McClung v. Employment Development Dept.

Decision Date14 November 2003
Docket NumberNo. C034110,C034110
Citation6 Cal.Rptr.3d 504,113 Cal.App.4th 335
CourtCalifornia Court of Appeals Court of Appeals
PartiesLesli Ann McCLUNG, Plaintiff and Appellant, v. EMPLOYMENT DEVELOPMENT DEPARTMENT et al., Defendants and Respondents.

Guy D. Loranger, for Plaintiff and Appellant.

Bill Lockyer, Attorney General, James M. Schiavenza, Lead Supervising Deputy Attorney General, Louis R. Mauro, Supervising Deputy Attorney General, Barton R. Jenks and Diana L. Cuomo, Deputy Attorneys General, for Defendant and Respondent Employment Development Department.

Matheny, Sears, Linkert & Long, Michael A. Bishop, Sacramento, and Roger Yang, for Defendant and Respondent Manuel Lopez.


Plaintiff Lesli Ann McClung (McClung) worked as an auditor for defendant Employment Development Department (EDD) in Sacramento. On a trip to San Diego to conduct an audit, another EDD auditor, defendant Manuel Lopez (Lopez), made sexual remarks to her and groped her thigh. McClung sued EDD and Lopez, alleging claims of hostile work environment and failure to remedy a hostile work environment under the Fair Employment and Housing Act (Gov.Code, § 12900 et seq.1) (FEHA), as well as a common law claim for intentional infliction of emotional distress. The trial court granted summary judgment for defendants.

We shall affirm the judgment for EDD, but shall reverse the judgment for Lopez.

A. EDD auditors and EDD organization

McClung and Lopez were coworkers in the EDD division that audits departmental programs — such as the program that distributes unemployment insurance — to verify compliance with federal and state requirements and to identify opportunities for improvement. They had the same job classification, associate management auditor.

EDD auditors work in units managed by an administrative supervisor. The units are organized into sections supervised by a section chief. Above sections are divisions under a division chief, and above divisions are branches headed by a branch chief. Thus, McClung and Lopez worked in a unit of an audit section within the Audit and Evaluation Division of the Program Review Branch.

EDD auditors work on auditing "projects." When a project arises, the Audit and Evaluation Division chief consults with the section chiefs regarding the nature of the project, its complexity and duration, and the number of staff required. The section chiefs in turn consult with the administrative supervisors. Management decides what staff auditors will be assigned to the project. An audit plan is developed for each project. Some audits require extended travel outside Sacramento.

Each project has a project supervisor, who directs and manages the auditing project and supervises the auditing team. EDD auditors therefore have two supervisors, an administrative supervisor who manages their unit and a project supervisor who supervises the particular project they are working on (though both roles can be filled by the same supervisor).

B. Lunch invitations

Lopez's interaction with McClung began with two lunch invitations. In September 1996, Lopez invited McClung out to lunch on an upcoming Friday. She initially accepted but cancelled on the appointed day, because she felt Lopez was making too much of the occasion. Lopez appeared to McClung to be angry at the rejection.

A couple of weeks later, in early October 1996, Lopez suggested lunch in advance of another Friday. McClung's response was equivocal, but, growing nervous that Lopez would ask her again, she sent him an e-mail on October 18, 1996: "Manny — I need to be honest with you. I'm sure you didn't mean to, but your lunch invitations have made me really uncomfortable. It appears that I upset you when I turn them down, and so I would prefer that you not ask me again. I do not wish to be unfriendly to you, but as with any colleagues, I would prefer to keep a professional, business-only relationship. I enjoy your office friendship and don't want this misunderstanding to interfere. Thanks."

McClung copied the message to her project supervisor, Marilyn Pruitt (Pruitt), and also to either her administrative supervisor, Paul Yee, or her section chief, Forrest Boomer. Lopez sent a return message: "It's okay. Don't lose sleep over it." The following week McClung asked Pruitt what she thought of McClung's message to Lopez. Pruitt said that "men need to ask women out to lunch sometimes" and "[i]t makes them feel good," a response McClung found unsupportive.

McClung, however, did not ask Pruitt to take any further action. McClung later found out that Pruitt had spoken to Lopez about the message. Lopez did not invite McClung to lunch again.

McClung did not regard Lopez's lunch invitations as sexual harassment: it was just an uncomfortable situation that she wanted to stop.

C. Lopez as lead auditor of the San Diego audit

In January 1997, Pruitt was looking for an auditor to work as a temporary replacement on an ongoing project in San Diego. Pruitt asked McClung, who said she was happy to go because she was not as busy as usual. McClung's policy was to accept any assignment management gave her.

McClung knew when she accepted the assignment that Lopez was a member of the audit team. Despite her prior experience with Lopez, McClung did not feel uncomfortable about the situation.

Lopez was the "lead auditor" on the San Diego project. The lead auditor is usually the most experienced auditor on a project team. McClung herself had acted as a lead auditor on a project.

With the assistance and approval of the project supervisor, a lead auditor formulates an audit plan and instructs the other auditors about their jobs and responsibilities. The lead auditor implements the audit plan, ensures the audit is conducted according to the plan, and is the liaison with the project supervisor regarding the progress and completion of the audit. In sum, a lead auditor is the most experienced auditor on a team who guides the team to completion of the audit. The relationship between a lead auditor and a non-lead auditor is essentially that of coemployees, but the lead is conferred with authority to head up the project.

A lead auditor has no authority over the compensation, benefits, or terms of employment of the auditors on the team, and does not evaluate their performance. Project supervisors, by contrast, have the authority to discipline auditors on the team, including the lead auditor, and review and evaluate their work.

On the San Diego project, Lopez, like McClung, was supervised by Pruitt, the project supervisor. Lopez guided McClung on the project, but he could not make decisions without the project supervisor's approval. Lopez could not remove McClung from the audit team. If Lopez had any concerns about McClung's performance, he would have had to address them with Pruitt. The only responsibilities Lopez had that McClung did not involved ensuring the audit plan was implemented correctly.

McClung, nonetheless, testified that Lopez was an "on-site supervisor while in the field."

D. The trip to San Diego

On Monday, January 13, 1997, McClung and Lopez traveled to San Diego, worked on the audit, and returned to Sacramento on Thursday, January 16, 1997. It was on this trip that the conduct at the heart of this case took place.

On Monday, January 13, as they were getting on the plane, Lopez asked McClung if she was glad she came. Driving from the San Diego airport, Lopez brought up his divorce and asked McClung if she had ever been married. At lunch, Lopez told McClung he thought she was cute. Later that day, while touring a facility, Lopez three times put his hand on McClung's lower back just above her buttocks to guide her through a doorway, until she stopped short the third time to indicate her displeasure. At dinner, Lopez asked McClung what was the difference between their having dinner and the earlier lunch invitations, saying, "This is much more serious." Driving back to the hotel after dinner, McClung wanted to buy a bottle of wine to drink in her room over the week, but Lopez insisted on paying for it, and they ended up sharing it in the hotel lobby. While doing so, Lopez said next time they should drink a bottle of wine in one of their hotel rooms and watch television, but "no monkey business."2

On Tuesday, January 14, while driving to dinner, Lopez and McClung drove past a nude dancing establishment and Lopez suggested they have dinner there. McClung declined. Lopez said, "Men have urges, and I'm sure women do, too." After dinner elsewhere, Lopez repeatedly suggested they get another bottle of wine.

On Wednesday, January 15, at lunch, Lopez said, "I'm a Latin lover," and asked, "You don't like oral sex, is that your problem?"

That evening, Lopez and McClung went for dinner and drinks at a restaurant and blues club, sitting at the bar. During the evening, Lopez asked McClung if she knew what cunnilingus and fellatio were. He asked, "How are you in bed?" With Lopez seated to her left, McClung talked to a man on her right. Lopez asked McClung about her dating life. Later, McClung felt Lopez put his hand on her left knee, slide it up to her thigh, squeeze, and then take his hand away. McClung decided to pretend this had not happened. While driving back to the hotel, Lopez asked, "Did you want to fuck that guy sitting next to you?"

At the hotel, Lopez called McClung in her room and asked to talk about the situation in one of their rooms. McClung said no, but later changed her mind, went to Lopez's room, and berated him for his conduct. Lopez said, "Fine. You go back and tell [acting chief of audits, Gary Bogolea] and [project supervisor, Pruitt] about this, and I'm out of there." Lopez also asked, "What is going to happen when your looks are gone?" He again said, "Did you want to bring that guy home [from the restaurant] and fuck him?"

E. Complaint and investigation

On Tuesday, January 21, 1997, McClung's next day at work...

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2 cases
  • Chapman v. Enos
    • United States
    • California Court of Appeals Court of Appeals
    • March 10, 2004
    ...the trial court ruled that it was not. The issue is currently pending before our Supreme Court in McClung v. Employment Development Dept. (2003) 113 Cal.App.4th 335, 6 Cal.Rptr.3d 504, review granted March 3, 2004, S121568. Chapman does not urge the applicability of Government Code section ......
  • Ortega v. Neil Jones Food Co.
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    • January 21, 2014 ensure that employees have been given adequate process prior to the termination. Neil Jones further cites McClung v. Employment Dev. Dep't, 113 Cal. App. 4th 335 (2003), which is no longer good law. See McClung v. Employment Dev. Dep't, 99 P.3d 1015, 1017 (Cal. 2004) (reversing the Court......

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