Carrisales v. Department of Corrections

Decision Date14 August 1998
Docket NumberNo. E020163,E020163
Citation65 Cal.App.4th 1492,77 Cal.Rptr.2d 517
PartiesPreviously published at 65 Cal.App.4th 1492 65 Cal.App.4th 1492, 77 Fair Empl.Prac.Cas. (BNA) 1358, 98 Cal. Daily Op. Serv. 6379, 98 Daily Journal D.A.R. 8826 Maryann CARRISALES, Plaintiff and Appellant, v. DEPARTMENT OF CORRECTIONS, et al., Defendants and Respondents.
CourtCalifornia Court of Appeals Court of Appeals
OPINION

RICHLI, Associate Justice.

Maryann Carrisales and Dave Selkirk were coworkers employed by the Department of Corrections (Department). Carrisales claims Selkirk repeatedly sexually harassed her. She further claims their mutual supervisors, Rose Del Valle and Denise Powell, knew of the sexual harassment but failed to take immediate and appropriate corrective action in response to it.

Carrisales filed a complaint against the Department, Del Valle, Powell and Selkirk, alleging a single cause of action for sexual harassment in violation of the Fair Employment and Housing Act (FEHA) (Gov.Code, § 12900 et seq.).

The Department, Del Valle, and Powell filed a motion for summary judgment. They argued there was no triable issue of fact with respect to whether they took immediate and appropriate corrective action. Del Valle and Powell also argued an individual supervisor who did not personally sexually harass the plaintiff could not be personally liable for sexual harassment under FEHA.

Selkirk then filed his own motion for summary judgment, arguing a nonsupervisory coworker could not be personally liable for sexual harassment under FEHA.

The trial court granted the motion by the Department, Del Valle, and Powell, on the ground that they had taken immediate and appropriate corrective action; it therefore did not rule on whether a nonharassing supervisor could be personally liable for sexual harassment under FEHA. Thereafter, the trial court also granted Selkirk's motion. Accordingly, it entered judgment in favor of all defendants.

Carrisales appeals, contending (1) there was a triable issue of fact with respect to whether the Department, Del Valle, and Powell took immediate and appropriate corrective action; and (2) the trial court erred by ruling a nonsupervisory coworker cannot be liable for sexual harassment under FEHA. In response, Del Valle and Powell contend they were entitled to summary judgment on the alternative ground that a nonharassing supervisor cannot be personally liable for sexual harassment under FEHA.

We will hold there was a triable issue of fact with respect to whether the Department, Del Valle, and Powell took immediate and appropriate corrective action. Accordingly, we will reverse the judgment in favor of the Department. However, we will also hold a supervisory employee who neither personally participated in sexual harassment, nor substantially assisted or encouraged it, cannot be held personally liable for it under FEHA. Accordingly, we will affirm the judgment in favor of Del Valle and Powell. Finally, we will hold a nonsupervisory coworker cannot be held liable for sexual harassment under FEHA. Accordingly, we will affirm the judgment in favor of Selkirk.

I FACTUAL BACKGROUND

The following facts are taken from the papers filed in support of and in opposition to the motion for summary judgment. Consistent with the applicable standard of review (see part II, post ), we view the evidence in the light most favorable to the nonmoving party, i.e., Carrisales.

The Department had adopted and disseminated policies prohibiting sexual harassment. It had also adopted grievance procedures designed to encourage victims of sexual harassment to come forward with complaints.

As part of their orientation, all new employees received four hours of training on the Department's sexual harassment policies. In addition, all employees received annual training, including one hour of sexual harassment prevention training. All employees received monthly in-service training bulletins, which listed the names and phone numbers of all current Equal Employment Opportunity Counselors and Committee members. From time to time, the bulletins also included information about sexual harassment.

On or about March 16, 1994, the Department hired Carrisales to work in the Receiving Warehouse of the California Institution for Men (CIM) in Chino.

From March 16, 1994, through September 16, 1994, Del Valle was the immediate supervisor of both Carrisales and Selkirk.

Selkirk was Carrisales's coworker. He was never her supervisor, 1 nor was he the supervisor of any other employee. From the spring of 1993 through August 1994, he worked in the West Facility clothing room. In August 1994, he was transferred to the Receiving Warehouse.

About two weeks after Carrisales started work, Selkirk began sexually harassing her. This sexual harassment included touching Carrisales on or near her breasts, inner thigh, and buttocks; hugging her; standing so close to her that he was touching, or almost touching, her; and preventing her from leaving by standing in her way, or by grabbing the roll bars of her forklift.

Selkirk also similarly sexually harassed another coworker, Peggy Lartz.

In June 1994, Lartz told Del Valle that Carrisales was concerned about Selkirk standing too close to her and that Carrisales perceived this as sexual harassment. Del Valle talked to Selkirk; she told him not to stand close to female employees "or act in a manner that could be perceived as inappropriate." Selkirk "seemed to understand the concern and was receptive to [the] discussion."

Del Valle never observed Selkirk acting inappropriately. After June 1994, she received no more complaints about him. Because there had been no previous complaints, and because she received no subsequent complaints, Del Valle believed there was no need for any further disciplinary action.

On July 12, 1994, Del Valle held a sexual harassment prevention training session, which Selkirk attended.

On or about September 16, 1994, Del Valle left CIM. On October 3, 1994, Denise Powell took her place as the immediate supervisor of both Carrisales and Selkirk.

Powell never observed Selkirk behaving inappropriately. Until November 17, 1994, Powell received no complaints about Selkirk's behavior.

On or about November 17, 1994, Lartz told Powell that Carrisales "was having a problem" with Selkirk. That same day, Powell interviewed Carrisales. The next day, she interviewed Selkirk. She told him his behavior "would not be tolerated," and, if it continued, he would be disciplined. Selkirk seemed "receptive." Powell documented Carrisales's concerns in a memo to one of her supervisors.

On November 22, 1994, Selkirk came out of a restroom with his pants down around his thighs. Although his underwear was on, he appeared to have an erection. Carrisales yelled, "Dave, what are you doing?" He replied, "I am losing my britches. Would you like to help me pick them up?"

On December 13, 1994, as a result of Lartz's earlier report, Powell had Selkirk attend another sexual harassment prevention training session.

On or about December 14, 1994, Lartz told Powell that Carrisales "still had a problem" with Selkirk. She related the "britches" incident. Powell interviewed Carrisales, who confirmed the "britches" incident; she did not mention any other new incidents. Powell immediately reported the matter to her supervisor. Together, Powell and her supervisor determined to transfer Selkirk.

On December 15, 1994, Selkirk was transferred. He never worked with Carrisales again. Between December 23, 1994, and July 27, 1995, the Department conducted a formal investigation into Carrisales's complaints, which included interviews with 16 employees and inmates. As a result of its investigation, the Department determined to fire Selkirk. In lieu of being fired, he was allowed to retire.

II STANDARD OF REVIEW

"A 'motion for summary judgment shall be granted if all of 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. In determining whether the papers show that there is no triable issue as to any material fact the court shall consider all of the evidence set forth in the papers, ... and all inferences reasonably deducible from the evidence....' (Code Civ. Proc., § 437c, subd. (c).)" (Parsons v. Crown Disposal Co. (1997) 15 Cal.4th 456, 464, 63 Cal.Rptr.2d 291, 936 P.2d 70, fn. omitted.)

"This court exercises its independent judgment as to the legal effect of the undisputed facts disclosed by the parties' papers. [Citations.] In so doing, we apply the same three-step analysis required of the trial court: We first identify the issues framed by the pleadings, since it is these allegations to which the motion must respond. Secondly, we determine whether the moving party has established facts which negate the opponents' claim and justify a judgment in the movant's favor. Finally, if the summary judgment motion prima facie justifies a judgment, we determine whether the opposition demonstrates the existence of a triable, material factual issue. [Citation.]" (Torres v. Reardon (1992) 3 Cal.App.4th 831, 836, 5 Cal.Rptr.2d 52.)

III FAILURE TO TAKE IMMEDIATE AND APPROPRIATE CORRECTIVE ACTION

Carrisales contends there was a triable issue of fact with respect to whether the Department, Del Valle, and Powell took immediate and appropriate corrective action.

The relevant portion of FEHA provides: "It shall be an unlawful employment practice ... [p] ... For an employer, labor organization, employment agency, apprenticeship training program or any training program leading to employment, or any other person, because of ... sex, ... to harass an employee or...

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