remarks to be made about her, and women in general; and making sexual advances to her.

Accardi complains that her superiors ratified the actions of her fellow officers by: advising her to accept the double standard and not doing anything about the harassment; allowing the filing of false reports; assigning duties to her only because she was a woman; causing false and misleading medical reports to be filed alleging that petitioner was 100 percent fit notwithstanding a permanent Workers' Compensation Appeals Board declaration that she was 28 3/4 percent disabled; excluding her from work details to which all other partially disabled officers were assigned; ordering her to either declare herself 100 percent fit, or file for early retirement; and telling petitioner she would be eligible for early retirement only if she were 30 percent disabled.

Accardi alleges that each of the defendants was acting in concert as the representative, employee, or agent, of the other defendants.

DISCUSSION

No preemption for discrimination claim

Discrimination in employment is not a normal incident of employment. (Jones v. Los Angeles Community College Dist. (1988) 198 Cal.App.3d 794, 244 Cal.Rptr. 37.) A claim for damages under FEHA is not preempted by the Workers' Compensation Act. (Meninga v. Raley's, Inc. (1989) 216 Cal.App.3d 79, 90, 264 Cal.Rptr. 319.)

Real parties also argue that Accardi's exclusive remedy lies within the provisions of Labor Code section 132a. This section provides remedies for employees whose employers have retaliated against them for filing a workers' compensation claim. The intent of the statute is to deter employers from discriminating against injured employees who assert their rights under the workers' compensation laws. (Judson Steel Corp. v. Workers' Comp. Appeals Bd. (1978) 22 Cal.3d 658, 668, 150 Cal.Rptr. 250, 586 P.2d 564.) A claim under section 132a lies within the exclusive jurisdiction of the Workers Compensation Appeals Board. (Portillo v. G.T. Price Products, Inc. (1982) 131 Cal.App.3d 285, 182 Cal.Rptr. 291.

Labor Code section 132a is not applicable here. Accardi does not claim her employer retaliated against her because she filed a workers' compensation claim. She claims she is the victim of sexual harassment.

Sexual harassment--the creation of a hostile work environment because of a person's sex

It is unlawful for an employer to discriminate against an individual because of their sex. (42 U.S.C. § 2000e-2(a)(1); Gov.Code, § 12940 et seq.) Article 1, section 8 of the California Constitution prohibits the discrimination in employment based on "sex, race, creed, color, or national or ethnic origin."

Sexual harassment is a form of sex discrimination. (Meritor Savings Bank v. Vinson (1986) 477 U.S. 57, 67, 106 S.Ct. 2399, 2405, 91 L.Ed.2d 49; Katz v. Dole (4th Cir.1983) 709 F.2d 251, 254; Lindemann et al., Sexual Harassment in Employment Law (1992) pp. 9-10.) There are two actionable types of sexual harassment: 1. Quid pro quo harassment. This form of harassment occurs when a term of employment is conditioned upon unwelcome sexual advances. (Highlander v. K.F.C. Nat. Management Co. (6th Cir.1986) 805 F.2d 644.) 2. The creation of a hostile work environment for the employee because of that employee's sex. (Chamberlin v. 101 Realty, Inc. (1st Cir.1990) 915 F.2d 777, 782, quoting 29 C.F.R. § 1604.11(a) (1983).) Hostile environment and quid pro quo harassment claims are not always separate and distinct, but in this case the sexual harassment claim arises out of a hostile work environment. (Fisher v. San Pedro Peninsula Hospital, supra, 214 Cal.App.3d at p. 607, 262 Cal.Rptr. 842.)

The term "sexual harassment" may lead many people to think of the first type of sexual harassment, that which involves unwelcome sexual advances. For example, in Henson v. City of Dundee (11th Cir.1982) 682 F.2d 897, a female police dispatcher stated a claim for sexual harassment where she alleged she had been denied promotion because she had rejected her supervisor's request for sexual favors. (See also Sampayo-Garraton v. Rave, Inc. (D.P.R.1989) 726 F.Supp. 18.)

But sexual harassment of the second type, the creation of a hostile work environment, need not have anything to do with sexual advances. (Andrews v. City of Philadelphia (3d...