Campbell v. Arco Marine, Inc.

• Decision Date: 06 March 1996
• Docket Number: No. B083493,B083493
• Citation: 42 Cal.App.4th 1850,50 Cal.Rptr.2d 626
• Court: California Court of Appeals Court of Appeals
• Parties: , 70 Fair Empl.Prac.Cas. (BNA) 262, 67 Empl. Prac. Dec. P 43,959, 96 Cal. Daily Op. Serv. 1584, 96 Daily Journal D.A.R. 2615 Michelle CAMPBELL, Plaintiff and Appellant, v. ARCO MARINE, INC., et al., Defendants and Respondents.

Page 626

50 Cal.Rptr.2d 626

42 Cal.App.4th 1850, 70 Fair Empl.Prac.Cas. (BNA) 262,

67 Empl. Prac. Dec. P 43,959,

96 Cal. Daily Op. Serv. 1584,

96 Daily Journal D.A.R. 2615

Michelle CAMPBELL, Plaintiff and Appellant, v. ARCO MARINE, INC., et al., Defendants and Respondents.

No. B083493.

Court of Appeal, Second District, Division 4, California.

March 6, 1996.

Rothner, Segall & Bahan, Anthony R. Segall, Della Bahan and Susan P. Ortmeyer, Pasadena, for Plaintiff and Appellant.

Gartner & Young, Naomi Young, Mark E. Goldsmith and Lynne E. Thompson, Los Angeles, for Defendants and Respondents.

CHARLES S. VOGEL, Presiding Justice.

This case presents the question of whether to construe the California Fair Employment and Housing Act to cover the sexual harassment claims of an employee of a California-based company who is not herself a resident of California, whose employment duties were

performed, for the most part, outside the boundaries of the state, and whose injuries are based on behavior occurring outside the state. We hold that the FEHA was not intended to apply to non-residents where, as here, the tortious conduct took place out of this state's territorial boundaries.

FACTUAL BACKGROUND

Appellant Michelle Campbell is, and was at all relevant times, a resident of the state of Washington. In July of 1989, she applied through the mail for a position with respondent Arco Marine, Inc. ("AMI"). AMI is engaged in the transportation of crude oil by sea from Alaska to various points in the states of Washington and California. It is headquartered in Long Beach, California. Appellant was hired to serve aboard its ships as a "Utility II." A Utility II serves food, tends sanitation, and cleans officers' rooms, among other activities. The direct supervisor of this position is the chief steward who also prepares all performance evaluations. The job was offered to appellant by way of a telephone call made to her home in Washington. Appellant flew to Long Beach to join the assigned vessel, which immediately put out to sea.

Before beginning her first tour of duty, appellant was orally advised that no sexual harassment was allowed and that complaints in this regard should be referred to the captain or to the employee relations department in Long Beach. During two later tours, appellant served with Second Mate Charles David Campbell, ¹ once aboard the ARCO Texas from April 20, 1990 to July 5, 1990, and another time aboard the Sag River from March 4, 1991 to March 16, 1991. Campbell was not appellant's direct supervisor, although as a Utility II, she was expected to obey orders from all officers. Moreover, appellant contends she occasionally performed the function of a Utility I when on the ARCO Texas, which position was under the direct supervision of the second mate. As second mate, Campbell had no authority to promote, demote, or discipline employees.

Campbell had a history of temper flare ups documented in written performance evaluations from the early 1980's. In the last documented incident, which occurred in 1987, he lost his temper with a female security guard (not a fellow employee) and made a number of derogatory, gender-specific comments to her. On that occasion he received a written reprimand which requested that he come in to obtain counseling, and stated: "Any repetition of this incident will result in disciplinary action, up to and including termination."

Appellant contends that while she was serving with Campbell, he created a hostile work environment through gender-specific insults and constant references to sexual matters. Often, this was in the context of conversations directed toward groups of employees. In addition, appellant described six incidents in which remarks were directed toward her. The first occurred while they were on board the Texas in 1990. Campbell approached appellant and another female Utility II while they were on duty and asked if they wanted to smell his wife's underwear. Subsequently, Campbell berated appellant under the erroneous impression that she had not reported an approaching ship while she was on bow watch. During a later conversation, he told her he did not like women on deck. Appellant did not lodge a formal complaint about the sexual or gender-related conversations. She did, however, informally discuss with the union representative the bow watch incident.

Appellant had no contact with Campbell between July of 1990 and March of 1991. In March of 1991, appellant was assigned to the Sag Harbor, where she served with him again. On March 13, Campbell related a story to her about a sexual encounter between a seaman and one of her friends. Later, Campbell flew into a rage when she asked a joking question about his fidelity and said he never fucked anyone but his wife. Appellant reported these incidents the next day to the captain, Michael Dindio, who had not been formally trained in how to deal with sexual harassment. As it so happened Disregarding this instruction, Campbell accosted appellant while the crew was on shore leave in Port Angeles, Washington, and accused her of reading his mail. He had earlier been told by another crew member that appellant was taking the opportunity to go through his mail when she cleaned his cabin--a charge appellant denies. In the course of this tirade, he called appellant a "fat cow," "fat hog," and "fat bitch."

Captain Dindio had heard the sexual encounter story and already chastised Campbell for telling it. After hearing appellant's complaint, he further instructed Campbell to stay away from her for the rest of the voyage.

Appellant brought this final incident to Captain Dindio's attention. Captain Dindio issued a written warning to Campbell and decided without consultation with anyone else at AMI to remove both parties from the ship. He was informed by AMI's fleet staffing department that it would be difficult to find a second mate to replace Campbell. Ships are required by Coast Guard rule to have a second mate on board while at sea. Consequently, Campbell was permitted to remain on board one week after appellant was sent back home, which she contends created the misapprehension among the crew that she was in the wrong. Appellant continued to be paid her regular salary and was subsequently assigned to another ship. AMI commenced an investigation of appellant's complaint and terminated Campbell in April. ²

Appellant filed a claim against AMI and its parent corporation, respondent Atlantic-Richfield Company ("ARCO"), for sexual harassment under the Fair Employment and Housing Act (Gov.Code, § 12900 et seq., hereinafter "FEHA") and defamation. Respondents moved for summary judgment on several grounds. Primarily, they contended that the California Legislature did not intend the FEHA to apply to acts directed toward citizens of other states occurring outside of the boundaries of California. Respondents argued that application of the FEHA to such situations would constitute an extra-territorial exercise of power by the state of California in violation of the United States Constitution. In the alternative, they argued that Campbell was not an "agent" or "supervisor" within the definition of the FEHA, and that his employer was therefore not liable for his acts because it did not know and had no reason to know of his behavior toward appellant at the time and took appropriate corrective action when the inappropriate behavior was brought to its attention. ³ Respondents also contended that the harassment was based on personal animosity, not gender, and that the incidents were too isolated in the context of appellant's years of employment with AMI to form the basis for a "hostile environment" claim. ARCO individually sought judgment on the ground that as a separate and distinct corporation, it had no liability for the acts of AMI or its employees.

The trial court resolved the first issue in respondents' favor, concluding that the statute was intended to protect California residents only. The court granted summary adjudication on the FEHA cause of action, leaving the defamation claim intact. Appellant voluntarily dismissed the defamation claim and brought this appeal. On appeal, appellant contends that the statute was erroneously interpreted, that the Legislature intended the FEHA to apply to non-residents whenever they were employed by California-based employers, and that application of the FEHA in this instance would not violate the constitutional prohibitions on extra-territorial state regulation.

I

Because the appropriate standard of review is disputed by the parties, we first address that issue. Respondents suggest that a grant of summary judgment is reviewed under the standard applicable to abuse of discretion. This is incorrect. A

                trial court's grant of a motion for summary judgment is reviewed de novo by the appellate court.  (Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 673-674, 25 Cal.Rptr.2d 137, 863 P.2d 207;  Krieger v. Nick Alexander Imports, Inc.  (1991) 234 Cal.App.3d 205, 212, 285 Cal.Rptr. 717.)   In addition, the trial court's determination in this case turned on its interpretation of state law.  "Issues of statutory construction present questions of law, calling for an independent review by an appellate court.  [Citations.]"  (Botello v. Shell Oil Co.  (1991) 229 Cal.App.3d 1130, 1134, 280 Cal.Rptr. 535.)
                

II

Turning to the question of statutory interpretation, the applicable provision of the FEHA, Government Code section 12940, makes it unlawful "[f]or an employer, labor organization, employment agency, apprenticeship training program or any training program leading to employment, or any other person" to harass an employee or applicant "because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, or age...." For purposes of this subdivision, "employer" is defined as "any person regularly employing one or more...