Jones v. Lodge at Torrey Pines Partnership

• Decision Date: 03 March 2008
• Docket Number: No. S151022.,S151022.
• Citation: Jones v. Lodge at Torrey Pines Partnership, 177 P.3d 232, 72 Cal.Rptr.3d 624, 42 Cal.4th 1158 (Cal. 2008)
• Court: California Supreme Court
• Parties: Scott JONES, Plaintiff and Appellant, v. The LODGE AT TORREY PINES PARTNERSHIP et al. Defendants and Respondents.

72 Cal.Rptr.3d 624

42 Cal.4th 1158

177 P.3d 232

Scott JONES, Plaintiff and Appellant, v. The LODGE AT TORREY PINES PARTNERSHIP et al. Defendants and Respondents.

No. S151022.

Supreme Court of California.

March 3, 2008.

Toothacre & Toothacre, Scott H. Toothacre and Rod M. Toothacre, San Diego, for Plaintiff and Appellant.

Law Offices of Jeffrey K. Winikow and Jeffrey K. Winikow, Los Angeles, for California Employment Lawyers Association as Amicus Curiae on behalf of Plaintiff and Appellant.

Horvitz & Levy, Barry R. Levy, Encino, Nina E. Scholtz; Wilson Petty Kosmo & Turner, Regina A. Petty, Michael S. Kalt, Jessica A. Chasin, San Diego; and Robert H. Gleason, for Defendants and Respondents.

Law Offices of Steven Drapkin and Steven Drapkin, Los Angeles, for Employers Group, California Employment Law Council and California Chamber of Commerce as Amici Curiae on behalf of Defendants and Respondents.

Liebert Cassidy Whitmore, Melanie M. Poturica and David A. Urban, Los Angeles, for League of California Cities as Amicus Curiae on behalf of Defendants and Respondents.

CHIN, J.

In Reno v. Baird (1998) 18 Cal.4th 640, 76 Cal.Rptr.2d 499, 957 P.2d 1333 (Reno), we held that, although an employer may be held liable for discrimination under the California Fair Employment and Housing Act (FEHA) (Gov.Code, § 12900 et seq.),¹ nonemployer individuals are not personally liable for that discrimination. In this case, we must decide whether the FEHA makes individuals personally liable for retaliation. We conclude that the same rule applies to actions for retaliation that applies to actions for discrimination: The employer, but not nonemployer individuals, may be held liable.

I. PROCEDURAL HISTORY

Plaintiff Scott Jones sued his employer, The Lodge at Torrey Pines Partnership (The Lodge), and his supervisor at work, Jean Weiss, as well as others no longer involved in this litigation, for various causes of action, including sexual orientation harassment in violation of section 12940, subdivision (j)(l), sexual orientation discrimination in violation of subdivision (a), and retaliation in violation of subdivision (h). The trial court granted summary adjudication in defendants' favor regarding some of the causes of action, including the harassment cause of action. It found that plaintiff had failed to present admissible evidence of harassment by Weiss that was severe and pervasive enough to alter the conditions of his employment and create an abusive working environment.

Ultimately, two causes of action went to a jury trial: the claim for sexual orientation discrimination against The Lodge only, and the claim for retaliation against both The Lodge and Weiss. The jury returned a verdict for plaintiff on both causes of action. It awarded compensatory damages of $1,395,000 against The Lodge and $155,000 against Weiss, but found Weiss did not act with malice or oppression.

The trial court originally entered judgment on the verdict, but later it granted both defendants' motions for judgment notwithstanding the verdict and, alternatively,' for a new trial. Among other things, it concluded that plaintiff had presented insufficient evidence that he had suffered an adverse employment action as to both causes of action. Concerning defendant Weiss, it also ruled that an individual cannot be liable for retaliation. It entered judgment in favor of both defendants.

Plaintiff appealed, and defendants cross-appealed. The Court of Appeal reversed the order granting the motions for judgment notwithstanding the verdict and for a new trial, and reinstated the original judgment on the verdict. Among other things, the court concluded there was sufficient evidence that plaintiff had suffered an adverse employment action. It also found that an individual can be held liable for retaliation under the FEHA.

We granted defendants' petition for review limited to the question whether an individual may be held personally liable for retaliation under the FEHA.

II. DISCUSSION

Section 12940, part of the FEHA, begins, "It shall be an unlawful employment practice, unless based upon a bona fide occupational qualification, or, except where based upon applicable security regulations established by the United States or the State of California: ..." Several subdivisions follow, defining various unlawful employment practices. One unlawful employment practice is for an employer to engage in specified kinds of discrimination. (Subd. (a).) Another, the one involved in this case, is "[f]or any employer, labor organization, employment agency, or person to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part." (Subd. (h).) This form of unlawful employment practice is often called simply "retaliation." (See, e.g., Yanomtz v. L'Oreal USA Inc. (2005) 36 Cal.4th 1028, 32 Cal. Rptr.3d 436, 116 P.3d 1123 (Yanowitz).) Another unlawful employment practice is harassment. (Subd. (j).)²

Plaintiff has sued his supervisor at work, as well as the employer itself, for retaliation. We must decide whether individuals may be held personally liable for retaliation. In Reno, supra, 18 Cal.4th 640, 76 Cal.Rptr.2d 499, 957 P.2d 1333, we held that, although the employer may be liable for unlawful discrimination, individuals working for the employer, including supervisors, are not personally liable for that discrimination. The question here is whether language differences between subdivisions (a) (concerning discrimination) and (h) (concerning retaliation) require a different rule as to retaliation. Subdivision (a) makes it an unlawful employment practice for "an employer" to discriminate. Subdivision (h) makes it an unlawful employment practice for "any employer, labor organization, employment agency, or person" to retaliate.

Plaintiff argues that section 12940's plain language—specifically, the use of the word "person" in subdivision (h) to describe who may not retaliate—compels the conclusion that all persons who engage in prohibited retaliation are personally liable, not just the employer. Accordingly, plaintiff argues, we must follow that plain meaning without engaging in other kinds of statutory interpretation. (See Coalition of Concerned Communities, Inc. v. City of Los Angeles (2004) 34 Cal.4th 733, 737, 21 Cal.Rptr.3d 676, 101 P.3d 563.) The courts that have considered the same argument, including the Court of Appeal in this case, have so held. (Taylor v. City of Los Angeles Dept. of Water & Power (2006) 144 Cal.App.4th 1216, 1236-1237, 51 Cal.Rptr.3d 206; Walrath v. Sprinkel (2002) 99 Cal.App.4th 1237, 1240-1242, 121 Cal.Rptr.2d 806; see also Winarto v. Toshiba America Electronics Components (9th Cir.2001) 274 F.3d 1276, 1287-1288, and cases cited.) We disagree.

The statutory language is not plain. Subdivision (j), the subdivision prohibiting harassment, provides, "An employee of an entity subject to this subdivision is personally liable for any harassment prohibited by this section that is perpetrated by the employee...." (Subd. Q")(3).) This is clear language imposing personal liability on all employees for their own harassing actions. Subdivision (h) is far less clear. Its language does lend itself to plaintiffs interpretation, but, as we explain, that is not the only reasonable interpretation of the statutory language. "If the statutory language permits more than one reasonable interpretation, courts may consider other aids, such as the statute's purpose, legislative history, and public policy." (Coalition of Concerned Communities, Inc. v. City of Los Angeles, supra, 34 Cal.4th at p. 737, 21 Cal.Rptr.3d 676, 101 P.3d 563.)

The language difference between subdivisions (a) and (h) of section 12940 is not as great as initially appears. Although subdivision (a) does not itself use the word "person" to describe who engages in the prohibited discrimination, in two respects that subdivision arguably does govern discrimination by a "person." First, section 12926, subdivision (d), defines "[e]mployer" (the word used in § 12940, subd. (a)) as including "any person acting as an agent of an employer, directly or indirectly...." (Italics added.) Second, subdivision (i) of section 12940 makes it an unlawful employment practice "[f]or any person to aid, abet, incite, compel, or coerce the doing of any of the acts forbidden under this part, or attempt to do so." (Italics added.) The plaintiff in Reno argued that the use of the word "person" in these provisions meant that persons, as well as the employer itself, could be liable for discrimination. We rejected the argument. We said the person-as-agent language of section 12926, subdivision (d), could mean, as the plaintiff urged, that such persons can be held personally liable, but it could also have been "`intended only to ensure that employers will be held liable if their supervisory employees take actions later found discriminatory, and that employers cannot avoid liability by arguing that a supervisor failed to follow instructions or deviated from the employer's policy.'" (Reno, supra, 18 Cal.4th at p. 647, 76 Cal.Rptr.2d 499, 957 P.2d 1333, quoting Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 66, 53 Cal.Rptr.2d 741 (Janken).) For several reasons, we agreed with the Janken court that the latter construction was the correct one. (Reno, supra, at pp. 647-655, 76 Cal.Rptr.2d 499, 957 P.2d 1333.) We also concluded that the aiding and abetting language of former subdivision (g) (now subd. (i)) of section 12940 did not impose personal liability on nonemployers. (Reno, supra, at pp. 655-656, 76 Cal.Rptr.2d 499, 957 P.2d 1333.)

The question whether personal liability exists where the statutes prohibit discrimination by "any person acting as an agent of an employer" (§ 12926, subd. (d)) and by "any person" who aids and abets an unlawful...