Camargo v. California Portland Cement Co.

• Decision Date: 31 January 2001
• Docket Number: No. C033137.,C033137.
• Citation: 86 Cal.App.4th 995,103 Cal.Rptr.2d 841
• Court: California Court of Appeals Court of Appeals
• Parties: Pamela T. CAMARGO, Plaintiff and Appellant, v. CALIFORNIA PORTLAND CEMENT COMPANY et al., Defendants and Respondents.

103 Cal.Rptr.2d 841

86 Cal.App.4th 995

Pamela T. CAMARGO, Plaintiff and Appellant, v. CALIFORNIA PORTLAND CEMENT COMPANY et al., Defendants and Respondents.

No. C033137.

Court of Appeal, Third District.

January 31, 2001.

Certified for Partial Publication.^*

Review Denied May 2, 2001.

Matthew R. Berrien and Sabrina M. Tourtlotte of Curtis & Arata, Modesto, for Plaintiff and Appellant.

Elaine M. Smith, Gary F. Overstreet and Michael R. Goldstein of Musick, Peeler & Garrett, Los Angeles, for Defendants and Respondents.

SIMS, Acting P.J.

Plaintiff Pamela T. Camargo was a member of a union and was employed by defendant California Portland Cement Company (CPCC or the company).

The union and CPCC entered into a collective bargaining agreement (CBA) that provided for the resolution of disputes or grievances by binding arbitration. Pursuant to the CBA, Camargo submitted her grievances based on sex discrimination and sexual harassment to arbitration. The arbitrator ruled against her, and the arbitrator's "award" was confirmed by the United States District Court for the Eastern District of California, which opined that Camargo was still entitled to pursue her federal statutory claims in court.

Camargo did not file suit in federal court. Instead, she filed a complaint in San Joaquin County Superior Court. Her complaint sought damages from CPCC and from individual defendants Gary Beeson, Mike Dominisse, and Mike O'Dell for sex discrimination and sexual harassment under California's Fair Employment and Housing Act (FEHA) and for intentional infliction of emotional distress.

Defendants demurred to the complaint. They contended that Camargo's FEHA claims were collaterally estopped by the arbitration award and that her claim for intentional infliction of emotional distress was barred by the statute of limitations.

The trial court sustained the demurrer on all grounds raised by defendants and dismissed Camargo's complaint. Camargo appeals.

In the published portion of this opinion, we shall conclude the trial court erred in giving collateral estoppel effect to the arbitration award, because the record on appeal fails to show (1) that the CBA "clearly and unmistakably" provided for the binding arbitration of an employee's statutory FEHA claims; and (2) that the arbitration was conducted pursuant to procedures that allowed for the full litigation and fair adjudication of the FEHA claims.

However, in an unpublished portion of the opinion, we shall affirm the dismissal of Camargo's complaint against individual defendants Gary Beeson, Mike Dominisse, and Mike O'Dell because Camargo has stated no viable cause of action against them and has not shown how her complaint could be amended to do so. We shall also affirm the dismissal of the complaint as to all defendants on Camargo's cause of action for intentional infliction of emotional distress, which the trial court found was barred by the statute of limitations.

FACTUAL AND PROCEDURAL BACKGROUND

The arbitration and the DFEH claim.

Camargo, an employee of defendant CPCC since 1987, belonged to the Northern California District Council of Laborers Local Union No. 73 (the union). The union's CBA with the company, in effect as of 1994, provided that "any dispute, difference or grievance" between the company and an employee would go to arbitration before "an impartial arbitrator" on reference by either the company or the union, that "the decision of the impartial arbitrator shall be final and binding on all parties[,]" and that "the arbitrator shall not have the power to alter or amend the terms of this Agreement." (Art. XIII, §§ 3-4.)

The CBA also provided: "[T]he Employer will not, nor will the Union cause the Employer to fail or refuse to hire, nor will the Employer discharge, or [sic ] will the Union cause the Employer to discharge or otherwise discriminate against any employees because of such employee's race, color, religion, age, sex or national origin. [H] Promotion will be based on the individual's seniority, qualification, training, competency and potential and shall not be influenced by race, color, religion, age, sex, or national origin." (Art. Ill, §§ 1-2.) The CBA did not cite or refer to any federal or state anti-discrimination statute.

On September 25, 1996, Camargo filed a grievance with the union, apparently alleging sexual discrimination and harassment by the company and certain individual employees from approximately 1992 to the present. On or about February 25, 1997, the union presented the grievance to the company for arbitration under the CBA. (No written grievance by either Camargo or the union is in the record on appeal.) Franklin Silver was chosen as arbitrator.

On October 21, 1997, before the arbitration began, Camargo filed an administrative claim for sexual discrimination and harassment with the California Department of Fair Employment and Housing (DFEH), naming as defendants the company and three employees: terminal operator Richard Ferrero [sic; Firneno], manager Gary Beeson, and plant manager Mike Dominisse. The DFEH complaint alleged as follows:

"I. During the course of my employment as a Terminal Operator, I was sexually harassed by Terminal Operator Richard Ferneno [sic]. The last incident occurred on September 3, 1997. In December 1996, I was denied a promotion to Lead Terminal Operator.

"II. I was not given a reason for the denial of promotion.

"III. I believe I was sexually harassed, which is discrimination on the basis of sex, female[,] and that I was denied promotion in retaliation for my protesting the sexual harassment. My beliefs are based on the following:

"A. From approximately 1992 to September 1997, I have been sexually harassed by Terminal Operator Richard Ferneno [sic ]. The harassment was of a physical, visual and verbal nature and occurs two to three times a week (specifics on file with the Department of Fair Employment and Housing). The harassment creates a hostile work environment.

"B. The sexual harassment has been reported to Manager Gary Beeson, his byline is `its [sic ] your word against mine.' The sexual harassment has also been reported to Plant Manager Mike Domonisse [sic ] but nothing has been done and the sexual harassment continues.

"C. I am the most senior Terminal Operator. Promotions in the past were given by seniority. The plant instituted a new policy for promotions and in December of 1996 gave a lead position to a male employee with less seniority.

"D. On September 25, 1996 I filed a grievance with my union, Laborers Local 73. The company has continuously put off responding to the grievance. The last reason given was contract negotiations. Contract negotiations concluded in July of 1997. I nor my union counsel [sic ] have received a response to my complaints.

"E. After I complained to my union there were sexual pictures drawn with my name and expletives (descriptions on file with DFEH) on my locker and notes left at places in the plant were [sic] I work (comments on file with DFEH). I have found the lock on my locker covered with grease which a co-worker helped me clean (name on file with DFEH)."

Arbitrator Silver conducted a hearing on Camargo's grievance on February 5 and March 5, 1998. Both parties were represented by counsel, who submitted exhibits and written closing briefs. (These exhibits and briefs are not in the record, and the hearing apparently was not transcribed.)

On May 29, 1998, arbitrator Silver filed a written "opinion and award" rejecting Camargo's grievance.

The arbitrator's opinion states that the parties "had the opportunity to examine and cross-examine witnesses and to present relevant evidence." It does not state whether the parties had discovery and compulsory process, or what rules of evidence (if any) were followed.

The opinion frames the issue: "Did the Employer violate the Agreement [the CBA] by sexually harassing and/or sexually discriminating against Pamela Camargo? If so, what is the appropriate remedy?" The opinion then describes thirteen incidents of alleged harassment or discrimination covering the period 1991-1997, setting out the testimony on both sides as to each. From the face of the opinion it appears that the only witnesses were Camargo, three managerial employees (Gary Beeson, Mike Dominisse, and human resources director John Clemente) whom Camargo accused of failing to respond to her complaints, and Anita Evridge, an employee who testified in Camargo's support as to one incident. The employees or ex-employees whom Camargo accused of harassing her are not said to have testified.

The opinion summarizes the parties' "positions" on the factual and legal questions posed by the grievance. Finally, in the section headed "Award," the opinion finds as follows:

1. Camargo's grievance is arbitrable. The parties to collective bargaining agreements generally understand them to impliedly incorporate federal and state anti-discrimination statutes. By retaining the anti-discrimination provision of the CBA after the United States Supreme Court had held that sexual harassment is a form of sexual discrimination under federal law, the parties here had demonstrated the intent to prohibit sexual harassment under the CBA.

2. The standards applicable to a claim of sexual harassment under the CBA are those defined in recent decisions from the United States Supreme Court (Harris v. Forklift Systems, Inc. (1993) 510 U.S. 17, 114 S.Ct. 367, 126 L.Ed.2d 295), the Ninth Circuit (Steiner v. Showboat Operating Co. (9th Cir.1994) 25 F.3d 1459), and the California Court of Appeal (Accardi v. Superior Court (1993) 17 Cal.App.4th 341, 21 Cal.Rptr.2d 292).

3. Plaintiffs claim for "sexual harassment and/or discrimination" fails on the merits. "There were sexually harassing incidents prior to July, 1995, but those incidents were remote in time from the filing of the grievance in February, 1997. In addition, ... those incidents cannot be seen as part of a continuing pattern of...