Murray v. Oceanside School Dist.

Citation95 Cal.Rptr.2d 28,79 Cal.App.4th 1338
CourtCalifornia Court of Appeals
Decision Date19 April 2000
Parties(Cal.App. 4 Dist. 2000) DAWN MURRAY, Plaintiff and Appellant, v. OCEANSIDE UNIFIED SCHOOL DISTRICT, Defendant and Respondent. D031662 Filed

APPEAL from a judgment of the Superior Court of San Diego County, Dana M. Sabraw, Judge. Reversed with directions.

(Super. Ct. No. N71842)

Lambda Legal Defense and Education Fund, Inc., Myron Dean Quon, Jon W. Davidson; and Paula A. Brantner, for Plaintiff and Appellant.

Maxie, Rheinheimer, Stephens & Vrevich, Darin L. Wessel, Law Office of Robert H. Lynn, Robert H. Lynn, Law Office of M.E. Stephens, M.E. Stephens for Tom Homann Law Association as Amici Curiae on behalf of Plaintiff and Appellant; and Swanson & McNamara, Ed Swanson, Eugene N. Stuart III for Bay Area Lawyers for Individual Freedom as Amici Curiae on behalf of Plaintiff and Appellant.

Stutz, Gallagher, Artiano, Shinoff & Holtz, Daniel R. Shinoff, Jeffery A. Morris, and Paul V. Carelli for Defendant and Respondent.

CERTIFIED FOR PUBLICATION

HUFFMAN, J.

Plaintiff Dawn Murray filed a complaint against her employer, Oceanside Unified School District (Oceanside), alleging she suffered harassment on the basis of her sexual orientation (lesbian) at her place of work, Oceanside High School, where she has taught high school biology and biotechnology since 1983. She alleges that contrary to the protections afforded her under former Labor Code section 1102.1 (repealed Stats. 1999, ch. 592, 12 (Assem. Bill No. 1001 (1999-2000 Reg. Sess.)), referred to here as Labor Code section 1102.1), school officials failed to investigate the incidents and inflicted retaliatory discipline on her when she complained about them. She also contends the school officials' conduct on behalf of her employer amounted to intentional infliction of emotional distress by Oceanside.

Following extensive pretrial motion activity, the trial court granted a defense motion in limine to exclude evidence of all the incidents she alleged except one, as not falling within the protective coverage of Labor Code section 1102.1. The trial court further ruled that her remaining claim, failure to promote, was untimely, based on the administrative tort claims filed. (Gov. Code,1 900 et seq.) Judgment was entered for Oceanside on both causes of action and Murray appeals.

Resolving the issues on appeal requires us to analyze the scope of coverage of both Labor Code section 1102.1 and certain newly enacted amendments to the Fair Employment and Housing Act (FEHA) ( 12900 et seq.), which have added sexual orientation as a protected characteristic in the anti-workplace harassment law. (Stats. 1999, ch. 592, 1, 12920 et seq., referred to here as Assembly Bill No. 1001.) We conclude that the trial court's interpretation of the Labor Code provision, section 1101.2, was unduly narrow, both as the matter was originally presented in the context of the Labor Code, and in the current context of the amendments to FEHA that were made while this matter was pending on appeal. These recent statutory amendments were intended to clarify existing law and, as such, may be retroactively applied to a pending matter such as this one.

Accordingly, further proceedings are required to flesh out the nature and scope of the activities which allegedly occurred that remain actionable as part of the anti-harassment law or as a common law tort, and that are timely made in light of the administrative claims made and the applicable limitations periods. We reverse the judgment and remand for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

Murray has been employed by Oceanside for many years and has taught at Oceanside High School since 1983. She is acknowledged to be an excellent teacher who has consistently received good evaluations. She continues to work as a teacher at the high school. We will summarize the course of conduct that she claims amounts to sexual harassment based on sexual orientation, after outlining the formalities of this litigation.

Beginning on November 13, 1995, Murray filed three government tort claims with Oceanside, alleging workplace harassment on the basis of her sexual orientation. ( 900 et seq.) The second and third claims were filed March 15, 1996, and June 19, 1996, respectively. All were rejected. Her complaint was filed in superior court on June 25, 1996, seeking damages for discrimination in violation of Labor Code section 1101 et seq. and for the tort of intentional infliction of emotional distress. Oceanside answered the complaint and extensive law and motion activity ensued. Oceanside brought two summary judgment motions and several reconsideration motions, which were denied. The matter was set for trial.

Shortly before trial, Murray obtained leave to file her supplemental and amended complaint to add several more recent allegations of a continuing course of harassing conduct. As summarized in this supplemental and amended complaint, Murray's claims are based upon an alleged pattern of discrimination and harassment based on her sexual orientation. Murray relies upon the public policy set forth in Labor Code sections 1101, 1102 and 1102.1 that prohibits discriminatory treatment in employment regarding political activity, also alleged to include discrimination based on actual and/or perceived sexual orientation. The same allegations also give rise to her second cause of action for intentional infliction of emotional distress based on Oceanside's abuse of authority and outrageous conduct. These various allegations may be grouped into six basic categories:

(1) In the spring of 1993, Oceanside failed to promote Murray to the position of student activities director, even though she was the top candidate (once another candidate withdrew), based on its disapproval of her lifestyle;

(2) From September 1993 through October 1994 she endured various insults, criticism, suggestive remarks concerning sex or alleging sexual activity on campus, and rumor-mongering by various fellow employees, and a consequent failure to investigate or take corrective action by Oceanside administrative officials. Murray was told if she pursued her complaints about these incidents, she would suffer adverse job consequences;

(3) In December 1994, January 1995 and February 1996 harassing and obscene graffiti was painted outside her classroom by unknown persons, and Oceanside administrators failed to investigate the problems even though the police were called;

(4) In January 1995 she was verbally harassed at a school in-service meeting when the principal mentioned Murray's sexual orientation to the audience, some of whom were unaware of this; harassing comments by coworkers ensued without proper management or preventative action by the administration;

(5) Although Murray received a prestigious statewide teaching award for biology in June 1995, the school district failed to accord her any appropriate recognition, which she believed was due to her sexual orientation; and

(6) In April 1996, September 1996, and June 1997 she had a class unfairly canceled and received unfair and retaliatory disciplinary measures, based on complaints by a parent and a fellow teacher, which were inappropriate and motivated by harassment.

The matter went to trial in January 1998 beginning with motions in limine by Oceanside to exclude all evidence pertaining to all claims by Murray except for the failure to achieve promotion. The trial court granted these motions, on the theory that only discriminatory conduct was prohibited by the Labor Code sections relied upon ( 1101, 1102 and 1102.1) such as hiring, firing and other employment decisions. The court rejected Murray's claims that she could plead the occurrence of other damaging actions in the workplace, creating a hostile environment, as actionable under the referenced statutes.

With the evidence thus limited, the trial court then turned to an analysis of the timeliness of Murray's remaining claim, the failure to promote. The parties reached a stipulation that Murray could not present any persuasive evidence that she did not learn of the facts leading her to believe she was denied the promotion based upon her sexual orientation until the time period after May 13, 1995 (six months before the first government tort claim was filed). Based on that stipulation, the court ruled the sole remaining actionable claim was untimely. The court agreed with Murray that sexual harassment per se was outside the normal scope of employment (based on case law, Accardi v. Superior Court (1993) 17 Cal.App.4th 341 (Accardi)), and was thus not subject to the exclusive remedy of workers' compensation. However, based on its view that only discrimination allegations fell within Labor Code coverage, and the only discrimination claim was untimely, the trial court found the claim for intentional infliction of emotional distress (IIED) could not survive. The court entered a defense judgment.

Murray appealed. By leave of court, two organizations have filed amici curiae briefs supporting Murray's position in this appeal, the Tom Homann Law Association and the Bay Area Lawyers For Individual Freedom. (Cal. Rules of Court, rule 14(c).)

DISCUSSION

To determine if the trial court correctly concluded that these allegations of a hostile work environment, based on harassment on the basis of sexual orientation, fell outside the scope of coverage of Labor Code section 1102.1, we are required to set forth the evolution of the Labor Code statutory scheme, dealing with political freedom in the workplace, in which Labor Code section 1102.1 appears. (Lab. Code, 1101 et seq.) We are then required to account for the effect of the Legislature's 1999 decision to repeal Labor Code section 1102.1 and place its protections within the FEHA instead, as part of section 12940, subdivision (h)(1). Because of that enactment, FEHA now deals with sexual orientation as a prohibited subject of...

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