Matthews v. Superior Court

• Decision Date: 26 April 1995
• Docket Number: No. B087694,B087694
• Citation: 34 Cal.App.4th 598,40 Cal.Rptr.2d 350
• Court: California Court of Appeals Court of Appeals
• Parties: , 67 Fair Empl.Prac.Cas. (BNA) 1127, 67 Fair Empl.Prac.Cas. (BNA) 1274, 66 Empl. Prac. Dec. P 43,577, 99 Ed. Law Rep. 542 Scott D. MATTHEWS, Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent. The REGENTS OF the UNIVERSITY OF CALIFORNIA, Real Parties in Interest.

Page 350

40 Cal.Rptr.2d 350

34 Cal.App.4th 598, 67 Fair Empl.Prac.Cas. (BNA) 1127,

67 Fair Empl.Prac.Cas. (BNA) 1274,

66 Empl. Prac. Dec. P 43,577, 99 Ed. Law Rep. 542

Scott D. MATTHEWS, Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent The REGENTS OF the UNIVERSITY OF CALIFORNIA, Real Parties in Interest.

No. B087694.

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

April 26, 1995.

As Modified on Denial of Rehearing May 17, 1995.

Lewis W. Boies, Jr., Santa Monica, and Michael G. Homeier, Los Angeles, for petitioner.

No appearance for respondent.

James E. Holst, Christopher M. Patti, Oakland, McKenna & Cuneo, Joel P. Kelly and Cynthia Beckwith, Los Angeles, for real parties in interest.

GODOY PEREZ, Associate Justice.

Petitioner is the plaintiff in a superior court action against his former employer, the Regents of the University of California ("Regents"), and several individual defendants, alleging he was the victim of sexual harassment in violation of the Fair Employment and Housing Act ("FEHA"). (Gov.Code, § 12900 et seq.) ¹ The individual defendants demurred to petitioner's Amended Complaint on the ground that they could not be held personally liable for damages under the FEHA, which confines such liability to the offending party's employer. We hold that these defendants, all supervisory personnel who were aware of, and at times participated in, the unlawful conduct, are "persons" subject to personal liability for sexual harassment under the FEHA.

FACTS AND PROCEDURAL HISTORY ²

Petitioner was employed as a Principal Admitting Clerk at the Emergency Medicine Center at the University of California, Los Angeles (UCLA). Petitioner, a heterosexual male, contends he was subjected to verbal and physical sexual harassment by his homosexual male co-workers, including his immediate supervisors, defendants A.J. Gonzales and Jorge Benitez.

Shortly after petitioner completed his job training, many of petitioner's co-workers began to subject him to verbal and physical sexual harassment because of his heterosexual orientation. The verbal sexual harassment included "sexual advances, propositions for sexual relations, and lewd, vulgar and lascivious comments of both a sexually explicit or implicit nature." The physical sexual harassment included "male co-workers brushing and/or rubbing their bodies, in particular their genitals and buttocks, against [petitioner's] person, touching, stroking, and caressing [petitioner's] neck, back, and arms, and numerous attempts to give [petitioner] massages." Petitioner was told by co-workers that his position as a Principal Admitting Clerk was usually occupied by male homosexuals, and was "commonly known as a 'gay' job." ³

Petitioner's attempt to rebuff these sexual advances and comments angered his co-workers, particularly his supervisors Gonzales and Benitez, who responded by redoubling their efforts. When his working environment became intolerable, petitioner arranged a meeting with the Medical Director of the Emergency Medicine Center, defendant Dr. Marshall Morgan. Dr. Morgan told petitioner he had become aware of the "rampant and ongoing sexual harassment" in the Emergency Medicine Center workplace long before petitioner complained. However, Dr. Morgan stated he was leaving on vacation and petitioner would have to speak with defendant Linda DaPar, the Center's Administrative Director.

Initially, DaPar refused to meet with petitioner, but eventually did so at his insistence. The meeting was conducted in a "hostile, threatening and condescending manner." DaPar characterized the harassment of which petitioner complained as "trivial and insignificant," and "belittled [petitioner's] experiences and reactions." DaPar refused to take any corrective action in response to petitioner's complaints. Despite the fact that DaPar had assured petitioner their conversation would remain confidential, she immediately telephoned Gonzales and told him petitioner had accused him, Benitez and other co-workers of sexual harassment. Because of this breach of confidentiality, and the fact that petitioner had initiated an investigation by UCLA's Labor Relations Manager, petitioner was thereafter subjected to the "silent treatment" by Gonzales, who refused to speak to him at all, and Benitez, who spoke to him only about work-related matters. Petitioner's co-workers either shunned him altogether or increased their sexual harassment of him because he was a "snitch," a "fink," and a "complainer who was just trying to get his supervisors fired."

Gonzales and Benitez continued to "encourage, condone and approve of" the increased harassment. Defendants also subjected petitioner to disparate treatment by changing his work schedule and granting preferential treatment to a more recently hired worker, who petitioner believed was homosexual. ⁴

Petitioner, a pre-med student, enjoyed the job itself and viewed it as an excellent opportunity After receiving a "right to sue" letter from the Department of Fair Employment and Housing, petitioner filed this action against the Regents of the University of California, Dr. Morgan, DaPar, Gonzales and Benitez. (Petitioner did not name any of his non-supervisory co-workers as defendants.) The Amended Complaint contains seven causes of action, four of which allege violations of the FEHA for: (1) sexual harassment by creation of a hostile work environment; (2) retaliation; (3) constructive discharge; and (4) disparate treatment. ⁵

to get experience in the medical field. Due to the hostile work environment, however, petitioner was unable to perform his duties, and eventually took a leave of absence, from which he never returned. Petitioner alleges that he was constructively discharged due to defendants' unlawful employment practices.

The individual defendants demurred to the FEHA causes of action on the ground that the FEHA does not impose individual liability.

On September 12, 1994, respondent court sustained the individual defendants' demurrers to the FEHA causes of action, without leave to amend, on the ground that the FEHA does not impose personal liability on individuals who violate its provisions. The court also sustained the demurrers of all defendants to the fourth cause of action for disparate treatment.

This petition was filed October 20, 1994. On October 27, 1994, we issued an alternative writ of mandate directing respondent court to vacate its orders sustaining defendants' demurrers to the first through fourth (FEHA) causes of action of the Amended Complaint, and enter a new and different order overruling the demurrers. Respondent court did not comply with the alternative writ. Defendants filed a return on December 29, 1994, and the matter was argued January 13, 1995.

DISCUSSION

The FEHA establishes that freedom from job discrimination on certain grounds, including a person's sex, is a civil right. (§ 12921.) It declares that discrimination on the specified grounds is against public policy (§ 12920) and constitutes an unlawful employment practice. (§ 12940; Commodore Home Systems, Inc. v. Superior Court (1982) 32 Cal.3d 211, 213, 185 Cal.Rptr. 270, 649 P.2d 912.) The public policy underlying the FEHA is "to prohibit harassment and discrimination in employment on the basis of any protected classification. Such conduct whether intentional or unintentional is a violation of the civil rights of California citizenry and has been shown to decrease productivity in the workforce. ..." (Stats.1984, ch. 1754, p. 6403.) The Legislature has further declared that "... [T]he practice of denying employment opportunity and discriminating in the terms of employment for such reasons foments domestic strife and unrest, deprives the state of the fullest utilization of its capacities for development and advance [sic], and substantially and adversely affects the interest of employees, employers, and the public in general.... [p] It is the purpose of [the FEHA] to provide effective remedies which will eliminate such discriminatory practices." (§ 12920).

On-the-job harassment is addressed specifically in section 12940. Subdivision (h)(1) of that section provides that it is an unlawful employment practice "[f]or an employer, labor organization, employment agency, apprenticeship training program or any training program leading to employment, or any other person, because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, or age, to harass an employee or applicant. Harassmentof It is also 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" (§ 12940, subd. (g)), or "for a person to deny or to aid, incite, or conspire in the denial of the [civil] rights created by Section 51 or 51.7 of the Civil Code." (§ 12948, italics added.) Section 12965, subdivision (b), authorizes a civil lawsuit under the FEHA against "the person, employer, labor organization or employment agency" named in the complaint filed with the Department of Fair Employment and Housing as a precursor to the lawsuit. (Italics added.)

                an employee or applicant by an employee other than an agent or supervisor shall be unlawful if the entity, or its agents or supervisors, knows or should have known of this conduct and fails to take immediate and appropriate corrective action.  An entity shall take all reasonable steps to prevent harassment from occurring.  Loss of tangible job benefits shall not be necessary in order to establish harassment."  (Italics added.)   Under subdivision (h)(3)(C) of section 12940, "harassment because of sex" includes gender harassment.  Sexual harassment by a member of the same sex constitutes gender harassment under the FEHA.  (Mogilefsky v. Superior Court, (1993) 20 Cal.App.4th 1409, 26 Cal.Rptr.2d 116.)
                

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