Kelley v. Conco Cos.

• Decision Date: 06 June 2011
• Docket Number: No. A126865.,A126865.
• Citation: Kelley v. Conco Cos., 196 Cal. App. 4th 191, 126 Cal.Rptr.3d 651, 112 Fair Empl.Prac.Cas. (BNA) 1301, 11 Cal. Daily Op. Serv. 6880, 2011 Daily Journal D.A.R. 8263 (Cal. App. 2011)
• Court: California Court of Appeals
• Parties: Patrick C. KELLEY, Plaintiff and Appellant, v. The CONCO COMPANIES et al., Defendants and Respondents.

196 Cal.App.4th 191

126 Cal.Rptr.3d 651

112 Fair Empl.Prac.Cas. (BNA) 1301

11 Cal. Daily Op. Serv. 6880

2011 Daily Journal D.A.R. 8263

Patrick C. KELLEY, Plaintiff and Appellant,

v.The CONCO COMPANIES et al., Defendants and Respondents.

No. A126865.

Court of Appeal, First District, Division 5, California.

June 6, 2011.

Law Offices of John T. Schreiber, John T. Schreiber, Alamo, for Plaintiff and Appellant.

Fitzgerald Abbott & Beardsley, Michael E. Caples, Oakland, for Defendants and Respondents.

BRUINIERS, J.

Patrick Kelley was an apprentice ironworker employed by respondent The Conco Companies (Conco).He complained that he was subjected to a barrage of sexually demeaning comments and gestures by his male supervisor, and later to similar comments by male coworkers, and that he was also subjected to physical threats by coworkers in retaliation for his complaints about his supervisor.Kelley's employer changed his work site to separate him from his harassers, but Kelley was later suspended by his union from its apprenticeship program rendering him ineligible for employment.After the suspension expired, he was not rehired by Conco.He filed suit against Conco and his former supervisor, and the trial court granted the defendants' motion for summary judgment on Kelley's claims for sexual harassment, retaliation and related causes of action.We reverse as to Kelley's retaliation claim under the California Fair Employment and Housing Act(FEHA;Govt.Code, § 12900 et seq.),¹ and otherwise affirm.

I.Background

In October 2007, Kelley sued Conco and David Seaman(collectively, Defendants) for sex discrimination and sexual harassment in violation of FEHA(§ 12940); retaliation; termination in violation of public policy; failure to prevent discrimination; intentional infliction of emotional distress; and negligent infliction of emotional distress.Defendants moved for summary judgment.We summarize the evidence offered in support of and opposition to summary judgment, construing Kelley's evidence liberally and Defendants' evidence narrowly and drawing, as we must, all reasonable inferences in favor of Kelley.( Nazir v. United Airlines, Inc.(2009)178 Cal.App.4th 243, 254, 100 Cal.Rptr.3d 296.)

The Emeryville Jobsite Incidents

Conco is one of the largest concrete construction companies in California.Kelleywas an apprentice ironworker with Ironworkers Union Local 378 (Local 378) and Conco was a union shop.To get work, Kelley would contact companies such as Conco directly and, once hired, he would inform the union and obtain a dispatch slip.

On July 28, 2006, Kelley was hired as an apprentice ironworker at Conco and began working at a job site in Emeryville with Seaman as his supervisor.On about July 30, 2006,² Seaman told Kelley to move some rebar and not to mix up the pieces of different lengths.As Kelley moved the rebar, it did get mixed up and Kelley tried to sort the piles using his foot.Seaman yelled at Kelley to “fucking quit using [your] goddamn fucking foot; bend the fuck over and pick that shit up.Pick that shit up, bitch.”After Kelley completed that task, Seaman told him to tie some other rebar.While Kelley was bent over, Seaman came up behind him and called him a “bitch” and a “fucking punk.”He said Kelley had a “nice ass,”he wanted to “fuck [Kelley] in the ass,” Kelley's pants “made [his] ass look good,” Kelley would “look good in little girl's clothes,”he would “fuck the shit out of [Kelley's] ass,”he would “fuck [Kelley] better than [Kelley's] old lady,”he would make Kelley “ his bitch,”he would “cum all over [Kelley's] ass” and he would “turn [Kelley] out.”After Kelley finished tying the rebar, Seaman told him to get down and screw metal plates to the wall.When Kelley got on his knees to complete the task, Seaman said, “That's where you belong[,] on your knees.”Kelley said that a coworker, who he identified only as a Hispanic male from Sacramento, “ got in my face” and said he was going to “make me suck [Seaman's] dick” while he watched.Seaman said he thought the comment was a joke and thought it was funny.

Kelley confronted Seaman and said Seaman was “fucking gay.”Seaman responded angrily and “puffed up,” took off his tool bag and said he was going to “kick [Kelley's] ass.”³Seaman told Kelley to get off the job.Kelley began walking off the job, but a coworker told him not to leave because he would be fired.

Kelley remained on the job, ate lunch on the job site and did not interact with anyone.After lunch, Kelley spoke to Conco Field Safety Manager Joseph Anthony Gallegos, Jr. for 20 to 30 minutes and told him “exactly what happened.”⁴While talking about Seaman, Kelley became emotional, started crying and had to turn his head away.Gallegos told Kelley to keep working and he would talk to Seaman and the person in charge of the whole job and try to get Kelley off the job.After speaking to Seaman, Gallegos told Kelley, “ ‘Sorry, dude, there's nothing I can do.Stay on the job.If you leave you'll get fired.’ ”

Gallegos asked Seaman “ ‘What the fuck you doing, Dave?Fuckin’talking like that to that kid?' ” and Seaman responded, “ ‘Fuck, I don't know.I don't know why I said that.’ ”Gallegos told Seaman to calm down and apologize to Kelley.Gallegos and Seaman said that Seaman and Kelley shook hands and that Seaman apologized.Kelley agreed that he and Seaman shook hands, but denied that there was an apology.

On the afternoon of the Seaman incident, two coworkers called Kelley a “bitch” and one “got in [Kelley's] face” and “talk[ed] shit” to him.Seaman twice told them to leave Kelley alone, but Kelley heard them continue to say they were going to jump him after work.When Kelley got home, he called the Conco dispatcher, Scott Nava, asked to be assigned to a different job site, and explained why.Nava agreed and told him to report the next day to a Vallejo work site.

Kelley's Work in Vallejo and Redwood City

After leaving the Emeryville job site, Kelley worked on a Conco job in Vallejo for two days.On both days coworkers called him a “bitch,”“faggot,” and “narc” or “snitch” for complaining and two of them told him he would be lucky if he did not get his ass beat after work.A supervisor was within earshot but ignored the comments.Kelley reported the incident to Nava at the end of the day and Nava said, “ ‘Well, that's the way the trade is, man.That's just the way these guys are.’ ”

A week or two after the Emeryville job, Seaman called Kelley and asked if he wanted a ride to a Conco job in Redwood City.Kelley accepted the ride because he was afraid he would lose his job if he declined.Seaman was not Kelley's supervisor on that job, and Kelley worked there for three or four days without incident.According to Seaman, Kelley's job performance was better in Redwood City than in Emeryville.

Kelley's Other Work for Conco

Kelley never worked with Seaman again, but he worked for Conco on other jobs over the next three months.On some jobs, he had no problems.At others, he heard remarks daily about what had happened with Seaman.He was called “punk bitch,”“snitch” or “fag,” and people would “get in his face” and would threaten to jump him after work.Kelley complained about this conduct to Scott Nava“two [to] three times a week” and asked to be removed from the jobs.Nava regularly moved him.Kelley also complained to at least one other person (“Tony”) at Conco on two or three occasions about the behavior.

Kelley's Suspension from the Union

Kelley was required to attend classes in order to maintain his status as a union apprentice.He wrote the union a letter asking for a day off so he could attend his brother's wedding and handed it to union representative Dana Fairchild before a class.After Kelley took the day off (which was after the incident with Seaman), Fairchildtold Kelleyhe never received the letter and the absence was unauthorized.Fairchild raised the issue with the apprenticeship board and on October 3, 2006, Kelley was asked to leave a Conco job to attend a board meeting on the issue.At the meeting, the board suspended him for six months.⁵

The apprenticeship board notified Conco on October 10, 2006, that Kelley had been dropped from the program effective October 3 and was not eligible for employment or training under the terms of the union's collective bargaining agreement with Conco.Kelley never again worked at Conco.

Kelley's Subsequent Search for Work

After the suspension expired in about April 2007, the union told Kelley never to call or go back to Conco because there was no longer any kind of work for him there.When Kelley later tried to get work from other companies, he would be released after the first week of pay.When he asked the union why he was getting released, Fairchild “got on his case,”“yelled at him for what happened at Conco,” and said that was the reason he could not get work.

Kelley worked for short durations for other contractors including Brodhead Steel, Mission City Steel, Harris Salinas, and Shepard Steel.While working at Brodhead, Kelley's coworkers called him a “bitch” and a “narc” and one coworker who said he was a friend of Seaman told Kelley he was a “punk for doing what [he] did.”There were three incidents at Brodhead involving two workers.Kelley was fired from the Harris Salinas job because he tested positive for marijuana.The company told him to check back for work in a few months, but he was never rehired.Kelley's boss at Shepard said he wanted to keep Kelley, saying Kelley was a good worker, but told Kelley “the guys upstairs” did not think he was going to work out so he was let go.

Kelley's Resignation from Union

Kelley said that by October 2007, he was suffering a deep depression and did not want to go back to ironworking.He asked the union for a six-month leave of absence from the apprenticeship program “[d]ue to the unlawful harassment and discrimination I endured while employed by Conco Companies[.]”The...