Mathieu v. Norrell Corp.

• Decision Date: 19 February 2004
• Docket Number: No. B159471.,B159471.
• Citation: 10 Cal.Rptr.3d 52,115 Cal.App.4th 1174
• Parties: Laura M. MATHIEU, Plaintiff and Appellant, v. NORRELL CORPORATION et al., Defendants and Respondents.
• Court: California Court of Appeals

10 Cal.Rptr.3d 52

115 Cal.App.4th 1174

Laura M. MATHIEU, Plaintiff and Appellant, v. NORRELL CORPORATION et al., Defendants and Respondents.

No. B159471.

Court of Appeal, Second District, Division 7.

February 19, 2004.

Knickerbocker Law Corporation and Richard L. Knickerbocker, Santa Monica, for Plaintiff and Appellant.

Littler Mendelson, J. Kevin Lilly, Martha J. Keon and Traci I. Beach, Los Angeles, for Defendant and Respondent Spherion Pacific Enterprises.

PERLUSS, P.J.

Norrell Corporation, a temporary employment agency,¹ placed Laura Mathieu with its client Gulfstream Aerospace Corporation. Mathieu's former boyfriend, Richard Fluck, was also employed by Gulfstream. Once Mathieu began working at Gulfstream, Fluck taunted and harassed her and made it difficult for Mathieu to complete assignments.

After Mathieu's position at Gulfstream was terminated, she brought suit against Fluck, Gulfstream and Norrell for sexual harassment and sexual discrimination in violation of the Fair Employment and Housing Act, Government Code section 12900 et seq. (FEHA),² and against Gulfstream and Norrell for unlawful retaliation, common law wrongful termination and breach of the covenant of good faith and fair dealing. Following Mathieu's settlement of her claims against Gulfstream and Fluck, the trial court granted summary judgment in favor of Norrell. Because triable issues of fact exist with respect to Mathieu's retaliation claim, we reverse the judgment. However, we conclude summary adjudication of her claims against Norrell for sexual harassment, sexual discrimination, wrongful termination and punitive damages was properly granted.

FACTUAL AND PROCEDURAL BACKGROUND

1. Mathieu's Employment with Norrell

Norrell places employees in temporary and long-term assignments at its clients' work sites. Gulfstream, like Norrell's other clients, retained the sole authority to hire and fire employees placed with it by Norrell and also set the salary and determined raises to be given those employees.

Mathieu contacted Norrell and began accepting temporary employment through its Carson office in July 1998. As part of the hiring process she read and signed an application that provided her employment was at will. Her contact at Norrell was Susan Dunn, a customer service manager whose duties included interviewing employees and placing them with Norrell clients.

2. Mathieu's Placement at Gulfstream and Her Problems with Richard Fluck

Dunn offered Mathieu a position at Gulfstream in August 1998. Mathieu accepted the placement even though she was aware that Fluck, a former lover with whom she had parted on very bad terms, was also employed by Gulfstream. Although Fluck did not work in the same department as Mathieu, the two crossed paths from time to time. According to Mathieu, Fluck began a campaign of harassment against her including glaring, shouting and sneering at her, failing to return work-related emails and paperwork, purposefully bumping into her in the hallway, calling her names and ostentatiously turning his back when he saw her. Mathieu complained about this treatment both to her supervisor at Gulfstream and to Gulfstream's human resources department. The only action taken was to tell Fluck and Mathieu to stay away from one another.

Although Mathieu was required to report any problems at the Gulfstream workplace to Norrell, she waited six months, until February 12, 1999, to tell Dunn about her difficulties with Fluck. At that time Mathieu told Dunn by telephone that she had been having problems with her former boyfriend, who was being rude and "slandering her to others." Dunn documented the telephone call in Mathieu's computerized personnel file.

On February 15, 1999 Dunn contacted Gulfstream human resources representative Jody Cornelius to inquire about the situation between Mathieu and Fluck. Cornelius told Dunn that Fluck had been advised to stop his improper behavior and that Mathieu had not complained since the warning. Dunn contacted Mathieu the next day and told her that Fluck had been admonished to stop his rude behavior. Dunn asked Mathieu to let her know immediately if any further problems arose. Mathieu told Dunn there had been no further problems and things had calmed down. Dunn contacted Mathieu again on March 3, 1999 to inquire about the situation with Fluck. Mathieu repeated that everything had calmed down. After February 12, 1999 Mathieu did not complain to anyone about Fluck's behavior.

3. Mathieu's Release from Gulfstream

On March 8, 1999 Gulfstream human resources representative Rhonda London informed Dunn that Mathieu was being released from her assignment as a cost containment measure. During a visit to Norrell's office the same day, Mathieu told Dunn she believed she was being released because of her complaints about Fluck. Dunn responded that Gulfstream had explained the layoff was due to budget cuts and assured Mathieu that Norrell would look for another position for her. Dunn contacted London and relayed Mathieu's concern that she had been terminated because of the situation with Fluck. London reiterated that Mathieu's layoff was economic and told Dunn that, although she had no personal knowledge of the situation with Fluck, she had not heard anything to indicate that situation was related to Mathieu's job loss.

Dunn offered Mathieu a new short-term position shortly after the layoff. Mathieu, however, opted to take a position with a different temporary agency. Mathieu never worked for Norrell again.

4. The Lawsuit and Norrell's Motion for Summary Judgment

After obtaining a right-to-sue letter from the Department of Fair Employment and Housing (DFEH), Mathieu filed suit against Fluck, Gulfstream and Norrell on March 22, 2001. The complaint alleged causes of action for sexual harassment and sexual discrimination against Fluck and the corporate defendants and for retaliation, wrongful termination in violation of public policy and breach of the covenant of good faith and fair dealing against Gulfstream and Norrell.

Norrell moved for summary judgment on February 11, 2002.³ After two hearings and two detailed written tentative rulings,⁴ the trial court granted summary judgment based on its determination there were no material issues of fact in dispute as to four of the eight issues raised in the motion and summary judgment/summary adjudication was therefore proper as to those issues:

Noticed Issue 5: "All of Plaintiff's claims fail to present a triable issue of material fact because Defendant did not know or should have known that that the client's decision was discriminatory and because Defendant took the appropriate corrective measures within its control."

Noticed Issue 6: "The third cause of action for wrongful termination fails to present a triable issue of material fact because it is barred by the statute of limitations and/or because Plaintiff cannot establish a violation of any statute."

Noticed Issue 7: "The fourth cause of action for breach of the covenant of good faith and fair dealing fails to present a triable issue of material fact because Plaintiff has not pled an enforceable contract and/or because Plaintiff cannot rebut the presumption of at-will employment."⁵

Noticed Issue 8: "Plaintiff's claims for punitive damages fail to present a triable issue of material fact because her supervisor was not an officer, director or managing agent of Defendant and/or because her supervisor did not act with the requisite malice or oppression."

Judgment was entered in favor of Norrell on April 12, 2002.

DISCUSSION

We review a grant of summary judgment de novo and decide independently whether the facts not subject to triable dispute warrant judgment for the moving party as a matter of law. (Intel Corp. v. Hamidi (2003) 30 Cal.4th 1342, 1348, 1 Cal.Rptr.3d 32, 71 P.3d 296; Code Civ. Proc., § 437c, subd. (c).)

1. The Trial Court Erred in Granting Summary Judgment Based on Norrell's Noticed Issue 5

The trial court correctly concluded Norrell responded appropriately to Mathieu's initial claims of sexual harassment. However, the court erred in finding no triable issues of fact as to her claim for retaliation.

a. Both Norrell and Gulfstream May be Considered Mathieu's Employer for Purposes of Potential Liability for Sexual Harassment and Retaliation

The nature and extent of Norrell's responsibility to protect its employee Mathieu from sexual harassment by Gulfstream employees may depend on whether Gulfstream is viewed simply as Norrell's client or, in addition, is considered to be Mathieu's "special employer." An employer's liability under FEHA for hostile environment sexual harassment committed by customers or clients prior to the effective date of the 2003 amendment to section 12940, subdivision (j) (Stats.2003, ch. 671, § 1) is uncertain.⁶ However, if sexual harassment is perpetrated by a coworker, an employer is liable if it fails to take immediate and appropriate corrective action when reasonably made aware of the conduct. (§ 12940, subd. (j)(1); Carrisales v. Department of Corrections (1999) 21 Cal.4th 1132, 1136-1137, 90 Cal.Rptr.2d 804, 988 P.2d 1083.)⁷

In the context of an individual who is employed by a temporary agency and assigned to work on the premises of the agency's client, we believe the purpose of FEHA to safeguard an employee's right to hold employment without experiencing discrimination is best served by applying the traditional labor law doctrine of "dual employers," holding both the agency and the client are employers and considering harassment by an employee of the client coworker harassment rather than harassment by a third party. (Kowalski v. Shell Oil Co. (1979) 23 Cal.3d 168, 174, 151 Cal.Rptr. 671, 588 P.2d 811 ["The possibility of dual employment is well recognized in the case law. `Where an employer sends an employee to do work for another person, and both have the right to exercise certain powers of control over the employee, that employee may be held to...