Janken v. GM Hughes Electronics

Decision Date05 June 1996
Docket NumberNo. B092333,B092333
Citation53 Cal.Rptr.2d 741,46 Cal.App.4th 55
CourtCalifornia Court of Appeals Court of Appeals
Parties, 72 Fair Empl.Prac.Cas. (BNA) 501, 96 Cal. Daily Op. Serv. 4048, 96 Daily Journal D.A.R. 6530 Jack Arthur JANKEN et al., Plaintiffs and Appellants, v. GM HUGHES ELECTRONICS et al., Defendants and Respondents.

Love & Bosserman, Beth A. Shenfeld and John M. Kennedy, Los Angeles, for Plaintiffs and Appellants.

Paul, Hastings, Janofsky & Walker, J. Al Latham, Jr., Los Angeles, George W. Abele, Santa Monica, and Alpa Patel Chernof and Robert F. Walker, Los Angeles, for Defendants and Respondents.

ZEBROWSKI, Associate Justice.

In Caldwell v. Montoya (1995) 10 Cal.4th 972, 42 Cal.Rptr.2d 842, 897 P.2d 1320, the Supreme Court considered whether individual members of a public school board placed themselves at risk of personal liability on claims of FEHA 1 discrimination when they voted to terminate the school district's superintendent. The Caldwell court found that statutory immunities protect public sector employees from personal liability on claims such as FEHA discrimination. Since Caldwell was decided on the immunity issue, the Caldwell court found it unnecessary to decide the "broad and difficult" preliminary question of whether the FEHA exposes individual supervisory employees to the risk of personal liability for discrimination whenever they make a personnel decision. We now confront that question. 2

The question is one of legislative intent. (See, e.g., California Teachers Assn. v. San Diego Community College Dist. (1981) 28 Cal.3d 692, 698, 170 Cal.Rptr. 817, 621 P.2d 856 [fundamental rule of statutory construction is to ascertain the intent of the Legislature].) Plaintiffs contend that the Legislature intended to place every individual supervisory employee in California at risk of personal liability for employment discrimination every time that supervisory employee makes a personnel decision. 3 Defendants contend that the Legislature intended to authorize lawsuits for employment discrimination against employers only--and not against individual supervisory employees.

The primary determinant of legislative intent is the words used by the Legislature. (See, e.g., California Teachers Assn. v. San Diego Community College Dist., supra, 28 Cal.3d 692, 698, 170 Cal.Rptr. 817, 621 P.2d 856.) However, legislative intent is the dominant consideration; a literal reading resulting in unintended consequences does not control over intent. (See, e.g., Whitman v. Superior Court (1991) 54 Cal.3d 1063, 1072, 2 Cal.Rptr.2d 160, 820 P.2d 262 [settled principle that "statute should not be given a literal meaning if doing so would result in absurd consequences the Legislature did not intend" ].) Hence both the wording of the statute and the consequences of differing possible constructions must be evaluated in order to determine and effectuate legislative intent.

In the present case, these rules of statutory construction can reasonably lead to differing conclusions, and the "broad and difficult question" presented here has consequently generated considerable debate. Below we will expound our decision that the statutory language here in question was not intended to place individual supervisory employees at risk of personal liability for performing the job of making personnel decisions. This decision places us in accord with the growing consensus of courts from around the country which have considered similar language in similar statutes. Our conclusion is based on the wording of the statute, the fundamental distinction between discrimination and harassment, the avoidability of the type of conduct that can lead to a harassment claim contrasted with the unavoidability of the type of personnel management decision that can lead to a discrimination claim, the prospective rather than retrospective nature of personnel management, the differing statutory treatment of discrimination and harassment, and the reasoning of similar cases.

Part I of this opinion sets forth the factual and procedural posture of the case. Part II sets forth the distinction between harassment and discrimination. Part III sets forth the several reasons for our decision that individual employees are not exposed to the risk of personal liability for personnel management decisions. Part IV applies the concepts developed to the facts of this case and affirms the orders of the trial court.

I. THE FACTUAL AND PROCEDURAL POSTURE

Defendants in the underlying action are GM Hughes Electronics and Hughes Aircraft Company (hereafter "Hughes"), plus three individual supervisory employees of Hughes. Plaintiffs are four former and current employees of Hughes. The plaintiffs allege that Hughes follows a policy of terminating, or forcing the resignation of, employees over the age of 40 without good cause, in violation of section 12941, subdivision (a), of the FEHA. Section 12941, subdivision (a) declares it an unlawful employment practice "for an employer to refuse to hire or employ, or to discharge, dismiss, reduce, suspend, or demote, any individual over the age of 40 on the ground of age...." Plaintiffs allege that they are all over the age of 40 and that each has suffered an adverse personnel action on the prohibited basis of age. Plaintiffs further allege that the offending personnel management decisions were made by the individual defendants in the course of performance of their duties as supervisory employees of Hughes.

Plaintiffs' suit included claims against the individual supervisory employee defendant for age discrimination in violation of section 12941, subdivision (a) and for intentional infliction of emotional distress. The trial court sustained demurrers to both claims without leave to amend on the grounds, among others: a) that the FEHA does not impose personal liability on individual supervisory employees for age discrimination in making personnel management decisions, and b) that the intentional infliction of emotional distress count simply duplicated the FEHA claim. The individual employee defendants were dismissed, and this appeal followed. 4

II. THE DISTINCTION BETWEEN HARASSMENT AND DISCRIMINATION

The FEHA prohibits both harassment 5 and discrimination. 6 Case law has generally found little reason to distinguish clearly between the type of allegations that support a claim of harassment versus the type of allegations that support a claim of discrimination. The Legislature, although clearly indicating an intended distinction between the two different types of conduct by treating them differently in the wording of the FEHA, has not provided any express definitions. 7 Based upon the language used by the Legislature, we conclude in Part III below that it was the intent of the Legislature to place individual supervisory employees at risk of personal liability for personal conduct constituting harassment, but that it was not the intent of the Legislature to place individual supervisory employees at risk of personal liability for personnel management decisions later considered to be discriminatory. We conclude that the Legislature's differential treatment of harassment and discrimination is based on the fundamental distinction between harassment as a type of conduct not necessary to a supervisor's job performance, and business or personnel management decisions--which might later be considered discriminatory--as inherently necessary to performance of a supervisor's job. As a foundational step in our analysis, therefore, we distinguish harassment from discrimination.

Both parties present as an example of harassment California Code of Regulations, title 2, section 7287.6, subdivision (b)(1). This regulation provides that harassment includes, but is not limited to, verbal epithets or derogatory comments, physical interference with freedom of movement, derogatory posters or cartoons, and unwanted sexual advances. 8 As the regulation implies, harassment consists of a type of conduct not necessary for performance of a supervisory job. Instead, harassment consists of conduct outside the scope of necessary job performance, conduct presumably engaged in for personal gratification, because of meanness or bigotry, or for other personal motives. Harassment is not conduct of a type necessary for management of the employer's business or performance of the supervisory employee's job. (Cf. Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, 301, 48 Cal.Rptr.2d 510, 907 P.2d 358 [sexual assault not motivated by desire to serve employer's interest]; Farmers Ins. Group v. County of Santa Clara (1995) 11 Cal.4th 992, 47 Cal.Rptr.2d 478, 906 P.2d 440 [sexual harassment by deputy sheriff not within scope of employment].) 9

Discrimination claims, by contrast, arise out of the performance of necessary personnel management duties. While harassment is not a type of conduct necessary to personnel management, making decisions is a type of conduct essential to personnel management. While it is possible to avoid making personnel decisions on a prohibited discriminatory basis, it is not possible either to avoid making personnel decisions or to prevent the claim that those decisions were discriminatory. 10

Courts have employed the concept of delegable authority as a test to distinguish conduct actionable as discrimination from conduct actionable as harassment. We adopt this approach to find that the exercise of personnel management authority properly delegated by an employer to a supervisory employee might result in discrimination, but not in harassment. (See Birkbeck v. Marvel Lighting Corp. (4th Cir.1994) 30 F.3d 507, 510 and fn. 1 [distinguishing "personnel decisions of a plainly delegable character" from harassment]; and Stephens v. Kay Management Co., Inc. (E.D.Va.1995) 907 F.Supp. 169, 171, 173 [no personal liability of individual supervisors for ...

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