Fisher v. San Pedro Peninsula Hospital

• Decision Date: 02 October 1989
• Docket Number: No. B033017,B033017
• Court: California Court of Appeals Court of Appeals
• Parties: , 54 Fair Empl.Prac.Cas. (BNA) 584, 53 Empl. Prac. Dec. P 39,888, 6 IER Cases 1722 Julie FISHER and Cordell Fisher, Plaintiffs and Appellants, v. SAN PEDRO PENINSULA HOSPITAL, Barry Tischler, and Frank Brow, Defendants and Respondents.

Page 842

262 Cal.Rptr. 842

214 Cal.App.3d 590, 54 Fair Empl.Prac.Cas. (BNA) 584,

53 Empl. Prac. Dec. P 39,888, 6 IER Cases 1722

Julie FISHER and Cordell Fisher, Plaintiffs and Appellants, v. SAN PEDRO PENINSULA HOSPITAL, Barry Tischler, and Frank Brow, Defendants and Respondents.

No. B033017.

Court of Appeal, Second District, Division 7, California.

Oct. 2, 1989.

As Modified Oct. 16, 1989.

Review Denied Jan. 18, 1990.

Patricia J. Barry, Lomita, for plaintiffs and appellants

Fair Employment and Housing Com'n, Christiann L. Klein, San Francisco, The Employment Law Center and Chris Redburn, San Mateo, as amicus curiae on behalf of plaintiffs and appellants.

Rushfeldt, Shelley & Drake, Sherman Oaks, Horvitz & Levy, David M. Axelrad, Julia Beyer Houpt, Encino, for defendant and respondent San Pedro Peninsula Hosp.

Baker, Silberberg & Keener, John C. Kelly, Santa Monica, Robie & Matthai, Los Angeles, Pamela E. Dunn, Beverly Hills, and James R. Robie, Los Angeles, for defendant and respondent Barry H. Tischler, M.D.

O'Flaherty & Belgum and John J. Weber, Long Beach, for defendant and respondent Frank Brow, M.D.

FRED WOODS, Associate Justice.

Plaintiffs appeal from an order dismissing their complaint after defendants' demurrers were sustained without leave to amend. ¹ The crucial issue presented by this appeal is whether under the facts alleged

in the second amended complaint, Ms. Fisher pled a valid claim for environmental sexual harassment. Although we conclude that she has not, we reverse and remand with directions to give plaintiffs leave to amend certain causes of action since this case is one of first impression.

FACTUAL AND PROCEDURAL BACKGROUND

On January 29, 1987, plaintiffs, Julie and Cordell Fisher commenced this action against San Pedro Peninsula Hospital (hereafter "SPPH"), Drs. Barry H. Tischler and Frank Brow, and approximately two dozen hospital officers, directors and board members. At the time of the filing of the second amended complaint, the operative pleading in this matter, only SPPH and Drs. Tischler and Brow remained as defendants.

The second amended complaint alleges six causes of action: sexual discrimination under the California Fair Employment and Housing Act (hereafter "FEHA") (by Ms. Fisher against SPPH and Dr. Tischler) and retaliation in employment under FEHA (by Ms. Fisher against SPPH); retaliation in employment under FEHA (by Dr. Fisher against SPPH and Dr. Brow); third party interference with business relations (by Ms. Fisher against Dr. Tischler and by Dr. Fisher against Dr. Brow); and intentional infliction of emotional distress (by both plaintiffs against all defendants).

As alleged in the second amended complaint, the facts in this case are as follows.

Ms. Fisher was employed as a surgical nurse by SPPH. Ms. Fisher was hired by SPPH on August 3, 1981. Dr. Fisher, who is the husband of Ms. Fisher, has staff privileges as a pediatric dental surgeon at SPPH.

Dr. Tischler is a member of SPPH's medical staff specializing in gynecology and obstetrics. Dr. Tischler controlled Ms. Fisher's employment by giving her direct orders and making recommendations about her performance.

Dr. Brow is a member of SPPH's medical staff specializing in pediatrics.

From 1981 until November 1982, Dr. Tischler engaged in repeated acts of sexual harassment against Ms. Fisher, including verbal sexual insults and offensive touchings; on one occasion, he separated the cartilage in her ribs because he hugged her so tightly.

Ms. Fisher complained to SPPH about the sexual harassment. SPPH conducted an investigation. Afterwards, in December 1982, Dr. Tischler sent a letter of apology to Ms. Fisher. No disciplinary action was taken against Dr. Tischler. As a result of complaining, Ms. Fisher was ostracized by her associates and co-workers until approximately July 1983.

Dr. Tischler continued to engage in sexual harassment against other women employees in the presence of Ms. Fisher. These acts included: "[P]ulling nurses onto his lap, hugging and kissing them while wiggling, making offensive statements of a sexual nature, moving his hands in the direction of [a] woman's vaginal area, grabbing women from the back with his hands on their breasts or in the area of their breasts, picking up women and swinging them around, throwing a woman on a gurney, walking up closely behind a woman with movements of his pelvic area. Plaintiff JULIE FISHER saw him commit acts of sexual harassment against [three named] nurses. The acts were committed in hallways, the operating room, and the lunch room of Defendant HOSPITAL from 1982 to 1986. None of the women welcomed the advances and indicated to Defendant TISCHLER they were offensive by moving away from him, avoiding him whenever possible, or telling him to stop. Julie also was forced to hear Defendant TISCHLER make lewd remarks about the breasts of anesthetized female patients."

In June 1986, Ms. Fisher applied for workers' compensation, alleging that she suffered "headaches, stomach upset, diarrhea, tachycardia and panic attacks" because Dr. Tischler's treatment of other women was so disconcerting.

In response to Ms. Fisher's workers' compensation claim, SPPH investigated Dr. Tischler a second time. "Defendant HOSPITAL officials were informed by two other employees besides [plaintiffs] that Defendant TISCHLER did engage in acts of sexual harassment, they did not like it, and wanted it to stop. Nonetheless, Defendant HOSPITAL took no disciplinary action against Defendant TISCHLER and furthermore covered up his action by falsely reporting to the California Department of Public Health Services through its attorney that its investigation showed he had not engaged in sexual harassment."

As a result of the second investigation, Ms. Fisher's supervisors, associates and co-workers left the room when she entered, refused to speak to her, and told her that she was causing trouble for fellow employees. The Fishers complained to SPPH about this ostracism, but no action was taken.

After SPPH refused to take corrective action when placed on notice of Ms. Fisher's ostracism, Ms. Fisher terminated her employment at SPPH on October 31, 1986, because of intolerable working conditions.

Ms. Fisher alleges that she and SPPH had an "economic relationship whereby she would be paid wages in exchange for which she would perform services as a surgical nurse ... as a part of the relationship [she] had a duty to act as the patient's advocate to insure the patient would receive competent medical care." Ms. Fisher further alleges that Dr. Tischler "embarked on a course of intentional conduct ... designed to disrupt the relationship between Plaintiff and [SPPH] and to interfere with Plaintiff's duty to protect patient care."

In 1982, Dr. Brow, who receives many referrals from Dr. Tischler, stated openly that he "would no longer provide any medical services to patients even if they were his own when Dr. Fisher requested the services" because Dr. Fisher had harassed Dr. Tischler by reporting Tischler to SPPH. This practice continued to late 1986.

"Defendant BROW actually disrupted the relationship by forcing Dr. Fisher to seek out other physicians for examinations and histories and for medical care on numerous occasions from 1983 to October 1986, thereby threatening the welfare of Dr. Fisher's patients." On one occasion in March 1986, when Dr. BROW was the pediatrician on call, he threatened the life of a young patient of Dr. Fisher by refusing to examine the child.

When Dr. Fisher complained to SPPH about Dr. Brow's actions, it refused to take any corrective action. SPPH refused to renew Dr. Fisher's lease for the office he had rented for many years after he filed a complaint with the Department of Fair Employment and Housing. The office remained vacant at the time the second amended complaint was filed.

Dr. Fisher alleges that he has an economic relationship with SPPH "whereby he was granted staff privileges to perform dental surgery and [SPPH] would receive income from Dr. Fisher's patients. Part of Dr. Fisher's responsibilities was to insure his patients received competent medical care." Dr. Brow's intentional acts were designed "to disrupt the relationship [Dr. Fisher] had with [SPPH] and with his patients."

On July 14, 1987, in response to SPPH's motion for a protective order to prevent plaintiffs' attorney from communicating with SPPH's employees, the court ordered that: "the parties agree on a referee who will have full power to pass on whether the plaintiff will be able to contact a specific employee."

On September 10, 1987, the court stayed plaintiffs' taking depositions until after it had ruled on the defendants' demurrers.

At the September 17, 1987 hearing on the first amended complaint, the trial court notified Ms. Fisher that she had failed to allege that Dr. Tischler's misconduct toward other women was either "systematic" or "pervasive." Plaintiffs' counsel indicated that there were no additional facts which could be pled in support of the cause of action for sexual harassment. Plaintiffs' counsel indicated that she would like The material facts alleged in the second amended complaint are not significantly different from the facts alleged in the first amended complaint. On December 29, 1987, the court sustained without leave to amend the demurrers of all three defendants to the second amended complaint. The court found that Ms. Fisher's claims were preempted by the Workers' Compensation Act and barred by the statute of limitations. The court noted that: "[Ms. Fisher] alleges essentially a vicarious disgust of Tischler but vicarious disgust is not actionable in the context of sexual harassment--there must be an 'harassor' [sic] and an [sic] 'harassee' ... her vicarious reaction to the travail of others is not sexual harassment directed to her for which she may have a cause of action."

to test her complaint on appeal and stated that her "inclination right...