Ortega v. Neil Jones Food Co.

• Decision Date: 21 January 2014
• Docket Number: Case No.: 12-CV-05504-LHK
• Citation: Ortega v. Neil Jones Food Co., Case No.: 12-CV-05504-LHK (N.D. Cal. Jan 21, 2014)
• Court: U.S. District Court — Northern District of California
• Parties: ROSA ORTEGA, Plaintiff, v. THE NEIL JONES FOOD COMPANY; JOSE MANZO; and DOES 1-10, inclusive, Defendants.

ROSA ORTEGA, Plaintiff, v. THE NEIL JONES FOOD COMPANY; JOSE MANZO;and DOES 1-10, inclusive, Defendants.

Case No.: 12-CV-05504-LHK

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION

Dated: January 21, 2014

ORDER DENYING DEFENDANT NEIL

JONES FOOD COMPANY'S MOTION

FOR SUMMARY JUDGMENT

PlaintiffRosa Ortega("Ortega") filed this action against her former employer the Neil Jones Food Company("Neil Jones") and one of her former co-workers Jose Manzo("Manzo") alleging that Ortega experienced a hostile work environment due to severe and pervasive sexual harassment.Ortega contends that Neil Jones and Manzo acted in violation of California's Fair Employment and Housing Act ("FEHA") and that Manzo engaged in gender violence and sexual battery in violation of California law.Before the Court is Neil Jones' Motion for Summary Judgment.SeeECF No. 68.Ortega has filed an Opposition, and Neil Jones has filed a reply.SeeECFNos. 72-73.Pursuant to Civil LocalRule 7-1(b), the Court finds this matter appropriate for resolution without oral argument and hereby VACATES the hearing on this Motion set for January 23, 2014, at 1:30 p.m.The Case Management Conference scheduled for January 23, 2014, at 1:30 p.m. remains as set.The Court, having considered the record in this case, applicable law, and parties' briefs, DENIES Neil Jones' Motion for Summary Judgment for the reasons stated below.

I.BACKGROUND

A.Factual Background

Ortega and Manzo were employees of Neil Jones.The two were seasonal workers at Neil Jones' tomato processing plant in Hollister.They worked from July through mid-October with no days off.Ortega's employment at Neil Jones commenced in 2002 or 2003 and terminated at the end of the 2012 season due to a knee injury.ECF No. 68, Ex. A ("Ortega Depo.")at 11.Ortega's duties involved cleaning the Neil Jones facility, and she was supervised by Sylvia De Marco("De Marco"), the sanitation supervisor.Id. at 12.Manzo's first season at Neil Jones was in 1991.Both Manzo and Ortega were members of a union, which had a grievance and arbitration process to mediate disputes between Neil Jones and union members.

Ortega's job duties included using pressure washers to clean parts of the Neil Jones facility.ECF No. 70("Ortega Decl.")¶ 5.As such, during the workday, Ortega changed in and out of rain suits to protect her from the washers.Id.Ortega and other female employees utilized an isolated section of the facility to change in and out of the suits.Id.Such privacy was necessary because employees' clothes under the rain suits routinely were so wet that they clung to employees' bodies, thus exposing employees' buttocks and breasts.Id.Accordingly, after female employees changed out of the rain suits, they went to a bathroom to change into dry clothes.Id.

Ortega began noticing that Manzo, a male co-worker, was coming around the rain suit changing area during the 2009 season.Id.¶ 9.About three times a week, Manzo would come and look at Ortega and her female co-workers as they were changing out of the rain suits in the private area.Id.Ortega began to complain to De Marco about Manzo's presence in this area.Id.¶ 10;Ortega Depo.at 20.Specifically, Ortega complained ten times about Manzo's activities between 2009 and 2012.OrtegaDecl. ¶ 10;Ortega Depo.at 21.De Marco indicated that she would talk to Manzo and told Ortega not to worry about Manzo because "he is just an old man."OrtegaDecl. ¶ 10.Meanwhile, in 2010, one of Ortega's female colleagues, Elizabeth Garay, also complained about Manzo to De Marco.ECF No. 68, Ex. D ("De Marco Depo.")at 8-9.De Marco, after witnessing Manzo going to the area where female employees were changing, asked Manzo why he was going there.Id. at 9.Manzo told De Marco that his gloves were stored in that area.Id.DeMarco instructed Manzo to find a different spot for his gloves and reported the incident to Manzo's supervisor and to her own supervisor.Id.

At the same time, during the 2009 to 2012 seasons, Manzo began following Ortega around the workplace. OrtegaDecl. ¶ 11.Ortega shooed Manzo away and admonished him to go back to his work area.Id.Ortega complained to De Marco about Manzo's following of Ortega several times in 2011 and 2012. Id.¶¶ 12-16.De Marco instructed Ortega not to worry about Manzo because he was "an old man" and stated that she had spoken to Manzo, but that Manzo would not listen.Id.¶¶ 13-16.

During the 2009 to 2012 seasons, Manzo also approached Ortega and said "Ay, Rosita" several times.During the 2009 season, this occurred three times.Ortega complained to De Marco, who said she would talk to Manzo.Id.¶¶ 17, 19-20.When the incident reoccurred, and Ortega again complained, De Marco stated that she had already spoken to Manzo, but would speak to him again.Id.¶ 19.When the third incident occurred, Ortega complained to Daniel Quintana("Quintana"), who was De Marco's supervisor.Quintana told Ortega that he and De Marco would talk to Manzo.Id.¶ 20.The "Ay, Rosita" comments occurred seven times in 2010, three times in 2011, and two times in 2012. Id.¶¶ 21-23.Ortega complained to De Marco nine times, and De Marco repeatedly instructed Ortega to ignore Manzo because he was an "old man."Id.

On August 20, 2012, at approximately 2 p.m., while Ortega was washing with a pressure hose, Manzo walked up behind her, brushed his genitals up against her buttocks, and whispered "Ay, Rosita" in her ear.De MarcoDepo. at 24;Ortega Depo.at 20-23.Ortega began crying, and a co-worker came up to her and said that the co-worker could not believe that "he just did that to you."OrtegaDecl. ¶ 24.Immediately after the incident, Ortega complained to De Marco.OrtegaDepo. at 25-26.De Marco stated that she"didn't know what to do," to which another supervisor who was in De Marco's office stated, "[y]ou need to do something about this."OrtegaDecl. ¶ 24.

Ortega then went to the office of the Human Resources Manager, Judy Vanderpool("Vanderpool") along with a Human Resources Clerk, who served as an interpreter.OrtegaDepo. at 26-27.Ortega complained about the incident, through the interpreter, to Vanderpool.Id.Ortega, who did not know Manzo's last name, identified him using employee badge photos provided toher.Id.Vanderpool asked if Ortega had complained to De Marco.OrtegaDecl. 1} 25.Ortega answered affirmatively, and Vanderpool had asked if De Marco had prepared a written report.Id.When Ortega indicated that De Marco had not prepared such a report, Vanderpool indicated that she could not take any action without such a report.Id.Meanwhile, De Marco conferred with Manzo's supervisor.ECF No. 68, Ex. E ("Avila Depo.")at 7-8.

The next morning, Vanderpool called a meeting with Manzo, his supervisor, and another manager, who served as Manzo's interpreter.Id. at 9-10.Vanderpool informed Manzo of Ortega's complaint, and read him a written warning that Vanderpool had prepared.Id. at 10.The warning stated that Neil Jones has "had prior complaints from female workers that you stare at them and it makes them uncomfortable."ECF No. 71, Ex. 2.Vanderpool suspended Manzo for two days and placed him on probation for the remainder of the season because, "it seemed apparent that [Ortega] was very upset and something took place."Id.(emphasis added);ECF No. 68, Ex. B ("Vanderpool Depo.")at 17.Vanderpool admonished Manzo not to disclose the nature of their conversation.AvilaDepo. at 11.Manzo denied the allegations, but accepted the punishment.VanderpoolDepo. at 17, 35.

The next day, Ortega complained to Vanderpool that she disagreed with the level of punishment meted out on Manzo.Id. at 15-16.Ortega also informed Vanderpool of previous incidents with Manzo.Id. at 11.Vanderpool inquired as to why Ortega did not report these prior incidents to Vanderpool.Id.Ortega contends that she was told at her orientation that such complaints were to go to her direct supervisor, which is why she did not report incidents to Vanderpool.OrtegaDecl. ¶ 26.Vanderpool continued the investigation, but could not substantiate Ortega's allegations with respect to previous incidents.VanderpoolDepo. at 15-16.Vanderpool later informed Ortega that Neil Jones was unable to substantiate Ortega's allegations with respect to the incidents prior to August 20, 2012.Id.

Ortega contends that she was harassed by other co-workers as a result of the incident with Manzo.OrtegaDepo. at 29.Specifically, one co-worker asked Ortega whether Ortega "was the one who had her ass grabbed" and another co-worker mimicked Manzo grabbing Ortega's buttocks as Ortega removed her rain suit.OrtegaDecl. ¶ 27-28.Furthermore, Ortega contends that shecontinues to encounter Manzo.OrtegaDepo. at 34.Specifically, three days after the incident, Manzo and Ortega were on the same stairwell, where Manzo looked at Ortega directly and laughed.OrtegaDepo. at 34;OrtegaDecl. ¶ 28.Moreover, Ortega had to see Manzo every day for the month following Manzo's suspension because they worked in the same area.OrtegaDecl. ¶ 29.Manzo stared at Ortega and laughed at her.Id.

Ortega contends that she has suffered severe emotional distress as a result of Manzo's three-season-long harassment.Id.¶ 31.Ortega has had difficulty sleeping, nightmares, and now fears men, including her husband.Id.Ortega also experienced severe nervousness at work.Id.¶ 32.She cried at work and had difficulty concentrating on tasks that she had been assigned.Id.

B.Procedural History

Ortega filed a complaint against Neil Jones with the California Department of Fair Employment and Housing and requested an immediate right-to-sue notice, which the agency granted on September 4, 2012.Compl., Ex. A. On September 19, 2012, Ortega filed the Complaint in the instant litigation in the California Superior Court for San Benito County.See Compl.Neil Jones, with the consent of Manzo, removed...