Hart v. National Mortgage & Land Co.
| Decision Date | 03 March 1987 |
| Citation | 189 Cal.App.3d 1420,235 Cal.Rptr. 68 |
| Parties | John HART, Plaintiff and Appellant, v. NATIONAL MORTGAGE & LAND COMPANY, Defendant and Respondent. E002982. |
| Court | California Court of Appeals Court of Appeals |
Thompson & Colegate and Sharon J. Waters, Riverside, for defendant and respondent.
The trial court granted summary judgment and/or summary adjudication of issues as to John Hart's four causes of action against his employer, National Mortgage & Land Company (National). Hart appeals, contending the trial court erred in concluding his first cause of action, for sexual harassment, was not cognizable under Government Code section 12940. We disagree, and therefore affirm that portion of the trial court's ruling. Hart also contends the court below erroneously concluded National is not potentially liable to him for negligence or punitive damages. We agree with Hart and reverse that portion of
the judgment. Although not addressed by the trial court, we decide here an issue contested by both parties--whether workers' compensation provides the exclusive remedy for Hart's causes of action for assault and battery and intentional infliction of emotional distress.
The facts recited here are deciphered from partial deposition transcripts attached to both parties' papers re National's motion for summary judgment and summary adjudication of issues.
In August 1981, 59-year-old Hart, Jean Campbell and Debbie Adams were all supervisors of equal rank in National's Customer Service Department. Hart and Campbell shared an office. Hart claimed during the ensuing year Campbell made unwelcomed and unsavory remarks and physical gestures towards him, which he complained about to Campbell and Adams.
In September 1982, Campbell and Adams were promoted to co-managers of the department (with equal authority), making them Hart's superiors. Campbell moved out of Hart's office. Thereafter, Hart said Campbell became bolder in his physical and verbal interaction with him. During the ensuing nine months, Campbell would grab Hart's genitals, grab Hart around the waist and try to mount him and make sexually suggestive gestures, accompanied by crude remarks. He claims Campbell would also scratch his own genitals. At times, some of these acts were done in the presence of other employees, some of whom were female. On each occasion, Hart would yell and/or "elbow" Campbell and demand he desist, but he did not. Hart even threatened Campbell with a sexual harassment suit.
Hart felt Campbell was a pervert and was singling him out for this treatment. He did not believe, however, that Campbell was doing this because he was interested in having sex with Hart.
Hart said in the fall of 1982, he complained to Debbie Adams about Campbell's behavior. 1 Adams replied the problem would have to be solved within the department and she would take care of it. Hart spoke to Adams sometime thereafter and asked her if she had conveyed his complaint to Mary Drury, Assistant to National's President and Director of Hart's department. Adams said, "No," that Drury was "busy." Hart told Adams to "[g]et her unbusy."
In February 1983, Adams and Campbell showed Hart a plastic replica of a man's penis. In late April, after another "mounting" incident with Campbell, Hart again complained to Adams and demanded a meeting with Mary Drury. However, Drury was busy and the meeting never took place. A week later, Hart told Adams "[Campbell] has really done it to me ... with his ... horsing around...." He resigned, at his doctor's urging, because of a nervous condition he claims was caused by Campbell's behavior. Later that day, during a phone conversation with Mary Drury, he told her about Campbell's conduct.
Campbell denied doing any of the things Hart alleges except for occasionally scratching himself in an unoffensive way. He denied Hart or anyone else had ever complained to him about his behavior. He and Debbie Adams admitted showing Hart the ice cube tray, but they claimed Hart had asked to see it and laughed when they showed it to him. Both Mary Drury and Debbie Adams denied seeing or being told about any of the acts Hart alleges Campbell did.
Hart's suit names National, its president Gary Berger, Mary Drury, Debbie Adams and Campbell as defendants. Hart alleges the latter four were "agents, servants and employees of ... National ..., and in doing the things ... [alleged] were acting in the course and scope of their authority as such...."
Eventually, by stipulation, Gary Berger, Mary Drury, and Debbie Adams were dismissed from the suit, leaving only National and Campbell as defendants.
Hart alleges Campbell (and on one occasion, Adams) sexually harassed him during the relevant period by doing the above described things, all of which he reported to Adams and eventually to Drury on the day he resigned.
In his first cause of action, he alleges Campbell's acts caused him humiliation and stress and created an offensive and hostile working environment, all of which eventually forced him to resign. He claims this constitutes an unfair employment practice under Government Code section 12940, subdivision (b).
In his second cause of action, Hart alleges National was negligent in retaining Campbell after Hart reported the harassment to Adams.
Hart's third cause of action, for assault and battery, states Campbell "came at [Hart] in a threatening manner grabb[ed] him around the waist, ... jumped on [his] back ... [and] pinch[ed] plaintiff on the buttocks" which caused Hart to suffer "medical and emotional distress." He incorporates by reference his allegation he reported these acts to Adams, and, eventually to Drury.
In his fourth cause of action, Hart alleges Campbell's acts were outrageous, intentional and malicious and were "done for the purpose of causing [him] humiliation, mental anguish and emotional and physical distress." He further alleges, "Adams and Drury condoning this conduct was done with knowledge that [he] had objected and ... would suffer further emotional and physical distress and was done with a wanton and reckless disregard of the consequences to [him]."
As to both the third and fourth causes of action, Hart alleges, in addition to general damages and work disability that he is entitled to punitive damages, because "[t]he ... acts of ... Campbell were willful, wanton, malicious and oppressive."
In granting National's motion for summary judgment, etc., the trial court focused on two issues raised by the parties and ignored others. The court held Campbell's conduct was "below and beyond the employment duties and work responsibilities," which consequently absolved National of any liability. Moreover, the court said Hart failed to allege that National either had "advanced [sic ] knowledge and constant disregard" of Campbell's acts or "authorized or ratified" them, as "required by C[ivil] C[ode] § 3294(b) for an award of punitive damages against an employer." As to the first cause of action under Government Code section 12940, the court found that section did not apply.
Government Code section 12940, as here pertinent, prohibits an employer from discriminating against his employee in the "terms, conditions or privileges of employment ... because of sex [p] [or] haras[sing him] ... because of sex." Hart does not here allege, nor do the depositions show, that Campbell harassed Hart because of Hart's sex. Absent this, section 12940 does not apply.
National argues the facts do not show it was negligent in rehiring Campbell in 1980. 2 Be that as it may, Hart alleges in his second cause of action that National "negligent[ly] retained Campbell ... after it had been reported to Adams that ... Campbell ... was [harassing him]." If knowledge of the harassment and failure to act by Adams, or anyone above her, can be imputed to National, Hart has stated a cause of action in negligence. The matter The same holds true for National's vicarious liability on the third and fourth causes of action. Despite the trial court's ruling, whether Campbell, Adams or Drury acted within the scope of their employment, thus making National liable, is a question of fact (Coats v. Construction & Gen. Laborers Local No. 185 (1971) 15 Cal.App.3d 908, 913, 93 Cal.Rptr. 639; 29 Cal.Jur.3d, Employer & Employee, § 92, pp. 706-707, § 116, p. 771) which must be tried.
involves questions of fact which cannot be decided here.
National claims workers' compensation is the exclusive remedy available to Hart for the assault and battery and intentional infliction of emotional distress causes of action. Labor Code sections 3600 and 3601 makes workers' compensation the exclusive remedy except in a few narrowly-drawn circumstances. 3 Despite this seemingly clear prohibition, case law construing the sections has greatly expanded the exceptions to the exclusivity rule, by employing a number of different factors.
Until recently, one such factor present in intentional infliction of emotional distress cases has unfortunately received more attention than it should have. The factor focuses on whether the employee suffered physical injuries, including work disability or mental harm, i.e., anguish, humiliation and embarrassment. If physical injuries occurred, the courts have held workers' compensation was available.
Thus, resort to an action at law was unnecessary and the exclusivity doctrine applied. (Hollywood Refrigeration Sales Co. v. Superior Court (1985) 164 Cal.App.3d 754, 210 Cal.Rptr. 619; 4 McGee v. McNally (1981) 119 Cal.App.3d 891, 174 Cal.Rptr. 253; Gates v. Trans Video Corp. (1979) 93 Cal.App.3d 196, 155 Cal.Rptr. 486; Ankeny v. Lockheed Missiles & Space Co. (1979) 88 Cal.App.3d 531, 151 Cal.Rptr. 828.) 5 If the injuries were...
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