Lyle v. Warner Bros. Television Productions

• Citation: 12 Cal.Rptr.3d 511,117 Cal.App.4th 1164
• Decision Date: 21 April 2004
• Docket Number: No. B160528.,B160528.
• Court: California Court of Appeals Court of Appeals
• Parties: Amaani LYLE, Plaintiff and Appellant, v. WARNER BROTHERS TELEVISION PRODUCTIONS et al., Defendants and Respondents.

12 Cal.Rptr.3d 511

117 Cal.App.4th 1164

Amaani LYLE, Plaintiff and Appellant, v. WARNER BROTHERS TELEVISION PRODUCTIONS et al., Defendants and Respondents.

No. B160528.

Court of Appeal, Second District, Division 7.

April 21, 2004. Certified For Partial Publication.^*

Rehearing Denied May 14, 2004.

Review Granted July 21, 2004.

Mark Weidmann, Los Angeles, and Scott O. Cummings for Plaintiff and Appellant.

Adam Levin and Samantha C. Grant, Los Angeles, for Defendants and Respondents.

JOHNSON, J.

Defendants, producers and writers of a popular television show raise a unique defense to plaintiff's claim of sexual harassment. Defendants admit the use of sexually coarse, vulgar and demeaning language in the workplace but maintain such language was essential to the creative process of developing scripts for the show. For the reasons we explain in Part IV(C) of our opinion we conclude "creative necessity" is not an affirmative defense to a cause of action for sexual harassment but it is a factor a jury can consider along with other factors in determining whether defendants' conduct created a hostile work environment for the plaintiff.

We further hold the trial court erred in granting summary adjudication to some of the defendants on plaintiff's causes of action for sexual and racial harassment but correctly granted summary adjudication as to all defendants on her causes of action for termination and retaliation in violation of the Fair Employment and Housing Act (FEHA) and common law. Finally, we reverse the order awarding attorney fees and vacate the award of costs for redetermination by the trial court.

FACTS AND PROCEEDINGS BELOW

When Lyle, an African-American woman, learned the producers of "Friends" were looking for writers' assistants for the upcoming season she applied for the position. Two executive producers and writers on the show, Adam Chase and Gregory Malins, interviewed Lyle. She understood "one of the most important aspects of the job was taking very copious and detailed notes for the writers" when they were discussing story lines, jokes and dialog. A writers' assistant had to be able "to sort through what was being discussed with the writers and pick out the dialog and jokes that were most likely to be used in the script[.]" In order to perform these duties, Lyle understood, it was "extremely important" for a writers' assistant "to be able to type quickly." Lyle told Chase and Malins she could type "really, really fast" and stated on her job application she could type 80 words per minute. On the recommendation of Chase and Malins, Lyle was hired as a writers' assistant on "Friends" in June 1999. Lyle worked directly under Chase and Malins and at times for a supervising producer, Andrew Reich, who was also a writer on the show. No one tested Lyle's typing speed before she was hired.

As we discuss more fully below, Lyle contends soon after she began working on the show she complained to Chase, Malins and other producers and writers about the fact "Friends" had no black characters. She continued to make those complaints up to the day before she was fired. Lyle also contends defendants subjected her to racial and sexual harassment through offensive and bigoted comments and jokes made by Chase, Malins, Reich and other writers during writers' meetings. Defendants maintain Lyle was terminated for a legitimate, nondiscriminatory reason — poor job performance. She was not able to type fast enough to keep up with the speed of the discussion at the writers' meetings. As a consequence important jokes and dialogue were missing from her notes. Defendants further maintain even if Lyle could prove offensive and bigoted comments and jokes were made in her presence during writers' meetings these comments and jokes were not severe or pervasive enough to create a hostile work environment as a matter of law. Finally, defendants contend lewd, crude, vulgar jokes and comments in the writers' room were an indispensable means of developing gags, dialogue and story lines for "Friends" which is a show about the lives of young sexually active adults.

Chase and Malins terminated Lyle from her job as a writers' assistant four months after hiring her.

Lyle filed a complaint under the FEHA with the Department of Fair Employment and Housing (DFEH) alleging she had been terminated based on race and gender discrimination and in retaliation for complaining about the show's racial discrimination against African-American actors. She later amended her FEHA complaint to allege claims of racial and sexual harassment.

After receiving a right-to-sue letter from the DFEH Lyle brought this action against organizations and individuals involved in the production and writing of "Friends" including Warner Brothers Television Productions, NBC Studios (NBC), Bright, Kauffman, Crane Productions (BKC), and producers-writers Chase, Malins and Reich. Her first amended complaint alleges causes of action under the FEHA for race and gender discrimination, racial and sexual harassment and retaliation for opposing racial discrimination against African-Americans in the casting of "Friends" episodes. The complaint also alleges common law causes of action for wrongful termination in violation of the public policies against racial and gender discrimination and retaliation for complaining about racial discrimination in violation of the FEHA.

The trial court granted the defendants' motions for summary judgment. As to Lyle's causes of action under the FEHA the court ruled NBC and BKC were not Lyle's employers and therefore not liable on any cause of action. Moreover Lyle's harassment claims were time barred and in any event she could not factually establish her claims of racial and gender discrimination, retaliation or harassment as to any defendant. As to Lyle's common law causes of action for wrongful termination in violation of public policy the trial court ruled Lyle could not establish defendants terminated her based on race or gender discrimination or in retaliation for her complaints about such discrimination against African-American actors. The court subsequently entered judgment for all defendants and awarded them $21,131 in costs.

In a post-judgment order the trial court awarded defendants jointly attorney fees in the sum of $415,800 on the ground the FEHA causes of action were "frivolous, unreasonable and without foundation."

Lyle filed a timely appeal from the judgment and the post-judgment award of attorney fees.

We affirm the judgment in part and reverse it in part. We agree the defendants are entitled to summary adjudication on Lyle's causes of action for termination based on race, gender and retaliation. We conclude, however, triable issues of fact exist as to Lyle's causes of action for sexual and racial harassment against Warner Brothers, BKC, Chase, Malins and Reich.¹ We further conclude the award of attorney fees to defendants jointly must be reversed and the award of costs must be vacated and recalculated by the trial court to reflect our partial reversal of the judgment.

DISCUSSION

I.-II.^**

III. TRIABLE ISSUES OF FACT EXIST AS TO WHETHER LYLE SUFFERED HARASSMENT "BASED ON SEX."

On the merits, defendants argue Lyle cannot prevail on her cause of action for sexual harassment in the workplace because she cannot establish two essential elements of this cause of action: (1) "the harassment complained of was based on sex" and (2) "the harassment complained of was sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment."⁴⁹ We disagree. In this Part we explain there are triable issues of fact as to whether Lyle suffered harassment based on sex. In Part IV below we explain there are triable issues of fact as to whether the alleged harassment was sufficiently severe and pervasive to impose liability on defendants.

Defendants contend in order for Lyle to establish the harassment she complains about was "based on sex" she must be able to show the allegedly harassing conduct was directed at her personally. Not so.

A woman may be the victim of sexual harassment if she is forced to work in an atmosphere of hostility or degradation of her gender. If an employer or supervisor engages in conduct which "sufficiently offends, humiliates, distresses or intrudes upon its victim, so as to disrupt her emotional tranquility in the workplace, affect her ability to perform her job as usual, or otherwise interferes with and undermines her personal sense of well-being" the employer or supervisor engages in harassment based on sex.⁵⁰

In Fisher we held in order to state a cause of action for sexual harassment under the FEHA a plaintiff need not be a "direct victim" in the sense the harassment was directed at her personally. We observed, "[t]o state that an employee must be the direct victim of the sexually harassing conduct is somewhat misleading as an employee who is subjected to a hostile work environment is a victim of sexual harassment even though no offensive remarks or touchings are directed to or perpetrated upon that employee."⁵¹ To further clarify the "based on sex" element of a harassment cause of action we stated: "[O]ne who is not personally subjected to such remarks or touchings must establish that she personally witnessed the harassing conduct and that it was in her immediate work environment."⁵²

In the present case, Lyle testified at her deposition that during the four months of her employment Chase, Malins and Reich continuously made crude sex-related jokes, disparaging remarks about women and pretended to masturbate in her presence. This barrage of gender denigrating conduct occurred during writers' meetings which she had the duty to attend as a writers' assistant as well as in common areas such as the hallways and break room.⁵³ Thus, Lyle's evidence shows she can meet Fisher's requirement "that she personally witnessed the harassing conduct and that it was in her immediate work...